USA > South Carolina > Biographical sketches of the bench and bar of South Carolina, vol. I > Part 15
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This was the state of the law when our connection with England was severed by our Revolution. In framing all our Constitutions, our forefathers justly denounced the bill of attainder. The Constitution of 1790 adopted the form of impeachment for the punishment of a breach of high official duty, adding a requirement that two-thirds of each body should concur in its own action; that is to say, that two- thirds of the House should concur before the trial could begin,
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and two-thirds of the Senate should concur before there would be a judgment against the accused.
This state of things continued in South Carolina, until the period in which the great popular discontent with our Judi- ciary overthrew the separate Courts of Appeal in Law and Equity, and brought into review the bad habits of some of our Judges. An impeachment was voted against one of them, followed by a trial before the Senate, the result of which was a very general opinion among our statesmen, that the remedy by impeachment was surrounded with so much difficulty as to be almost nugatory. It was urged, that an officer might be absolutely imbecile, besotted or idiotic, and thus impede, or even altogether obstruct public justice, and remain entirely beyond the reach of articles of impeachment. The remedy proposed, was to fall back upon the English plan of removal upon the address of both Houses, and in place of the action of the crown, to substitute a check upon the action of a mere majority, by requiring a concurrence of two-thirds.
This seems to have been the design of the amendment of our Constitution in 1828. Mr. Memminger said, he would not undertake to pronounce upon the wisdom of this amend- ment. It seemed to him to be liable to very grave and well founded objections, and he feared it was enacted with too strong a view of a special case. But the men who adopted it were among the most distinguished in our State, wise, con- siderate and just, and it would be presumptuous in him to condemn their act. Be it wise or unwise, it is the Constitu- tion which we are sworn to administer, and the sole question is, how shall we proceed in this duty?
If the views presented by him, continued Mr. Memminger, are just, it will follow that the amendment of 1828 bears a stronger analogy to removal on the address of both Houses, than to any other form. That form required neither charge nor specification of any kind; and it might happen that an address might be voted, upon the most vague, and even for opposite reasons. Each member voted upon his own motion of mere expediency. To check so wide a latitude of action, and to bring the matter within some acknowledged principle
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of justice, the amendment of 1828 added a proviso, that the grounds of removal should be stated, and the accused party should be heard in his defence. Without this proviso, one member may have voted against the party on one ground, and another on a different ; and so without a majority on any one, the union of minorities would produce conviction. The object of the proviso was to reverse this state of things and give the accused the benefit of these minorities, and to allow him the same immunity which is enjoyed before a jury. To produce conviction, there must be a concurrence of all upon some one charge.
This result is attained by setting forth the charge in the words of the Constitution ; the grounds upon which a removal is asked must be set forth. Does this mean that you must pursue the precision and particulars of an indictment, and that there must be evidence and a full hearing? If so, then the amendment of the Constitution would be a clog instead of a remedy. For it would be, in fact, a recourse to the very same forms required to pass a bill of attainder, with the increased difficuity of requiring a concurrence of two-thirds of both branches. What inducement could there be thus to amend the Constitution ? An impeachment would have been far simpler, and much more easily conducted.
It is too plain for argument, that the amendment intended an easier and less complicated remedy, and that it was intended to subject the Judge to removal from office, unob- structed by the forms required to sustain an impeachment. As a reasonable protection to the accused, the grounds of removal are required to be stated, and he is to be heard in his defence. The very use of the word, "grounds," shews a design to avoid technical language, while using a well defined word. No one would understand a rule of Court, which required a statement of the grounds of a motion for a new trial, or in arrest of judgment, as calling for the precision and specifications of an indictment. The term itself implies gen- erality.
It seemed to him then, said Mr. Memminger, that the requisition of the Constitution is pursued in the form of the
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resolution, and that the House is bound to decide upon its adoption or rejection. Before it can be adopted, the House must be satisfied of the truth of the grounds asserted, and that, if true, they make a case for the exertion of its power. For it is to be observed, that the removal intended by the Consti- tution is not a judicial sentence necessarily consequent upon a conviction, but it is an administrative act, which the House, in its discretion, might refuse, even if every fact were proved. Every argument, therefore, which gentlemen have addressed to the House against the nature of the charge, or of the proof, or concerning the injustice of subjecting to this amendment of the Constitution our officer elected before its adoption, every one of these arguments will justly operate against the passage of the Resolution in the minds of those who feel their force. The objections to the vagueness of the charge, and to the insufficiency of the proof, are justly made ; and those who have offered the resolution, by relying upon rumor and mere general reputation, must expect to meet the opposition of all those who do not feel themselves sufficiently informed through these means. It is like any other case presented for our leg- islation. If action is called for in a matter upon which we are all informed, we act upon our general information. If, in a case where specific information is wanted, and it be not given, the result is, that those who are not sufficiently informed to enable them to act, simply vote against the measure, and leave things as they stood before. It seemed to him, said Mr. Memminger, that this is just what the amendment of the Constitution intended; and that the objections which have been urged, are, in fact, objections to the adoption of the reso- lution, and not to the form of proceeding.
If, then, the forms are sufficient, what prevents the House from proceeding to decide? The accused party has been summoned, he is here before us, and the Constitution requires that he should be heard in his defence. Unless the House is prepared to dismiss the matter without further action, it is our duty forthwith to proceed. Whether the Resolution shall be adopted, is an independent question, upon which I shall reserve my opinion until the case be ready for judgment.
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Whether the course appointed by the Constitution be wise or expedient, is also another question, which is at present not before us. If I had been called to vote upon that question, I should not be found among its approvers. But here we are, sworn to support the Constitution, such as it is; we must, therefore, proceed to do our duty, however painful or urgent that duty may be.
Mr. Huger, of Charleston, remarked, he was willing to stigmatize the amendment of '28, by deriving it from bills of attainder and addresses of the two Houses of Parliament. Could he persuade himself that the Constitution of the State had borrowed weapons against its officers from those armories of tyranny and injustice, he would desire much the abrogation of the Constitution. In reality, the amendment of '28 does no more than draw the distinction between an impeachment, the very gist of which is moral delinquency, crime, and a re- moval from office, upon grounds implying no moral degrada- tion-no moral stain. So far from its being an instrument giving the Legislature a licentious power of destroying the very branch of the Government called upon by the Constitu- tion to resist and restrain the Legislature itself, it offers to the good feeling of the Legislature the mild and merciful expe- dient of dismissing with honor to himself a servant of the State, that God, in His providence, has seen fit to overwhelm with such mental or physical disability, as unfits him for the discharge of high and important duties of the State. That this inability is from its very nature, developed by facts, and therefore, susceptible of proof, and that the word "hearing," in the amendment, implies that the facts, and the proof of the facts, from which the disability is to be inferred, are to be called for at the wish of the officer subject to trial.
Mr. Sullivan, of Laurens, spoke as to the mode of conduct- ing the proceedings, and this is involved in, and depends upon, the construction of the amendment of 1828. The pro- ceedings are unlike those adopted in cases of impeachment, the preliminary step of presenting articles, appointing mana- gers, and all the ceremony of a trial, are dispensed with. The amendment, under which this resolution is framed, provides
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for a different class of cases-the former is intended to reach the case of crimes and misdemeanors ; the latter, infirmities of body or mind, not technically an impeachment, but a quasi impeachment.
In a proceeding like that before the House, the accused has a right to be heard; this is the language of the amendment, which should be incorporated in a resolution framed under it, embracing the general proposition specified in the amendment, and of which no specifications can be predicated. Whether the infirmity be such as the Constitution contemplates, is a question of evidence, depending upon testimony, which, as in cases when the sanity of the testator is involved, must be proved.
As it is the first case which has occurred under the consti- tutional amendment, it is proper that the proceedings should be correctly framed, that it may form a precedent for future cases. The accused has been informed of the proceeding, and in obedience to the notice given by the House, has appeared, and if he desire it, let him be heard.
The Constitution has been pursued in the terms of the res- olution offered, and if advantage can be taken of any infor- mality in any part of the proceeding, the party can avail himself of it. It was certainly fit and proper that the case should proceed.
Mr. Davie, of Chester, hoped, if Judge Richardson was not ready to proceed, and as himself and counsel must have be- come wearied at the long debate the House had indulged in, that the trial be postponed until Monday next.
Judge Richardson said: "I thank the gentleman from Chester for his polite suggestion, that I might require further time, before addressing the House, after hearing a protracted discussion of the subject, to which I am called to answer; but I do not deem it necessary to claim any indulgence. True, I might well say, I am fatigued and indisposed. I will not disguise, that I have for some days been sensibly affected by the injurious character of these proceedings-that my feelings and repose have been invaded. Indeed, it is insisted by my friends and my counsel, that I ought not to address
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the House to-day; but having decided in my own mind to unfold with candor, as far as in my power, the true state of my ' bodily and mental infirmity,' if such exist, I decline the gentleman's suggestions, because I would present myself as I really happen to be, at the moment when called on by this honorable body.
"If the House will be pleased to hear me, I am ready to proceed."
The House having expressed its readiness to hear Judge Richardson, the Speaker rose, and, in a few words expressive of deep emotion, informed the Judge that he was on his trial before that body, on a charge of "bodily and mental infirm- ity," and that it was now ready to hear him.
It was a scene of high moral beauty to behold. The ele- gant, manly bearing of the Speaker, subdued even to tears, at the feelings elicited by the occasion-the venerable accused on his trial before him-his head sprinkled with the frost of seventy winters-his bodily tenement showing that, though age had come upon the outward man, the mind within was still bright and burning, and ready to illuminate with its elo- quence those walls, which years before had been the scene of many of his triumphs.
The speech of the Judge was entirely unpremeditated and extempore. In a manner of calm dignity, though in a voice tremulous with emotion, he proceeded to address the House. His defence was as follows:
JUDGE RICHARDSON'S DEFENCE.
My sentiments upon this occasion, Mr. Speaker, remind me forcibly of the reason why, in the year 1810, when I occupied the chair which you now so faithfully fill, I declined to remain in it for twenty-four hours, notwithstanding the suggestion of friends, that I ought to remain sufficiently long to append my name to the "general suffrage bill," now one of the articles of the Constitution, of which I was the mover. I then declined, because I thought it would be a personal act of vain glory- so, I now decline the favor offered, because I might be con- scious, if accepted, of deriving some advantage, which might
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seem to derogate from the perfect candor and fairness with which I have resolved to present myself at the moment when called on, whether in health or out of health.
I have said, in my letter to this House, that, in appearing before them, I reserve "my constitutional, moral and legal rights." The constitutional and legal, I leave chiefly to my counsel, to be managed by them, more for the independence of the judiciary and the honor of the State than for myself. The moral rights, I reserve to myself, exclusively, and to my own responsibility. And you will see that I cannot think it a part of a South Carolina Judge to follow the advice I myself would give to a supposed culprit-to shut his mouth and say nothing, if he wished to be acquitted. For myself, I proceed in the very converse of that prudential rule, and freely declare my opinions and lay before you my practical conduct, founded in such opinions. No other manner of defence comports with my own estimate of the position in which I stand, and with my respect for you. Yes, sir, having resolved to speak, and not to wait for and require evidence, to be first adduced against me, I shall speak out; and as I have no window in my breast through which you can see my heart, I will present it, as far as my ability will permit, to your eye and observation, as if in my open palm.
It is difficult for me to know to what points to turn atten- tion upon so general a charge as that of "bodily and mental infirmity." No evidence is adduced-no facts have been dis- closed-not even an opinion has been expressed, which would point me, with any precision, to the predicate of the resolu- tion, or to the defence which would meet it. I must neces- sarily be vague and general in what I have to say. A little assistance is, however, afforded me by the observations which have been made by members of this House, in their discus- sion just concluded. I gather from those observations, "that it is rumored that I am slow in the discharge of the circuit business of the Court;" which, I am to conclude, presupposes the bodily infirmity charged, or, possibly, both the "bodily and mental infirmity." I do not understand, sir, that the rumor extends to any suspicion of my integrity, firmness, or
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or specifically to my general mental vigor. The objection against me, if I have rightly apprehended the observations made, is the general one, of tardiness in the discharge of cir- cuit business. There may be some foundation, or semblance of reason, for this objection ; at least, I will endeavor to assign the true reason of its origin and existence.
It is probably true, that the comparative rapidity with which the six Judges of my Bench discharge the circuit business, may stand in the following order: two, beyond a question, have unrivalled power in despatching that business; a third comes next, " sed longo intervallo ;" a fourth approaches to him in rapidity; and the fifth, not far behind the fourth ; and be it fairly admitted, that I am, probably, behind him again, in the discharge of ordinary circuit business. I do believe this " to be the head and front of my offending-it hath this extent, and no more"-even, in the rumor, on which the gentleman from Chester (Mr. Davie) has somewhat dwelt. One further observation, which fell from the gentleman from Richland, (Mr. DeSaussure,) also assists me a little. I under- stood that gentleman to affirm the fact, that a Judge, who had attained the age of seventy, must necessarily be less compe- tent, mentally, to discharge his judicial duties, than he was at the age of forty or fifty ; and added, that the accused himself, or, as he was pleased to say, "the venerable Judge would, if called upon, with candor, admit a deterioration of his former mental vigor."
I feel the observation to be a call upon me for the expression of my own consciousness; and I therefore declare, that I cannot with conscious truth, admit what that gentleman has affirmed ; nor can I, through a false modesty, qualify my posi- tive denial of it. As a general assertion, it is not sustained by historical fact, or, an accurate knowledge of mental philo- sophy. In its individual application, I can only deal with it so far as my personal consciousness extends. I do not believe it, sir-I have not heard of it, except from the gentleman himself, this day-and I challenge the proof of it.
Mr. Speaker, I am under a confidence, plainly held out, that I will speak " the truth, the whole truth, and nothing but
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the truth," while, at the same time, I feel satisfied that this House has assured to me the confidence, that they will "a true verdict render according to the evidence." These are recipro- cal assurances; and the party that breaks the confidence so raised, violates the moral law and the sanctions which should be held sacred between us.
Before proceeding to such expositions as I suppose proper, if not called on to make, in further explanation or denial of the justness or truth of the observations to which I have alluded, or of the charge contained in the resolution, let me disabuse your minds of any injurious and unwarrantable im- pression which might be induced by my appearing in person, to defend myself against the charge which has been made. It is possible, that my appearance in person, and the manner of my defence, may prejudice the minds of some against me. If so, I shall regret it less on my own account, than on theirs. I have appeared here to exercise my constitutional right, to be heard; and to discharge a duty to myself, to the judiciary, and to the State. I am gratified to know, sir, that my friends, and all who know me well, have anticipated, as with one consent, the course I would pursue. Others in a similar situation, might have pursued a different, and, perhaps, proper course for them; but no other than the one I have taken suits me. And let me ask this House, would you wish a South Carolina Judge to quail before charges like these? If he did, would you not suspect his indispensible judicial firmness, upon other occasions, more interesting to the public at large ? Would you not regard him a prude in assumed virtues, and dispossessed of the essential quality of a high public officer ? Ought the very standard bearer of the Bench, the senior pre- siding Judge, to craven when a hostile lance is levelled personally at him, but which would, if he fled, wound the independence of the whole Judiciary, and strike at the settled principles which actuate and govern the State? I cannot believe that any gentleman of reflection could have expected me, or, any one who valued the proper dignity of the Judi- ciary or of a man, could have wished me to have acted other- wise than I have done.
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I proceed now, Mr. Speaker, more immediately to the discussion of such topics as seem to be pointed out by the resolution before you, and alluded to by the gentleman to whom I have referred, in the remarks with which they favored the House. I shall speak right on, for I have nothing to conceal, and am fearless of any investigation, individual or moral, political or official. In my own language, my heart shall be in my open hand. I will think audibly, while I, necessarily, speak discursively.
It is in defence of myself as a civil and judicial officer that I appear before this House. As a citizen of the State and of the United States, as a husband, father or master, as a brother, friend or debtor, I can meet investigation with defiance. In these relations, at least, I may be allowed to say, I have some foundation for a moral firmness, which will not permit me to shrink from scrutiny. Nor, sir, can I deny to myself the essential attributes of a judicial officer. What are they?
The indispensible moral attributes are, integrity and firm- ness. These are necessary moral conditions, precedent to his commission during good behavior. To the attributes are to be added certain intellectual endowments, as very essential.
1st. The faculty to comprehend the case tried before him, as a Judge, in all its facts and bearings, and sufficient legal science, to know the essential principles of the law which ap- ply to the case and spring from the facts.
2d. The faculties of comparison and order, to enable him to arrange and collate the evidence adduced, and to conduct the facts, pari passu, with the law applicable to the particular case.
3d. The faculty and power of continued and close reflec- tion, which renders the understanding and conception of the whole clear and strong.
4th. Ratiocination, in order to render secure just conclu- sions, and finally to pronounce an intrepid judgment upon the case before the Court.
There is, perhaps, a fifth faculty, though not so essential to the judicial mind, nor so common. I mean imagination, or so much imagination as contributes to the impressiveness of
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his own conclusions and meaning, upon his auditors. For example, the late Judge Waties was clearly indebted to this faculty : and Lord Mansfield, the ornament of the English bench, owed to it his high distinction above his learned brethren.
Permit me here to observe what may not be known to a majority, at least of young men, that such faculties often dis- tinguish the mind of an aged man, above his younger brethren.
It is matter of common observation, that as the bodily senses become dull-as when the eye has become dim, and the hearing slow and dull, and the other senses have fallen off in proportion, practical observation upon men, and the ordinary occurrences of life become tardy; and hence con- clusion is hastily drawn, that the true intellection of the man has partaken of the decay. Whereas, in point of exact and philosophical truth, what may be called the outward mind, which is so dependent upon the mere bodily senses, has, alone, sustained deterioration-while all the great essentials of the true intellectual man, stand not only unimpaired, but may, by laborious reflection and industrious mental habits, still grow in strength, activity and brightness. In illustration of this, I would turn your attention to Chancellor Kent; at more than eighty years of age, his vigorous mind has never lost its power; and he stands to this day, practically, the judicial umpire in the gravest disputes at law. In like man- ner, the late Chief Justice Marshall, who died at the age of eighty-one, still stood the pride and glory of the Federal Bench. So I could name the late Judge Martin of Louisiana, who, though so stricken in years as to be entirely blind, and requiring to be daily lifted to his seat on the Bench, still remained the distinguished and leading Judge of the State. Lord Mansfield, perhaps the most renowned of the English Judges, retired from the Bench at the age of eighty-three; when no art could help his vision, and while he was yet in the practice of delivering his soundest and most luminous judicial arguments. But I will not tire you with illustrations. Indeed, I have gathered from authority, that the average age
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of the English Judges is sixty-eight years. Do not, therefore, hastily imagine, with the gentleman from Richland, that the Judge, who has arrived at the age of seventy, must neces- sarily, and in candor, concede his own mental deterioration. I am clear, distinct and firm, that this is a mistake ; and the candor which that gentleman has kindly bespoken for me, compels me so to say.
But, sir, I beg that you will not do so great injustice to my candor, as to imagine for a moment, that I arrogate to myself any of the essential mental faculties of a Judge, as just defined, beyond the common mediocrity of sound minds. If I have one of them above the common standard, it consists in the single power of long reflection upon one subject. As to other faculties, it may become me to say no more than this: if I have ever given evidence of possessing them, I believe that evidence will be found in my later, not less than in my earlier judicial labor. In this connection, and for a fair illustration, at least to myself, of my own mind, I have used my present perplexities. I was sitting till yesterday in a Court, the most laborious of all Courts to me. Yet, listening, on an average to four or five cases per day, and one day to nine cases, and, although highly sensible to what I deemed injuitice to myself and an alarming example to all civil officers, I omitted no judicial duty, and did not find any unusual difficulty in com- prehending any case whatsoever before the Court, or in writing out any usual aliquot part of the final decisions, with the accustomed references to authorities.
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