dollars. The very day the witness arrived
there the party bad his cause removed to an
adjoining county.
Mr. MILLER. The case was removed to
Anne Arundel county; the witness followed,
the man was tried and convicted, and is now
serving out his time in the penitentiary.
Mr. KENNARD. The removal, however,
was to avoid justice.
Mr. STIRLING. It seems to me this section
would be sufficiently stringent if the altera-
tion I propose be made in it. It will then
require that the party shall make it satisfac-
torily appear to the court that he cannot have
a fair and impartial trial, and that is enough
to require. I do not see how any one charged
with being a criminal can swear that he has
a defence. The State is bound to prove a
case against him. He may have no defence
at all, and yet be perfectly innocent. A de-
fence means that you have something to show
against what is on the other side. Now, a
man may be perfectly innocent, and yet have
nothing to show at all; yet the other side
may break down for want of proof. A man
in that case must either commit perjury, or
else merely swear that he is innocent, it is
making a man swear against himself. The
section goes still further; even if, it is made
substantially to appear to the court that there
is a good ground for defence, or action, or
that a fair trial cannot be had, the judge is
not compelled to remove the case. The sec-
tion only says he " may order and direct the
be transmitted, to some other court, "&c. I
submit that even if this part is stricken out
about showing the ground of defence, the
section is strong enough to cure all the evils
which I admit do exist.
Mr. BELT. It seems to me that the explana-
tion which has been given by the gentleman
from Baltimore city, the chairman of the
committee on the judiciary (Mr. Stockbridge,)
cuts away all the foundation upon which this
proposed change in the law rests. As I un-
derstand it, his explanation of the motives
which guided the committee is that they pro-
posed to give to the courts the utmost lati-
tude upon this subject. That is, causes shall
not be removed hereafter upon the suggestion
and affidavit of the party as now; but the
court must be satisfied that there is a proper
defence, in the first place; and in the second
place a proper cause for removal. And as
an argument in favor of the proposed change
in the constitution the gentleman says that
nobody knows what view the court may take
of the subject, what they may propose and
insist upon. They may take any point in
the wide range, from the simple statement in
the ear of the judge if the party wishes to re-
move his cause, up to the most stringent reg-
ulations upon the subject that it is possible
to conceive of. Now this which is advanced
as the strength of the proposed change, is in |
my judgment the very weakness of it. How
can we determine upon what principles the
court may act? The explanation shows that
the proposed change is liable to abuses ill
both ways.
If the court adopt such regulations and
rules in this matter as that a man charged.
with a criminal offence shall be obliged to
disclose his whole defence, or that a man in
a civil proceeding shall have to open before
the court his whole case—and gentlemen will
bear in mind that it is not to the judge that
this is to be made, but to the court in its pub-
lic capacity; the court is to be satisfied, and
this exhibition to whatever extent it is to be
made, is to be made openly before the courts—if
the regulation and rule is such that a man
must expose his' defence, nobody can doubt
that it would be an almost inconceivable and
intolerable hardship, and in this particular
against the whole practice of courts of law in
this State.
On the other hand, if you leave the court
full of latitude upon this subject, the abuse
will be equally intolerable. The court may
not require sufficient ground for removal;
it may not even require the personal guar-
antee of the affidavit of the party. It may
take the statement of some parties and refuse
that of others. They may adopt the most ar-
bitrary, or the most lax and most unsatisfac-
tory rules for their government in this par-
ticular. And there may be a great many
men on the bench who will avail themselves
of this extreme official latitude given them,
to divest themselves of the responsibility of
trying cases between their neighbors. They
not only may make it easy, but they may
make suggestions to parties, may facilitate,
and urge, and take an active part in having
cases removed from before them.
Now I will propose an amendment to test
this matter, to find out whether or not this
convention will embark in this latitudinarian
sea, which the committee on the judicia-;.
ry through its chairman proposes; or whether
we shall stand by the old landmarks of the
State. I propose to guard the affidavit in
this particular; to have toe party to swear
not only that he cannot have a fair and im-
partial trial in the county where the venue
rests, but that the cause is not removed by
him for any purpose of delay, or to evade
justice. I propose to insert before the words
"and the general assembly shall make such
modifications," &c., the following :
" And sufficient proof to entitle the appli-
cant to such removal shall be the affidavit of
the party to the effect that he cannot have a
fair and impartial trial of the said issue, pe-
tition, presentment or indictment, and also
that the said removal is not applied for with
any view of delaying such trial, or of evading
justice."
The PRESIDENT. The question will be first |
