MONDAY, February 4, 1805.
About a quarter before ten o’clock the Court was opened by proclamation,
all the members of the Senate, thirty-four, attending.
The Chamber of the Senate, which is very extensive, was soon filled with
spectators, a large portion of whom consisted of ladies, who continued,
with little intermission, to attend during the whole course of the trial.
The oath prescribed was administered to Mr. BAYARD, Mr. COCKE, Mr.
GAILLARD, and Mr. STONE, members of the Court, who were not present when
it was before administered.
_Ordered_, That the Secretary give notice to the House of Representatives
that the Senate are in their public chamber, and are ready to proceed
on the trial of Samuel Chase; and that seats are provided for the
accommodation of the members.
In a few minutes the Managers, viz: Messrs. J. RANDOLPH, RODNEY,
NICHOLSON, BOYLE, G. W. CAMPBELL, EARLY, and CLARK, accompanied by the
House of Representatives in Committee of the Whole, entered and took
their seats.
SAMUEL CHASE being called to make answer to the articles of impeachment,
exhibited against him by the House of Representatives, appeared, attended
by Messrs. HARPER, MARTIN, and HOPKINSON, his counsel; to whom seats were
assigned.
The PRESIDENT, after stating to Mr. CHASE the indulgence of time which
had been allowed, inquired if he was prepared to give in his answer?
Mr. CHASE said he had prepared it, as well as circumstances would permit;
and submitted the following motion:
“Samuel Chase moves for permission to read his answer, by
himself and his counsel, at the bar of this honorable Court.”
The PRESIDENT asked him if it was the answer on which he meant to rely?
to which he replied in the affirmative.
The motion being agreed to by a vote of the Senate, Mr. CHASE commenced
the reading of his answer, (in which he was assisted by Messrs. HARPER
and HOPKINSON,) as follows:[21]
This respondent, in his proper person, comes into the said Court, and
protesting that there is no high crime or misdemeanor particularly
alleged in the said articles of impeachment, to which he is, or can be
bound by law to make answer; and saving to himself now, and at all
times hereafter, all benefit of exception to the insufficiency of the
said articles, and each of them, and to the defects therein appearing in
point of law, or otherwise; and protesting also, that he ought not to be
injured in any manner, by any words, or by any want of form in this his
answer; he submits the following facts and observations by way of answer
to the said articles.
The first article relates to his supposed misconduct in the trial of
John Fries, for treason, before the circuit court of the United States
at Philadelphia, in April and May, 1800; and alleges that he presided at
that trial, and that, “unmindful of the solemn duties of his office, and
contrary to the sacred obligation by which he stood bound to discharge
them faithfully and impartially, and without respect to persons,” he
did then, “in his judicial capacity, conduct himself in a manner highly
arbitrary, oppressive, and unjust.”
This general accusation, too vague in itself for reply, is supported by
three specific charges of misconduct:
1st. “In delivering an opinion, in writing, on the question of law,
on the construction of which the defence of the accused materially
depended:” which opinion, it is alleged, tended to prejudice the minds of
the jury against the case of the said John Fries, the prisoner, before
counsel had been heard in his favor.
2d. “In restricting the counsel for the said John Fries, from recurring
to such English authorities as they believed apposite; or from citing
certain statutes of the United States which they deemed illustrative of
the positions, upon which they intended to rest the defence of their
client.”
3d. “In debarring the prisoner from his constitutional privilege of
addressing the jury (through his counsel) on the law, as well as on the
fact, which was to determine his guilt or innocence, and at the same
time endeavoring to wrest from the jury their indisputable right to hear
argument, and determine upon the question of law, as well as the question
of fact, involved in the verdict which they were required to give.”
This first article then concludes, that in consequence of this
irregular conduct of this respondent, “the said John Fries was deprived
of the right secured to him by the eighth article amendatory of the
constitution, and was condemned to death, without having been heard by
counsel, in his defence.”
In the year 1794, an insurrection took place in four of the western
counties of Pennsylvania, with a view of resisting, and preventing by
force the execution of these two statutes; and a circuit court of the
United States, held at Philadelphia, for the district of Pennsylvania, in
the month of April, in the year 1795, by William Patterson, Esq., then
one of the Associate Justices of the Supreme Court of the United States,
and the above-mentioned Richard Peters, then district judge of the United
States, for the district of Pennsylvania, two persons, who had been
concerned in the above-named insurrection, namely, Philip Vigol and John
Mitchell, were indicted for treason, of levying war against the United
States, by resisting and preventing by force the execution of the two
last-mentioned acts of Congress; and were, after a full and very solemn
trial, convicted of the indictments and sentenced to death. They were
afterwards pardoned by George Washington, then President of the United
States.
In the first of these trials, that of Vigol, the defence of the prisoner
was conducted by very able counsel, one of whom, William Lewis, Esq.,
is the same person who appeared as counsel for John Fries, in the trial
now under consideration. Neither that learned gentleman, nor his able
colleague, then thought proper to raise the question of law, “whether
resisting and preventing by armed force the execution of a particular law
of the United States, be a ‘levying of war against the United States,’”
according to the true meaning of the constitution? although a decision
of this question in the negative must have acquitted the prisoner. But
in the next trial, that of Mitchell, this question was asked on the part
of the prisoner, and was very fully and ably discussed by his counsel;
and it was solemnly determined by the Court, both the judges concurring,
“that to resist, or prevent by armed force, the execution of a particular
law of the United States, is a levying of war against the United
States, and consequently is treason, within the true meaning of the
constitution.” The decision, according to the best established principles
of our jurisprudence, became a precedent for all courts of equal or
inferior jurisdiction; a precedent which, although not absolutely
obligatory, ought to be viewed with very great respect, especially by the
court in which it was made, and ought never to be departed from, but on
the fullest and clearest conviction of its incorrectness.
On the 9th of July, an act of Congress was passed, providing for a
valuation of lands and dwelling-houses, and an enumeration of slaves
throughout the United States; and directing the appointment of
commissioners and assessors for carrying it into execution; and on the
4th day of July, in the same year, a direct tax was laid by another act
of Congress of that date, on the lands, dwelling-houses, and slaves, so
to be valued and enumerated.
In the months of February and March, A. D. 1799, an insurrection
took place in the counties of Bucks and Northampton, in the State of
Pennsylvania, for the purpose of resisting and preventing by force the
execution of the two last-mentioned acts of Congress, and particularly
that for the valuation of lands and dwelling-houses. John Fries, the
person mentioned in the article of impeachment now under consideration,
was apprehended and committed to prison, as one of the ringleaders of
this insurrection; and at a circuit court of the United States, held
at Philadelphia, in and for the district of Pennsylvania, in the month
of April, A. D. 1799, he was brought to trial for this offence, on an
indictment for treason, by levying war against the United States, before
James Iredell, Esq., then one of the Associate Justices of the Supreme
Court of the United States, who presided in the said court, according
to law, and the above-mentioned Richard Peters, then district judge of
the United States, for the district of Pennsylvania, who sat in the said
circuit court as assistant judge.
In this trial, which was conducted with great solemnity, and occupied
nine days, the prisoner was assisted by William Lewis and Alexander
James Dallas, Esqs., two very able and eminent counsellors; the former
of whom, William Lewis, is the person who assisted, as above mentioned,
in conducting the defence of Vigol, on a similar indictment. These
gentlemen, finding that the facts alleged were fully and undeniably
proved, by a very minute and elaborate examination of witnesses, thought
proper to rest the case of the prisoner on the question of law which had
been determined in the cases of Vigol and Mitchell, above mentioned,
and had then been acquiesced in, but which they thought proper again to
raise. They contended, “that to resist by force of arms a particular law
of the United States, does not amount to levying war against the United
States, within the true meaning of the constitution, and therefore is not
treason, but a riot only.” This question they argued at great length,
and with all the force of their learning and genius; and after a full
discussion at the bar, and the most mature deliberation by the Court,
the learned and excellent judge who then presided, and who was no less
distinguished by his humanity and tenderness towards persons tried before
him, than by his extensive knowledge and great talents as a lawyer,
pronounced the opinion of himself and his colleague, “that to resist, or
prevent by force, the execution of a particular law of the United States,
does amount to levying war against them, within the true meaning of the
constitution, and does, therefore, constitute the crime of treason:”
thereby adding the weight of another and more solemn decision to the
precedent which had been established in the above-mentioned cases of
Vigol and Mitchell.
Under this opinion of the Court on the question of law, the jury, having
no doubt as to the facts, found the said John Fries guilty of treason
on the above-mentioned indictment. But a new trial was granted by the
Court, not by reason of any doubt as to the correctness of the decision
on the question of law, but solely on the ground, as this respondent hath
understood and believes, that one of the jurors of the petit jury, after
he was summoned, but before he was sworn on the trial, had made some
declaration unfavorable to the prisoner.
On the 11th day of April, 1800, and from that day until the 2d day of
May in the same year, a circuit court of the United States was held
at Philadelphia, in and for the district of Pennsylvania, before this
respondent, then one of the Associate Justices of the Supreme Court of
the United States, and the above-mentioned Richard Peters, then district
judge of the United States for the district of Pennsylvania. At this
court the indictment on which the said John Fries had been convicted as
above mentioned, was quashed _ex officio_ by William Rawle, Esq., then
attorney of the United States for the district of Pennsylvania, and a new
indictment was by him preferred against the said John Fries, for treason
of levying war against the United States, by resisting and preventing by
force in the manner above set forth, the execution of the above-mentioned
acts of Congress, for the valuation of lands and dwelling-houses, and the
enumeration of slaves, and for levying and collecting a direct tax. This
indictment, of which a true copy, marked No. 1, is herewith exhibited
by this respondent, who prays that it may be taken as part of this his
answer, being found by the grand jury on the 16th day of April, 1800,
the said John Fries was on the same day arraigned thereon, and plead
not guilty. William Lewis, and Alexander James Dallas, Esqs., the same
persons who had conducted his defence at his former trial, were again
at his request assigned by the Court as his counsel; and his trial was
appointed to be had on Tuesday the 22d day of the last-mentioned month of
April.
After this indictment was found by the grand jury, this respondent
considered it with great care and deliberation, and finding from the
three overt acts of treason which it charged, that the question of law
arising upon it was the same question which had already been decided
twice in the same court, on solemn argument and deliberation, and once
in that very case, he considered the law as settled by those decisions,
with the correctness of which, on full consideration, he was entirely
satisfied; and by the authority of which he should have deemed himself
bound, even had he regarded the question as doubtful in itself. They are
moreover in perfect conformity with the uniform tenor of decisions in the
courts of England and Great Britain, from the Revolution in 1688 to the
present time, which, in his opinion, added greatly to their weight and
authority.
It was for these reasons that on the 22d day of April, 1800, when the
said John Fries was brought into court, and placed in the prisoners’
box for trial, but before the petit jury were impanelled to try him,
this respondent informed the above-mentioned William Lewis, one of his
counsel, the aforesaid Alexander James Dallas not being then in court,
“that the Court had deliberately considered the indictment against John
Fries for treason, and the three several overt acts of treason stated,
therein: that the crime of treason was defined by the Constitution of
the United States. That as the Federal Legislature had the power to
make, alter, or repeal laws, so the judiciary only had the power, and
it was their duty, to declare, expound and interpret the Constitution
and laws of the United States. That it was the duty of the Court, in
all criminal cases, to state to the petit jury their opinion of the law
arising on the facts; but the petit jury, in all criminal cases, were
to decide both the law and the facts, on a consideration of the whole
case. That there must be some constructive exposition of the terms used
in the constitution, “levying war against the United States.” That the
question, what acts amounted to levying war against the United States,
or the Government thereof, was a question of law, and had been decided
by Judges Patterson and Peters, in the cases of Vigol and Mitchell, and
by Judges Iredell and Peters, in the case of John Fries, prisoner at the
bar, in April 1799. That Judge Peters remained of the same opinion, which
he had twice before delivered, and he, this respondent, on long and great
consideration, concurred in the opinion of Judges Patterson, Iredell, and
Peters. That to prevent unnecessary delay, and to save time on the trial
of John Fries, and to prevent a delay of justice, in the great number of
civil causes depending for trial at that term, the Court had drawn up in
writing their opinion of the law, arising on the overt acts stated in the
indictment against John Fries; and had directed David Caldwell, their
clerk, to make out three copies of their opinion, one to be delivered to
the attorney of the district, one to the counsel for the prisoner, and
one to the petit jury, after they shall have been impanelled and heard
the indictment read to them by the clerk, and after the district attorney
should have stated to them the law on the overt acts alleged in the
indictment, as it appeared to him.”
After these observations, this respondent delivered one of the
above-mentioned copies to, the aforesaid William Lewis, then attending
as one of the prisoner’s counsel; who read part of it, and then laid it
down on the table before him. Some observations were then made on the
subject, by him and the above-mentioned Alexander James Dallas, who had
then come into court; but this respondent doth not now recollect those
observations, and cannot undertake to state them accurately.
As to the second specific charge adduced in support of the first article
of impeachment, which accuses this respondent “of restricting the
counsel for the said Fries from recurring to such English authorities as
they believed apposite, or from citing certain statutes of the United
States, which they deemed illustrative of the positions upon which they
intended to rest the defence of their client,” this respondent admits
that he did, on the above-mentioned trial, express it as his opinion to
the aforesaid counsel for the prisoner, “that the decisions in England,
in cases of indictments for treason at common law, against the person
of the King, ought not to be read to the jury, on trials for treason
under the Constitution and statutes of the United States; because such
decisions could not inform, but might mislead and deceive the jury: that
any decisions on cases of treason, in the courts of England, before the
Revolution of 1688, ought to have very little influence in the courts
of the United States; that he would permit decisions in the courts of
England or of Great Britain, since the said Revolution, to be read
to the court or jury, for the purpose of showing what acts have been
considered by those courts, as a constructive levying of war against the
King of that country, in his legal capacity, but not against his person;
because levying war against _his Government_ was of the same nature as
levying war against _the Government of the United States_: but that such
decisions, nevertheless, were not to be considered as authorities binding
on the courts and juries of this country, but merely in the light of
opinions entitled to great respect, as having been delivered, after full
consideration, by men of great legal learning and ability.”
It is only, then, for the correctness of his motives in delivering these
opinions, that he can now be called to answer; and this correctness ought
to be presumed, unless the contrary appear by some direct proof, or some
violent presumption, arising from his general conduct on the trial, or
from the glaring impropriety of the opinion itself. For he admits that
cases may be supposed, of an opinion delivered by a judge, so palpably
erroneous, unjust, and oppressive, as to preclude the possibility of its
having proceeded from ignorance or mistake.
With respect to the statutes of the United States, which he is charged
with having prevented the prisoner’s counsel from citing on the aforesaid
trial, he denies that he prevented any act of Congress from being cited
either to the Court or jury on the said trial, or declared at any time
that he would not permit the prisoner’s counsel to read to the jury
or to the Court any act of Congress whatever. Nor does he remember or
believe that he expressed on the said trial any disapprobation of the
conduct of the circuit court, before whom the said case was first tried,
in permitting the act of Congress relating to crimes less than treason,
commonly called the _Sedition Act_, to be read to the jury. He admits
indeed that he was then and still is of opinion that the said act of
Congress was wholly irrelevant to the issue, in the trial of John Fries,
and therefore ought not to have been read to the jury, or regarded by
them.
And this respondent further answering saith, that after the
above-mentioned proceedings had taken place in the said trial, it was
postponed until the next day, (Wednesday, April 23, 1800,) when, at the
meeting of the Court, this respondent told both the above-mentioned
counsel for the prisoner, that, “to prevent any misunderstanding of
any thing that had passed the day before, he would inform them, that,
although the Court retained the same opinion of the law, arising on the
overt acts charged in the indictment against Fries, yet the counsel
would be permitted to offer arguments to the Court, for the purpose of
showing them that they were mistaken in the law; and that the Court,
if satisfied that they had erred in opinion, would correct it; and also
that the counsel would be permitted to argue before the petit jury that
the Court were mistaken in the law.” And this respondent added, that the
Court had given no opinion as to the facts in the case, about which both
the counsel had declared that there would be no controversy.
After some observations by the said William Lewis and Alexander James
Dallas, they both declared to the Court, “that they did not any longer
consider themselves as the counsel for John Fries, the prisoner.” This
respondent then asked the said John Fries, whether he wished the Court
to appoint other counsel for his defence? He refused to have other
counsel assigned; in which he acted, as this respondent believes and
charges, by the advice of the said William Lewis and Alexander James
Dallas: whereupon, the Court ordered the trial to be had on the next day,
Thursday, the 24th of April, 1800.
On that day the trial was proceeded in; and before the jurors were sworn,
they were, by the direction of the Court, severally asked on oath,
whether they were in any way related to the prisoner, and whether they
had ever formed or delivered any opinion as to his guilt or innocence, or
that he ought to be punished? Three of them answering in the affirmative,
were withdrawn from the panel. The said John Fries was then informed by
the Court, that he had a right to challenge thirty-five of the jury,
without showing any cause of challenge against them, and as many more as
he could show cause of challenge against. He did accordingly challenge
peremptorily thirty-four of the jury, and the trial proceeded. In the
evening, the Court adjourned till the next day, Friday, the 25th of
April; when, after the district attorney had stated the principal facts
proved by the witnesses, and had applied the law to those facts, this
respondent, with the concurrence of his colleague, the said Richard
Peters, delivered to the jury the charge contained and expressed in
exhibit marked No. 3, and herewith filed, which he prays may be taken as
part of this his answer.
Immediately after the petit jury had delivered their verdict, this
respondent informed the said Fries, from the bench, that if he, or any
person for him, could show any legal ground, or sufficient cause to
arrest the judgment, ample time would be allowed him for that purpose.
But no cause being shown, sentence of death was passed on the said Fries,
on Tuesday, the 2d day of May, 1800, the last day of the term; and he was
afterwards pardoned by John Adams, then President of the United States.
And this respondent further answering saith, that if the two instances of
misconduct, first stated in support of the general charge, contained in
the first article of impeachment, were true as alleged, yet the inference
drawn from them, viz: “that the said Fries was thereby deprived of the
benefit of counsel for his defence,” is not true. He insists that the
said Fries was deprived of the benefit of counsel, not by any misconduct
of this respondent, but by the conduct and advice of the above-mentioned
William Lewis and Alexander James Dallas, who having been, with their
own consent, assigned by the Court as counsel for the prisoner, withdrew
from his defence, and advised him to refuse other counsel when offered
to him by the Court, under pretence that the law had been prejudged,
and their liberty of conducting the defence, according to their own
judgment, improperly restricted by this respondent; but in reality,
because they knew the law and the facts to be against them, and the case
to be desperate, and supposed that their withdrawing themselves under
this pretence, might excite odium against the Court; might give rise to
an opinion that the prisoner had not been fairly tried; and in the event
of a conviction, which from their knowledge of the law and the facts they
knew to be almost certain, might aid the prisoner in an application to
the President for a pardon. That such was the real motive of the said
prisoner’s counsel for depriving their client of legal assistance on his
trial, this respondent is fully persuaded, and expects to make appear,
not only from the circumstances of the case, but from their own frequent
and public declarations.
Finally, this respondent, having thus laid before this honorable Court
a true state of his case, so far as respects the first article of
impeachment, declares, upon the strictest review of his conduct during
the whole trial of John Fries for treason, that he was not on that
occasion unmindful of the solemn duties of his office as judge; that he
faithfully and impartially, and according to the best of his ability and
understanding, discharged those duties towards the said John Fries; and
that he did not in any manner, during the said trial, conduct himself
arbitrarily, unjustly, or oppressively, as he is accused by the honorable
the House of Representatives.
And the said Samuel Chase, for the plea to the said first article
of impeachment, saith, that he is not guilty of any high crime or
misdemeanor, as in and by the said first article is alleged; and this he
prays may be inquired of by this honorable Court, in such manner as law
and justice shall seem to them to require.
The second article of impeachment charges, that this respondent, at the
trial of James Thompson Callender for a libel, in May 1800, did, “with
intent to oppress and procure the conviction of the said Callender,
overrule the objection of John Basset, one of the jury, who wished to be
excused from serving on the said trial, because he had made up his mind
as to the publication from which the words, charged to be libellous in
the indictment, were extracted.”
In answer to this article, this respondent admits that he did, as one of
the Associate Justices of the Supreme Court of the United States, hold
the circuit court of the United States, for the district of Virginia,
at Richmond, on Thursday, the 22d day of May, in the year 1800, and from
that day, till the 30th of the same month; when Cyrus Griffin, then
district judge of the United States for the district of Virginia, took
his seat in the said court; and that during the residue of that session
of the said court, which continued till the ---- day of June, in the same
year, this respondent and the said Cyrus Griffin held the said court
together. But how far any of the other matters charged in this article,
are founded in truth or law, appear from the following statement, which
he submits to this honorable Court, by way of answer to this part of the
accusation.
By an act of Congress passed on the 4th day of May, A. D. 1798, it is
among other things enacted, “That if any person shall write, print,
utter, or publish, or shall knowingly and wittingly assist and aid in
writing, printing, uttering, or publishing, any false, scandalous, and
malicious writing or writings against the President of the United States,
with intent to defame or to bring him into contempt or disrepute, such
person, being thereof convicted, shall be punished by fine, not exceeding
two thousand dollars, and by imprisonment, not exceeding two years;”
and “that if any person shall be prosecuted under this act, it shall
be lawful for him to give in evidence in his defence, the truth of the
matter contained in the publication charged as a libel; and the jury
shall have a right to determine the law and the fact, under the direction
of the Court, as in other cases,” as in and by the said act, commonly
called the _sedition law_, to which this respondent begs leave to refer
this honorable Court, will more fully appear.
At the meeting of the last above-mentioned circuit court, this
respondent, as required by the duties of his office, delivered a charge
to the grand jury, in which, according to his constant practice, and to
his duty as a judge, he gave in charge to them several acts of Congress
for the punishment of offences, and among them, the above-mentioned
act, called the sedition law; and directed the jury to make particular
inquiry concerning any breaches of these statutes or any of them, within
the district of Virginia. On the 24th day of May, 1800, the said jury
found an indictment against one James Thompson Callender, for printing
and publishing, against the form of the said act of Congress, a false,
scandalous, and malicious libel, called “The Prospect before Us,” against
John Adams, then President of the United States, in his official conduct
as President; as appears by an official copy of the said indictment,
marked exhibit No. 4, which this respondent begs leave to make part of
this his answer.
On Wednesday, the 28th day of the same month, May 1800, Philip Norbonne
Nicholas, Esq., now attorney-general of the State of Virginia, and
George Hay, Esq., now district attorney of the United States, for the
district of Virginia, appeared in the said circuit court as counsel for
the said Callender; and on Thursday the 3d of June following, his trial
commenced, before this respondent, and the said Cyrus Griffin, who then
sat as assistant judge. The petit jurors being called over, eight of them
appeared, namely, Robert Gamble, Bernard Mackham, John Barrell, William
Austin, William Richardson, Thomas Tinsley, Matthew Harvey, and John
Basset, who, as they came to the book to be sworn, were severally asked
on oath, by direction of the Court, “whether they had ever formed or
delivered any opinion respecting the subject-matter then to be tried, or
concerning the charges contained in the indictment?” They all answered in
the negative, and were sworn in chief to try the issue. The counsel for
the said Callender declaring that it was unnecessary to put this question
to the other four jurymen, William Mayo, James Hayes, Henry S. Shore, and
John Prior, they also were immediately sworn in chief. No challenge was
made by the said Callender or his counsel, to any of these jurors; but
the said counsel declared, that they would rely on the answer that would
be given by the said jurors to the question thus put by order of the
Court.
After the above-mentioned John Basset, whom this respondent supposes and
admits to be the person mentioned in the article of impeachment now under
consideration, had thus answered in the negative to the question put to
him by order of the Court, as above mentioned, which this respondent
states to be the legal and proper question to be put to jurors on such
occasions, he expressed to the Court his wish to be excused from serving
on the said trial, because he had made up his mind, or had formed
his opinion, “that the publication, called ‘The Prospect before Us,’
from which the words charged in the indictment as libellous were said
to be extracted, but which he had never seen, was, according to the
representation of it, which he had received, within the Sedition law.”
But the Court did not consider this declaration by the said John Basset
as a sufficient reason for withdrawing him from the jury, and accordingly
directed him to be sworn in chief.
In this opinion and decision, as in all the others delivered during the
trial in question, this respondent concurred with his colleague, the
afore-mentioned Cyrus Griffin, in whom none of these opinions have been
considered as criminal. He contends that the opinion itself was legal and
correct; and he denies that he concurred in it, under the influence of
any “spirit of persecution and injustice,” or with any “intent to oppress
and procure the conviction of the prisoner,” as is most untruly alleged
by the second article of impeachment. His reasons were correct and legal.
He will submit them with confidence to this honorable Court; which,
although it cannot condemn him for an incorrect opinion, proceeding from
an honest error in judgment, and ought not to take on itself the power
of inquiring into the correctness of his decisions, but merely that of
examining the purity of his motives; will, nevertheless, weigh his
reasons, for the purpose of judging how far they are of sufficient force
to justify a belief that they might have appeared satisfactory to him.
If they might have so appeared, if the opinion which he founded on them
be not so palpably and glaringly wrong, as to carry with it internal
evidence of corrupt motives, he cannot in delivering it have committed an
offence.
The juror in the present case had expressed no opinion. He had formed
no opinion as to the facts. He had never seen the “Prospect before
Us,” and, therefore, could have no fixed or certain opinion about its
nature or contents. They had been reported to him, and he had formed
an opinion that if they were such as reported, the book was within the
scope and operation of a law for the punishment of “false, scandalous and
malicious libels, against the President in his official capacity, written
or published with intent to defame him.” And who is there, that having
either seen the book or heard of it, had not necessarily formed the same
opinion?
But this juror had formed no opinion about the guilt or innocence of the
party accused; which depended on four facts wholly distinct from the
opinion which he had formed. First, whether the contents of the book
were really such as had been represented to him? Secondly, whether they
should, on the trial, be proved to be true? Thirdly, whether the party
accused was really the author or publisher of this book? And fourthly,
whether he wrote or published it “with intent to defame the President,
or to bring him into contempt or disrepute, or to excite against him the
hatred of the good people of the United States?” On all these questions,
the mind of the juror was perfectly at large, notwithstanding the opinion
which he had formed. He might, consistently with that opinion, determine
them all in the negative; and it was on them that the issue between the
United States and James Thompson Callender depended. Consequently, this
juror, notwithstanding the opinion which he had thus formed, did stand
indifferent as to the matter in issue, in the legal and proper sense,
and in the only sense in which such indifference can ever exist; and
therefore his having formed that opinion, was not such an excuse as could
have justified the Court in discharging him from the jury.
And the said Samuel Chase, for plea to the said second article of
impeachment, saith, that he is not guilty of any high crime or
misdemeanor, as in and by the said second article is alleged against him;
and this he prays may be inquired of by this honorable Court, in such
manner as law and justice shall seem to them to require.
The third article of impeachment alleges that this respondent “with
intent to oppress and procure the conviction of the prisoner, did not
permit the evidence of John Taylor, a material witness in behalf of the
said Callender, to be given in, on pretence that the said witness could
not prove the truth of the whole of one of the charges contained in the
indictment, although the said charge embraced more than one fact.”
In answer to this charge, this respondent begs leave to submit the
following facts and observations:
The indictment against James Thompson Callender, which has been already
mentioned, and of which a copy is exhibited with this answer, consisted
of two distinct and separate counts, each of which contained twenty
distinct and independent charges, or sets of words. Each of those sets
of words was charged as a libel against John Adams, as President of the
United States, and the twelfth charge embraced the following words: “He
(meaning President Adams) was a professed aristocrat; he proved faithful
and serviceable to the British interest.” The defence set up was confined
to this charge, and was rested upon the truth of the words. To the other
nineteen charges no defence of any kind was attempted or spoken of,
except such as might arise from the supposed unconstitutionality of the
sedition law; which, if solid, applied to the twelfth charge as well as
to the other nineteen. It was to prove the truth of these words that John
Taylor, the person mentioned in the article of impeachment now under
consideration, was offered as a witness. It can hardly be necessary to
remind this honorable Court, that when an indictment for a libel contains
several distinct charges, founded on distinct sets of words, the party
accused, who in such cases is called the “traverser,” must be convicted,
unless he makes a sufficient defence against every charge. His innocence
on one, does not prove him innocent on the others. If the sedition
law should be considered as unconstitutional, the whole indictment,
including this twelfth charge, must fall to the ground, whether the
words in question were proved to be true or not. If the law should be
considered as constitutional, then the traverser, whether the words in
the twelfth charge were proved to be true or not, must be convicted on
the other nineteen charges, against which no defence was offered. This
conviction on nineteen charges would put the traverser as completely in
the power of the Court, by which the amount of the fine and the term of
the imprisonment were to be fixed, as a conviction upon all the twenty
charges. The imprisonment could not exceed two years, nor the fine be
more than two thousand dollars. If, then, this respondent were desirous
of procuring the conviction of the traverser, he was sure of his object
without rejecting the testimony of John Taylor. If his temper towards
the traverser were so vindictive as to make him feel anxious to obtain
an opportunity and excuse for inflicting on him the whole extent of
punishment permitted by the law, still a conviction on nineteen charges
afforded this opportunity and excuse as fully as a conviction on twenty
charges. One slander more or less, in such a publication as the “Prospect
before Us,” could surely be of no moment. To attain this object,
therefore, it was not necessary to reject the testimony of John Taylor.
That the Court did not feel this vindictive spirit is clearly evinced
by the moderation of the punishment, which actually was inflicted on the
traverser, after he was convicted of the whole twenty charges. Instead of
two thousand dollars, he was fined only two hundred, and was sentenced to
only nine months’ imprisonment, instead of two years. And this respondent
avers that he never felt or expressed a wish to go further; but that
in this decision, as well as in every other given in the course of the
trial, he fully and freely concurred with his colleague, Judge Griffin.
In the case under consideration, no proof was offered as to the
whole matter contained in the twelfth article. No witness except the
above-mentioned John Taylor was produced or mentioned. When a witness is
offered to a court and jury, it is the right and duty of the court to
require a statement of the matters intended to be proved by him. This is
the invariable practice of all our courts, and was done most properly
by this respondent and his colleague, on the occasion in question. From
the statement given by the traverser’s counsel of what they expected to
prove by the said witness, it appeared that his testimony could have no
possible application to any part of the indictment, except the twelfth
charge above mentioned, and but a very weak and imperfect application
even to that part. The Court, therefore, as it was their right and duty,
requested that the questions intended to be put to the witness should be
reduced to writing, and submitted to their inspection, so as to enable
them to judge more accurately, how far those questions were proper and
admissible. This being done, the questions were of the following tenor
and effect:
1st. “Did you ever hear Mr. Adams express any sentiments favorable to
monarchy, or ‘aristocracy,’ and what were they?”
2d. “Did you ever hear Mr. Adams, while Vice President, express his
disapprobation of the funding system?”
3d. “Do you know whether Mr. Adams did not, in the year 1794, vote
against the sequestration of British debts, and also against the bill for
suspending intercourse with Great Britain?”
The second question, it is manifest, had nothing to do with the charge;
for Mr. Adams’ approbation or disapprobation of the funding system could
not have the most remote tendency to prove that he was an aristocrat, or
had proved faithful and serviceable to the British interest. The third
question was in reality as far as the second from any connection with
the matter in issue, although its irrelevancy is not quite so apparent.
Mr. Adams’s having voted against the two measures alluded to in that
question, if he did in fact vote against them, could by no means prove
that he was “faithful and serviceable to the British interest,” in any
sense, much less with those improper and criminal views, with which the
publication in question certainly meant to charge him. The fact, if true,
was _no_ evidence to support such an inference, therefore the fact was
immaterial; and as it is the province and duty of the Court, in such
circumstances, to decide on the materiality of facts offered in evidence,
it follows clearly that it was the right and duty of the Court, in this
instance, to reject the third question; an affirmative answer to which
could have proved nothing in support of the defence.
For these reasons this respondent did concur with his colleague, the said
Cyrus Griffin, in rejecting the three above-mentioned questions; but not
any other testimony that the said John Taylor might have been able to
give.
And for plea to the said third article of impeachment, the said Samuel
Chase saith, that he is not guilty of any high crime or misdemeanor, as
in and by the said third article is alleged against him: this he prays
may be inquired of by this honorable Court, in such manner as law and
justice shall seem to them to require.
The fourth article of impeachment alleges, that during the whole course
of the trial of James Thompson Callender, above mentioned, the conduct
of this respondent was marked by “manifest injustice, partiality,
and intemperance;” and five particular instances of the “injustice,
partiality, and intemperance,” are adduced.
The first consists, “in compelling the prisoner’s counsel to reduce to
writing and submit to the inspection of the Court, for their admission or
rejection, all questions which the said counsel meant to propound to the
above-mentioned John Taylor, the witness.”
This respondent, in answer to this part of the article now under
consideration, admits that the Court, consisting of himself and the
above-mentioned Cyrus Griffin, did require the counsel for the traverser,
on the trial of James Thompson Callender, above mentioned, to reduce to
writing the questions which they intended to put to the said witness.
But he denies that it is more his act than the act of his colleague,
who fully concurred in this measure. The measure, as he apprehends and
insists, was legal and proper; his reasons for adopting it, and he
presumes those of his colleague, he will submit to this honorable Court,
in order to show that if he, in common with his colleague, committed an
error, it was an error into which the best and wisest men might have
honestly fallen.
The next circumstance stated by the article now under consideration,
as an instance and proof of “manifest injustice, partiality, and
intemperance” in this respondent, is his refusal to postpone the trial of
the said James Thompson Callender, “although an affidavit was regularly
filed, stating the absence of material witnesses on behalf of the
accused, and although it was manifest that, with the utmost diligence,
the attendance of such witnesses could not have been procured at that
term.”
This respondent, in answer to this part of the charge, admits that, in
the above-mentioned trial, the traverser’s counsel did move the court,
while this respondent sat in it alone, for a continuance of the trial
until the next term; not merely a postponement of the trial, as the
expressions used in this part of the article would seem to import;
and did file, as the groundwork of their motion, an affidavit of the
traverser, a true and official copy of which (marked exhibit No. 5) this
respondent herewith exhibits, and begs leave to make part of this answer;
but he denies that any sufficient ground for a continuance until the next
term was disclosed by this affidavit, as he trusts will clearly appear
from the following facts and observations:
The trial of an indictment at the term when it is found by the grand
jury, is a matter of course, which the prosecutor can claim as a right,
unless legal cause can be shown for a continuance. The prosecutor may
consent to a continuance, but if he withholds his consent, the Court
cannot grant a continuance without legal cause. Of the sufficiency and
legality of this cause, as of every other question of law, the Court must
judge; but it must decide on this, as on every other point, according to
the fixed and known rules of law.
One of the legal grounds, and the principal one on which such a
continuance may be granted, is the absence of competent and _material_
witnesses, whom the party cannot produce at the present term, but has a
_reasonable ground_ for expecting to be able to produce at the next term.
Analogous to this, is the inability to procure, at the present term,
legal and _material_ written testimony, which the party has a _reasonable
expectation_ of being able to procure at the next term.
Public justice will not permit the trial of offenders to be delayed,
on light or unfounded pretences. To wait for testimony which the party
really wished for, but did not expect to be able to produce within some
definite period, would certainly be a very light pretence; and to make
him the judge, how far there was reasonable expectation of obtaining the
testimony within the proper time, would put it in his power to delay the
trial on the most unfounded pretences. Hence the rule, that there must be
reasonable ground of expectation, in the judgment of the Court, that the
testimony may be obtained within the proper time.
It is therefore a settled and most necessary rule, that every application
for a continuance, on the ground of obtaining testimony, must be
supported by an affidavit, disclosing sufficient matter to satisfy
the Court, that the testimony wanted “is competent and material,” and
that there is “reasonable expectation of procuring it within the time
prescribed.” From a comparison of the affidavit in question with the
indictment, it will soon appear how far the traverser in this case
brought himself within this rule.
The absent witnesses, mentioned in the affidavit, are William Gardner,
of Portsmouth in New Hampshire; Tench Coxe, of Philadelphia, in
Pennsylvania; Judge Bee, of some place in South Carolina; Timothy
Pickering, lately of Philadelphia, in Pennsylvania, but of what place
at that time the deponent did not know; William B. Giles, of Amelia
County, in the State of Virginia; Stevens Thompson Mason, whose place
of residence is not mentioned in the affidavit, but was known to be in
Loudon County, in the State of Virginia; and General Blackburn, of Bath
County, in the said State. The affidavit also states, that the traverser
wished to procure, as material to his defence, authentic copies of
certain answers made by the President of the United States, Mr. Adams, to
addresses from various persons; and also, a book entitled “an Essay on
Canon and Feudal Law,” or entitled in words to that purport, which was
ascribed to the President, and which the traverser believed to have been
written by him; and also, evidence to prove that the President was in
fact the author of that book.
It is not stated, that the traverser had any reasonable ground to expect,
or did expect, to procure this book or evidence, or these authentic
copies, or the attendance of any one of these witnesses, at the next
term. Nor does he attempt to show in what manner the book, or the copies
of answers to addresses, were material, so as to enable the Court to
form a judgment on that point. Here, then, the affidavit was clearly
defective. His believing the book and copies to be material, was of no
weight, unless he showed to the Court sufficient grounds for entertaining
the same opinion. Moreover, he does not state where he supposes that
this book, and those authentic copies, may be found; so as to enable the
Court to judge, how far a reasonable expectation of obtaining them might
be entertained. On the ground of this book and these copies, therefore,
there was no pretence for a continuance. As to the witnesses, it is
manifest, that from their very distant and dispersed situation, there
existed no ground of reasonable expectation that their attendance could
be procured at the _next_ term, or at any subsequent time. Indeed, the
idea of postponing the trial of an indictment till witnesses could be
convened at Richmond, from South Carolina, New Hampshire, and the western
extremities of Virginia, is too chimerical to be seriously entertained.
Accordingly, the traverser, though in his affidavit he stated them to
be material, and declared that he could not procure their attendance at
that term, could not venture to declare, on oath, that he expected to
procure it at the next, or at any other time; much less that he had any
reasonable ground for such an expectation. On this ground, therefore, the
affidavit was clearly insufficient; and it was consequently the duty of
the Court to reject such application.
But the testimony of these witnesses, as stated in the affidavit, was
wholly immaterial; and, therefore, their absence was no ground for
a continuance, had there been reasonable ground for expecting their
attendance at the next term.
William Gardner and Tench Coxe were to prove that Mr. Adams had turned
them out of office, for their political opinions or conduct. This
applied to that part of the publication which constituted the matter of
the third charge in the indictment, in these words, “the same system of
persecution extended all over the continent. Every person holding an
office, must either quit it, or think and vote exactly with Mr. Adams.”
Judge Bee was to prove, that Mr. Adams had advised and requested him
by letter, in the year 1799, to deliver Thomas Nash, otherwise called
Jonathan Robbins, to the British Consul, in Charleston. This might
have had some application to the matter of the seventh charge; which
alleged that “the hands of Mr. Adams were reeking with the blood of the
poor, friendless Connecticut sailor.” Timothy Pickering was to prove
that Mr. Adams, while President, and Congress was in session, was many
weeks in possession of important despatches from the American Minister
in France, without communicating them to Congress. This testimony was
utterly immaterial; because, admitting the fact to be so, Mr. Adams was
not bound, in any respect, to communicate those despatches to Congress,
unless, in his discretion, he should think it necessary; and also,
because the fact, if true, had no relation to any part of the indictment.
There are, indeed, three charges, on which it might at first sight seem
to have some slight bearing. These are the eighth, the words furnishing
the matter of which are, “every feature in the administration of Mr.
Adams forms a distinct and additional evidence that he was determined,
at all events, to embroil this country with France;” the fourteenth,
the words stated in which allege, that “by sending these Ambassadors
to Paris, Mr. Adams and his British faction designed to do nothing but
mischief;” and the eighteenth, the matter of which states, “that in the
midst of such a scene of profligacy and usury, the President persisted
as long as he durst, in making his utmost efforts for provoking a French
war.” To no other charge in the indictment had the evidence of Timothy
Pickering, as stated in the affidavit, the remotest affinity. And surely,
it will not be pretended by any man, who shall compare this evidence with
the three charges above mentioned, that the fact intended to be proved
by it, furnished any evidence proper to go to a jury, in support of
either of those charges; that “every feature of his administration formed
a distinct and additional evidence of a determination, at all events,
to embroil this country with France,” that “in sending Ambassadors to
Paris, he intended nothing but mischief,” that “in the midst of a scene
of profligacy and usury, he persisted, as long as he durst, in making
his utmost effort for provoking a French war,” are charges, which surely
cannot be supported or justified, by the circumstance of his “keeping
in his possession, for several weeks, while Congress was in session,
despatches from the American Minister in France, without communicating
them to Congress,” which he was not bound to do, and which it was his
duty not to do, if he supposed that the communication, at an earlier
period, would be injurious to the public interest. The testimony of
William B. Giles and Stevens Thompson Mason was to prove that Mr. Adams
had uttered in their hearing certain sentiments favorable to aristocratic
or monarchical principles of Government.
This had no application except to a part of the twelfth charge; which
has been already shown to be wholly immaterial if taken separately, and
wholly incapable of a separate justification, if considered as part of
an entire charge. And, lastly, it was to be proved by General Blackburn,
that in his answer to an address, Mr. Adams avowed, “that there was a
party in Virginia which deserved to be humbled into dust and ashes,
before the indignant frowns of their injured, insulted, and offended
country.” There were but two charges in the indictment to which this
fact, if true, had the most distant resemblance. These are the fifteenth
and sixteenth, the words forming the matter of which, call Mr. Adams “an
hoary-headed libeller of the Governor of Virginia, who with all the fury,
but without the propriety or sublimity of Homer’s Achilles, bawled out,
to arms, then, to arms!” and “who, floating on the bladder of popularity,
threatened to make Richmond the centre point of a bonfire.” It would be
an abuse of the patience of this honorable Court, to occupy any part
of its time in proving that the fact intended to be proved by General
Blackburn, could not in the slightest degree support or justify such
charges as these.
To the third charge adduced in support of the article now under
consideration, the charge of using “unusual, rude, and contemptuous
expressions towards the prisoner’s counsel,” and of “falsely insinuating
that they wished to excite the public fears and indignation, and to
produce that insubordination to law to which the conduct of this
respondent did manifestly tend,” he cannot answer otherwise than by a
general denial. A charge so vague, admits not of precise or particular
refutation. He denies that there was any thing unusual or intentionally
rude or contemptuous in his conduct or his expressions towards the
prisoner’s counsel; that he made any false insinuation whatever
against them, or that his own conduct tended in any manner to produce
insubordination to law. On the contrary, it was his wish and intention to
treat the counsel with the respect due to their situation and functions,
and with the decorum due to his own character. He thought it his duty
to restrain such of their attempts as he considered improper, and to
overrule motions made by them, which he considered as unfounded in law;
but this it was his wish to accomplish in the manner least likely to
offend, from which every consideration concurred in dissuading him. He
did indeed think at that time, and still remains under the impression,
that the conduct of the traverser’s counsel, whether from intention or
not he will not undertake to say, was disrespectful, irritating, and
highly incorrect. That conduct which he viewed in this light, might have
produced some irritation in a temper naturally quick and warm, and that
this irritation might, notwithstanding his endeavors to suppress it, have
appeared in his manner and in his expressions, he thinks not improbable;
for he has had occasions for feeling and lamenting the want of sufficient
caution and self-command, in things of this nature. But he confidently
affirms, that his conduct in this particular was free from intentional
impropriety; and this respondent denies, that any part of his conduct
was such as ought to have induced the traverser’s counsel to “abandon
the cause of their client,” nor does he believe that any such cause did
induce them to take that step. On the contrary, he believes that it was
taken by them under the influence of passion, for some motive into which
this respondent forbears at this time to inquire. And this respondent
admits that the said traverser was convicted, and condemned to fine and
imprisonment, but not by reason of the abandonment of his defence by his
counsel; but because the charges against him were clearly proved, and no
defence was made or attempted against far the greater number of them.
The fourth charge in support of this article attributes to this
respondent “repeated and vexatious interruptions of the said counsel,
which at length induced them to abandon the cause of their client, who
was therefore convicted, and condemned to fine and imprisonment.” To this
charge, also, it is impossible to give any other answer but a general
denial. He avers that he never interrupted the traverser’s counsel
vexatiously, or except when he considered it his duty to do so.
Lastly, this respondent is charged, under this article, with an “indecent
solicitude, manifested by him, for the conviction of the accused,
unbecoming even a public prosecutor, but highly disgraceful to the
character of a judge, as it was subversive of justice.” This is another
charge of which it is impossible to give a precise refutation, and to a
general denial of which this respondent must therefore confine himself.
He denies that he felt any solicitude whatever for the conviction of the
traverser; other than the general wish natural to every friend of truth,
decorum, and virtue, that persons guilty of such offences as that of
which the traverser stood indicted, should be brought to punishment for
the sake of example.
And the said respondent for plea to the said fourth article of
impeachment, saith, that he is not guilty of any high crime and
misdemeanor, as in and by the said fourth article is alleged against him,
and this he prays may be inquired of by this honorable Court, in such
manner as law and justice shall seem to require.
The fifth article of impeachment charges this respondent with having
awarded “a capias against the body of the said James Thompson Callender,
indicted for an offence _not capital_, whereupon the said Callender was
arrested and committed to _close_ custody, contrary to law in that case
made and provided.”
This charge is rested, 1st, on the act of Congress of September 24, 1789,
entitled “An act to establish the judicial courts of the United States,”
by which it is enacted “that for any crime or offence against the United
States, the offender may be arrested, imprisoned, or bailed, agreeably
to the usual mode of process, in the State where such offender may be
found.” And, 2dly, on a law of the State of Virginia, which is said to
provide “that upon _presentment_ by any grand jury, of an offence _not
capital_, the Court shall order the clerk to issue a _summons_ against
the person or persons so offending, to appear and answer such presentment
at the _next_ court.” It is contended, in support of this charge, that
the act of Congress above mentioned made the State law the rule of
proceeding, and that the State law was violated by issuing a capias
against Callender, instead of a summons.
It will also appear, as this respondent believes, by a reference to the
laws and practice of Virginia, into which he has made all the inquiries
which circumstances and the shortness of time allowed him for preparing
his answer would permit, that all the cases in which a summons is
considered as the only proper process, are cases of petty offences,
which, on the presentment of a grand jury, are to be tried by the court
in a summary way, without the intervention of a petit jury. Therefore
these provisions had no application to the case of Callender, which
could be no otherwise proceeded on than by indictment, and trial on the
indictment by a petit jury.
And the said respondent, for plea to the said fifth article of
impeachment, saith, that he is not guilty of any high crime and
misdemeanor, as in and by the said fifth article is alleged against him;
and this he prays may be inquired of by this honorable Court, in such
manner as law and justice shall seem to them to require.
The sixth article of impeachment alleges that this respondent, “with
intent to oppress and procure the conviction of the said James Thompson
Callender, did, at the court aforesaid, rule and adjudge the said
Callender to trial during the term at which he, the said Callender,
was presented and indicted, contrary to the law in that case made and
provided.”
This charge also is founded, 1st, on the act of Congress of September
24, 1789, above mentioned, which enacts, section 34, “that the laws of
the several States, except where the Constitution, treaties, or statutes
of the United States shall otherwise provide, shall be regarded as the
rules of decision, in trials at _common law_, in the courts of the United
States, in cases where they apply;” and, 2dly, on a law of the State of
Virginia, which is supposed to provide, “that in cases not capital, the
offender shall not be held to answer any presentment of a grand jury,
until the court next preceding that during which such presentment shall
have been made.” This law, it is contended, is made the role of decision
by the above-mentioned act of Congress, and was violated by the refusal
to continue the case of Callender till the next term.
In answer to this charge this respondent declares, that he was at the
time of making the above-mentioned decision wholly ignorant of any such
law of Virginia as that in question; that no such law was adduced or
mentioned by the counsel of Callender, in support of their motion for
a continuance; neither when they first made it, before this respondent
sitting alone, nor when they renewed it, after Judge Griffin had taken
his seat in court; that no such law was mentioned by Judge Griffin, who
concurred in overruling the motion for a continuance and ordering on the
trial; which he could not have done had he known that such a law existed,
or considered it as applicable to the case; and that this respondent
never heard of any such law until the articles of impeachment now under
consideration were reported, in the course of the present session of
Congress, by a committee of the House of Representatives.
And for plea to the said sixth article of impeachment, the said Samuel
Chase saith, that he is not guilty of any high crime or misdemeanor, as
in and by the said-article is alleged against him; and this he prays may
be inquired of by this honorable Court, in such manner as law and justice
shall seem to them to require.
The seventh article of impeachment relates to some conduct of this
respondent in his judicial capacity, at a circuit court of the United
States held at Newcastle, in the State of Delaware, in June, 1800. The
statement of this conduct, made in the article, is altogether erroneous;
but if it were true, this respondent denies that it contains any matter
for which he is liable to impeachment.
These charges amount in substance to this: that the respondent refused to
discharge a grand jury, on their request, which is every day’s practice,
and which he was bound to do, if he believed that the due administration
of justice required their longer attendance; that he directed the
attention of the grand jury to an offence against a statute of the United
States, which, he had been informed, was committed in the district; and
that he desired the District Attorney to aid the grand jury in their
inquiries concerning the existence and nature of this offence. By these
three acts, each of which it was his duty to perform, he is alleged “to
have degraded his high judicial functions, and tended to impair the
public confidence in, and respect for, the tribunals of justice, so
essential to the public welfare.”
That this honorable Court may be able to form correctly its judgment
concerning the transaction mentioned in this article, this respondent
submits the following statement of it, which he avers to be true, and
expects to prove:
On the 27th day of June, 1800, this respondent, as one Of the Associate
Justices of the Supreme Court of the United States, presided in the
circuit court of the United States, then held at Newcastle, in and for
the district of Delaware, and was assisted by Gunning Bedford, Esq., then
district judge of the United States for that district. At the opening
of the court on that day, this respondent, according to his duty and
his uniform practice, delivered a charge to the grand jury, in which he
gave in charge to them several statutes of the United States, and, among
others, an act of Congress, passed July 14th, 1798, entitled “An act in
addition to the act for the punishment of certain crimes against the
United States,” and commonly called the “sedition law.” He directed them
to inquire concerning any breaches of those statutes, and especially of
that commonly called the sedition law, within the district of Delaware.
On the same day, before the usual hour of adjournment, the grand jury
came into court, and informed the Court that they had found no indictment
or presentment, and had no business before them, for which reason they
wished to be discharged. This respondent replied, that it was earlier
than the usual hour of discharging a grand jury; and that business might
occur during the sitting of the court. He also asked them if they had
no information of publications within the district, that came under the
sedition law, and added, that he had been informed that there was a paper
called the _Mirror_, published at Wilmington which contained libellous
charges against the Government and President of the United States: that
he had not seen that paper, but it was their duty to inquire into the
subject; and if they had not turned their attention to it, the attorney
for the district would be pleased to examine a file of that paper, and
if he found any thing that came within the sedition law, would lay it
before them. This is the substance of what the respondent said to the
grand jury on that occasion, and, he believes, nearly his words; on the
morning of the _next day_ they came into court and declared that they had
no presentments or indictments to make, on which they were immediately
discharged. The whole time, therefore, for which they were detained, was
twenty-four hours, far less than is generally required of grand juries.
And for plea to the said seventh article of impeachment, the said Samuel
Chase saith, that he is not guilty of any high crime or misdemeanor, as
in and by the said seventh article is alleged against him, and this he
prays may be inquired of by this honorable Court, in such manner as law
and justice shall seem to them to require.
The eighth article of impeachment charges that this respondent,
“disregarding the duties and dignity of his official character, did,
at a circuit court for the district of Maryland, held at Baltimore, in
the month of May, 1803, pervert his official right and duty to address
the grand jury then and there assembled, on the matters coming within
the province of the said jury, for the purpose of delivering to the
said grand jury an intemperate and inflammatory political harangue,
with intent to excite the fears and resentment of the said grand jury,
and of the good people of Maryland, against their State government
and constitution,” and also that this respondent, “under pretence of
exercising his judicial right to address the grand jury as aforesaid,
did endeavor to excite the odium of the said grand jury, and of the good
people of Maryland, against the Government of the United States, by
delivering opinions which were, at that time and as delivered by him,
highly indecent, extra-judicial, and tending to prostitute the high
judicial character with which he was invested to the low purpose of an
electioneering partisan.”
In answer to this charge this respondent admits that he did, as one
of the Associate Justices of the Supreme Court of the United States,
preside in a circuit court held at Baltimore in and for the district of
Maryland, in May, 1803, and did then deliver a charge to the grand jury,
and express in the conclusion of it some opinions as to certain public
measures, both of the Government of Maryland and of that of the United
States. But he denies that, in thus acting, he disregarded the duties and
dignity of his judicial character, perverted his official right and duty
to address the grand jury, or had any intention to excite the fears or
resentment of any person whatever against the Government and Constitution
of the United States or of Maryland. He denies that the sentiments
which he thus expressed were “intemperate and inflammatory,” either in
themselves or in the manner of delivering; that he did endeavor to excite
the odium of any person whatever against the Government of the United
States, or did deliver any opinions which were in any respect indecent,
or which had any tendency to prostitute his judicial character to any low
or improper purpose. He denies that he did any thing that was unusual,
improper, or unbecoming in a judge, or expressed any opinions, but such
as a friend to his country and a firm supporter of the Governments, both
of the State of Maryland and of the United States, might entertain. For
the truth of what he here says, he appeals confidently to the charge
itself: which was read from a written paper now in his possession ready
to be produced. A true copy of all such parts of this paper as relate
to the subject matter of this article of impeachment, is contained in
the exhibit marked No. 8, which he prays leave to make part of this his
answer.
Admitting these opinions to have been incorrect and unfounded, this
respondent denies that there was any law which forbids him to express
them in a charge to a grand jury, and he contends that there can be no
offence without the breach of some law. The very essence of despotism
consists in punishing acts which, at the time when they were done, were
forbidden by no law. Admitting the expression of political opinions by
a judge, in his charge to a grand jury, to be improper and dangerous,
there are many improper and very dangerous acts, which not being
forbidden by law, cannot be punished. Hence the necessity of new penal
laws, which are from time to time enacted for the prevention of acts not
before forbidden, but found by experience to be of dangerous tendency.
It has been the practice in this country, ever since the beginning of
the Revolution which separated us from Great Britain, for the judges
to express from the bench, by way of charge to the grand jury, and to
enforce to the utmost of their ability such political opinions as they
thought correct and useful. There have been instances in which the
Legislative bodies of this country have recommended this practice to the
judges; and it was adopted by the judges of the Supreme Court of the
United States as soon as the present Judicial system was established.
Nor can the incorrectness of the political opinions thus expressed have
any influence in deciding on the guilt or innocence of a judge’s conduct
in expressing them. For if he should be considered as guilty or innocent,
according to the supposed correctness or incorrectness of the opinion
thus expressed by him, it would follow that error in political opinion,
however honestly entertained, might be a crime; and that a party in
power might, under this pretext, destroy any judge who might happen, in
a charge to a grand jury, to say something capable of being construed by
them into a political opinion adverse to their own system.
And the said Samuel Chase, for plea to the said eighth article of
impeachment, saith, that he is not guilty of any high crime and
misdemeanor, as in and by the said eighth article is alleged against him,
and this he prays may be inquired of by this honorable Court, in such
manner as law and justice shall seem to them to require.
This respondent has now laid before this honorable Court, as well as the
time allowed him would permit, all the circumstances of the case, with an
humble trust in Providence, and a consciousness that he has discharged
all his _official_ duties with justice and impartiality, to the best of
his knowledge and abilities; and that intentionally he hath committed no
crime or misdemeanor, or any violation of the constitution or laws of
his country. Confiding in the impartiality, independence, and integrity
of his judges, and that they will patiently hear, and conscientiously
determine this case, without being influenced by the spirit of party, by
popular prejudice, or political motives, he cheerfully submits himself to
their decision.
He is satisfied that every member of this tribunal will observe the
principles of humanity and justice, and will presume him innocent until
his guilt shall be established by legal and creditable witnesses, and
will be governed in his decision by the moral and Christian rule of
rendering that justice to this respondent which he would wish to receive.
This respondent now stands not merely before an earthly tribunal, but
also before that awful Being whose presence fills all space, and whose
all-seeing eye more especially surveys the temples of justice and
religion. In a little time, his accusers, his judges, and himself, must
appear at the bar of Omnipotence, where the secrets of all hearts shall
be disclosed, and every human being shall answer for his deeds done in
the body, and shall be compelled to give evidence against himself, in the
presence of an assembled universe. To his Omnipotent Judge, at that awful
hour, he now appeals for the rectitude and purity of his conduct, as to
all the matters of which he is this day accused.
Mr. RANDOLPH, on behalf of the Managers, requested time to consult the
House of Representatives, and likewise to be furnished with a copy of the
answer of Judge Chase, for the purpose of making a replication to it.
The PRESIDENT said the Senate would take the request into consideration,
and make known to the House of Representatives such order as should be
taken thereon.
Whereupon the Senate, at the suggestion of the PRESIDENT, retired to
their legislative apartment.
On Wednesday, the 6th instant, the House of Representatives received
a copy of the foregoing answer, which was referred to the Managers.
On the same day, Mr. RANDOLPH reported a replication to the answer,
which was immediately taken into consideration. Several motions were
made and rejected, after a short debate, to soften the style; when the
replication, as reported, was adopted--yeas 77, nays 34. Whereupon, it
was resolved that the Managers be instructed to proceed to maintain the
said replication at the bar of the Senate, at such time as shall be
appointed by the Senate.
THURSDAY, February 7.
The Court was opened about two o’clock.
_Present_: The Managers, and Mr. HOPKINSON, of the counsel for Mr. Chase.
Mr. RANDOLPH, on behalf of the Managers, read the replication of the
House of Representatives, to the answer of Samuel Chase, as follows:
Replication by the House of Representatives of the United
States, to the answer of Samuel Chase, one of the Associate
Justices of the Supreme Court of the United States, to the
Articles of Impeachment exhibited against him by the said House
of Representatives.
The House of Representatives of the United States have
considered the answer of Samuel Chase, one of the Associate
Justices of the Supreme Court of the United States, to the
Articles of Impeachment against him, by them exhibited, in the
name of themselves and of all the people of the United States,
and observe,
That the said Samuel Chase hath endeavored to cover the
high crimes and misdemeanors laid to his charge, by evasive
insinuations and misrepresentation of facts; that the said
answer does give a gloss and coloring utterly false and untrue,
to the various criminal matters contained in the said Articles;
that the said Samuel Chase did, in fact, commit the numerous
acts of oppression, persecution, and injustice, of which he
stands accused; and the House of Representatives, in full
confidence of the truth and justice of their accusation, and
of the necessity of bringing the said Samuel Chase to a speedy
and exemplary punishment, and not doubting that the Senate will
use all becoming diligence to do justice to the proceedings
of the House of Representatives, and to vindicate the honor
of the nation, do aver their charge against the said Samuel
Chase to be true, and that the said Samuel Chase is guilty
in such manner as he stands impeached; and that the House of
Representatives will be ready to prove their charges against
him, at such convenient time and place as shall be appointed
for that purpose.
Signed by order, and in behalf of, the said House.
NATH. MACON, _Speaker_,
Attest:
JOHN BECKLEY, _Clerk_.
Mr. HOPKINSON requested a copy of the replication, which, the PRESIDENT
replied, would be furnished by the Secretary.
Mr. BRECKENRIDGE moved a resolution to the following effect:
That the Secretary be directed to inform the House of Representatives
that the Senate will, to-morrow, at twelve o’clock, proceed with the
trial of Samuel Chase; which was agreed to without one dissenting voice,
34 members voting for it.
Whereupon, the Senate withdrew to their legislative apartment.
FRIDAY, February 8.
The Court opened precisely at twelve o’clock.
_Present_: The Managers, and the House of Representatives, in Committee
of the Whole; and Mr. Chase, attended by his counsel, Messrs. MARTIN,
HARPER, HOPKINSON, and KEY.
The crier having, agreeably to a prescribed form, notified all those
concerned to come forward and make good the charges exhibited against
Samuel Chase,
Mr. RANDOLPH, the leading Manager, requested that the witnesses on the
part of the prosecution might be called, to ascertain who were present.
They were accordingly called, to the number of twenty-four.
_Present_: Alexander James Dallas, William Lewis, William Rawle, William
S. Biddle, Edward Tilghman, George Reed, John Montgomery, John Stephen,
John Thompson Mason, Samuel H. Smith, John Taylor, George Hay, William
Wirt, and John Heath.
_Absent_: James Lea, John Crow, Risdon Bishop, Aquila Hall, Philip
Stewart, Thomas Hall, Philip N. Nicholas, John Harvie, Meriwether Jones,
and James Pleasants.
Mr. RANDOLPH observed that various considerations, which it was
unnecessary to detail, induced him, on behalf of the Managers, to move a
postponement of the trial till to-morrow, when they hoped to be prepared
to proceed with it.
Mr. HARPER said that, on behalf of Judge Chase, he would not object to
the motion.
The PRESIDENT informed the Managers that the Senate acceded to their
request, and added, that the Senate would attend to-morrow at twelve
o’clock, for the purpose of proceeding with the trial.
At the request of Mr. HARPER, the witnesses on the part of Judge Chase
were called over, to the number of forty.
_Present_: John A. Chevalier, David M. Randolph, John Marshall, John
Basset, Samuel P. Moore, William C. Frazier, David Robertson, Edward
Tilghman, Wm. Meredith, Jared Ingersoll, Samuel Ewing, James Winchester,
Walter Dorsey, James P. Boyd, Nicholas Brice, John Purviance, William M.
Mechin, Thomas Chase, William H. Winder, William Gwynn, William Rawle,
William J. Govane, Gunning Bedford, Nicholas Vandyke, John Hall, jun.,
Archibald Hamilton, and Thomas Carpenter.
_Absent_: William Marshall, Edmund Randolph, Robert Gamble, Philip Moore,
Cornelius Comegys, John Stewart, and Edward J. Coale.
_Not found_: John Hopkins, Philip Gooch, William Minor, and Samuel
Wheeler.
_Sick_: Cyrus Griffin. _Dead_: J. C. Barrett.
Whereupon the Court rose.
SATURDAY, February 9.
The Court was opened precisely at 12 o’clock.
_Present_: The Managers, attended by the House of Representatives in
Committee of the Whole; and Judge Chase, attended by his counsel, as
mentioned in the proceedings of yesterday.
At a quarter after 12 o’clock, Mr. RANDOLPH, on behalf of the Managers,
opened the impeachment, as follows:
Mr. President: It becomes my duty to open this cause on behalf of the
prosecution. From this duty, however incompetent I feel myself to its
performance at all times, and more especially at this time, as well from
the very short period which has been allowed us to consider the long
and elaborate plea of the respondent, as from the severe pressure of
disease, it does not become me to shrink. The station in which I have
been placed calls for the discharge of an important public trust at my
hands. It shall be performed to the best of my ability, inadequate as I
know that ability to be. When I speak of the short period which has been
allowed us, I hope not to be understood as expressing, on our part, any
dissatisfaction at the course which has been pursued, or any wish to
prolong the time which has been allotted for trial. We are sensible of a
disposition in this honorable Court to grant us every indulgence which we
ought to ask, and when their attention is called to the precipitate hurry
of our preparation, it is only to offer, on behalf of an individual,
perhaps a weak apology for the weak defence which he is about to make of
the cause confided to his care. A desire for the furtherance of justice
and the avoidance of delay, but, above all, an unshaken conviction that
we stand on impregnable ground, induce us on this short notice to declare
that we are ready to substantiate our accusation, to prove that the
respondent is guilty in such manner as he stands impeached.
It is a painful but indispensable task which we are called upon to
perform: to establish the guilt of a great officer of Government, of a
man, who, if he had made a just use of those faculties which God and
nature bestowed upon him, would have been the ornament and benefactor
of his country, would have rendered her services as eminent and useful
as he has inflicted upon her outrages and wrongs deep and deadly. A
character endowed by nature with some of her best attributes, cultivated
by education, placed by his country in a conspicuous station, invested
with authority whose righteous exercise would have rendered him a terror
to the wicked, whilst it endeared him to the wise and good: such a
character, presented to the nation in the light in which he now stands,
and in which his misdeeds have made it our duty to bring him forward,
forms one of the saddest spectacles which can be offered to the public
eye. Base is that heart which could triumph over him.
I will now proceed to state the principal points on which we mean to
rely, and which we expect to establish by the clearest evidence. In doing
this I shall be necessarily led to notice many of the leading statements
of the respondent’s answer. We will begin with the first article. [Here
Mr. R. read that article.] The answer to the first of these charges is
by evasive insinuation and misrepresentation, by an attempt to wrest the
accusation from its true bearing, the manner and time of delivering the
opinion, and the intent with which it was delivered, to the correctness
of the opinion itself, which is not the point in issue. And here permit
me to remark, that if the Managers of this impeachment were governed only
by their own conviction of the course which they ought, necessarily, to
pursue, and not by the high sense of duty which they owe to their eminent
employers, they would have felt themselves justified in resting their
accusation on the admissions of the respondent himself. It is not for
the opinion itself, that the respondent is impeached; it is for a daring
inroad upon the criminal jurisprudence of his country, by delivering
that opinion at a time and in a manner (in writing) before unknown and
unheard of. The criminal intent is to be inferred from the boldness of
the innovation itself, as well as from other overt acts charged in this
article. The admission of the respondent ought to secure his conviction
on this charge. He acknowledges he did deliver an opinion, _in writing_,
on the question of law, (which it was the right and duty of the jury
to determine, as well as the fact,) _before_ counsel had been heard
in defence of John Fries, the prisoner. I must beg the assistance of
one of the gentlemen with whom I am associated, to read this part
of the answer. [Mr. Clark accordingly read the reply of Mr. Chase to
this charge.] We charge the respondent with a gross departure from the
forms, and a flagrant outrage upon the substance of criminal justice,
in delivering a written, prejudicated opinion on the case of Fries,
tending to bias the minds of the jury against him before counsel had been
heard in his defence. The respondent (page 33, of the answer) admits
the fact, for he knew that we are prepared to prove it. But he artfully
endeavors to shift the argument from the real point in contest, to the
soundness of the opinion itself, which, however questionable, (and of
its incorrectness I entertain no doubt,) it is not our object at this
time to examine. For the truth of this opinion and, as it would seem,
for the propriety of this proceeding, the respondent takes shelter under
precedent. He tells you, sir, this doctrine had been repeatedly decided
on solemn argument and deliberation, twice in the same court, and once
in that very case. What is this, but a confession, that he himself hath
been the first man to venture on so daring an innovation on the forms
of our criminal jurisprudence? To justify himself for having given a
written opinion _before_ counsel had been heard for the prisoner, he
resorts to the example set by his predecessors, who had delivered the
customary verbal opinion, after solemn arguments and deliberation. And
what do these repeated arguments and solemn deliberations prove, but
that none of his predecessors ever arrogated to themselves the monstrous
privilege of breaking in upon those sacred institutions, which guard
the life and liberty of the citizen from the rude inroads of powerful
injustice? The learned and eminent judges, to whose example he appeals,
for justification, decided _after_, and not _before_ a hearing. They
exercised the acknowledged privilege of the bench in giving an opinion
to the jury on the question of law, after it had been fully argued by
counsel on both sides. They never attempted, by previous and written
decisions, to wrest from the jury their undeniable right of deciding
upon the law as well as the fact, necessarily involved in a general
verdict, to usurp the decision to themselves, or to prejudice the minds
of the jurors against the defence. I beg this honorable Court never
to lose sight of the circumstance, that this was a _criminal_ trial,
for a _capital_ offence, and that the offence charged was _treason_.
The respondent also admits, that the counsel for Fries, not meaning to
contest the truth of the facts charged in the indictment, rested their
defence altogether upon the law, which he declared to have been settled
in the cases of Vigol and Mitchell: a decision which, although it might
be binding on the Court, the jury were not obliged to respect, and which
the counsel had a right to controvert before them, the sole judges, in
a case of that nature, both of the _law_ and _fact_. I do not deny the
right of the Court to explain their sense of the law to the jury, after
counsel have been heard; but I do deny that the jury are bound by such
exposition. If they verily believe that the overt acts charged in the
indictment did not amount to treason, they could not without a surrender
of their consciences into the hands of the Court, without a flagrant
violation of all that is dear and sacred to man, bring in a verdict of
guilty. I repeat that in such a case the jury are not only the sole
judges of the law, but that where their verdict is favorable to the
prisoner, they are the judges without appeal. In civil cases, indeed,
the verdict may be set aside and a new trial granted; but in a criminal
prosecution, the verdict, if not guilty, is final and conclusive. It is
only when the finding of the jury is unfavorable to the prisoner, that
the humane provisions of our law, always jealous of oppression when the
life or liberty of the citizen is at stake, permits the verdict to be set
aside, and a new trial granted to the unhappy culprit. When I concede
the right of the Court to explain the law to the jury in a criminal,
and especially in a capital case, I am penetrated with a conviction
that it ought to be done, if at all, with great caution and delicacy. I
must beg leave to take, before this honorable Court, what appears, to
my unlettered judgment, to be a strong and obvious distinction. There
is, in my mind, a material difference between a naked definition of
law, the application of which is left to the jury, and the application
by the Court of such definition to the particular case upon which the
jury are called upon to find a general verdict. Surely, there is a wide
and evident distinction between an abstract opinion upon a point of
law, and an opinion applied to the facts admitted by the party accused,
or proven against him. But it is alleged, on behalf of the respondent,
that the law in this case was settled, and upon this he rests his
defence. Will it be pretended by any man that the law of treason is
better established than the law of murder? What is treason, as defined
by the constitution? Levying war against the United States, or adhering
to their enemies, giving them aid and comfort. What is murder? Killing
with malice aforethought, a definition at least as simple and plain as
the other. And because what constitutes murder has been established and
settled through a long succession of ages and adjudications, has any
judge, for that reason, been ever daring enough to assert that counsel
should be precluded from endeavoring to convince the jury that the overt
acts, charged in the indictment, did not amount to murder? Is a Court
authorized to say, that, because killing with a deliberate malice is
murder, therefore the act of killing, admitted by the prisoner’s counsel,
or established by evidence, was a killing with malice prepense, and did
constitute murder? I venture to say that an instance cannot be adduced,
familiar as the definition of murder is even to the most ignorant,
numerous as have been the convictions for that atrocious crime, where
counsel have been deprived of their unquestionable right to address
the jury on the law, as well as on the fact. Much less can an instance
be produced, in any trial for a capital offence, where they have found
themselves anticipated in the question of law by a written opinion, to be
taken by the jury out of court, as the landmark by which their verdict is
to be directed. I have always understood, that even in a civil case, when
the jury carried out with them a written paper, relating to the matter in
issue, and which was not offered, or permitted to be given in evidence
to them, it was sufficient to vitiate their verdict, and good ground for
a new trial. This written opinion of the Court, delivered previous to a
hearing of the cause, is a novelty to our laws and usages. It would be
reprehensible in any case, but in a criminal prosecution, for a capital
offence, and that offence treason, (where, above all, oppression and
arbitrary proceedings on the part of courts are most to be dreaded and
guarded against,) it cannot be too strongly reprobated or too severely
punished.
What would be said of a judge who in a trial for murder, where the facts
were admitted (or proved) should declare from the bench, that whatever
argument counsel had to offer, in relation to the facts, may be addressed
to the jury, but that they should not attempt to convince the jury that
such facts came not within the law, did not amount to murder, but that
every thing which they had to say upon the question of law, should
be addressed to the Court, and to the Court only. Can you figure to
yourselves a spectacle more horrible?
We are prepared to prove, what the respondent has in part admitted, that
he “restricted the counsel of Fries from citing such English authorities
as they believed apposite, and certain statutes of the United States
which they deemed material to their defence:” that the prisoner was
debarred by him from his constitutional privilege of addressing the jury,
through his counsel, on the law, as well as the fact involved in the
verdict which they were required to give, and that he attempted to wrest
from the jury their undeniable right to hear argument, and, consequently,
to determine upon the question of law which in a criminal case it was
their sole and unquestionable province to decide. These last charges
(except as far as relates to the laws of the United States) are impliedly
admitted by the respondent. He confesses that he would not admit the
prisoner’s counsel to cite certain cases, “because they could not inform
but might deceive and mislead the jury.” Mr. President, it is the noblest
trait in this inestimable trial, that in criminal prosecutions, where
the verdict is general, the jury are the sole judges, and, where they
acquit the prisoner, the judges, without appeal, both of law and fact.
And what is the declaration of the respondent but an admission that
he wished to take from the jury their indisputable privilege to hear
argument and determine upon the law, and to usurp to himself that power
which belongs to them, and to them only? It is one of the most glorious
attributes of jury trial, that in criminal cases (particularly such as
are capital) the prisoner’s counsel may (and they often do) attempt “to
deceive and mislead the jury.” It is essential to the fairness of the
trial, that it should be conducted with perfect freedom. It is congenial
to the generous spirit of our institutions to lean to the side of an
unhappy fellow-creature, put in jeopardy of limb, or life, or liberty.
The free principles of our Governments, individual and federal, teach
us to make every humane allowance in his favor, to grant him, with a
liberality unknown to the narrow and tyrannous maxims of most nations,
every indulgence not inconsistent with the due administration of justice.
Hence, a greater latitude is permitted to the prosecutor. The jury, upon
whose verdict the event is staked, are presumed to be men capable of
understanding what they are called upon to decide, and the Attorney for
the State a gentleman learned in his profession, capable of detecting and
exposing the attempts of the opposite counsel to mislead and deceive.
There is, moreover, the Court, to which, in cases of difficulty, recourse
might be had. But what, indeed, is the difficulty arising from the law
in criminal cases, for the most part? What is to hinder an honest jury
from deciding, especially after the aid of an able discussion, whether
such an act was killing with malice prepense, or such other overt acts
set forth in an indictment, constituted a levying war against the United
States; and to what purpose has treason been defined by the constitution
itself, if overbearing, arbitrary judges are permitted to establish among
us the odious and dangerous doctrine of constructive treason? The acts of
Congress which had been referred to on the former trial, but which the
respondent said he would not suffer to be cited again, tended to show
that the offence committed by Fries did not amount to treason; that it
was a misdemeanor only, already provided for by law, and punishable with
fine and imprisonment. The respondent indeed denies this part of the
charge, but he justifies it even (as he says) if it be proved upon him.
And are the laws of our own country (as well as foreign authorities) not
to be suffered to be read in our courts, in justification of a man whose
life is put in jeopardy?
I now proceed to the second article--the case of Basset, whose
objection to serve on Callender’s jury was overruled by the judge who
stands arraigned before this honorable Court. In the 30th page of the
respondent’s answer it is stated, that a new trial was granted to Fries,
“upon the ground (as this respondent understood and believes) that one
of the jurors, after he was summoned, but before he was sworn, had made
some declaration unfavorable to the prisoner.” It will be remembered that
both the trials of Fries preceded that of Callender. Upon what principle,
then, could the respondent declare Basset a good juryman, when he was
apprised of the previous decision in the case of Fries, by his brother
judge, whom he professes to hold in such high reverence, and by whose
decision, on his own principles, he must have held himself bound. For
surely the same exception to a juryman which would furnish ground for
a new trial, ought to be a cause of setting aside such juror, if it be
taken previous to his being sworn.
From the respondent’s own showing it appears, that the question put to
the jurymen generally, and to Basset among others, was, whether they “had
formed _and_ delivered any opinion upon the subject-matter then to be
tried, or concerning the charges contained in the indictment.” And here
let me refer the Court to the question which the respondent put to the
jurors in the case of Fries. It was, “whether they had ever formed _or_
delivered any opinion as to his guilt, or innocence, or that he ought to
be punished?” How is this departure from the respondent’s own practice,
this inconsistency with himself, to be reconciled? In the one case the
question is put in the disjunctive; “have you formed _or_ delivered?” In
the other, it is in the conjunctive, “formed _and_ delivered;” besides
other material difference in the terms and import of the two questions.
Wherefore, I repeat, this contradiction of himself? But, Mr. President,
we shall be prepared to prove that the words “_subject-matter then to be
tried_,” were not comprised in the question propounded to Basset, or to
any of the other jurors. The question was, as will be shown in evidence,
“have you ever formed _and_ delivered any opinion _concerning the charges
contained in the indictment_?” And it is remarkable that the whole
argument of the respondent upon this point goes to justify the question
which was _actually_ put, and which he probably expected we should
prove that he did put, rather than that which he himself declares to
have been propounded by him. Such a question must necessarily have been
answered in the negative. Basset could never have seen the indictment:
and although his mind might have been made up on the _book_, whatever
opinion he might have formed and delivered as to the guilt of Callender,
or however desirous he might have been of procuring his conviction and
punishment, still, not having seen the indictment, he could not divine
what passages of the book were made the subject of charges, and, by the
criterion established by the judge, he was a good juror. But if the
juror’s mind was thus prejudiced against the book and the writer, was he,
merely because he had not seen the indictment, competent to pass between
him and his country on the charges contained in it, and extracted out
of the book? And even if the question had been such as the respondent
states, yet being put in the conjunctive, the most inveterate foe of the
traverser who was artful, or cautious enough to forbear the expression of
his enmity, would thereby have been admitted as competent to pass between
the traverser and his country in a criminal prosecution.
The third article relates to the rejection of John Taylor’s testimony.
This fact also is admitted, and an attempt is made to justify it, on
the ground of its “_irrelevancy_” on the pretext that the witness
could not prove the whole of a particular charge. By recurring to “The
Prospect before Us,” a book, which, with all its celebrity, I never saw
till yesterday, I find this charge consists of two distinct sentences.
Taken separately the respondent asserts that they mean nothing; taken
together, a great deal. And because the respondent undertook to determine
(without any authority as far as I can learn) that Colonel Taylor could
not prove the whole, that is both sentences, he rejected his evidence
entirely, for “_irrelevancy_.” Might not his testimony have been relevant
to that of some other witness, on the same, or on another charge? I
appeal to the learning and good sense of this honorable Court, whether
it is not an unheard of practice (until the present instance) in a
criminal prosecution, to declare testimony inadmissible because it is not
expected to go to the entire exculpation of the prisoner? Does it not
daily occur in our courts, that a party accused, making out a part of
his defence by one witness and establishing other facts by the evidence
of other persons; does it not daily occur that the testimony of various
witnesses sometimes to the same, and sometimes to different facts, does
so _relieve_ and support the whole case, as to leave no doubt of the
innocence or guilt of the accused, in the minds of the jury, who, it must
never be forgotten, are, in such cases, the sole judges both of the law
and the fact? Suppose, for instance, that the testimony of two witnesses
would establish all the facts, but that each of those facts are not known
by either of them. According to this doctrine the evidence of both might
be declared inadmissible, and a man whose innocence, if the testimony in
his favor were not rejected, might be clearly proved to the satisfaction
of the jury, may thus be subjected by the verdict of that very jury to
an ignominious death. Shall principles so palpably cruel and unjust be
tolerated in this free country? I am free to declare that the decision of
Mr. Chase, in rejecting Colonel Taylor’s testimony, was contrary to the
known and established rules of evidence, and this I trust will be shown
by my learned associates, to the full satisfaction of this honorable
Court, if indeed they can require further satisfaction on a point so
clear and indisputable. But this honorable Court will be astonished when
they are told (and the declaration will be supported by undeniable proof)
that at this very time neither the traverser, his counsel, nor the Court,
knew the extent to which Colonel Taylor’s evidence would go. They were
apprised, indeed, that he would show that Mr. Adams was an aristocrat,
and that he had proved serviceable to the British interest, in the
sense conveyed by the book; but they little dreamed that his evidence,
if permitted to have been given in, would have thrown great light upon
many other of the charges. There is one ground of defence taken by the
respondent, which, I did suppose, a gentleman of his discernment would
have sedulously avoided: that although the traverser had justified
nineteen out of twenty of the charges contained in the indictment, if he
could not prove the truth of the twentieth, it was of little moment, as
he was, “thereby, put into the power of the Court.” Gracious God! sir,
what inference is to be drawn from this horrible insinuation?
In justification of the charges contained in the fourth article, the
respondent, unable to deny the fact, confesses that he did require “the
questions intended to be put to the witness to be reduced to writing,
and submitted to the Court,” in the first instance, as we shall prove,
and before they had been verbally propounded. And this requisition, he
contends, it was “the right and duty of the Court” to make. It would not
become me, elsewhere, or on any other occasion, to dispute the authority
of the respondent, on legal questions, but I do aver that such is _not_
the _law_, at least in the State in which that trial was held, nor do
I believe that it is law any where. I speak of the United States. Sir,
in the famous case of Logwood, whereat the Chief Justice of the United
States presided, I was present, being one of the grand jury who found a
true bill against him. It must be conceded that the Government was as
deeply interested in arresting the career of this dangerous and atrocious
criminal, who had aimed his blow against the property of every man in
society, as it could be in bringing to punishment a weak and worthless
scribbler. And yet, although much testimony was offered by the prisoner,
which did by no means go to his entire exculpation; although much of that
testimony was of a very questionable nature, none of it was declared
_inadmissible_; it was suffered to go to the jury, who were left to
judge of its weight and credibility; nor were any interrogatories to the
witnesses required to be reduced to writing. And I will go farther, and
say that it never has been done before or since Callender’s trial, in
any court of Virginia, and I believe I might add in the United States,
whether State or Federal. No, sir, the enlightened man who presided in
Logwood’s case knew that, although the basest and vilest of criminals,
he was entitled to _justice_, equally with the most honorable member of
society. He did not avail himself of the previous and great discoveries,
in criminal law, of this respondent; he admitted the prisoner’s testimony
to go to the jury; he never thought it _his right_ or _his duty_ to
require questions to be reduced to writing; he gave the accused a _fair
trial_, according to law and usage, without any innovation or departure
from the established rules of criminal jurisprudence in this country.
The respondent also acknowledges his refusal to postpone the trial
of Callender, although an affidavit was regularly filed, stating the
absence of material witnesses on his behalf; and here again the ground
of his defence is, in my estimation, good cause for his conviction. The
dispersed situation of the witnesses, which he alleges to have been the
motive of his refusal, is, to my mind, one of the most unanswerable
reasons for granting a postponement. The other three charges contained
in this article will be supported by unquestionable evidence: the rude
and contemptuous expressions of the judge to the prisoner’s counsel; his
repeated and vexatious interruptions of them; his indecent solicitude
and predetermined resolution to effect the conviction of the accused.
This predetermination we shall prove to have been expressed by him long
before, as well as on his journey to Richmond, and whilst the prosecution
was pending; besides the proofs which the trial itself afforded.