against the body of James Thompson Callender, indicted for an offence
not capital, whereupon the said Callender was arrested and committed to
close custody, contrary to law in such case made and provided:” that is,
contrary to the act of Assembly of Virginia, recognized (by the act of
Congress passed in 1789, for the establishment of the judicial courts
of the United States) as the rule of decision in the federal courts, to
be held in that State, until other provision be made. The defence of
the respondent embraces several points: That the act of Virginia was
passed posterior to the act of Congress, viz: in 1792, and could not be
intended by the latter to be a rule of decision. Fortunately, there is no
necessity to question, which we might well do, the truth of his position.
It may be necessary to inform some of the members of this honorable
Court, that, about twelve or thirteen years ago, the laws of Virginia
underwent a revision; all those relating to a particular subject being
condensed into one, and the whole code thereby rendered less cumbrous and
perplexed. Hence, many of our laws, to a casual and superficial observer,
would appear to take their date so late as the year 1792, although their
provisions were, long before, in force. The twenty-eighth section of this
very act, on which we rely, the Court will perceive to have been enacted
in 1788, one year _preceding_ the act of Congress. (Virg. laws, chap.
74, sec. 28, page 106, note b. Pleasants’ edition.) [Here Mr. Randolph
read the act referred to.] “Upon presentment made by a grand jury of an
offence not capital, the Court shall order the clerk to issue a summons,
or other proper process, against the person so presented, to appear and
answer such presentment at the next court,” &c. But the respondent,
aware, no doubt, of this fact, asserts that the act not being adduced,
he was not bound to know of its existence, and that he ought not to be
censured for the omissions of the traverser’s counsel, whose duty it was
to have cited it on behalf of their client; and this objection, with the
preceding ones, which I have endeavored to answer, will equally apply
to the sixth article. Sir, when the counsel for the traverser were told
by the judge at the outset, when they referred to a provision of this
very law, “that such may be your local State laws here in Virginia, but
that to suppose them as applying to the courts of the United States, is
a _wild notion_,” would it not, indeed, have been a _wild experiment_ in
them to cite the same law with a view of influencing the opinion of a
man, who had scornfully scouted the idea that he was to be governed by it?
Unwilling, however, to rest himself now on the ground which he then took,
the respondent justifies himself by declaring that he complied, although
ignorantly, with this law, by issuing that _other proper process_, of
which it speaks, that is, a capias. But that other process must be of the
nature of a summons, notifying the party to appear at the _next term_;
and will any man pretend to say, that a capias taking him into close
custody and obliging him to appear, not at the next, but at the existing
term, is such process as that law describes? Sir, not only the law, but
the uniform practice under it, as we are prepared to show by evidence,
declares the capias not to be the proper process. But it is said that
this would be nothing more than notice to the party accused to abscond,
and therefore _ought not_ to be law. Sir, we are not talking about what
ought to have been the law; that is no concern of ours; the question is,
what _was_ the law? But the impolicy of this mode of proceeding is far
from being ascertained. It is a relief to the innocent who may be in a
state of accusation. It saves the expense of imprisoning the guilty,
and if they should prefer voluntary exile to standing a trial, is it so
very clear that the State is thereby more injured than by holding them
to punishment, after which they would remain in her bosom to perpetrate
new offences? Remember, this proceeding is against petty offenders, not
felons. It does not apply to capital cases; to felonies, then capital,
for which our law has since commuted the punishment of death, into that
of imprisonment at hard labor.
For further defence against the sixth article, the respondent takes
shelter under this position: That the provision of the law of the United
States establishing the judicial courts relates only to rights acquired
under _State_ laws, which come into question on the trial, and not to
forms of process _before_ the trial, and can have no application to
offences created by statute, which cannot, with propriety, be termed
trials at “_common law_.” We are prepared to show that the words “trials
at common law,” are used in that statute, not in their most restricted
sense, but to contradistinguish a certain description of cases from those
arising in equity, or under maritime or civil law.
I will pass over the seventh article of impeachment, as well because I am
nearly exhausted, as being content to leave it on the ground where the
respondent himself has placed it. It would be impossible for us to put
it in a stronger light than has been thrown upon it by his own admission.
The eighth and last article remains to be considered--[article read.]
I ask this honorable Court whether the prostitution of the bench of
justice, to the purposes of an hustings, is to be tolerated? We have
nothing to do with the politics of the _man_. Let him speak, and write,
and publish, as he pleases. This is his right in common with his
fellow-citizens. The press is free. If he must electioneer and abuse
the government under which he lives, I know no law to prevent or punish
him, provided he seeks the wonted theatres for his exhibition. But shall
a judge declaim on these topics from his seat of office? Shall he not
put off the political partisan when he ascends the tribune? or shall we
have the pure stream of public justice polluted with the venom of party
virulence? In short, does it follow that a judge carries all the rights
of a private citizen with him upon the bench, and that he may there
do every act which, as a freeman, he may do elsewhere, without being
questioned for his conduct?
But, sir, we are told that this high Court is not a court of errors and
appeals, but a court of impeachment, and that however incorrectly the
respondent may have conducted himself, proof must be adduced of criminal
intent, of wilful error, to constitute guilt. The _quo animo_ is to be
inferred from the facts themselves; there is no other mode by which, in
any case, it can be determined, and even the respondent admits that there
are acts of a nature so flagrant that guilt must be inferred from them,
if the party be of sound mind. But this concession is qualified by the
monstrous pretension that an act to be impeachable must be indictable.
Where? In the federal courts? There, not even robbery and murder are
indictable, except in a few places under our exclusive jurisdiction. It
is not an indictable offence under the laws of the United States for
a judge to go on the bench in a state of intoxication--it may not be
in all the State courts; and it is indictable nowhere for him to omit
to do his duty, to refuse to hold a court. But who can doubt that both
are impeachable offences, and ought to subject the offender to removal
from office? But in this long and disgusting catalogue of crimes and
misdemeanors, (which he has in a great measure confessed,) the respondent
tells you he had accomplices, and that what was guilt in him could not
be innocence in them. I must beg the Court to consider the facts alleged
against the respondent in all their accumulated atrocity; not to take
them, each in an insulated point of view, but as a chain of evidence
indissolubly linked together, and establishing the indisputable proof of
his guilt. Call to mind his high standing and character, and his superior
age and rank, and then ask yourselves whether he stands justified in a
long course of oppression and injustice, because men of weak intellect
and yet feebler temper--men of far inferior standing to the respondent,
have tamely acquiesced in such acts of violence and outrage? He is
charged with various acts of injustice, with a series of misconduct so
connected in time, and place, and circumstance, as to leave no doubt, on
my mind at least, of intentional ill. Can this be justified, because his
several associates have at several times and occasions barely yielded
a faint compliance, which perhaps they dared not withhold? Can they
be considered as equally culpable with him whose accumulated crimes
are to be divided amongst them, who had given at best but a negative
sanction to them? But, sir, would the establishment of their guilt prove
his innocence? At most, it would only prove that they too ought to be
punished. Wherever we behold the respondent sitting in judgment, there
do we behold violence and injustice. Before _him_ the counsel are always
contumacious. The most accomplished advocates of the different States,
whose demeanor to his brethren is uniformly conciliating and temperate,
are to _him_, and him only, obstinate, perverse, rude, and irritating.
Contumacy has been found to exist only where he presided.
I have endeavored, Mr. President, in a manner, I am sensible, very lame
and inadequate, to discharge the duty incumbent on me; to enumerate the
principal points upon which we shall rely, and to repel some of the
prominent objections advanced by the respondent. Whilst we confidently
expect his conviction, it is from the strength of our cause, and not from
any art or skill in conducting it. It requires so little support that
(thank Heaven) it cannot be injured by any weakness of mine. We shall
bring forward, in proof, such a specimen of judicial tyranny, as, I trust
in God, will never be again exhibited in our country.
The respondent hath closed his defence by an appeal to the great Searcher
of Hearts for the purity of his motives. For his sake, I rejoice that,
by the timely exercise of that mercy which, for wise purposes, has
been reposed in the Executive, this appeal is not drowned by the blood
of an innocent man crying aloud for vengeance; that the mute agony of
widowed despair, and the wailing voice of the orphan, do not plead to
Heaven for justice on the oppressor’s head. But for that intervention,
self-accusation before that dread tribunal would have been needless. On
that awful day the blood of a poor, ignorant, friendless, unlettered
German, murdered under the semblance and color of law, sent without pity
to the scaffold, would have risen in judgment at the Throne of Grace,
against the unhappy man arraigned at your bar. But the President of the
United States by a well-timed act, at once of justice and mercy, (and
mercy, like charity, covereth a multitude of sins,) wrested the victim
from his grasp, and saved him from the countless horrors of remorse, by
not suffering the pure ermine of justice to be dyed in the innocent blood
of John Fries.
The Managers proceeded to the examination of witnesses in support of the
prosecution.
_William Lewis, affirmed._
Mr. Dallas, Mr. W. Ewing, and I were counsel for John Fries, at his
request, and I believe by the assignment of the Court, on his trial in
the year 1799. It was conducted, I believe, in the usual manner, and we
were certainly allowed all the privileges that were customary on such
occasions. The trial was had before Judges Iredell and Peters. He was
convicted, and a new trial was ordered, because one of the jurors had
manifested a prejudice against the people in general concerned in the
insurrection, and against Fries in particular. This trial took place
partly in April and partly in May, 1799. At October session following,
Mr. Dallas and I attended at Norristown, expecting the trial would again
take place; but it did not. The proceedings on the first indictment were
quashed by the District Attorney, and a new bill was found at April
term, 1800, at which Judges Chase and Peters presided. Mr. Dallas and I
appeared again as the counsel of Fries, at his request, and I believe we
were assigned by the Court, but of this I am not certain. On the morning
of a certain day, which I do not now recollect, I entered the court room
when the judges were on the bench, and, if I recollect rightly, the
prisoner was in the bar; but if he was not then there, I feel very sure
that he soon was. The list of petit jurors was called over, and many of
them answered.
Almost immediately after the jurors were called over, Judge Chase began
to speak. At this time Mr. Dallas had not come into court. Judge Chase
said, he understood, or had been informed, that on the former trial or
trials, for it was impossible for me to know whether he alluded to the
case of Fries only, or of him and others, there had been a great waste
of time in making long speeches on topics which had nothing to do with
the business, and in reading common law cases on treason, as well as on
treason under the statute of Edward the Third, and also certain statutes
of the United States, respecting the resisting of process, and other
offences less than treason. He also said, that to prevent this in future,
he or they, I do not precisely recollect which, had considered the law,
had made up their minds, and had reduced their opinion to writing on the
subject, and would not suffer these cases to be read again; and in order
that the counsel (but whether for the prisoner, or the counsel on both
sides, I cannot say) might govern themselves conformably, he had ordered
three copies of that opinion to be made out, one to be delivered to the
prisoner’s counsel, one to the counsel in support of the prosecution,
and the other, as soon as the case was fully opened, or gone through, I
cannot say which, to be delivered by the clerk of the court to the jury.
I rather think that the expression was, fully gone through.
Judge Chase said, I think on the first day, that they were judges of
the law, and if they did not understand it they were unworthy of their
seats, or unfit to sit there, and that if the prisoner’s counsel had
any thing to say, to show that they had mistaken the law, or that they
were wrong, the counsel must address themselves to the Court for that
purpose, and not to the jury. I made some observations in answer, which
it is impossible for me in all respects particularly to recollect, as
having passed at this time, since some parts of it may perhaps have taken
place in other stages of the business. At this time Mr. Dallas was not
in court. I was struck with what appeared to me to be a great novelty
in the proceedings; and as I was extremely anxious to be of service to
Fries, I was desirous that Mr. Dallas might be present. I think I went
out of the bar to get somebody to go for him, and while I was out of the
bar, he entered the room. I briefly stated to him what had taken place,
or some parts of it; but I believe, not the whole. We came forward, and
we made some remarks, which I am unable to repeat. I was early struck
with the idea, that as the Court had made up their minds, and decided the
question of law, before the jury was sworn, or the witnesses or counsel
heard, it was not likely we should alter that opinion by any thing we
might say, and that we should probably render Fries more service by
withdrawing from his defence, than by engaging in it. We told him so, and
earnestly recommended to him to pursue that course. He appeared greatly
alarmed and extremely agitated, and much at a loss what determination
to come to. We, however, told him that, if he insisted on it, we would
proceed in his defence at every hazard, and contend for what we deemed
our constitutional rights as his counsel, until stopped by the Court; or
we used expressions to this effect. His state of alarm and apprehension
scarcely left him the power to decide for himself. After some time he
acquiesced in our advice; said he had nobody to depend on but us; that
he was sure we would do our best for him, and he would leave us to do
for him as we pleased. Being very anxious for him, we told him we would
call upon him at the jail, and satisfy his mind as to the course which we
wished him to pursue. He finally agreed to our proposal to withdraw; but
as we were apprehensive that the Court might assign him other counsel in
our place, and that our views might be defeated by such an arrangement,
we advised him against accepting any, and I understood that he afterwards
did refuse to accept of any other counsel. I will not assign my reasons
for giving this advice, as it might, perhaps, be improper, unless I am
directed by the Court.
Mr. Martin asked what those reasons were?
The President desired the examination to proceed on the part of the House
of Representatives, and said when that was closed, the witness might be
examined by the counsel for Judge Chase.
Mr. Lewis. It being thus determined that we should withdraw, and that
Fries should not accept any counsel that might be assigned him, I left
the court, expecting to have little or nothing more to say, as we were
no longer counsel for the prisoner. The next morning, soon after the
court was opened, and, I believe, when the prisoner was in the bar,
Judge Chase addressed Mr. Dallas and myself, and probably Mr. Rawle, and
asked us if we were ready to proceed? I answered that I was not, or that
we were not any longer counsel for the prisoner. He asked our reasons
for this; and I began to answer by mentioning what had taken place the
day before; on which he and Judge Peters certainly manifested a strong
disposition that we should proceed in the prisoner’s defence, and that
they would remove every restriction which had been previously imposed. I
was stopped in what I was about to say by Judge Chase telling us to go
on in our own way, and address the jury on the law as well as the facts,
as we thought proper; but, at the same time, he said it would be under
the direction of the Court; and at our own peril, or the risk of our
characters, if we conducted ourselves with impropriety. This had rather a
contrary effect on my mind than that of inducing me to proceed, as I did
not know that there had been any thing in my conduct so indecorous as to
make it necessary to remind me that, if I proceeded, it should be at my
own peril and risk of character; and this expression, therefore, rather
strengthened than lessened the determination which I had taken.
Finding that Mr. Dallas and I were determined not to proceed in the
prisoner’s defence, Judge Chase said, if we intended to embarrass the
Court we should find ourselves mistaken, as they would proceed without
us, and, by the blessing of God, render the prisoner as much justice
as if he had the aid of our counsel or assistance. Both the judges,
therefore, on the second day, even took pains to induce us to proceed in
the defence, with liberty to go through the whole question as well in
relation to the law as the facts; but we absolutely refused, believing
it not likely that any arguments we could urge would change the opinion
of the Court already formed, or destroy its effects, and also believing
that, after what had taken place, the life of Fries, even if he should
be convicted, would be exposed to less jeopardy without our aid than it
would be if we should engage in his defence.
_Alexander J. Dallas, sworn._
Mr. Dallas. I will endeavor to be correct in the statement which it is my
duty to give; and I am sure that I shall be substantially so, though I
cannot promise to place the facts precisely in the order of time in which
they occurred; nor to recite the very words that were used by the several
parties in the course of the transaction.
When the northern rioters were brought to Philadelphia, in the spring
of 1799, some of their friends applied to Mr. Ingersoll and to me to
undertake their defence. Mr. Ingersoll was then Attorney-General of
Pennsylvania; and on consideration, I believe, declined the task. Mr.
Lewis, either before or after this application, was also requested to
act as counsel for the prisoners; and upon his acquiescence, we repaired
to the prison to make the necessary arrangements preparatory to a trial.
Mr. William Ewing had been engaged by several of the rioters, and we
agreed to unite in the defence, as the same general facts in law applied
to all the cases.
In April term, 1799, the first trial of Fries took place. It was
conducted with great propriety throughout, by the Court, and by the
prosecuting officer; and the counsel of the prisoner were permitted to
address the jury at large, on the law and the facts, as well as to cite
every authority which they thought proper. Fries was convicted; but on
a motion made by Mr. Lewis and me, the verdict was set aside, and a new
trial awarded.
The second trial of Fries, upon a new indictment (the first having been
discontinued by Mr. Rawle) occurred in May, 1800. Mr. Lewis and I had
again, at his request, been assigned by the Court to defend him. On the
morning fixed for the trial, I entered the court room some time after
the court had been opened. Fries was standing in the prisoner’s box, the
jurors of the general panel appeared to be in the jury boxes, and the
hall was crowded with citizens. On my entrance, I perceived Mr. Lewis
and Mr. E. Tilghman engaged eagerly in conversation, and the gentlemen
of the bar, generally, seemed to be much agitated. As soon as Mr. Lewis
saw me, he hastened towards me on the outside of the bar, and told me, in
effect, that a “very extraordinary incident had occurred; that Mr. Chase,
after speaking in terms of great disapprobation of the defence at the
former trial, declared that the Court, on mature deliberation, had formed
and reduced to writing, an opinion on the law of treason involved in the
case; and that he should direct one copy to be delivered to the attorney
of the district, another to the prisoner’s counsel, and a third (after
the opening for the prosecution) to the jury, to take out with them.”
Here Mr. Harper rose, and said: Mr. President, surely it is improper that
the witness should repeat what Mr. Lewis told him, not in court, nor when
the judge was present.
Mr. Dallas, turning to Mr. Harper, said: “Sir, I know the rules of
evidence, and I mean to conform to them.” Then turning to the Vice
President, he continued, “If, Mr. President, the counsel’s patience had
lasted for a minute, he would have heard that I repeated Mr. Lewis’s
communication to the Court, and that it was not contradicted. What I have
said was necessary to introduce that fact; and surely, it is strictly
within the rules of evidence.”
Mr. Lewis and I exchanged an opinion on the impropriety of the conduct
of the Court; we determined (as I thought, when first recurring to
my memory for the facts, and as I still think, though I wish not to
speak positively) to withdraw from the defence; and we entered the bar
together. When there, something occurred which called the attention
on our part, and Mr. Lewis informed the Court, in effect “that there
was little dispute about the facts in the cause, and that as the Court
had deliberately prejudged the law, he could not hope to change their
opinion, nor to serve his client; while a submission to such a proceeding
would be degrading to the profession.” It was then, I think, that I
stated to the Court, the information which I had received from Mr. Lewis,
(but certainly it was either then, or, as it has been suggested to me
by a respectable gentleman of the bar, at the opening of the court on
the next day,) and I paused, to give an opportunity for contradiction or
explanation; for, although I had no doubt of Mr. Lewis’s intention to
deliver a correct representation of what had passed, it was possible,
and I might myself have mistaken the import of his communication. I
cannot now state all that Mr. Lewis told me, but I am confident that I
then repeated it all to the Court. No remark being made in consequence
of the pause, I proceeded to state a few comparative observations on the
province and rights of the judge, and the province and rights of the
advocate; and concluded with declining to act any longer as counsel for
the prisoner. The Court was soon afterwards adjourned. These are all
the material occurrences of the first day, which I recollect; except,
perhaps, that soon after I came into court, I heard Mr. Peters remark to
Mr. Chase, “I told you what would be the consequence. I knew they would
take the stud.”
On the next day, the court was opened, Fries was placed in the prisoner’s
box, the jury attended, and the number of spectators was increased.
Silence being proclaimed, Mr. Chase asked, “if the prisoner’s counsel
were ready to proceed on the trial?” and Mr. Lewis and I, successively,
declared, that we no longer considered ourselves as the counsel of Fries.
Mr. Peters then, as well as at other times, expressed a great desire that
we should overlook what had passed; he told us that the papers delivered
the day before had been withdrawn, and that he did not care what range we
took, either on the law, or the fact. Mr. Chase also said: “The papers
are withdrawn, and you may take what course in the defence you please;
but it is at the hazard of your characters.” I thought the expression was
in the nature of a menace; that it was unkind, improper, and unnecessary.
Mr. Lewis observed, in effect: “You have withdrawn the papers; but can
you eradicate from your own minds the opinion which you have formed, or
the effect of your declaration on the attending jurors, a part of whom
must try the prisoner?” Mr. Chase said: “If you think to embarrass the
Court, you will find yourselves mistaken.” He then asked Fries if he
chose to have other counsel assigned? Fries answered, that he did not
know how to act, but that he thought he would leave it to the Court and
the jury. On which, Judge Chase exclaimed, “Then we will be your counsel;
and, by the blessing of God, do you as much justice as those who were
assigned to you.” Mr. Lewis and I had visited Fries in prison during the
preceding afternoon; we had told him our determination to withdraw from
his defence, unless he and his friends wished us to resume it; and we
declared it to be, in our view of the case, his best chance to escape,
as we could entertain no hope of changing the opinion of the Court. He
finally left the matter to us; and I think Mr. Lewis in my hearing, with
my concurrence, advised him not to accept other counsel, if the Court
should offer to assign them. The rest of the facts, as stated by Mr.
Lewis, correspond so precisely with my recollection, that I presume,
after this recognition, it is unnecessary to repeat them. I wish it,
however, to be properly understood that, on the second day, both the
judges were extremely anxious to prevail on us to proceed in the defence;
and, as I understood, withdrew all the restrictions of the preceding
day. We persisted, however, in our determination; because, after what
had happened, we deemed it the best chance to save our client’s life,
and not because we wished, as has been insinuated, to bring the Court
into disgrace or odium. Fries was accordingly tried and convicted without
counsel.
On this course of argument, we could not ascertain the opinion of the
Court, nor how far the case of the Western insurrection would be deemed
to apply, till the charge was pronounced. But, after hearing the charge,
and after a new trial was granted, I confess the whole force of my mind
was bent to show, on the new trial, the strong distinction between the
cases of 1794 and those of 1799; and that even in England, there was no
authority since the Revolution of 1688, for construing the offence of
Fries to be treason, unconnected with the obligation of the judges to
conform to the previous adjudications.
The President. Both you and Mr. Lewis have stated that the jury were
present when the written opinions of the Court were handed to the clerk:
Could they hear what passed on the occasion?
Mr. Dallas. Undoubtedly, sir. I do not mean, however, the jury who tried
Fries, but the general panel of jurors, from whom Fries’s jury might have
been taken.
The Court rose about four o’clock.
MONDAY, February 11.
The Court was opened at 12 o’clock.
_Henry Tilghman, sworn._
I was present at the circuit court of the United States, for the district
of Pennsylvania, held on the 22d day of April, 1800. A very short time
after the opening of the court, (whether the general panel of jurors
had been called over or not, I do not recollect,) Judge Chase declared
that the Court had maturely considered the law arising on the overt
acts charged in the indictment against John Fries; and that they had
reduced their opinion to writing; he mentioned that he understood that
a great deal of time had been consumed on a former trial, and that in
order to save time, a copy of the opinion of the Court would be given to
the attorney of the district; another to the counsel for the prisoner,
and that the jury should have a third to take out with them. I took no
notes of what passed either on the first or second day. Fries was tried
on the third day, and having been appointed, with Mr. Levy, counsel for
Heany and Getman, indicted for treason, and who were actually tried on
the 27th or 28th, I deemed it my duty to attend the trial of Fries, to
take notes of the evidence, the arguments, and the charge of the judge.
I do not recollect that Judge Chase said any more on the first day than
what I have mentioned previous to his throwing a paper or papers on the
table round which the bar usually sit. The moment the paper or papers
were thrown on the table, Judge Chase expressed himself in these words:
“Nevertheless, or notwithstanding this,” (I cannot recollect which
expression he used) “counsel will be heard.” The throwing of the papers
on the table and the address of the judge caused some degree of agitation
at the bar; in a short time after the judge used the last expression, I
looked round and saw Mr. Lewis walking from under the gallery towards
the bar: I stepped towards Mr. Lewis, and met him directly opposite
the entrance into the prisoner’s bar. The prisoner, as well as I can
recollect, not being then in court, but being brought into court some
time that morning, I entered into conversation with Mr. Lewis, and as
well as I can recollect, during that conversation, Mr. Dallas came into
court. Mr. Dallas and Mr. Lewis had some conversation in my hearing,
after which they came forward to the bar; the paper, as well as I can
recollect, was then handed by Mr. Caldwell, the clerk of the court, to
Mr. Lewis. Mr. Lewis cast his eye on the outside of the paper, and looked
down, as if he was considering what to say. He threw the paper from him,
as it appeared to me, without reading it, and the moment he threw the
paper down, said, “My hand shall never be stained by receiving a paper
containing a prejudged opinion, or an opinion made up without hearing
counsel.” I cannot recollect which was the expression, but this was the
substance. I have not the least recollection that any thing passed on
the third day, between the counsel for the prisoner and the Court; for
when Mr. Lewis used these expressions, his face was not turned to the
Court, and he spoke with a considerable degree of warmth; the Court sat
in the south part of the room, and Mr. Lewis (I think) turned his face
full to the westward, when he used these expressions. The paper lay on
the table a considerable time; after which some gentlemen of the bar
took it up, and I for one copied it. Whether I took the whole of it,
and all the authorities cited, I cannot say. The prisoner having been
brought into court, his counsel had a good deal of conversation in my
hearing on the subject of supporting or abandoning his defence; that
conversation appears to me to have been accurately stated by Mr. Lewis
and Mr. Dallas. I do not recollect why the prisoner was not put on his
trial that day, but the Court adjourned between 12 and 1 o’clock. I went
home, and after taking a walk, on returning, I saw the district attorney
on my steps. He asked me whether I would have any objection to delivering
up the copy which I had taken of the opinion of the Court. I said I had
no objection, and gave it to him. That paper was not read on the first,
or any other day by the Court, or any thing stated by the Court, as the
substance of it. On the next morning, to wit, the 23d, the prisoner was
brought into court. The Court asked the prisoner’s counsel if they were
ready to proceed to the trial. Mr. Lewis rose and uttered a few words,
in order to show that they did not mean to proceed with it. Judge Chase
here interrupted Mr. Lewis--the particular expressions of the judge I do
not recollect; the substance of them was, that the counsel were not to
consider themselves bound by the opinion which the Court had reduced to
writing the day before; that the counsel were at liberty on both sides
to combat that opinion. Judge Chase, as well as Judge Peters, appeared
to be very anxious that the counsel should undertake the defence of the
prisoner. Judge Chase said, the cases at common law before the statute
of Edward the Third, ought not to be read to the Court: he mentioned the
case of a man whose stag the king had killed, and who said he wished the
stag’s horns were in the king’s belly; he also mentioned the man who kept
a public house, with the sign of a crown, and said he would make his son
heir to the Crown. He said such cases as these must not, shall not be
cited; and I think he made use of these expressions: “What! cases from
Rome, Turkey and France?” That, the counsel should go into the law, but
must not cite cases that were not law.
He said that he had an opinion in point of law as to every case that
could be brought before the Court, or else he was not fit to sit there.
He said something (but the precise words I do not pretend to recollect)
as to the counsel proceeding according to their consciences; he said that
the gentlemen would proceed at the hazard of their character, and when it
appeared pretty plain that the gentlemen would not proceed in defence of
the prisoner, he said, You may think to put the Court to difficulties;
but if you do, you miss your aim, or words in substance to that effect.
Judge Peters addressed the counsel, and said if an error has been
committed, why may it not be redressed? the paper has been withdrawn--and
I think both the judges concurred in expressing the sentiment that
matters were to be considered as if the paper had never been thrown on
the table. When Judge Peters mentioned that the paper had been withdrawn,
Mr. Lewis answered, The paper, it is true, is withdrawn, but how can the
Court erase from their minds an opinion formed without hearing counsel.
A good deal more passed which I do not recollect, having taken no notes.
Mr. Dallas addressed the Court, but I have no recollection of what he
said. The counsel continued firm in their determination to abandon the
prisoner: the Court took great pains to induce them to act as counsel for
the prisoner, and before Fries was remanded to jail, expressed their hope
that the counsel would think better of it, and appear in his defence. I
recollect nothing more of what happened on the second day. Should any
questions be put to me, they may awaken a recollection of what does not
now occur to me.
On the third day when the prisoner was brought to the bar, he was
asked if he had any counsel, (I think, on the second day, the Court
had mentioned to him that he might have other counsel,) he said no, he
would depend on the Court to be his counsel. Judge Chase said, The Court
will be your counsel, and by the blessing of God, will serve you as
effectually as your counsel could have done. The trial proceeded, and
after the testimony was given and a short statement of the case made by
the district attorney, the judge charged the jury; he told them they
were judges of the law as well as the fact. He stated to them that cases
determined in England, before their Revolution, should not be received by
the Court. I have my notes of the charge; he stated the law very much in
the manner as it was stated by Judge Patterson in the trial of Mitchell,
for whom I was counsel. I cannot undertake to recollect any thing farther
than I have already stated.
_William Rawle, affirmed._
The circuit court of the United States sat in Philadelphia in April,
1800. As the former proceedings in relation to the prisoners indicted
for treason were considered at an end, except from the intervention of
an act of Congress, it appeared to me most regular to quash all the
previous proceedings. I made a motion to this effect, which was granted.
On the same day the Court charged the grand jury, and I sent to them
bills against John Fries, and other persons charged with treason and
other offences. The bill against John Fries was returned on the 16th a
true bill, and he was immediately brought up, arraigned, and pleaded not
guilty. Messrs. Lewis and Dallas appeared as counsel for Fries. Copies
of the indictment, and lists of the jurors and witnesses, were furnished
to Fries as directed by law. The bringing on the trial was postponed
on account of the absence of George Mitchell, whom I deemed to be a
material witness. According to my best recollection it was not intended
that John Fries should be tried on the 22d, the first day alluded to. I
cannot say that John Fries was then at the bar. That circumstance does
not appear on the minutes of the clerk of the court. It was certainly not
my intention that he should have been brought up, but he may possibly
have been brought through mistake. Shortly after the Court met, Judge
Chase observed, that, as much time had been lost on the former trial or
trials, the Court had determined to express their opinion in writing,
on the point of law, that they might not be misunderstood; that they
had therefore committed that opinion to writing, and that the clerk
had made copies of it, one of which should be given to the district
attorney, one to the counsel for the prisoner, and one the jury should
take out with them: as these words were pronounced, several papers (I
think three) were handed down, or thrown down, as it were; my back was
to the Court, and whether this was done by Judge Chase or the clerk, I
know not. I immediately took up the one intended for me and began to
read it, but casting my eyes to the opposite side of the table, I saw
Mr. Lewis with another copy before him, looking at it, apparently, with
great indignation, and then throwing it on the table. I am pretty clear
nothing passed between the Court and the counsel in the course of that
morning. I observed much agitation among the gentlemen of the bar, who
were conversing with each other with apparent warmth; but having at that
time a very great burden of criminal prosecutions on me, my attention
was much engaged, and I did not hear distinctly what was said, nor did I
know, until the Court rose, that there was a probability of the counsel
for John Fries declining to act. I think that twenty-one persons were
that day brought before the Court charged with seditious combinations,
and who submitted to the Court. The Court rose pretty early in the
morning, and intimated that I should not call any witnesses in relation
to the submissions until the trials for treason were over. When the Court
rose I learnt from several gentlemen, that Mr. Lewis and Mr. Dallas were
disgusted with the conduct of the Court, and meant to decline acting as
counsel for Fries, and I have an indistinct recollection that I heard
something of this kind drop from Mr. Dallas himself. I went home, and had
been there but a few minutes, when Judge Chase and Judge Peters came in.
We went into another room, and Judge Peters began by expressing a good
deal of uneasiness, from an apprehension that the gentlemen assigned as
counsel for John Pries would not go on. Judge Chase said he could not
suppose that that would be the consequence. I supported the idea which
Judge Peters had expressed; I told him the gentlemen of the Philadelphia
bar were men of much independence and character, and that unless those
papers were withdrawn, and the business conducted as usual at our bar,
they probably would desist from conducting the defence. My recollection
at this distance of time cannot be very distinct, but I am pretty well
satisfied that Judge Chase expressed his regret that the conduct of the
Court should be so taken, and said, that he did not mean that any thing
which he had done should preclude the counsel from making a defence in
the usual manner. Judge Peters asked if I would consent to go out, and
undertake to recover the papers; I said I had no objection, and both the
judges concurred in requesting me to do so. I recollected seeing Mr.
Edward Tilghman and Mr. Thomas Ross engaged in making copies. I did not
recollect to have seen any others so engaged. I went to their houses and
asked for the copies, which were readily given, and took them to Mr.
Caldwell, clerk of the court. I asked him if he had noticed any others to
have been taken? He said he thought a copy had been taken by Mr. William
Meredith. I desired him to go to him and endeavor to recall it. I did
not know that Mr. Biddle, who was then a student in my office, had taken
a copy in part, or I should have desired him to give it up. From some
circumstances which I do not recollect, I find that I did not hand my own
copy to Mr. Caldwell. I now have it in my possession. The paper was not
read, I think, by any but those who transcribed it, and I entertained
an anxious hope, after what had taken place, that the gentlemen would
proceed with the defence of the prisoner. I shall now take the liberty of
referring to some original notes made by me at the time--from which I can
state what passed the following morning. So far as they go I believe them
accurate, though they may not enable me to relate all that was said. On
the 23d April, John Fries was brought and put to the bar, Messrs. Lewis
and Dallas attending. The Court asked if we were ready to proceed. Mr.
Lewis rose and said: If employed by the prisoner, I should think myself
bound to proceed, but being assigned--he was here interrupted by Judge
Chase, who said, “You are not bound by the opinion delivered yesterday,
you may contest it on both sides.” Mr. Lewis answered: I understood that
the Court had made up their minds, and as the prisoner’s counsel have a
right to make a full defence, and address the jury both on the law and
the fact, it would place me in too degrading a situation, and therefore I
will not proceed. Judge Chase answered with apparent impatience: “You are
at liberty to proceed as you think proper, and address the jury, and lay
down the law as you think proper.” Mr. Lewis answered, with considerable
emphasis, I will never address the court in a criminal case on a question
of law. He then took a pretty extensive view on the propriety of going
into cases decided before the Revolution, and said, if he was precluded
from showing that the judges since the Revolution in England had
considered themselves bound by the decisions before the Revolution, which
ought not to be the doctrine in this country, he must decline acting as
counsel for the prisoner. Judge Chase answered: “Sir, you must do as
you please.” Mr. Dallas then addressed the Court. He contended that the
rights of advocates had been encroached upon by the proceedings of the
day before. He went into a general view of the ground taken by Mr. Lewis,
and concluded with his determination not to proceed as counsel for John
Fries.
Judge Chase then observed, No opinion has been given as to facts in this
case. I would not let the witnesses be examined in the combination cases,
because I would not let the jury hear them before the trial of Fries came
on. As to the law, I knew that the trial before had taken nine days;
that many common law cases were cited, such as wishing a stag’s horns in
the King’s belly, and that of a man’s saying he would make his son heir
to the Crown; such cases ought not, shall not go to the jury. No case
can come before me on which I have not a decided opinion as to the law,
otherwise I should not be fit to preside here. I have always conducted
myself with candor, and I meant, gentlemen, to save you trouble. It is
not respectful, nor is it the duty of counsel, to say they have a right
to offer any thing they please. What! decisions in Rome, France, Turkey?
No lawyer will say that common law cases are law under the statute of
Edward the Third, nor justify those judges who overset the statute of
William, and overrule the necessity of having two witnesses to one overt
act, and to admit hearsay testimony to prove matters of fact. It is the
duty of counsel to lay down the law, but not to read cases that are not
law. Having thus explained the meaning of the Court, you will stand
acquitted or condemned to your own consciences, as you think proper to
act. But, gentlemen, do as you please. The course will be, the district
attorney will open the law, state his case, and produce his witnesses.
You are at liberty to controvert the law as to the matter, but the manner
must be regulated by the Court. Judge Peters said, You are to consider
every thing done yesterday as withdrawn. Mr. Lewis replied, True, sir,
the papers are withdrawn, but the sentiments still remain; I shall not
therefore act.
Mr. Dallas expressed the same determination, which I did not take down.
A pause for a few moments took place, when Judge Chase said, You cannot
put the Court into a difficulty by this conduct, gentlemen; you do not
know me if you think so; and, desiring the persons between him and the
prisoner to stand aside, and addressing himself to John Fries, he asked,
Are you desirous of having other counsel assigned you, or will you go on
to trial without? John Fries, after a pause, said he did not know what
to do; he would leave it to the Court. Under these circumstances I felt
a repugnance to go on with the trial, not wishing to act in a case so
extremely singular. I therefore moved to postpone the trial to the next
day; the Court readily concurred, and Fries was remanded to jail.
On the 24th, Fries was brought to the bar again. Judge Chase asked him
if he had any counsel. He told the Court that he relied on them as his
counsel, and he expressed himself with a degree of firmness and composure
that convinced me that his decision was formed on mature reflection.
Then, Judge Chase answered, By the blessing of God we will be your
counsel, and do you as much justice as those assigned you.
_George Hay, sworn._
The greater part of the evidence I am to deliver relates to what was
said by me as counsel for J. T. Callender, who was indicted for a libel
on the President of the United States, and what was said by _one_ of the
judges; for I do not recollect to have heard the voice of Judge Griffin
at any time during the trial. In order to make this statement as accurate
as possible, as my memory is not strong, it is necessary to resort to
a statement made by myself and the counsel associated with me in the
defence of J. T. Callender, which I now hold in my hand, and every part
of which, according to my best recollection, is correct.
Mr. Harper here interrupted Mr. Hay, and said, The witness may refer to
any thing done by himself at the time the occurrences happened which he
relates. But I submit it to the Court how correct it is to refer to what
was not done by him, or done at the time.
The President asked Mr. Hay whether the notes were taken by him.
Mr. Hay. The statement was made by different persons. Some parts were
made by myself, perhaps the greater part; the rest by Mr. Nicholas and
Mr. Wirt. I believe I shall be able to state from it every material
occurrence which took place at the time.
President. Have you the parts made by yourself separate?
Mr. Hay said he had not.
The President then put the question, whether the witness should be
permitted to use the paper? and, the question being taken by yeas and
nays, passed in the negative--yeas 16, nays 18.
Mr. Randolph asked the witness to state to the Court the circumstances
which took place during the trial of James T. Callender, and particularly
what respected the excuse and testimony of John Basset.
Mr. Hay. I will state as well as I can what fell from the judge, and
which appeared to me to be material. After some previous observations,
the counsel for the traverser claimed for their client his constitutional
right to be tried by an impartial jury. I cannot pretend to relate
precisely either the course of proceeding or the exact words which
were used, since I am deprived of the aid of those notes which I know
to be correct. I shall not, therefore, recite the precise words, but I
shall give the substance of them, and the words themselves as nearly as
possible. According to my best recollection, Judge Chase’s declaration on
that point was, that he would see justice done to the prisoner in that
respect. In order to obtain the object which the counsel for Callender
had in view, we pursued this course. Believing that a majority of the
petit jury, if not all of them, were men decidedly opposed to J. T.
Callender, in political sentiments, and thinking it probable, from the
state of parties at that time, that they had made up their minds, we
wished to ask every juror, before he was sworn, whether he had ever
formed an opinion with respect to the book called “The Prospect before
Us.” According to my best recollection, Judge Chase interfered, and told
us it was not the proper question. He said he would tell us what the
proper question was. He then went on to state that the proper question
was this: “Have you ever formed and delivered an opinion concerning the
charges in this indictment?” Though I have but little dependence on my
memory, in general, yet in this I am certain, that I not only give the
substance, but the identical words used. To this question an answer was
necessarily given in the negative.
When Mr. Basset was called by the marshal, he manifested some repugnance
to serving on the jury. He said, according to my best recollection, that
he was unwilling to serve, because he had made up his mind as to that
book. I do not pretend to say that the words used were precisely those I
state. He may have expressed himself in the words ascribed to him by the
stenographical statement given of the trial. The objection, thus made
by Mr. Basset, was overruled by Judge Chase, who asked him whether he
had ever formed and delivered an opinion concerning the charges in the
indictment. He was sworn to answer this question. Like the other jurors,
he answered in the negative, and the judge ordered him, like the other
jurors, to be sworn on the jury. He was sworn, and did serve.
Mr. Harper. Was the word used by the judge, _and_ or _or_?
Mr. Hay. I am perfectly clear it was _and_, and not _or_.
In the state of things at that time, and seeing the temper that was
manifested on the trial, I would not, and did not, ask the juror a
single question without submitting it to the Court, and soliciting
their permission to ask it. I solicited the leave of the Court to ask a
question. The reply of the judge was this--the difficulty I experience
at this moment in stating the precise words, furnishes the reason I had
for wishing to have recourse to the statement I had in my hand; since I
am denied that indulgence, I will not pretend to state literally what
was said, but I will state the substance. I told the judge I wished
to ask a question. “What,” said the judge, “is the question you want
to put?--state it. If I think it a proper question, or if I choose
it, you may put it. Come, what is your question?” Notwithstanding the
humiliation I felt at being addressed in such a way before a crowded
audience, I asked, “Have you formed (leaving out, “and delivered”) an
opinion concerning the book from which the charges in the indictment are
taken?” The reply of Judge Chase was, “no, sir, No, you shall ask no
such question.” And the question was not asked. This is all I recollect
at this moment respecting Mr. Basset, and the occurrences connected with
that part of the trial.
It was stated by Callender, in his affidavit, that Colonel Taylor, of
Caroline, was a material witness; but of this I am not certain, because
I have not read the affidavit since the trial. In the interval that
elapsed between the day on which the first motion was made, and that
on which the trial took place, Tuesday, Colonel Taylor was summoned.
When he came to town, I know not. I have no recollection of having
seen him until he came into court. I had, therefore, no opportunity of
ascertaining whether it would be in his power to furnish the accused
with the evidence he expected to derive from him. After the witnesses
on the part of the United States had been adduced to prove the fact of
publication, and after the attorney of the United States had opened
the case, and stated the law arising upon the evidence, Colonel Taylor
was offered to the Court as a witness. He was sworn; and, immediately
after, or probably while he was swearing, Mr. Chase asked the counsel of
Callender what they expected to prove by him. If I recollect rightly,
Mr. Nicholas, one of my associates, observed that we did not know
distinctly what could be proved by Colonel Taylor; but that we expected
to prove what would amount to a justification of one of the counts in the
indictment; that we expected to prove that Mr. Adams, the then President
of the United States, had avowed, in conversation with Colonel Taylor,
sentiments hostile to a republican Government; and that he had voted in
the Senate of the United States against the law for sequestering British
property in this country, and against the law for suspending commercial
intercourse between the United States and the Kingdom of Great Britain.
I do not recollect precisely the words which were used by Mr. Nicholas,
in making the observations that accompanied this statement; but I think
he said he hoped that it would be understood that he was not tied down
to these particular points, saying that probably the answers given by
Colonel Taylor might suggest other questions proper to be put. Nor do
I use the precise words in which Judge Chase made an objection; but I
do remember that the objection was made. The principle upon which he
founded his objection was this, that Colonel Taylor’s evidence did not
go to a justification of any one entire charge; and he declared Colonel
Taylor’s evidence to be inadmissible on that ground. The judge was then
asked by Mr. Nicholas whether we might not prove part of a charge by one
witness, and the other part by another. The judge answered him, that he
desired him to understand the law as he had propounded it; and the law
was this: that this could not be done; that Colonel Taylor’s evidence
related to only one part of a charge, and that he could not prove one
part by one evidence, and one part by another. I then observed to the
judge that I thought Colonel Taylor’s evidence admissible even on the
principle laid down by the Court; that I thought his testimony would go
to prove both members of the sentence. The one asserted that Mr. Adams
was an aristocrat, the other, that he had proved faithful and serviceable
to the British interest; and that he could prove that he had heard Mr.
Adams make the remarks already stated; and that he had proved serviceable
to Great Britain in the way mentioned by the author, that is, in giving
the two votes in the Senate, alluded to in the work. The judge did not
say in express terms that the position taken at the bar was wrong, but
he said that the evidence of Colonel Taylor was inadmissible, and that
the counsel knew it to be so; and I believe it was at the same moment of
time he said that our object was to deceive and mislead the populace.
I remember these expressions as well as if I had heard them yesterday.
Finding that the attempt I had made to render a service, not to the man,
but to the cause, instead of affording service to the cause, only brought
on me the obloquy of the Court, I felt myself disgusted, and said no more
on the subject.
I recollect that we were requested by the judge to reduce to writing the
questions that we wished to propound to Colonel Taylor. I thought the
measure so novel and unprecedented that I was not disposed to comply
with this desire. The questions were, however, stated in writing by Mr.
Nicholas, who observed that he hoped we would not be confined in the
examination of the witness to the questions thus stated in writing. If I
mistake not, before the questions were reduced to writing, Mr. Nicholas
made some observations about the mode pursued by the Court in reference
to the attorney for the United States, and that exercised towards the
counsel for the prisoner; that the attorney for the United States had
not been required to state in writing the questions he wished to ask.
When this remark was made to the judge, he said that the attorney for the
United States had stated in the opening of the case all that he expected
to prove; “but though this were done, we were not bound to do it.” My
impression is that that word escaped the judge several times.
Mr. Nicholson. What word?
Mr. Hay. The word “we.”
Mr. Nicholson. Did it refer to the Court as well as the attorney?
Mr. Hay. So, sir, I understood it.
The fourth article relates to the refusal of the judge to postpone the
trial on the affidavit of Callender; on which I can only say that the
affidavit was filed, but whether regularly drawn or not I do not know.
This affidavit, according to my best recollection, stated the absence of
material witnesses.
The next article relates to a subject that it is very unpleasant to me to
make any remarks upon, because I feel myself to be a party concerned. The
judge is charged with--
[Mr. Hay here read the third, fourth, and fifth clauses of the fourth
article.]
There were many expressions used by Judge Chase during the trial which
were uncommon, and which I thought, and still think to be so. With
respect to the asperity with which he censured me, I shall not--
Mr. Harper interrupted the witness, and desired him to state the
expressions, and let the Court judge for themselves.
Mr. Hay. The first expression which made a very strong impression on my
mind, was this: In the course of the argument, urged by me in support of
the motion for a continuance to the next term, I assumed it as a clear
position, that the law of the State of Virginia, which directs that the
jury shall assess the fine, would govern in this case. As soon as I got
to that part of the argument the judge interrupted me, and gave me to
understand that I was mistaken in the law, and added, the assessment of
the fine by the jury may be conformable to your local and State laws,
but when applied to the federal courts, it is a “_wild notion_.” In the
case of Colonel Taylor’s evidence, which I have already stated, the judge
said that we knew the evidence to be inadmissible, though we pressed it
upon the Court, and then the expression followed which has been already
mentioned, that we were endeavoring to mislead and deceive the populace.
At another time he was pleased to observe, Gentlemen, you have all along
been in error in this cause, and you persist in pressing your mistakes
on the Court. On more occasions than one he charged the counsel with
advancing doctrines they knew to be wrong. I endeavored in one part of
the cause to satisfy the Court that the book called the “Prospect before
Us,” could not be given in evidence in support of the indictment, because
the title of the book was not mentioned in the indictment. In support of
my argument, I observed to the Court that if the indictment mentioned the
book from which the charges were formed, and any subsequent prosecution
should afterwards be instituted, the traverser would have nothing more
to do than to produce a copy of the record, and plead in bar of a
subsequent prosecution; but that according to the opinion of the Court,
the situation of the traverser would be more precarious than according to
the doctrines for which I contended; for that the traverser, if he should
plead a former prosecution in bar, would not be able to prove the fact by
comparing the record with the indictment; but must resort to extraneous
evidence to prove that the subsequent prosecution was founded on the
same publication that gave rise to the first. The judge was pleased to
observe, without seeming to understand the distinction that I endeavored
to draw, that I knew the present prosecution could be pleaded in bar. I
certainly did know it, and was endeavoring at that very time to show by
my argument that the better mode of proving the truth of the plea would
be by a copy of the record, rather than by an appeal to parol testimony.
Judge Chase again interrupted me, and said, I knew that this prosecution
might be pleaded in bar.
In the course of the same argument, which I addressed to the judge, for
the purpose of showing the truth of the positions we had stated, I
observed that according to the established doctrine, the words “tenor and
effect,” in an indictment for a libel, bound the party to the literal
recital of the parts charged as libellous. In support of that opinion I
quoted several authorities that satisfied my mind. The judge was pleased
to tell me, I was mistaken in my application of them; but I do not
remember his precise words. He said the words “tenor and effect” did not
oblige the prosecutor to give more than the substance of the paper meant
to be recited. It is contended, said he, that the book ought to be copied
_verbatim et literatim_; I wonder, he continued, _they_ do not contend
for _punctuatim_ too.
Mr. Nicholson. Was this observation addressed to the bar?
Mr. Hay. It appeared to me to be intended for the people; for he looked
round the room when he said, with a sarcastic smile, I wonder they do
not contend for _punctuatim_ too. I recollect also, that when Mr. Wirt,
who was associated with me as counsel for the traverser, was addressing
the Court, he was ordered by Judge Chase to sit down--in this precise
language, _sit down_. The judge also declared that the counsel on the
part of Callender should not address any observations to the jury
concerning the unconstitutionality of the second section of the sedition
law, in respect to prosecutions for libellous publications.
When Mr. Wirt was arguing from a proposition he had laid down, he
said the conclusion which followed was perfectly syllogistical. The
judge bowed to him in a manner I cannot describe, and said, “_A non
sequitur, sir._” I do not remember any other expression used by the judge
calculated to deter the counsel from proceeding in the defence of J. T.
Callender. But I do remember that I was more frequently interrupted by
Judge Chase on that trial, than I have ever been interrupted during the
sixteen years I have practised at the bar. I do not state how often I was
interrupted, because I do not recollect; but I know the interruptions
were frequent, and I believed them to be very unnecessary, not only as
they regarded myself, but the counsel who were associated with me in the
defence.
TUESDAY, February 12.
The Court met at 12 o’clock.
_John Taylor, sworn._
Mr. Randolph. The witness will please to state the circumstances that
passed in the rejection of his testimony, and other circumstances which
have any relation to the conduct of Judge Chase on the trial of Callender?
Mr. Taylor. I was summoned as a witness on that trial on the part of
Callender. I attended and was sworn. On being sworn, Judge Chase inquired
what it was intended to prove by my testimony? I do not recollect the
expressions of Judge Chase, nor do I recollect precisely the answer made
to this inquiry; but Judge Chase desired the counsel for the accused to
reduce their questions to writing. They did so.
I had come into court very near the hour when the Court met, nor had I
previously given any intimation of the testimony I could give either to
Callender or his counsel. I should have added that, after, I think, the
judge had declared the witness could not be examined, he applied to the
district judge for his opinion; who replied in so low a voice that I
could not well tell what he said. But this was after he had given his own
opinion that my testimony could not be received.
Mr. Randolph. Did you observe anything unusual in conducting the trial?
Mr. Taylor. One or more motions were made by the counsel for Callender,
who was interrupted by Judge Chase repeatedly. The words in which these
interruptions were couched, I cannot recollect, though I formed an
opinion of the style and manner of them; the effect of which was to
produce laughter in the audience at the expense of the counsel. If I am
required to declare the character in which I conceived them to be made, I
am ready to do so.
There was here a short pause, when Judge Chase rose and said, he had no
objection to the opinion of the witness being delivered.
Mr. Taylor. I thought the interruptions were in a very high degree
imperative, satirical, and witty.
Mr. Randolph. Did there appear to you any thing unusual in the manner of
the counsel for the accused towards the Court?
Mr. Taylor. I neither discovered the least degree of provocation given
by the counsel, nor perceived any anger expressed by the Court. Judge
Griffin was silent, nor were Judge Chase’s interruptions accompanied by
the indication of any anger, as far as I could perceive.
To an interrogatory made, Mr. Taylor said, the interruptions of the Court
were extremely well calculated to abash and disconcert counsel.
Mr. Harper. You have said you considered the interruptions of the Court
as highly calculated to abash the counsel; did you mean thereby to give
your opinion that they were so intended, or that such was their tendency?
Mr. Taylor. I thought they were so intended, and they had their full
effect. They were followed by a great deal of mirth in the audience. The
audience laughed, but the counsel never laughed at all.
_Philip N. Nicholas, sworn._
In the year 1800, in the month of May, the circuit court of the United
States sat at Richmond. Of this court, Mr. Chase and Mr. Griffin were
the judges. I believe Mr. Chase sat alone for some time--for how long I
do not recollect. Mr. Griffin did not, I believe, take his seat until
the motion to continue the cause was renewed. On the first day of the
court Judge Chase delivered a charge to the grand jury, and called
their attention, in a particular manner, to infractions of the sedition
law. The grand jury returned with a presentment against James Thompson
Callender, for a libel against the President, by the publication of
a work, entitled “The Prospect before Us.” On this presentment, the
attorney for the district filed an indictment, which the grand jury found
a true bill.
Process was immediately issued on the indictment. My impression at the
time, and until very lately, was, that the process issued was a bench
warrant. I have lately heard that it was a _capias_. For several days
it was believed that Callender, who resided at Petersburg, could not
be found; but the marshal at length arrested him, and brought him into
court. Mr. Hay and myself undertook his defence. My motive was, that I
believed the sedition law unconstitutional, and of course oppressive to
any person prosecuted under it.
Mr. Hay and myself had an interview with Callender, in order to ascertain
the grounds on which he expected to make his defence. Callender informed
us that his witnesses were considerably dispersed, and that there were
many documents which it would be necessary for him to obtain, before he
could be prepared for his trial. An affidavit was drawn, stating the
absence of Callender’s witnesses, the want of the documents, and that
the counsel could not be prepared during that term. On this affidavit
was founded the motion to continue the cause. This motion was urged with
great earnestness and zeal, as we were convinced that justice could not
be done if the case was tried during that term. The arguments principally
urged by us were, that the defendant had a constitutional right to
compulsory process for his witnesses, and to counsel, but that these
privileges would be nugatory if the Court would not allow time to summon
the witnesses, and for counsel to prepare for the defence.
The motion to continue the case was overruled, and Judge Chase directed
the jury to be called. When the jury came to the book, I stated to the
Court that I believed there was ground of challenge to the panel in
consequence of one of the jurors, who was returned, having expressed
opinions very hostile to the traverser. Mr. Chase, after looking into
an authority which I quoted, and also into Coke Littleton, said the law
was clear, that our objection did not apply to the panel, but to the
individual juror. He further said, that we must proceed regularly; that
we might either introduce testimony to prove that a particular juror
had expressed an opinion on the case, or we might examine the jurors as
they came to the book. We preferred the latter mode, and Mr. Hay asked
if he might ask a question of the first juror who was sworn. Mr. Chase
said that Mr. Hay must submit the question to his previous inspection,
and that, if he thought it a proper question, it might be asked. Mr.
Hay stated that the question which he wished to ask, was, Have you
ever formed an opinion on the work, entitled “The Prospect before Us,”
from which the charges in the indictment were extracted? Judge Chase
said that the counsel should not ask that question; that the only
proper question was, Have you ever formed and delivered an opinion on
the charge in the indictment? I say, (continued the judge,) formed and
delivered; for it is not only necessary that he should have formed, but
also delivered an opinion, to exclude the juror. The judge propounded
the last-mentioned question to the first juror, and he replied that he
had never seen the indictment, or heard it read. The judge said he was
a good juror, and desired he might be sworn. Mr. Hay requested that the
indictment be read to the juror, that he might be thereby enabled to say
whether he had formed and delivered an opinion on the indictment. The
judge replied, that he had already indulged the counsel as much as he
could, and they ought to be satisfied; he refused to let the indictment
be read to the juror. The clerk then called the jury and swore them, till
he came to John Basset, who in reply to the previous question said, he
never had seen the indictment or heard it read. But Mr. Basset seemed
to have considerable scruples at serving, and said he had formed and
delivered an opinion that the book called “The Prospect before Us,”
came within the sedition law. Judge Chase, however, said he was a good
juror, and he was sworn and served as such. The witnesses on the part of
the prosecution were called and sworn, and, among others, Mr. Rind was
examined to prove the publication of “The Prospect before Us.” Mr. Hay
observed, that no witness who was in any way concerned in the printing
of the “Prospect,” was bound to criminate himself. Mr. Chase admitted
this to be correct, but declared that the witnesses might rest assured
that no person would be prosecuted in consequence of any evidence given
in the case then before the court. Under these circumstances, Mr. Rind
proved that he had printed part of the “Prospect” for Callender, and took
out of his pocket some of the original sheets from which he had printed
parts of the work. Judge Chase himself compared these sheets with the
work as published, and they were found to correspond. After the testimony
on the part of the prosecution was finished, Col. Taylor of Caroline
was called on the part of the traverser, and, after he was sworn, Judge
Chase asked with apparent haste and earnestness of manner, what we
expected to prove by that witness. We said we expected to prove that Mr.
Adams had avowed in the presence of the witness sentiments favorable to
monarchy or aristocracy, and that he had voted in the Senate against
the sequestration of British debts, and the suspension of commercial
intercourse with Great Britain. Judge Chase then said that we must reduce
the questions to writing. This I objected to, and stated that it was
a thing very unusual in our courts; that it had not been required by
the Court of the district attorney, when he examined witnesses against
Callender; that it involved a dangerous principle, and was calculated to
subject every question of fact to the control of the Court; besides, I
added, that I did not know the extent to which Col. Taylor’s evidence
would go; that I wished him to state all he knew, and that very probably
the examination would point out new questions proper to be asked. I then
stated that if the Court insisted on the questions being reduced to
writing, I would comply with their direction, but that I hoped it would
not be considered as precluding us from asking any additional questions.
The questions were then reduced to writing, and are as follows, viz:
1. Did you ever hear Mr. Adams express any sentiments favorable to
monarchy or aristocracy, and what were they?
2. Did you ever hear Mr. Adams, while Vice President, express his
disapprobation of the funding system?
3. Do you know whether Mr. Adams did not, in the year 1794, vote against
the sequestration of British debts, and the suspension of intercourse
with Great Britain?
Judge Chase, after examining the questions, declared Col. Taylor’s
evidence inadmissible. No evidence can be received, said the judge,
which does not go to justify the whole charge; the charge is, that
the President is a professed aristocrat, and has proved faithful and
serviceable to the British interest. Now, you must prove both these
points, or you prove nothing, and as your evidence relates to one only,
it cannot be received; you must prove all or none. These, I believe, were
the precise words of the judge. I think it right here to state that after
Mr. Chase had declared Colonel Taylor’s evidence inadmissible, he said
to the district attorney, that although the questions were improper, he
wished the attorney would consent to let them be asked of the witness.
The attorney said he could not consent. The evidence of Colonel Taylor
being excluded, the attorney for the United States addressed the jury,
and commented at considerable length on the indictment. After that, Mr.
Wirt addressed the jury for the defendant. He premised that the counsel
for the traverser were placed in a very embarrassed situation; that
the prisoner during the same term was presented, indicted, arrested,
arraigned, tried; and that this precipitation precluded the possibility
of obtaining witnesses or making the necessary preparations for arguing
a cause of so much magnitude. Here Judge Chase interrupted Mr. Wirt, and
told him, that he would not suffer any thing to be said which reflected
on the Court. Mr. Wirt said he did not mean to reflect on the Court; his
object was only to apologize to the jury for the lameness of the defence.
Mr. Chase replied that his apology contained the very reflection he
disclaimed, and desired him to go on with the cause. Mr. Wirt then said,
that an act of Assembly had adopted the common law of England as a part
of the laws of Virginia; that an act of Congress had directed the United
States courts sitting in Virginia to conform to the laws of the State in
which such court might happen to sit; that by the common law the jury had
a right to decide on the law as well as the fact. He then said, that
if the jury upon inquiry should find the sedition law unconstitutional,
they would not consider it as law, and if they did, they would violate
their oaths. Here Mr. Chase said to Mr. Wirt, Sit down, sir. Mr. Wirt
endeavored to explain, and said, I am going on, sir, to----No, sir, said
Mr. Chase, you are not going on; I am going on. Judge Chase then read
from a paper, which he held in his hand, an instruction to the counsel
that they should not address the jury on the constitutionality of the act
of Congress, but that arguments might be addressed to the Court to prove
the right of the jury to consider the constitutionality. Mr. Wirt then
addressed the Court. He said he had not considered the case elaborately;
that it appeared to him so clearly that the jury had the right contended
for, that he did not imagine it required any great research to prove it.
He then proceeded to state that it was certainly the right of the jury
to consider of and determine both law and fact. Mr. Chase here remarked
that Mr. Wirt need not give himself trouble on that point; we all know,
said he, that the jury have a right to decide the law. Mr. Wirt then
said, that he supposed it equally clear that the constitution is the
law. Yes, sir, said Mr. Chase, the supreme law. If, then, said Mr. Wirt,
the jury have a right to decide on the law, and if the constitution is
law, it follows syllogistically that they have a right to decide on the
constitutionality of the law in question. A _non sequitur_, sir, said
Judge Chase. Here Mr. Wirt sat down.
_John Thompson Mason, sworn._
Mr. Randolph. It has been contended on the part of the respondent, that
the _quo animo_ determines the guilt or innocence of an action; now,
if the _quo animo_ with which he went down to Richmond to execute the
sedition law, can be shown, it will have an important bearing on his
conduct. I wish, therefore, to ask the witness this question: Did you
ever hear Judge Chase, previous to the trial of Callender, utter any
expression, and, if any, what was it, on the subject of Callender’s
prosecution, or respecting the book called “The Prospect before Us;” did
he say that the counsel of the Virginia bar were afraid to press the
execution of any law, and particularly the sedition law; did he say that
he had a copy of that book, or what did he say? State the circumstances
particularly.
Mr. Mason. The question refers to circumstances of which I have but an
indistinct recollection, and which happened in a way which renders it
extremely unpleasant on my part to relate them. Judge Chase presided
in the circuit court held at Annapolis in the spring of the year 1800;
during the term a man by the name of Saunders was tried for larceny,
and found guilty. After sentence was passed upon him, he was taken out
of court to receive it. The press of the people being very great, the
judges and myself were detained within the room. Judge Winchester,
Judge Chase, and myself had a conversation, altogether of a jocular
complexion. I think it was just after he delivered his valedictory, but
how to connect the circumstances at this time, I do not know. I remember,
however, that he asked me my opinion of the book called “The Prospect
before Us;” I told him I had not seen it, and from the character I had
heard of it, I never wished to see it. He told me, in reply, that Mr.
Luther Martin had sent a copy to him, and had scored the parts that were
libellous, and that he would carry it to Richmond as a proper subject
for prosecution. There was a good deal of conversation besides, but I do
not recollect it. There was one expression, however, that he used, which
just occurs to my memory, and which I will repeat, that before he left
Richmond, he would teach the people to distinguish between the liberty
and the licentiousness of the press. He said that he was as sincere a
friend to the liberty, as he was an enemy to the licentiousness of the
press. There was a sentiment he expressed, which I cannot undertake to
give in his precise words, that if the Commonwealth or its inhabitants
were not too depraved to furnish a jury of good and respectable men, he
would certainly punish Calender. I do not precisely recollect the words:
I never repeated this conversation before, and seldom or ever, after it
occurred, thought of it.
_John Heath, sworn._
During the trial of J. T. Callender, I attended at the court in
Richmond as one of the bar. I had occasion to apply to the Court for
an injunction. The motion not having been decided upon, I went round
to Crouch’s, where Judge Chase lodged, and found him in his chamber
alone, in which I thought myself very fortunate. We then talked over the
application I had made the day before for an injunction; while talking
on it, Mr. David M. Randolph, the then marshal, stepped in with a paper
in his hand. The judge accosted him, and asked him what he had in his
hand? He said that he had the panel of the petit jury summoned for the
trial of Callender. This was after the indictment was found by the grand
jury. After Mr. Randolph had mentioned that it was the panel of the petit
jury that he had in his hand, Judge Chase immediately replied, Have
you any of those creatures called Democrats on the panel? Mr. Randolph
hesitated a moment, and then said that he had not made any discrimination
in summoning the petit jury. Judge Chase said, Look it over, sir, and if
there are any of that description, strike them off. This is all I know of
this affair.
The Court rose at 4 o’clock.
WEDNESDAY, February 13.
The Court was opened at half past 2 o’clock.
_James Triplett, sworn._
Mr. Randolph. I wish to know whether you ever heard previous to, or
during the trial of Callender, any expressions used by the respondent,
Judge Chase, manifesting a hostility toward J. T. Callender, and what
were those expressions?
Mr. Triplett. I recollect to have had a conversation with Judge Chase on
our passage in the stage down to Richmond. A book was handed to me by
him, and I was asked if I had read it? I was asked whether I had seen
him, (Callender?) I told him I had never seen him. There was a story
recited about the arrest of Callender by a warrant of a magistrate, under
the vagrant act of Virginia; I recollect that the judge’s reply was, “It
is a pity you have not hanged the rascal.”
Mr. Randolph. Were there any other expressions of this nature used, after
you got to Richmond?
Mr. Triplett. I did not hear any thing particular; but I think the judge
did say something about the Government of the United States showing
too much lenity towards such renegadoes. I do not recollect any other
conversation passing between us at that time, until after the Court
was sitting, when Judge Chase was the first who informed me of the
presentment being made by the grand jury against Callender. At the same
time, he informed me that he expected I would have the pleasure of seeing
Callender next day before sundown, that the marshal had that day started
after him for Petersburg.
Mr. Randolph. We wish you, as well as your memory serves, to state not
only the substance, but the exact expressions used by the judge.
Mr. Triplett. I will state them as well as my memory serves me. Some time
after this conversation, I met the judge at the place where he boarded;
he said that the marshal had returned without Callender, and used this
expression, “I am afraid we shall not be able to get the damned rascal at
this court.”
_John Basset, sworn for the defence._
At the request of Mr. Harper, and with the consent of the Managers, _John
Basset_, a witness on the part of Judge Chase, was sworn and examined,
in consequence of the peculiar situation of his family requiring his
immediate return home.
Mr. Harper. Relate the circumstances that took place relative to your
being sworn on the jury, on the trial of Callender, and what the
application to the Court was on your behalf?
Mr. Basset. The circuit court of the United States at which James T.
Callender was presented and indicted for a libel, was held on Monday
the second or third of June. I left home in the morning and arrived in
Richmond as early as might be expected. On my arrival I saw David M.
Randolph, who was standing at a corner of a street; perceiving me, he
came towards me; before I alighted from my horse, he informed me that
I had been summoned as a grand juror, and that for not appearing had
been crossed, that it was my duty to go to the court and justify myself
for my absence; that he summoned me on the petit jury for the trial of
Callender, and that my serving in that capacity would be an apology for
my previous absence. I presented myself to the Court, but the trial did
not come on that day. The second day I attended also. I knew very well
that the law under which the traverser was to be tried, was odious to
my fellow-citizens; I knew it was conceived to be a great oppression to
the liberty of the subject, and I believed that great umbrage would be
given to the mass of the people by those who should undertake to execute
that law. I was weak or wicked enough to be among that class of people
called federalists, and I did believe that the law [sedition law] was
constitutional. I felt myself bound, when called on to be a juryman, to
make a declaration of my political sentiments. I made this declaration to
relieve the impression on my own mind, and not in order that it should be
considered that I declined, in consequence of my political opinions, to
serve on Callender’s trial, or in any other case. I thought it possible
that I might be excused; but if I were found by the Court to stand in a
proper relation between my country and the traverser, I would cheerfully
serve. My object was to justify my own conduct to myself and to the whole
world. I made use of these expressions, and I believe I repeat the very
words, but I am well assured that I shall express the force and efficacy
of what I said. I declared to the judge that my politics were federal;
that I had never seen the book called “The Prospect before Us,” but I
had seen in a newspaper some extracts from it; that if the extracts were
correctly taken from the book, and if the traverser was the author or
publisher of that work, it appeared to me that it was a seditious act;
that I had formed and expressed an unequivocal opinion, that the book
was a seditious act; that I had never formed an opinion in respect to
the indictment, for I had neither seen it nor heard it read. The Court
considered me a good juror, and I was sworn accordingly.
Mr. Bayard. What was the general deportment of the judge to the counsel,
and of the counsel to the Court?
Mr. Basset. The different coloring through which the same things are seen
make some men see things differently from others. My own opinion is,
that the judge conducted himself with decision unmixed with severity,
and that he was witty without being sarcastic. It was my impression that
the judge wished the prisoner to have a full hearing, that he might be
acquitted, if innocent, and found guilty, if really guilty. It appeared
to me that the sole point on which the counsel hoped to save their
client was by proving the unconstitutionality of the sedition law, and
it appeared to me that they could not form a reasonable expectation of
acquitting him on any other ground. I believe his counsel believed the
law unconstitutional, and thought they had eloquence and argument enough
to convince the jury of it. I believe they thought the judge deprived
them of their right to address the jury on that point; and that having
the cause very much at heart, they were vastly mortified that the Court
did not permit them to take the course they wished. They appeared to
consider themselves as advocating the cause of an oppressed citizen, and
they felt hurt at not being allowed the mode of defence which in their
opinion the law authorized. In all their arguments they travelled but
a little way before they came to the point that went to prove the law
unconstitutional, and the judge declared, at every such time, that they
had no right to address the jury on that point; that the constitution
had made the Court the sole judges of the law as far as it respected
its constitutionality. From these circumstances, it is my impression
that the altercation between the bar and the Court arose solely from the
sensibility of the counsel to this particular subject, and from being
deprived, as they supposed, of their rights.
The President. What were the particular causes of irritation between the
judge and the counsel?
Mr. Basset. I have stated what I considered the causes. They arose from
the counsel adverting to that particular point, and their so frequently
doing it occasioned the judge to elevate his voice, and to pronounce over
and over again what he conceived to be the law.
The Court rose at 4 o’clock.
THURSDAY, February 14.
The Court was opened at 12 o’clock.
_George Read, sworn._
Mr. Randolph. The witness will please to state what he knows in relation
to certain proceedings at a circuit court of the United States, held at
Newcastle, in the State of Delaware, in the month of June, 1800.
Mr. Read. It is incumbent on me to state that several years have elapsed
since the transactions which I am now about to relate occurred; of course
I cannot pretend to say that the language I shall use to convey the
sentiments delivered by Mr. Chase is precisely according to what occurred
at the time; but the substance of what I relate will be correct. The
transactions to which I presume I am called to testify took place at a
session of the circuit court, held at Newcastle, for Delaware district,
in June, 1800. The Court sat two days, viz: on the 27th and 28th days of
the month. At that court, Samuel Chase, one of the associate justices,
presided, and Gunning Bedford, district judge, was associated with him.
Judge Chase, as usual, delivered a charge to the grand jury, on the
first day of the term. The grand jury, after hearing the charge, retired
to their chamber; after remaining there for some time, they returned
into court, and on being asked whether they had found any bills, or
had any presentments to make, they answered they had found no bills
of indictment, and had no presentments to make. After receiving this
answer, Judge Chase proceeded to observe, as nearly as I can recollect,
addressing himself to the grand jury, that he had been informed, or
heard, that a highly seditious temper had manifested itself in the State
of Delaware among a certain class of people, especially in Newcastle
County, and more especially in the town of Wilmington, where lived a
most seditious printer, unrestrained by any principle of virtue, and
regardless of social order; that the name of this printer was ----; the
judge here paused, and said, perhaps it might be assuming, or taking upon
himself too much to mention the name of this person; but, gentlemen, it
becomes your special duty, and you must inquire diligently into this
matter. Several of the jurors, I believe, made a request to the Court
to dismiss them, and assigned as the reasons for their request, that
some of them were farmers, and, as it was about the time of harvest,
they were anxious to be on their farms. The judge observed that the
business to which he had called their attention was of a very urgent and
pressing nature, and must be attended to; that he could not, therefore,
discharge them before the next day, when further information should
be communicated to them on the subject he had referred to. The judge
then addressing himself to me as the district attorney, asked me, as I
believe is usual on such occasions, whether I had any criminal charges
to submit to the grand jury? I said that none such had yet occurred,
and I believed none were likely to occur during that term. Judge Chase,
continuing his address to me, observed, You might, by prosecuting proper
researches, make some discoveries. Have you not heard of some persons
in this State who have been guilty of libelling the Government, or the
administration of the Government of the United States? I am told, and
the general circulation of the report induces me to believe it, that
there is a certain printer in the town of Wilmington who publishes a most
scandalous newspaper; but it will not do to mention names. Have you not
two printers in that town? I answered that I believed there were. Judge
Chase observed, that one of them was a seditious printer, adding, he
shall be taken notice of, and it is your duty, Mr. Attorney, to examine
unremittingly and minutely into affairs of that nature; times like these
require that this seditious temper or spirit, which pervades too many of
our presses, should be discouraged or repressed. Can you not find a file
of these newspapers between this time and to-morrow morning, and examine
them, and discover whether this printer is not guilty of libelling the
Government of the United States? This, I say, sir, must be done; I think
it is your duty. I observed, as this subject was pressed by the honorable
judge, I believed I was acquainted with the duties of my office, and was
willing to discharge them. I mentioned that I had not in my possession
the papers alluded to by the judge, nor had read them; but that if a
file of them were procured and handed to me, I had no objection to
examine them, and communicate with the grand jury on the subject. The
judge then said he was satisfied, and, turning to the jury, observed,
that he could not discharge them, however inconvenient their stay; they
must attend the ensuing day, at the usual hour. The judge then directed
that a file of the papers should be procured for me. I understood him to
mean the paper called the Mirror of the Times and General Advertiser,
though I do not recollect to have heard the title of the paper mentioned
during the proceedings. A file of those papers was brought to me in the
afternoon, after the adjournment of the Court; by whom they were brought
I do not recollect. I examined them, but in a very cursory manner, as I
was very much interrupted by persons calling upon me. I did not discover
during the course of this examination, any libellous matter coming within
the provisions of the sedition act.
According to what I understood to be the wish of the judge, I sent this
file of papers to the grand jury. Soon after the meeting of the Court on
the second day, and at the request of the grand jury, I attended them
in their room. On entering, the foreman of the jury addressed me, and
directed my attention to a paragraph in a publication contained in the
Mirror of the 21st June, 1800, republished from the Aurora, reflecting,
perhaps in strong and pointed language, on the former conduct of Judge
Chase. He observed that there was a difference of opinion among the
jurors as to the nature of the paragraph--some doubted whether it was
a libel or not, and, if libellous, whether they had a right to present
it to the circuit court. I observed that it was not necessary for
me to be very particular in my opinion of the publication, as I did
not consider it as coming under the sedition law, though it might be
considered as an offence at common law, because Judge Chase had decided
that the circuit court could not take cognizance of cases arising at
common law. I returned into court. After some time, the file was placed
before the judge. Judge Chase asked me what had been done, and whether
the grand jury had made any discoveries of libellous matter? I answered
none, unless it were the paragraph which related to Judge Chase, which
I showed him, observing that it did not appear to me to come under the
sedition law. Judge Chase acquiesced, and the business passed over on his
part in a very polite and affable manner. I do not recollect any thing
further to have passed. I have, however, an indistinct recollection of
a conversation between Judge Chase and myself, in the room of a tavern,
before we went into court, in which I understood him to have made a
general declaration of hostility against seditious printers.
_James Lea, affirmed._
Mr. Rodney. Please relate to the Court the occurrences which took place
at a circuit court of the United States at Newcastle, and whether you
were summoned as a grand juror at that court.
Mr. Lea. I was summoned by the marshal of the district of Delaware as
a grand juror at the circuit court held in the month of June, 1800. I
attended agreeably to that summons, and was qualified as a juror. After
receiving a charge from Judge Chase, we retired into our room, and
remained there for some time. There appearing to be no business for us,
we returned into our box. The usual question was put to us, whether we
had found any bills? We said that we had not. After some time, Judge
Chase addressed the grand jury, and observed that a very seditious
disposition had manifested itself in the State of Delaware, in the
county of Newcastle, and particularly in the town of Wilmington; that
a seditious printer lived in that place, who edited a paper called the
Mirror of the Times and the General Advertiser, who was in the habit of
libelling the Government of the United States, and that his name was
----, he said he would not mention his name, but that it was our duty
to inquire if any seditious publications had been made; that he would
not discharge us that day, nor until we had made the inquiry. Several of
the jurors addressed the judge for leave to return home, stating that
they were farmers, and were extremely anxious to be on their farms,
as it was harvest time. Some conversation passed between Judge Chase
and the attorney for the district, after which he said he would not
discharge us until the next day. We returned the next day into court,
and after sitting some time in our box, we retired to the jury room. A
file of newspapers was produced by some persons, and we examined them. We
found nothing in them of a libellous nature, in our opinion, excepting
something relative to Judge Chase, which some of the jury thought came
under the sedition law. We sent for the attorney of the district to
inform us as to the nature of the paragraph. He told us it did not come
under the sedition law. We went into the jury box, when a conversation
of some length took place between Judge Chase and the attorney of the
district, after which we were discharged.
_John Montgomery, sworn._
Mr. Randolph. The subject on which it is understood you are capable of
giving some information to the Court is the conduct of Judge Chase, at a
circuit court of the United States, held for the district of Maryland at
Baltimore, in May, 1803, or about that time.
Mr. Montgomery. The point, I presume, on which I am called to give
testimony, relates to a charge to a grand jury delivered by Judge Chase,
at a circuit court where he presided, and Judge Winchester was associated
with him. It will not, from the nature of the subject, be expected that
I shall be able to detail, in the precise language of the judge, the
whole of the charge which was delivered in 1803 at the May term. Though
not one of the bar, I was present at the court, and took a chair among
the gentlemen of the bar. After the grand jury were impanelled, Judge
Chase addressed them. He appeared to address them from a written paper
that lay before him. He proceeded in the usual manner to charge the jury
as to the duties expected to be performed by them. After he had thus far
proceeded in his charge, he mentioned, that before the jury retired to
their chamber, he would make some observations, and that they would be
considered as flowing from a wish for the happiness or welfare of the
community. He stated that it was important that the people should be
fully informed, particularly at such a crisis; that falsehood was more
easily disseminated than truth; and that the latter was reluctantly
attended to, when opposed to popular prejudice. I cannot pretend to
state the sentiments delivered by the judge, in the order in which they
were delivered. I can undertake to state, from my recollection, the
substance of those he delivered. To the best of my recollection, the
judge stated that the Administration was weak, relaxed, and inadequate to
the duties devolved on it; and that its acts proceeded not from a view
to promote the general happiness, but from a desire for the continuance
of unfairly-acquired power. The language _unfairly-acquired power_ made
a strong impression on my mind at the time; and when the judge called
the attention of the jury to the observations he was about to make, I
was prepared to expect something extraordinary from him, as I was at
Annapolis when he pronounced the valedictory address which Mr. Mason, in
his testimony, took occasion to mention. The judge stated the violation
of the constitution that had taken place by the act of Congress repealing
the judiciary act of 1800, and the consequent removal of sixteen judges;
that it had made a violent attack on the independence of the Judiciary.
He also found fault with a law passed by the Legislature of Maryland
in 1800, the effect of which was the removal of all the judges on the
county-court establishment. He stated that those acts were a severe blow
against the independence of the Judiciary. He stated, that since the
year 1776, he had been an advocate for a representative or republican
form of government; that it was his wish that freemen should be governed
by representatives chosen by that class of citizens who had a property
in, a common interest with, and an attachment to, the community. The
language might have been in the words of our constitution. He found fault
with the law passed by the Legislature of Maryland, which he styled
“The Universal-suffrage Law.” He stated that that also affected the
independence of the Judiciary, and to the best of my recollection, he
explained his ideas in this manner: that every free, white male citizen,
in the language of the constitution, having the qualification of age
and residence, though he had not a property in, an interest with, and
an attachment to, the community, being suffered to choose those who
constituted the Legislature, and the Judiciary being dependent on the
Legislature for their support and continuance in office, few characters
of integrity and ability, who are competent to discharge the duties of
judges, would be found to accept appointments held by such a tenure. He
stated that these measures were destructive of the happiness and welfare
of the community; that they would have a tendency to sink our Republican
Government into what he called a _Mobocracy_--the worst of all possible
governments. At the close of the judge’s charge, he, in an impressive
manner, called on the jury to pause, to reflect, and when they returned
to their homes, to use their endeavors to prevent these impending evils,
and save their country. He said that the people had been misled by
misrepresentation, falsehood, art, and cunning; that, by correcting these
errors, the threatened evils might be prevented--or words to that effect.
_Samuel H. Smith, sworn._
Mr. Nicholson. Please to state what you know of the charge delivered by
Judge Chase at Baltimore.
Mr. Smith. The charge of Judge Chase having been published, I did not
expect to be called upon to state in detail its general contents;
supposing that the only inquiry made would be on the correspondence of
my recollection with the contents of the published charge. I do not know
that I should be able, under these circumstances, to give a particular
statement, from memory, of its contents. On the evening subsequent to the
delivery of the charge, I committed to paper the most important features
of it, which were published in the National Intelligencer, and which form
part of the printed testimony received by the committee of inquiry. If I
could be indulged with access to it, I should be enabled to state more
correctly my knowledge of the charge.
[Mr. Smith here, with permission, read the following, extracted from the
National Intelligencer of May 20, 1803:--
“After a definition of the offences cognizable by the grand jury, Judge
Chase said he hoped he should be pardoned for making a few additional
observations. He had, he remarked, been uniformly attached to a free
republican government, and had actively participated in our revolutionary
struggle to obtain it. He still remained warmly attached to the
principles of government then established. Since that period, however,
certain opinions had sprung up which threatened with ruin the fair fabric
then raised. It had been contended that all men had equal rights derived
from nature, of which society could not rightfully deprive them. This
he denied. He could conceive of no rights in a state of nature, which
was in fact entirely a creature of the imagination, as there was no
condition of man in which he was not, under some modification, subject
to a particular leader or particular species of government. True liberty
did not, in his opinion, consist in the possession of equal rights, but
in the protection by the law of the person and property of every member
of society, however various the grade in society he filled. Nor did
it consist in the form of government in any country. A monarchy might
be free, and a republic in slavery. Wherever the laws protected the
person and property of every man, there liberty existed, whatever the
government was. Such, said he, is our present situation. But much I fear
that soon, very soon our situation will be changed. The great bulwark
of an independent judiciary has been broken down by the Legislature
of the United States, and a wound inflicted upon the liberties of the
people which nothing but their good sense can cure. Judge Chase here
went into an assertion of the right of the judiciary to decide on the
constitutionality of laws. He then adverted to the proceedings of the
Legislature of Maryland. He commented on the wisdom and patriotism of
those who had framed the constitution of that State. That wisdom and
patriotism had never conceived liberty to consist in every man possessing
equal political rights. To secure property, the right of suffrage
had been limited. The convention had not imagined, according to the
new doctrine, that property would be best protected by those who had
themselves no property. The great rampart established in the limitation
of suffrage was now demolished by the principle of universal suffrage
ingrafted in the constitution. In addition to this, a proposition was
now submitted, whose ratification depended upon the next Legislature and
which, if ratified, would destroy the independence and respectability
of the judiciary, and make the administration of justice dependent
upon legislative discretion. If this shall, in addition to that which
establishes universal suffrage, become part of the constitution, nothing
will remain that will be worth protecting. Instead of being ruled by a
regular and respectable government, we shall be governed by an ignorant
mobocracy. When he reflected on the ruinous effects of these measures,
he could not but blush at the degeneracy of sons, who destroyed the fair
fabric raised by the patriotism of their fathers.”]
President. Did you hear any reflections cast on the Administration?
Mr. Smith. I do not recollect any other beside those contained in the
statement I have read.
_John Stephen, sworn._
I was at Baltimore when the charge was delivered by Judge Chase. My
recollection of its contents is extremely vague. But, with regard to
some of it, it coincides with that of Mr. Montgomery, Mr. Mason, and Mr.
Smith. He spoke of the repeal of the judiciary law, and said that it
was injurious to the independence of the judges. He also mentioned the
general suffrage law as injurious; and said no man ought to be permitted
to vote unless he had a property in, a common interest with, and an
attachment to, the community; that the act violated this principle,
and would be attended with very injurious consequences; he denied the
doctrine of natural rights; and said that they were altogether derived
from convention; and at the end of the charge he exhorted the jury to use
their efforts to prevent the injury likely to result from the temper of
the times. I cannot say whether Judge Chase confined himself to a written
paper or not. He declared that the independence of the judiciary of the
United States had been injured by the repeal of the judiciary system;
and that the bill then pending before the Legislature of Maryland, if
adopted, would have the same effect upon the judiciary of that State.
Mr. Nicholson stated, that all the witnesses present on the part of the
prosecution had been examined; the managers would therefore proceed to
offer certain records; but, as several material witnesses were absent, he
hoped they would not be precluded from calling them, should they attend,
at a future stage of the trial.
Mr. Randolph offered in evidence a copy of the record in the case of J.
T. Callender; also in the case of Fries.
Mr. Randolph then stated that the Managers had submitted all the evidence
they were prepared to adduce. Whereupon the Court rose.
FRIDAY, February 15.
The Court was opened at 10 A. M.
_Present_: The Managers, accompanied by the House of Representatives in
Committee of the Whole: and Judge Chase attended by his counsel.
The evidence being closed on the part of the prosecution,
Mr HARPER, of counsel for the respondent, addressed the Court to this
effect: