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an important bearing on the merits of this whole cause.—The first is this, that from the day when the Respondent was appointed Judge of Probate, down to the period at which these articles of impeachment close from the year 1805 to 1821—there is not a single case, with the exception of that alleged by Ware, in which it is even pretended that any secrecy was designed or attempted by the Respondent: there is not a single case, in which he is even accused of having wished to keep anything out of sight, or to conceal any fact in his administration, any charge which he had made, or any fee which he had taken. The evidence, on which you are to judge him, is evidence furnished by himself; and instead of being obliged to seek for testimony in sources beyond the Respondent's control, it is his own avowed actions, his public administration, and the records of his office, which the Managers of the prosecution alone have been able to produce. And yet he is charged with having acted wilfully and corruptly; as if it were possible that a magistrate, in a high and responsible station, with the eyes of the community upon him, should, for near twenty years, pursue a course of corrupt and wilful maladministration, of which every act and every instance was formally and publicly put on record by himself, and laid open in the face of the community. Is this agreeable to the laws of human nature? Why, sir, if the Respondent has so long been pursuing a course of conscious, and wilful, and corrupt maladministration, why do we discover none of the usual and natural traces of such a course-some attempt at concealment, some effort at secrecy; and in all the numberless cases, in which he had opportunity and temptation, why is not even a suspicion thrown out, that he has attempted to draw a veil of privacy over his alleged ertortions ?--Is it in reason that you should be obliged to go to his own records for the proof of his pretended crimes? And can you, with even the color of probability, appeal to a course of actions unsuspiciously performed in the face of Heaven, to support an accusation of offences in their very nature private, concealed, and hidden?
Another consideration of a general nature to which I earnestly ask the attention of this Hon. Court, is this, that after all these accusations, which have been brought together against the Respondent, in all these articles of impeachment, and with all the industry and zeal, with which the matter of them has been furnished to the Hon. Managers, he is not accused nor was suspected of the crime, most likely to bring an unjust judge to the bar of this Court. Show me the unjust judgment he has rendered, the illegal order he has given, the corrupt decree he has uttered, the act of oppression he has committed. What, sir, a magistrate, charged with a long and deliberate perseverance in wilful and corrupt administration, accused of extortion, thought capable of accepting the miserable bribe of a few cents or a few dollars, for illegal and unconstitutional acts--and that, too, in an office, presenting every day the most abundant opportunities, and if the Respondent were of the character pretended, the most irresistible temptation to acts of lucrative injustice; and yet, not one instance of a corrupt, illegal, or oppressive judgment! I do ask the permission of this Hon. Court and of every member of it, to put this
to his own conscience. I will ask him, if he can now name a more able and upright magistrate, as shown in all his proceedings and judgments, in all the offices of probate in the State? One whose records are more regularly and properly kept, whose administration is more prompt, correct, and legal,—whose competency to the duties is more complete, whose discharge of them is more punctual? I put this earnestly, sir, to the conscience of every member of this Hon. Court. I appeal more especially to my honorable friend, (Mr. Fay) entrusted with a share of the management of this prosecution, and who has been for twenty years an inhabitant of the county of Middlesex. I will appeal to him, sir, and I will ask him, whether if he knew, that this night his wife should be left husbandless and his children fatherless, there is a magistrate in the State, in whose protection he had rather they should be left, than in that of the Respondent? Forgetting, for a moment, that he is a prosecutor, and remembering only that he is a citizen of the same county, a member of the same profession, with an acquaintance of twenty years standing, I ask him if he will say that he believes there is a county in the State, in which the office of Judge of Probate has been better administered for twenty years, than it has been in the county of Middlesex by this Respondent. And yet, sir, you are asked to disgrace him. You are asked to fix on him the stigma of a corrupt and unjust judge, and condemn him to wear it through life.
Mr. President, the case is closed! The fate of the Respondent is in your hands. It is for you now to say, whether, from the law and the facts as they have appeared before you, you will proceed to disgrace and disfranchise him. If your duty calls on you to convict him, convict him, and let justice be done! but I adjure you let it be a clear undoubted case. Let it be so for his sake, for you are robbing him of that, for which with all your high powers, you can yield him no compensation; let it be so for your own sakes, for the responsibility of this day's judgment is one, which you must carry with you through your life. For myself, I am willing here to relinquish the character of an advocate, and to express opinions by which I am willing to be bound, as a citizen of the community. And I say upon my honor and conscience, that I see not how, with the law and constitution for your guides, you can pronounce the Respondent guilty. I declare, that I have seen no case of wilful and corrupt official misconduct, set forth according to the requisition of the constitution, and proved according to the common rules of evidence. I see many things imprudent and ill judged; many things that I could wish had been otherwise; but corruption and crime I do not see. Sir, the prejudices of the day will soon be forgotten; the passions, if any there be, which have excited or favored this prosecution, will subside; but the consequence of the judgment you are about to render will outlive both them and you. The Respondent is now brought, a single unprotected individual, to this formidable bar of judgment, to stand against the power and authority of the State. I know you can crush him, as he stands before you, and clothed as you are with the sovereignty of the State. You have the power “to change his countenance, and to send him away.”—Nor do I remind you that your judgment is to be rejudged by the community; and as you have summoned him for trial to this high tribunal, you are soon to descend yourselves from these seats of justice, and stand before the higher tribunal of the world. I would not fail so much in respect to this Hon. Court, as to hint that it could pronounce a sentence, which the community will reverse. No sir, it is not the world's revision, which I would call on you to regard; but that of your own consciences when years have gone by, and you shall look back on the sentence you are about to render. If you send away the Respondent, condemned and sentenced, from your bar, you are yet to meet him in the world, on which you cast him out.—You will be called to behold him a disgrace to his family, a sorrow and a shame to his children, a living fountain of grief and agony to himself.
If you shall then be able to behold him only as an unjust judge, whom vengeance has overtaken, and justice has blasted, you will be able to look upon him, not without pity, but yet without remorse, But, if, on the other hand, you shall see, whenever and wherever you meet him, a victim of prejudice or of passion, a sacrifice to a transient excitement; if you shall see in him, a man, for whose condemnation any provision of the constitution has been violated, or any principle of law broken down; then will he be able-humble and low as may be his condition—then will he be able to turn the current of compassion backward, and to look with pity on those who have been his judges. If you are about to visit this Respondent with a judgment which shall blast his house; if the bosoms of the innocent and the amiable are to be made to bleed, under your infliction, I beseech you to be able to state clear and strong grounds for your proceeding. Prejudice and excitement are transitory, and will pass away.. Political expediency, in matters of judicature, is a false and hollow principle, and will never satisfy the conscience of him who is fearful that he may have given a hasty judgment. I earnestly entreat you, for your own sakes, to possess yourselves of solid reasons, founded in truth and justice, for the judgment you pronounce, which you can carry with you, till you go down into your graves; reasons, which it will require no argument to revive, no sophistry, no excitement, no regard to popular favor, to render satisfactory to vour consciences; reasons which you can appeal to, in every crisis of your lives, and which shall be able to assure you, in your own great extremity, that you have not judged a fellow creature without mercy.
Sir, I have done with the case of this individual, and now leave him in your hands. But I would yet once more appeal to you as public men; as statesmen; as men of enlightened minds, capable of a large view of things, and of foreseeing the remote consequences of important transactions; and, as such, I would most earnestly implore you to consider fully of the judgment you may pronounce. You are about to give a construction to constitutional provisions, which may adhere to that instrument for ages, either for good or evil. I may perhaps overrate the importance of this occasion ! the public welfare; but I confess it does appear to me that if this
body give its sanction to some of the principles which have been advanced on this occasion, then there is a power in the State above the constitution and the law; a power essentially arbitrary and concentrated, the exercise of which may be most dangerous. If impeachment be not under the rule of the constitution and the laws, then may we tremble, not only for those who may be impeached, but for all others. If the full benefit of every constitutional provision be not extended to the Respondent, his case becomes the case of all the people of the Commonwealth. The constitution is their constitution. They have made it for their own protection, and for his among the rest. They are not eager for his conviction. They are not thirsting for his blood. If he be condemned, without having his offences set forth, in the manner which they, by their constitution have prescribed; and proved, in the manner which they, by their laws have ordained, then not only is he condemned unjustly, but the rights of the whole people disregarded. For the sake of the people themselves, therefore, I would resist all attempts to convict by straining the laws, or getting over their prohibitions.—I hold up before him the broad shield of the constitution; if through that he be pierced and fall, he will be but one sufferer, in a common catastrophe.
IN THE CASE OF GIBBONS vs. OGDEN, IN THE SUPREME COURT OF
THE UNITED STATES, FEBRUARY TERM, 1824.
This was an appeal from the Court for the Trial of Impeachments and Correction of Errors of the State of New York. Aaron Ogden filed his bill in the Court of Chancery of that State, against Thomas Gibbons, setting forth the several acts of the Legislature thereof, enacted for the purpose of securing to Robert R. Livingston and Robert Fulton, the exclusive navigation of all the waters within the jurisdiction of that State, with boats moved by fire or steam, for a term of years which has not yet expired ; and authorising the Chancellor to award an injunction, restraining any person whatever from navigating those waters with boats of that description. The bill stated an assignment from Livingston and Fulton to one John R. Livingston, and from him to the complainant, Ogden, of the right to navigate the waters between Elizabethtown, and other places in New Jersey, and the city of New York; and that Gibbons, the defendant below, was in possession of two steam boats, called the Stondinger and the Bellona, which were actually employed in running between New York and Elizabethtown, in violation of the exclusive privilege conferred on the complainant, and praying an injunction to restrain the said Gibbons from using the said boats, or any other propelled by fire or steam, in navigating the waters within the territory of New York. The injunction having been awarded, the answer of Gibbons was filed, in which he stated, that the boats employed by him were duly enrolled and licensed, to be employed in carrying on the coasting trade, under the act of Congress, passed the 18th of February, 1793, c. 8. entitled, “ An act for enrolling and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the saine.” And the defendant insisted on his right, in virtue of such licenses, to navigate the waters between Elizabethtown and the city of New York, the said acts of the Legislature of the State of New York to the contrary notwithstanding. At the hearing, the Chancellor perpetuated the injunction, being of the opinion, that the said acts were not repugnant to the constitution and laws of the United States, and were valid. This decree was affirmed in the Court for the Trial of Impeachments and Correction of Errors, which is the highest Court of law and equity in the State, before which the cause could be carried, and it was thereupon brought to this Court by appeal.
MR. WEBSTER, for the appellant, admitted, that there was a very respectable weight of authority in favor of the decision, which was sought to be reversed. The laws in question, he knew, had been deliberately re-enacted by the Legislature of New York; and they had also received the sanction, at different times, of all her judicial tribunals, than which there were few, if any, in the country, more justly entitled to respect and deference. The disposition of the Court would be, undoubtedly, to support, if it could, laws so passed and so sanctioned. He admitted, therefore, that it was justly expected of him that he should make out a clear case; and unless he did so, he did not hope for a reversal. It should be remembered, how