Biographical sketches of the bench and bar of South Carolina, vol. I, Part 14

Author: O'Neall, John Belton, 1793-1863
Publication date: 1859
Publisher: Charleston, S.C. : S.G. Courtenay & Co.
Number of Pages: 484


USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 14


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Mr. Tradewell, of Richland, agreeing with the views of the last gentleman, moved to lay the resolution of accusal on the table.


Mr. Huger, of Charleston, wanted to know upon what the House was going to act. If there was anything substantial to be urged against the Judge he wanted to hear it, because he knew it could be most triumphantly met. He wanted nothing concealed. He knew that to be the desire of Judge Richardson.


Mr. Davie, of Chester, said he was no lawyer, and was not acquainted with legal forms; but if specifications be neces- sary, let the consideration of the resolution be postponed, and appoint a committee to prepare the charges in proper form. He was indisposed to shun an investigation on a technical ground. It was due to the State, and to the Judge, that the allegation should be inquired into, and if witnesses be neces- sary, let them be examined. He deprecated collateral issues, and protested against any vote but a direct one on the charge of incapacity from bodily and mental infirmity. He had frequently heard it asserted in the upper districts, that the Judge was incompetent from infirmity. The House has instituted proceedings, and is bound to receive, examine and decide the case; otherwise we should be recreant to the duty which we owe to the people, and to the accused. If the charge rest on rumor alone, the Judge has nothing to fear, and he would rejoice at his acquittal.


Mr. Harllee said that the amendment of 1828 was suffi- ciently specific, and that it is unnecessary to go beyond the terms of the amendment, which are fully stated in the resolu- tion before the House. Nothing beyond that is required. He was not, on this occasion, an accuser, nor would he extenuate if there be good reason for the allegation of infirmity either of body or mind. It was only to the form of the proceeding that he would speak and desired to confine his remarks. The accuser is bound to establish his charge by proof, and wit- nesses should be examined, and the evidence to support the accusation required, if it can be produced. It is proper, he said, that we should meet the question. It is due to the State,


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to this House, and to the Judge, that the want of form should be no obstacle to a full and fair examination of the charge preferred. If necessary, let a committee be appointed to put the allegation in such form as may be regarded proper for the investigation. The discharge of circuit duty by the Judge has not been altogether satisfactory to the public. On questions of constitutional law, and on those depending on the applica- tion of the principles of the common law, his opinions are sound and able. Judge Richardson is not disabled from dis- charging his official duties from any mental infirmity, and although there may be physical debility, it is not such as constitutes the infirmity of body which the Constitution con- templates, or which disables the incumbent to perform his duties.


Judge Richardson now inquired of the Speaker whether it was expected he should then address the House.


The Speaker replied that the House had made no order oll the subject.


Mr. Northrop then addressed the Speaker, and said :


The resolution now before the House for its consideration, affects the personal rights and official station of the learned Judge at our Bar. It contains a general charge of "perma- nent, bodily, and mental infirmity," disabling that gentleman from "discharging the duties of his office."


The Constitution provides, that the resolution in such a case contain "grounds of the proposed removal ;" and that "a copy of it shall be served on the officer, and a hearing be allowed him." In the present instance, this body has pro- ceeded no further than to notify the venerable gentleman, that it is about to consider a resolution, in which he is personally concerned, and of which a copy has been served upon hin.


The purpose of that resolution is to vacate the office of a Judge, and to pronounce an individual who has long and honorably served the State, incompetent to perform the duties of his station.


It was, therefore, just, that Judge Richardson should be pre- sent, that he may become informed of the allegations against him, and the proofs adduced; and, that he may have an


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opportunity of vindicating himself. It was also proper, that this House should not decide so serious a question without such a precaution.


The Hon. gentleman is accordingly in attendance.


The members of the House who are to vote upon the reso- lution proposed by the gentleman from Barnwell, are now prepared to hear its advocates. It seems irregular, however, for them to expect that the party charged should be put on his defence, before he is served with a copy of " the grounds of the proposed removal," as the Constitution directs, or until the evidence of those grounds shall have been submitted by the movers of the resolution.


If the resolution be defective in itself, the House should refuse to pass upon it, and the Judge should not be required to go into any defence, until after his accusers shall have made out their case. The present proceeding is, in form and sub- stance, a trial, and the actors should conclude and ask judg- ment before the accused be called on even to state his defence. How can this House, or any other reasonable body, propose such an absurdity, as that the accused should prove a negative before he knows what he is to deny ?


If the mover of this resolution has not prepared "the grounds of the proposed removal" as the Constitution requires, for the consideration of the House, and for the service of a copy upon the Judge, how can its members be prepared to vote upon a question involving the tenure of a judicial office under the Constitution? Do not the very terms of the amendment of the Constitution, in 1828, show that a trial is intended accor- ding to the order of judicial proceedings? Are not some specifications requisite to establish the general charge of disa- bility ? Does not the "hearing" allowed presuppose, on the part of the defendant, a knowledge of the grounds and evidence of the charges and of their specifiations? If the resolution before the House be esteemed sufficiently regular and explicit, and entitled to the consideration and decision of the House, this is not the stage of the proceeding, when the venerable and honorable gentleman, now in attendance, should be heard. The resolution was vague and indefinite, and there


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was no fact yet adduced in evidence. There was nothing for the House to act upon, and nothing for the accused to answer. It was incumbent on the mover, who was the actor in this most novel case, to proceed with its prosecution.


The Judge was ready to make his defence, when the House was ready to hear him. As one of its members, Mr. Northrop was willing to make a proper disposition of the matter before it, however painful the duty might become; but not to per- petrate such an absurdity as to require the Judge to defend himself, when no case had been made against him. Without hearing him, the House could pronounce no judgment. If the predicament were an awkward one, its explanation was to be expected from the gentleman who had introduced the reso- lution, so imperfect in itself and so destitute of proof. Should the House consider the resolution defective, or unsustained by evidence, the Judge was entitled to his discharge from the present prosecution, whatever further proceedings the mover or its friends might hereafter institute.


Mr. T. Thomson, of Abbeville, said, that the resolution before the House contained a general charge, upon which no conviction could be founded. A charge in this form could not stand investigation in any court of justice in South Caro- lina. In every indictment the circumstances of the case are set forth particularly, and then the accused is informed of the offence alleged, and can prepare for his defence. Besides, no man can be convicted without evidence ; commonly, without the testimony of witnesses. No testimony has been produced, in support of this proceeding, and without proof members cannot understandingly cast their votes. It is admitted that popular clamor only is relied upon as proof of the alleged "incapacity" in this case. The lowest criminal in this State could not be convicted upon a charge so indefinite, and such feeble proof; and certainly the same measure of justice and right should be extended to the highest judicial officer known to the law. This proceeding, though now directed against an aged and enlightened Judge, may be employed, on some future occasion, against some member of the Judiciary in the prime of life, and assails the independence of the Judiciary.


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Mr. W. D. Porter, of Charleston, said : This is truly an extra- ordinary proceeding. A venerable Judge, who has long and faithfully served the State, has been brought to the Bar of the House to have a hearing, upon a charge which involves the for- feiture of his high office. He is here, and asks for the grounds and the proofs upon which his removal is to be founded. The answer is, that the charge is " bodily and mental infirmity," which disables him from the discharge of the duties of his office. But what sort of mental infirmity is he charged with ? Is it lunacy, insanity, or the loss of memory, or some other intellectual faculty? What is his " bodily infirmity?" Is it the loss of an eye or a limb? The meanest culprit, in a Court of Sessions, is entitled to a precise statement of the charge against him, before he can be called upon to answer. Is a Judge of your Superior Courts, one of the highest officers known to your Constitution and laws, entitled to less consid- eration, less opportunity of making good his defence. But where is the proof? The case must be made out before the respondent can be required to answer. The actors in this proceeding are called upon for their testimony and their wit- nesses ; and their reply is, that they rely upon " public clamor." Public clamor-a thing that is everywhere and nowhere- that cannot be met or traced-that has neither home nor pa- ternity-neither credit nor responsibility. Would such testi- mony as this find an instant toleration in a Court of Justice ? Let the respondent, as a citizen, if not as a high functionary, find the same protection here that the humblest individual receives at the Bar of your Court of Sessions. Nothing more is asked for him, and nothing less should be awarded. But even if the charge were sufficiently precise, and the proof perfectly ample and unexceptionable, still the question remains, whether the House can take any jurisdiction of the matter. The Judge was elected under the Constitution of 1790. The tenure of office under that Constitution was, that he should hold his commission during good behaviour, and that he should be subject to removal only by impeachment for misdemeanor in office. The amendment of 1828 subjects any civil officer to removal for permanent, bodily or mental infirmity, by a vote


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of two-thirds of the whole representation of each branch of the Legislature. So far as regards the judicial office, this is an alienation of the tenure, inasmuch as it subjects the officer to removal upon grounds, and in a manner not contemplated or provided in the original constitution; and when applied (as it is sought to be in this case) to an officer elected before its adoption, it works a clear breach of the obligation of the con- tract between the State and the officer. A civil office is a con- tract ; it vests valuable rights and privileges; it entitles the incumbent to a certain salary, and devolves upon him the ex- ercise of certain functions, which are an honor as well as a duty. The federal constitution, which is the paramount law of the land, says that " no law shall be passed impairing the obligation of contracts." This is the fundamental law, and all State legislation must conform to it. The people in Con- vention may override and overrule all law and Constitution, but this is a revolutionary right. So long as we live in obedi- ence to the civil government of the Federal Union, this con- stitutional provision is obligatory upon us. We cannot alter the tenure of the judicial office by legislation subsequent to the election of the officer, either by a simple enactment, or by an amendment of the Constitution. It may be said that there is a power of amendment in our Constitution, and that the office is taken subject to the exercise of this power. But in that very constitution, our own, as well as that of the United States, is, the limitation, that no ex post facto law, or law impairing the obligation of contracts, shall ever be passed. This is a special restriction upon the legislative power of amend- ment. If then, an office be a contract, there is an end of the question ; and that it is as much so as a grant or a franchise, rests upon the best judicial authority.


If this view of the constitutional question be correct, it stops this procceding in the threshhold. The Legislature has no cognizance of the case, and should at once discontinue the whole process. Enough and too much has been already done, and this House will best consult, not only the feelings and rights of the respondent, but its own sense of justice and self-respect, by at once declaring, that it has no juri s


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diction of the cause, and will entertain no further cognizance of it.


Mr. Phillips, of Charleston, said : The question before the House is, shall we hear the Judge ? We have requested his attendance here, this day, to answer to the charge alleged in the resolution, and instead of hearing him, the attention of the House has been directed to a protracted discussion on the forms of trial. He desired to hear the Judge, and hoped that the House would preceed to do so.


Mr. Hunt, of Charleston, said : This is the first case under this amendment of the constitution ; and as it will be drawn into a precedent, it is important that it should be shaped by principle. The constitution has two clauses : the first defines the general grounds-disability " by reason of any permanent, bodily, or mental infirmity." Then comes the proviso, that the resolution to remove the officer, " shall contain the grounds for the proposed removal; and before it shall pass either House, a copy of it shall be served on the officer, and a hear- ing allowed him." Now, it is a settled rule of construction, that every part of a law, especially of a fundamental law, should have its weight, and is supposed to mean something. If the general charge was sufficient, why provide for a state- ment of " grounds ?" What sense was there in securing a hearing to one only accused on common rumor ? Who was safe, if put on his defence against such an accusation ? rumor is proverbially falsehood ; to deny what she says is enough, since you cannot grapple with her. I contend that every principle of justice also requires that the accused be never put to answer vague and intangible charges. The fact and cir- cumstances must be specified to a reasonable certainty. They being denied, put the truth of the charges in issue; and no one questions that "he, who alleges, must prove his allega- tions." This is the nature of a criminal charge, as it affects the right of the incumbent to a valuable office ; and I ex- pressly inquired, "if the mover of the resolution had any proof," and he disavowed any intention of offering any. As to referring it to a committee to take the testimony, it was against common right. This House acts as Judges, and in


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all criminal proceedings the accused is entitled to be con- fronted with his witnesses, and the jury must judge of the veracity of the witnesses by their manner and conduct in Court. The resolution was served on the Judge, and he replied that he knew of no good reason for the allegation it con- tained. Here was an affirmative and negative, a direct issue affecting the office of the accused ; and yet we are about to put him on his defence, upon a vague charge, with no speci- fication, and supported by no evidence. The principles of the common law are so just as to secure a fair trial, on specific accusation, supported by testimony even to the vilest male- factor; and here we are violating all these safeguards to innocence, to one of the highest officers of the State. Mr. Hunt said he utterly repelled the idea that it was the intention of the constitution to confer on the Legislature the arbitrary power, accusing a great officer by popular clamor, and with- out evidence or even specific charges, and to turn him out of office. There is no instance in any country on earth, where such a course is pursued, unless in the most absolute despot- isms. It is a violation of all the principles of Anglo-Saxon liberty ; and it would be a reproach to the framers of the con- stitution to suppose they intended that this portion of it should be so construed. If the movers of the resolution con- fess that they have no facts to support it, it should be rejected on that ground alone. Individually, Mr. Hunt was glad to hear the venerable Judge scatter this baseless charge to the winds. One gentleman asks what is the opinion of those who know him. As one, said Mr. Hunt, I can say that even within the last five years, his judgments rank among the best delivered by the bench. He is a well trained constitutional lawyer, well versed in all the doctrines of mercantile law ; and although time has rendered him less able to endure the exposure of riding the circuits, when in Court few men bring to the discharge of their judicial duties a more vigorous intel- lect, and none a more upright and independent spirit.


Once establish the precedent contemplated in the resolution to remove a Judge and put him on his defence, from mere rumor, and the Judges will be continually liable to be


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harassed, mortified and annoyed by some disappointed suitor, thus degrading those officers, on whose independent and elevated character depends the fearless and pure adminis- tration of justice. It will sap the foundation of judicial independence.


Mr. Yancey, of Edgefield, moved to lay the resolution on the table, that he might introduce another, and take the sense of the House on the question of jurisdiction. Judge Richard- son was elected before the amendment of 1828, and is not amenable to its provisions. His tenure of office is under the Constitution of 1790, and if removable for any cause, the pro- ceeding should be by impeachment, which is the form pre- scribed by the Constitution, and not by resolution, which can only apply to such civil officers as have been elected since 1828 ; and should the House come to this conclusion, it will supersede the further consideration of the resolution, and dis- charge the proceedings.


Mr. Tradewell, of Richland, contended that the Constitu- tional amendment contemplates a full statement of the grounds of disability, and that a vague and general allegation is neither a compliance with the provisions of the Constitution, nor just to the accused.


Mr. Desaussure, of Richland said : The resolution before the House presents a subject of grave and important consider- ation, and whatever difference of opinion may be entertained as to the propriety of the amendment of 1828, the question now before us is, will you give effect to the Constitutional amendment, or treat it as a dead letter. It was intended to supersede the formalities of a trial-possibly a dangerous innovation, which, in evil and high party times, may be per- verted to bad purposes, and become dangerous in practice ; but there it is the supreme law of the land.


The incapacity intended and contemplated by the Consti- tution must be gross and flagrant, and whether it has reached that stage, is a question of difficult solution. Infirmity of body and mind is of degree and opinion, and how can articles of impeachment be framed to meet each individual case? The forms of trial are properly applicable to impeachments, but


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this is not an impeachment where the trial is ordered and the forms prescribed by the Constitution. No such trial is directed by the amendment. How would you prepare the articles, and how judge of the degrees of impaired faculties ? He did not believe that the Judge's case came within the pro- visions of the amendment to the Constitution under which this resolution is framed. But let us not surround the amend- ment with difficulties fatal to its letter, and which will render it inoperative.


Mr. Memminger, of Charleston, said, that he had listened to the remarks of the honorable gentleman who had addressed the House, with an earnest desire to learn the proper course to pursue in so novel a case. It would have been wiser for the House to have considered the form of the accusation, and whether it was made for sufficient cause, before they undertook to notify the accused, and summon him before its Bar. The highest judicial functionary now stood before us ; a man who, for thirty years, had served the country with distinguished integrity and faithfulness, was brought before us, upon a pro- ceeding which threatened to deprive him of his dearest rights. Certainly, before we entertained the proceeding, we should, at least, have inquired into the prima facie testimony. But the House has acted-it has notified the party-it has virtually decided that there is sufficient reason for entertaining the question-it has taken it as established, that the allegation of a member of this House, made upon his responsibility to the country, is sufficiently grave to put the party to answer-that party is now before us, and we must determine how the matter shall proceed. An inquiry of this kind can best be pursued, by examining the previous history of similar pro- ceedings, and the forms required in their conduct.


The English law, from which all our legal and parliamen- tary forms are derived, allowed three methods of reaching a public functionary. The first was by impeachment. The course pursued was first, a vote of the House of Commons, ordering articles of impeachment upon such probable cause as that House should judge sufficient. Thus far, the proceed- ing was altogether ex parte. The accused party was neither


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summoned nor heard, and the House satisfied itself as to the propriety of the proceeding, either by taking ex parte testi- mony before a committee, or in any other way which was deemed advisable. Upon the vote being decided in favor of an impeachment, articles were drawn up setting forth partic- ulars, and these were sent up to the House of Lords, under certain managers appointed from their own body by the House of Commons; at this point of the proceedings, the accused was made a party for the first time, and the matter then assumed the form of a cause to be tried upon proof and defence before the Lords as Judges. The House of Commons were virtually the Grand Jury and prosecutors, and the other House united in itself the functions of the Court and Petit Jury to try the cause.


The second mode of proceeding known to the English law was by bill of attainder. Under this form were perpetrated some of the most atrocious acts of injustice of which history speaks. It differed essentially from an impeachment, in that each House of Parliament acted upon the subject as an origi- nal matter, and each must concur in its adoption as in any common case of legislation. Each House, therefore, united in itself the character of prosecutor and Judge, and had an equal right to pronounce final judgment upon the accused; but the judgment had no legal existence until the bill had passed through all the forms of legislation. When a bill of attainder was proposed against any one, the House satisfied itself in any way it thought best, as to the propriety of proceeding against the party, and before the bill passed, the party was summoned before the House, and allowed the benefit of counsel, and the evidence on both sides was heard, and the judgment thereon was rendered in deciding upon the passage of the bill.


The same course of proceeding was pursued in the other House, and the party thus had the benefit of two trials, with the ultimate veto of the crown upon both. Strange as it may seem, this course of proceeding, which appears upon its face to offer so much more protection to the accused than a mere impeachment, was in reality the instrument by which the greatest acts of parliamentary tyranny were committed.


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And history has shown us, as in the case of the Earl of Strafford, that an impeachment, with its single trial, before one body of responsible Judges, afforded more protection to the accused than a bill of attainder, with its double trial and two-fold defences.


Experience, however, had proved to the English nation that neither mode was sufficiently effectual to reach the case of a Judge, who might be obnoxious to many objections which would destroy his usefulness, and still, either from the nature of the objections, or the difficulty of proof, no removal of him could be effected by either of the above modes. The revival of popular rights, which commenced with the revolution of 1688, which drove the Stuart family from the throne, led grad- ually to the adoption of a statute in the reign of William the Third, which enacted that the Judges should be removed from office upon the address to the crown of both Houses of Parlia- ment. This produced the third mode by which the judicial office is reached. It will be perceived, that there are essential differences between this last mode and the two first. Among the most obvious are these: 1st. That while the two first affect the person of the accused, and may result in punishing him with pains and penalties, the last merely applies to the parti- cular office, and in no way affects the person of the accused and merely separates him from the office, leaving him unin- jured in every other respect. 2d. The mode of removing the Judge upon an address of both Houses, implies no trial, no defence. It is simply an expression of the will of the Legis- lature, upon matter which they assume to act upon with or without specification, as it may seem expedient. It is rather an administrative than a judicial action.




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