trial; I knew he could not have it. But if I
had been called upon to ..satisfy the judge
with proof, I could not have done it. There
were circumstances which satisfied us that
there were certain general reasons why the
jury would not render an impartial verdict.
That was just as apparent to us as a thing
could be; yet it was not susceptible of proof.
Mr. THURSTON. It was a matter of belief.
Mr. STIRLING. The difficulty at present is
that men put all sorts of interpretation upon
it. But that can be cured by legislation, and
it might just as well be left to the legislature,
If men are not ready to proceed to trial, they
will swear that they cannot have a fair and
impartial trial, if you do not give them time.
That is where the abuse is; and that abuse
can be remedied without taking away the
right. I would not want to deprive a man of
the right of removing his case; because the
very court to which he appeals may be the
very thing which he desires to get rid of. If
he goes up to the judge and tells him that
he thinks he is something he ought not to be,
I think the judge most likely would gel mad
and remove the case. But you do not like to
tell the court that you cannot trust them; it
is a delicate matter. I do not wish to ampli-
fy the question. But it seems to me it is dan-
gerous to go to the extent this section does.
Mr. STOCKBRIDGE. The considerations urged
by my colleague (Mr. Stirling) and the sug-
gestions of the gentleman from Allegany (Mr
Thruston) were all thoroughly canvassed by
the committee. The precise phraseology
which the gentleman from Allegany has sug-
gested should be modified was framed of de
liberate intent. He shall make it satisfactori-
ly appear, without any limitation whatever
by his own affidavit, by the affidavits of other
parties, in any other way or form—giving
him the largest latitude possible. He may
satisfy the judge by a simple statement with
out any affidavit; if the judge becomes satis-
fied, that is sufficient.
So far as the other objection is concerned
that you may be compelled by that prema
turely to develop the whole line of defence
in your case, which it is important to keep
secret. That is an objection which lies to
other things just as well as this. For in
stance, my friend is in court ready to try the
case, with the exception that one witness in
absent, a vital witness. He makes applica
tion for a continuation, because that witness
is not there. How is he to obtain it? He
must develop the facts which be expects to
prove by that witness if he were in court
This may compel him to unfold his whole
ground of defence, just as much as on an
application for removal. This notion of di
plomacy, in cases at law, is getting a great
deal out of vogue any how. If gentlemen go
into courts to obtain their rights and justice
it is right that justice should be done. And
in those cases, and they are rare, where |
fair trial cannot be had, where there is so
much prejudice, exciternent, in those few
cases I think this section makes a sufficiently
broad provision. I see no way at all by
which justice can be more thoroughly ob-
tained than under this section. Ordinarily
a case is to be tried where it is to he brought;
in those extraordinary cases they can he re-
moved. We have laid it down in the decla-
ration that the trial of cases where the con-
troversy arises, is one of the great means of
promoting justice. By our laws, we do not
allow any suit to be brought against a man,
save in the county where he resides. But
that avails nothing, if the .plaintiff having
brought such a suit, can forthwith compel it
to be removed elsewhere. And he cannot do
it under the law, except with this provision
in the constitution.
Mr. NEGLEY. I think the limitation upon
this power of removal contemplated in this
tenth section, is a very salutary one. I know
that this unlimited right of removal has been
most outrageously abused in my own county.
Parties on trial for some petty larceny, have
absolutely made affidavit and had their causes
removed to Frederick county, and subjected
the county to heavy expense. Not that they
could not have justice done in our county,
but in order that they might not have justice
done in the county to which they removed
their cases, because their character was so
well known in the community where the
offence was committed that they had not
much chance to escape justice. And their
cases were removed for the sole purpose of
being enabled to go free and unwhipped of
justice. This does not shut the door of re-
moval at all.
Under the old constitution, it was in the
discretion of the party himself. Whenever
he chose to make an affidavit that he could
not have justice done, the case was removed.
Under this section, the discretion of removal
is in the breast of the judge upon sufficient
cause shown. If there is sufficient ground,
can it not be shown by the affidavit either of
the party himself, or some of his friends, or of
his attorney? And is it to be presumed that
the judge in such a case will deny the appli-
- cation? The presumption, if it is worth any-
e thing at all, goes against the competency of
the judge, for if the judge will not do justice
- in this case, he will not do it in any case.
3 You cannot go upon such a presumption as
e that against the bench; it will not do. If a
] party goes into court, and asks for a removal
upon a proper foundation, either upon his
6 own affidavit, or of some friend, or his coun-
i sel, and that is fairly presented to the court,
- then I guarantee that there is not one case
t where it ought to be removed that it will not
o be removed. And especially if it be inti-
, mated that it is not proper that the judge
1 on the bench should try the case, if be had
a the slightest self-respect, he would at once |
