Mr. President: We feel so strong a reliance on the justice, impartiality,

and discernment of this honorable Court, that nothing but an anxious

regard for the character and feelings of the honorable gentleman who

is the object of this prosecution, and a solicitude to remove even the

slightest imputation of impropriety or incorrectness that may rest on

his conduct, could induce us to occupy any portion of that time which we

know to be so precious, by the introduction of testimony on his part. We

believe the charges to be utterly unsupported by the testimony adduced on

the part of the prosecution; and had we no other object than a mere legal

acquittal, we should cheerfully rest the case on that testimony. But we

are aware that some part of the honorable judge’s conduct, though not

criminal nor punishable by impeachment, may, if left without explanation,

appear in an unfavorable light. We are prepared with testimony to give

this explanation; to show that, through all the transactions which form

the matter of this prosecution, he has been governed by the purest

motives, and that whatever errors he may have committed, are trivial in

themselves, are imputable to human infirmity alone, and were instantly

corrected by himself. This testimony we request the permission of this

honorable Court to produce. But a consciousness of the strong ground on

which we stand, and a recollection of the very important public business

which now presses on the attention of this honorable Court, in its

legislative capacity, have determined us to waive our right to a general

opening of our case; and to confine ourselves, in this stage of the

cause, to a brief statement of the points to which our testimony will be

directed.

On the first article, which relates to the conduct of Judge Chase in the

trial of John Fries for treason, we shall produce testimony to show,

that the opinion contained in the paper which the judge delivered to

the prisoner’s counsel was not only legal, but had been twice expressly

decided, and once admitted in the same court, and had before that trial

been laid down as a general principle of law, in a charge delivered to a

grand jury in the same court, by one of Judge Chase’s predecessors.

We shall show, said he, by the most indisputable testimony, that the

point of law respecting treason in levying war against the United States,

which was stated in the paper delivered to the counsel of Fries, had

been once informally decided by the same court, in a prior case, and

twice after solemn argument and full discussion, and that one of those

discussions was made in the case of John Fries himself, on an indictment

for the same offence. We shall show that Judge Chase’s predecessor had,

before counsel was heard and before an indictment was found, delivered

the same opinion in a charge to the grand jury. We shall proceed to prove

in a more particular manner the contents of the paper thus delivered to

the counsel. We shall produce the original paper itself; and shall prove

that delivered to the prisoner’s counsel to be a true copy of it; and we

shall conclude, by showing that when the counsel of Fries had refused to

proceed in his defence, and were informed by the judge that they might go

on, and conduct the case as they thought proper, he employed no menacing

expression, and uttered no such words as “proceed at the hazard of your

characters:” but merely informed them that they should be under no other

restriction but that which a regard to their professional character would

impose. That, far from threatening, he did all in his power to soothe;

and instead of restricting, gave the utmost latitude of indulgence.

Proceeding, then, to the second general head of accusation, the conduct

of the respondent relative to the trial of Callender, which furnishes the

matter of the second article, and embraces in the whole five articles,

we shall show that the copy of the “Prospect before Us,” which the

respondent carried with him to Richmond, was marked, not by him, but by

another person, without any view to a prosecution of the author, and

was given to him by that person without any request, on his part, as a

performance which might amuse him on the road.

As to the private conversation at Annapolis, we shall prove that it was a

mere jest between the respondent and the gentleman, who, after treasuring

it up for five years, has this day brought it forward to support an

impeachment; and whose recollection of it we shall show to be far less

accurate than ought to be required of a man, who, after so great a lapse

of time, adduces a private, confidential, and jocular conversation, to

aid a criminal prosecution.

We shall then follow Judge Chase to Richmond, where we shall show that,

far from having formed a corrupt determination to oppress Callender,

he felt solicitous for the escape of that unfortunate wretch; that,

far from entering into a combination with the marshal to pack a jury

for the conviction of Callender, Judge Chase expressed a wish that he

might be tried by men of that political party whose cause his book was

intended to support. We shall prove, by testimony not to be doubted,

that no conversation whatever took place between the judge and the

marshal, relative to striking any person from the panel, much less such

a conversation as has been sworn to by one witness for the prosecution.

We shall show that no panel of the jury actually summoned was formed,

until the opening of the Court on the day when the trial of Callender

was to have commenced; that it was completed in open court, and was

never seen by the judge. And we shall prove that the marshal, not by the

direction of the judge, from whom he was bound to receive no directions

on that subject, but with his entire approbation and according to his

advice, took the utmost pains to select a jury of the most impartial,

considerate, and respectable men; that, in this selection, no attention

was paid to party distinctions; and that if no persons of Callender’s

political opinion actually did serve on the jury, it was because, after

being summoned, they made excuses, which were admitted by the Court, or

refused to attend.

Thus much respecting the conduct of the judge previous to the trial.

Proceeding then to the particular matter of the second article, which

relates to the supposed rejection of John Basset’s application to serve

on the jury, we shall prove, more fully than we have already done, that

the nature of this application has been wholly misunderstood by the

witnesses on the part of the prosecution; that the juror did not offer an

excuse, or apply to be discharged, but merely suggested some scruples of

delicacy, and was willing to serve if those scruples were not sufficient

to constitute a legal disqualification. We shall fully corroborate the

testimony which the juror himself has given on this head, and shall show

clearly that his scruples were not of such a nature as to furnish a legal

or proper ground of objection to his competence as a juror.

As to the refusal of a continuance, which has been so much relied on as

a criminal violation of the law, with intent to oppress the party, we

shall prove, that although no legal grounds for a continuance were shown,

and it was therefore not in the power of the Court to grant it, Judge

Chase did offer to postpone the trial for a month or six weeks, in order

to accommodate Callender and his counsel, and to enable them to prepare;

an offer which they thought proper to reject. And we shall also show,

that when this motion for a continuance was made, the law of Virginia, by

which it is now contended that the Court ought to have been governed, was

not cited, nor even mentioned.

With respect to the conduct of Judge Chase towards Callender’s counsel,

we shall prove that it was free from any appearance of harshness, or

desire to intimidate, abash, or oppress; that the irritation which took

place proceeded from the counsel themselves, and that the conduct of the

Court was far more mild and forbearing than from those irritations could

have been expected. That every decision on the law was the joint opinion

of Judge Chase and his colleague, delivered after consultation between

them. That every interruption of the counsel arose from their pertinacity

in pressing points which had been decided, and on which propriety and

duty required them to be silent; and that after the respondent had

delivered the opinion of the Court on these points of law, he offered to

assist the counsel for the traverser in framing a case for the opinion of

all the judges of the Supreme Court, and thus to give them an opportunity

of correcting any errors which he and his colleague might have committed

in those decisions. And finally, we shall produce a witness who, having

attended the trial and taken down all the proceedings in short-hand, will

lay before this honorable Court an exact detail of all that passed.

Passing then to the matter of the fifth and sixth articles, we shall

prove, by a rule solemnly made by the Supreme Court of the United States,

that they never considered the State laws as regulating _process_, by

virtue of the act of Congress which is relied on in support of these

articles; but merely as governing the decision of rights acquired under

them, when such rights come into question in the courts of the United

States; that the practice in the courts of Virginia, under the State

law in question, has been and is conformable to our construction, and

not to that contended for on the other side. And as a proof how little

the recollection of men, even the most correct, can be relied on, in

cases where their feelings have been strongly excited, we shall produce

a record, in which the learned gentleman who, though very young, was

Attorney-General of Virginia in 1800, and who has delivered his testimony

with the greatest candor and propriety, did himself order a capias, on

a presentment in a case not capital. We shall produce evidence to prove

that the capias is the proper process, in all cases of presentments,

except those of petty offences, which are tried by the court, without

an indictment, and are punishable by fine only, but not imprisonment.

And to remove every possible doubt on this head of accusation, we shall

prove that when the presentment against Callender was made, and it

became necessary to issue process against him, Judge Chase applied to the

district attorney for information as to what was the proper process, who

answered, a capias; and that the capias, which was actually issued, was

drawn up by the clerk, inspected and approved by the district attorney,

and issued on his suggestion.

Respecting the transactions at Newcastle, in the State of Delaware,

which constitute the matter of the seventh article, we shall prove that

those offensive and improper expressions, which are attributed to the

respondent, relative to a seditious temper, in the State of Delaware,

and especially in the county of Newcastle and the town of Wilmington,

never were uttered by him; that the witnesses who have deposed to those

expressions are under a mistake; and that nothing was said or done by

Judge Chase on that occasion, but what he has admitted in his answer;

but what propriety justifies, and his duty required. To this end we

shall offer the testimony of persons who were in a situation to remark

every occurrence, to listen to every expression, and on whom such

expressions, had they been uttered, could not have failed to make a

strong impression. We shall then proceed to the charge delivered to the

grand jury at Baltimore, which furnishes the eighth and last ground of

accusation; and then we shall prove that the respondent said nothing of

a political nature to the jury, except that which he has stated in his

answer, and which he hopes to satisfy this honorable Court he had a right

to say, however indiscreet or unnecessary the exercise of that right in

this instance may have been. We shall produce a host of witnesses to

prove that he never uttered such sentiments as are attributed to him

by one witness, relative to the present Administration, its character,

views, and manner of obtaining its power; sentiments which he admits

would have been in the highest degree reprehensible on such an occasion;

that the charge which was delivered was read from a book; and that he

spoke nothing extemporary, as other witnesses for the prosecution have

supposed. And, finally, we shall produce this book to speak for itself;

shall prove it to be the same from which the charge was delivered; and

shall conclude with the examination of witnesses who stood round the

respondent while he read it, sat by his side, and almost looked over him

while he delivered the charge which it contains.

This, Mr. President, will be the general bearing of our testimony; which

we shall now, with the permission of this honorable Court, proceed to

adduce, in the order in which it has been stated.

_Samuel Ewing, sworn._

Mr. Hopkinson. Please to state whether you were in the court the day

subsequent to that on which the opinion was delivered by the Court, and

what you recollect occurred at that time?

Mr. Ewing. I attended at the court the day succeeding, and I remember

that Judges Chase and Peters, addressing Messrs. Lewis and Dallas, said

they were not to consider any thing which took place the day before as a

restriction on the course they wished to pursue; Judge Peters said that

every thing done yesterday was withdrawn. Judge Chase asked them if they

would go on in the cause; some conversation ensued, which ended in the

determination of Messrs. Lewis and Dallas not to proceed in the defence

of Fries. Judge Chase then made this observation: that if, after the

Court had expressed their opinion on the law, they persisted in stating

to the jury their sentiments on the law, they must do it at the hazard

of their legal reputations. I did not understand this as a menace, but

as a declaration to the counsel that they must do it on their standing

at the bar, and from a regard to their reputations. If I state any thing

further, it will only be a recapitulation of the testimony already given.

_Edward J. Coale, sworn._

Mr. Hopkinson. Will you examine that paper, and say what you know

respecting it?

Mr. Coale. It is a copy of the paper handed down by Judge Chase on the

trial of Fries, made at the instance of Judge Chase, from a paper in

his handwriting; there were some words in the original which I could

not ascertain: I left blanks for them, and they were filled up by Judge

Chase; the other parts are written by me. It was made out before the

trial of Fries. When in the office of Judge Chase, I was frequently in

the habit of transcribing papers from his handwriting. After I left him

I went to Philadelphia, and lived there when Fries was tried. The judge

occasionally, during my residence there, sent for me to transcribe his

opinions; and on that occasion he called on me to transcribe this paper

from the original handwriting of himself.

_William Meredith, sworn._

Mr. Hopkinson. Were you present at the trial of Fries?

Mr. Meredith. On the 22d day of April, 1800, I went to the court house

for the purpose of attending the trial. It was rather at a late hour;

I think after eleven o’clock before I reached the court house. I met

several persons coming from the court room; I thought therefore that the

Court had adjourned, but not seeing any gentlemen of the bar, or the

judges, I went on; when I came into court, I saw Judge Chase holding a

paper in his hand, and he said that the Court had with great deliberation

considered the overt acts in the indictment against Fries, that they

had made up their minds on the extent of the constitutional definition

of treason, and that to prevent their being misunderstood, they had

committed their opinion to writing, one copy of which was intended to be

given to the district attorney, another to the counsel for the prisoner,

and a third to be given to the jury; perhaps something else might have

been said, but I do not recollect it. The paper was then thrown down by

him to the bar, and a sentiment of this kind expressed by Judge Chase:

that this opinion was not intended by the Court to prevent the counsel

from proceeding in the usual manner. I felt a desire to take a copy of

the paper. I do not recollect whether more than one was thrown down. I

had not, however, an opportunity of doing it. The paper was so fully

occupied till the adjournment of the Court, that although I made two or

three attempts to obtain it, I could not succeed. The Court adjourned a

short time afterwards. After I went home I recollect that an application

was made to me by the clerk of the court to return the copy, which he

understood I had taken. I informed him I had not taken a copy. On the

following day I was in the court room at the opening of the Court. Fries

was put to the bar, and the judge then inquired whether the counsel were

ready to proceed on the trial. I remember Mr. Lewis addressing himself to

the Court, and objecting to proceed in the defence, because the counsel

had been restrained by the Court from proceeding in the manner which

they deemed most beneficial to their client. I remember also that Judge

Chase told him that he ought not to refer to the opinion which had been

delivered on the preceding day; that the counsel were not to be bound

by that opinion, as it had been withdrawn. Mr. Lewis referring to that

opinion, however, considered it as the formed and decided opinion of

the Court, and that although the Court had withdrawn it, it still would

have an operation upon their minds; that while the Court was under its

influence, they could not expect to be heard in any of their arguments

with effect. Judge Peters replied that the opinion was withdrawn, and I

think Judge Chase repeated the opinion before expressed, that the counsel

were not to be bound by that opinion, might enter fully into the case,

and argue as well on the law as on the fact before the jury. I recollect

Mr. Lewis stating to the Court his opinion of the appositeness of cases

decided at common law in England. I remember Judge Chase expressing his

opinion and belief that they were perfectly inapplicable; and afterwards

remarking, that if, however, the counsel would go on, it was not the

intention of the Court to circumscribe them, or to take from the jury

the decision of the law as well as the fact. He further added, that the

counsel might manage the defence in such way as they thought proper,

having a regard to their own characters. I am the more particular and

positive of these expressions, because very shortly after the trial I

made a summary of the proceedings. I find it stated as coming from the

mouth of Judge Chase, and that he repeated that the counsel for the

prisoner might go on in their own way, having a regard to their own

characters. Judge Peters made a remark which I thought was calculated

to put the counsel into good humor, but they persisted in their refusal

to proceed. Thus far the Court manifested, in my opinion, a desire that

the cause might progress, and a persuasive and conciliatory temper; but

Mr. Lewis having again decidedly said that he would not proceed, Judge

Chase said, if you suppose by conduct like this to put the Court into

a difficulty, you are mistaken. After a pause, Judge Chase addressed

himself to the prisoner, and asked him if he was ready to proceed on his

trial, or whether he would have other counsel assigned to him. Fries

replied he did not know what was best for him to do, but he would leave

his case to the Court. Mr. Rawle stated that from the peculiarity of

the circumstances of the case, and the prisoner being left without the

assistance of counsel, his wish was that the trial might be postponed

for a day, and the postponement took place by order of the Court. The

following morning when the Court was assembled, Fries was again put to

the bar, and Judge Chase inquired of him whether he wished the Court to

assign him counsel? His reply was, that he would trust himself to the

Court and jury. Judge Chase replied, Then by the blessing of God the

Court will be your counsel, and will do you as much justice as could be

done by the counsel that were assigned you, or nearly in those words. The

trial proceeded, but I was not present during the whole of it.

_Luther Martin, sworn._

Mr. Harper. Did you furnish Judge Chase with a copy of the book, entitled

the “Prospect before Us,” and at what time did you furnish him with it?

Mr. Martin. It is not a pleasing thing for me to be a witness on this

point, as I may be considered as a party concerned, and especially from

being one of the counsel for Judge Chase. Yet, as it is required from me,

I will proceed to state what I know. When I was in New York, I observed

in a newspaper which I took up at a barber’s shop an advertisement for

the sale of the “Prospect before Us.” I mentioned it to Judge Washington,

and he sent his servant to procure a copy, and I desired him to purchase

two copies. I read it, and as was usual with me with respect to books any

wise interesting, I scored such passages as were remarkable either for

their merit or demerit, and I did score a great portion of the book. But

I did not score them with the least idea of an indictment being founded

upon them. When I scored the book I did not know that Judge Chase was

going on the circuit of Virginia. My scoring was for my own amusement,

and for that of my friends. Afterwards I saw Judge Chase. I asked him if

he was going down to Richmond; he answered yes. I asked if he had seen

the book called the “Prospect before Us?” He said he had not. I then told

him, I will put it into your hands; you may amuse yourself with it as you

are going down, and make what use of it you please. There was a great

deal more scored than was contained in the indictment. I most solemnly

declare that I had no view to a prosecution in scoring it; though I have

no hesitation in saying that in common with every worthy inhabitant of

America I detested the book.

Mr. Nicholson. What do you mean by detest?

Mr. Martin. I am ready candidly to acknowledge that I did think it a

book that ought to be prosecuted; and I did not think that Judge Chase

would have an opportunity of seeing it unless I gave him a copy of it.

Having since heard it suggested that I had some share in drawing up the

indictment against Callender, I most solemnly declare I did not put pen

to paper on the subject.

_James Winchester, sworn._

Mr. Harper. Will you please to state whether you were in Annapolis in

1800, in court with Judge Chase, and Mr. John T. Mason, and what was the

conversation which then took place?

Mr. Winchester. I attended a circuit court held at Annapolis in 1800.

I do not recollect either the day the Court commenced or ended. I

think on the last day of the term sentence was passed on ---- Saunders

for stealing, in his character of postmaster, the contents of a

letter. A crowd gathered round the door, and retarded our passage

out of court. I do not remember what persons remained; but Mr. Mason

came up and addressed himself to Judge Chase. My recollection is at

best but imperfect, and of this conversation necessarily indistinct.

In the account of it, therefore, I shall use my own language. I may

occasionally use the language of Judge Chase and Mr. Mason. According to

the impression on my mind the conversation commenced in this way: Judge

Chase had delivered a charge to the grand jury. Mr. Mason came up, and

in a laughing manner jocosely asked, In what light are we to consider

the charge, as moral, political, judicial, or religious? These are the

words, I believe, but of this I am not certain. The judge replied in the

same style and manner, I believe, that it was a little of all. I cannot

be certain, but I think Mr. Mason intimated to the judge that he would

not deliver such sentiments in Virginia. It appeared to me that the

language of Mr. Mason conveyed to Judge Chase the idea that he was afraid

to deliver such sentiments in Virginia, though I am not myself confident

that such was his meaning. The judge replied that he would, and that he

would at all times and in all places execute the laws in the manner he

had declared.

_William Marshall, sworn._

Mr. Harper. Inform the Court how soon you saw Judge Chase after his

arrival at Richmond, what passed between you, &c.

Mr. Marshall. Judge Chase arrived in Richmond, but whether on the 21st

or 22d of May, I do not recollect; but my impression is that it was

Tuesday. I waited on him, as was usual with me, and gave him information

respecting the state of the docket. The associate judge did not attend

on the 22d, when the Court was opened and the grand jury received their

charge. They went to their room, and did not return till Saturday the

24th of May, when they returned a presentment against James T. Callender,

which I have. [The original presentment was produced by the witness,

read, and delivered to the Secretary.]

As soon as I had read the presentment, at the request of the attorney of

the district the jury were taken back to their chamber, and progress was

made in preparing the indictment. There was some conversation between

Judge Chase and Mr. Nelson, which lasted for a few minutes. Judge Chase

inquired what was the proper process on the presentment. The answer

which the district attorney made, was, that he supposed a capias was the

proper process. I recollect that Judge Chase said something of a bench

warrant, which was a practice unknown to us. Judge Chase asked me to draw

the warrant. I said I could not. He then said he would endeavor to draw

it. Afterwards Judge Chase desired the district attorney to draw out the

form of a capias; the judge said he would draw one himself, and that I

might draw out another; and he said he would take the most approved of

the three. I recollect mine was drawn first; but whether before Judge

Chase and Mr. Nelson had finished theirs, I do not recollect. On looking

over mine, he said he was better satisfied with mine than his own; and he

requested me to sign, seal, and deliver it to the marshal.

[Mr. Marshall here produced and read the original capias.]

On Saturday the 24th of May, in the afternoon, the grand jury brought

in the indictment. I have taken these circumstances from a copy of the

minutes of my office, which, if the Court wish to see, I can produce,

as I have them with me. Judge Chase alone formed the Court from the 22d

to the 29th of May, inclusive. On the 27th of May the marshal brought

Callender into court, Judge Chase being at that time the only member of

the Court. A chair was handed to him, and he remained in court while the

Court proceeded with the docket in the usual way, until near evening,

when Judge Chase observed that as the traverser was in court, he might

perhaps have some application to make. I do not recollect whether the

counsel afterwards employed for the defence of Callender were then in

court; but if they were, they made no observations. But Mr. Meriwether

Jones, with whom Callender resided, said that Callender was not then

prepared to make any application; but that perhaps to-morrow he would

move a continuance. Then Judge Chase applied to Callender, and asked

if he could give bail. Mr. Jones replied that he could give bail in a

moderate sum. Judge Chase asked Callender what were his circumstances;

that in fixing the sum, he would be governed by that circumstance.

Callender said they were nearly equal. The judge repeated the question,

and then Callender said he was indebted about two hundred dollars, and

there was about as much due to him which he expected to receive; and

therefore he did not consider himself worth any thing. Judge Chase then

asked if he could give bail, himself in two hundred dollars, and another

in a like sum. The reply made by Mr. Callender or Mr. Jones was, that

he could find bail to that amount; and he accordingly gave bail. On

the 28th May, an application was made by Mr. Hay; this was the first

instance in which Mr. Callender took any steps for his defence. Mr. Hay

stated that he was not well acquainted with the practice in such cases;

that he had an affidavit, of a general nature, stating the impossibility

of going into the trial, with any prospect of success, without the

attendance of a number of witnesses who lived at a great distance. Mr.

Hay also inquired whether a general affidavit was sufficient, or whether

a special affidavit, stating the names of the witnesses and the facts

they were expected to prove, would be required. Judge Chase said that

the strict practice of the law required a special affidavit; but they

might take till to-morrow to prepare a special affidavit, submitting it

to their discretion to manage the cause as they thought proper. I beg

pardon for being a little too hasty in my narrative. When Mr. Hay offered

his motion for a continuance, the Court said that before they could

hear the motion it was necessary that the traverser should plead to the

indictment. For if he pleaded guilty, there would be no necessity for an

application. Mr. Hay assured the Court that the traverser would not plead

guilty. Mr. Callender was arraigned and he plead not guilty; and then the

conversation which I have stated took place. The reply of Judge Chase

was, after a general affidavit is made, it must be relied on, but you

may withdraw the general, and file a special affidavit. Nothing further

passed on the 28th.

On the 29th, in the morning, Mr. Hay produced a special affidavit; I

have the original here. It is stated therein, that there were a number

of witnesses, one from New Hampshire; one from Massachusetts; some from

Pennsylvania, and some from South Carolina, absent; who were material

witnesses for his defence; that there were also sundry documents to be

procured; and an essay written by Mr. Adams on canon and feudal law,

which the traverser supposed it important to have for his defence. Mr.

Hay, on these grounds, moved for a continuance to the next term, in a

pretty long speech. Judge Chase observed, that every person before he

made a publication, if he meant to justify it, ought to know the names

of his witnesses; and if he meant to justify it by documents, they ought

to have been within his reach. It was not to be presumed, indeed, that

he could calculate upon being able to procure his witnesses in a few

days; that in this case, it was alleged that one witness resided in New

Hampshire, which was a great way off. He said that the ordinary sittings

of the Court would be too short for him to obtain witnesses from so great

a distance. He said that the prisoner should have time, and he should

have a fair trial, but he could not allow him to the next term. He said

he might have two weeks--but that might be too short a time--you may

have three weeks, a month, nay, six weeks. We cannot sit so long, because

we are obliged to hold a court in the district of Delaware; but I will

adjourn this Court, to go to Delaware, and will return in six weeks. In

the course of the observations offered by Mr. Hay to the Court, as well

as I can recollect, he said, if the documents and witnesses were here, he

did not think he would be prepared during that term to investigate all

the facts, and the law arising on them; but he would be prepared against

the next term, if the Court would indulge him with a continuance. After

Judge Chase had made this offer of a postponement, I do not distinctly

remember that Mr. Hay or Mr. Nicholas made any reply. After a short

interval Judge Chase said, as they did not seem disposed to take the time

he had offered, the trial should come on within the time the testimony of

the witnesses residing in Virginia, deemed material, can be procured. He

asked the marshal what was the distance of the residences of Mr. Giles

and General Mason, and in what time they could conveniently come to

Richmond; and, whether his deputy marshals could go for them? The reply

of the marshal was, that his deputies were prepared to execute any orders

of the Court. Judge Chase then directed me to make out the subpœnas for

Monday, the 2d of June; and I issued subpœnas for Messrs. Giles, Mason,

and Taylor; but Colonel Taylor’s name does not appear in the affidavit.

The deputy marshals were directed to use all possible expedition in

serving the subpœnas: they were all returned executed on Monday the 2d of

June, endorsed with the hour of the day on which they were executed.

[Here Mr. Marshall offered the originals with the endorsements of the

time of service.]

On Monday, the 2d day of June, Colonel Taylor appeared in court. The

other witnesses were called, but they did not appear. A postponement was

asked by one of the gentlemen, for two hours, who stated that it had

rained on Sunday preceding, which might have impeded travelling, and it

was granted. Some time in the course of the day, Judge Chase observed he

might have till to-morrow, which was accepted.

On Tuesday morning, soon after the opening of the Court, the motion for

a continuance was renewed, founded on the affidavit of Callender, which

gave rise to the first motion. Judge Griffin was then in court, having

arrived on the 30th of May, and continued during the remainder of the

term. It was argued much at length, and received the same decision as on

the 29th. The marshal was then ordered to call the petit jury; twelve

jurors appeared; there were some objections which I do not precisely

recollect, to the panel of the jury; and a motion made to quash the

array. An argument was made and some authorities quoted; Judge Chase said

they were not to be relied on, and he asked for Coke upon Lyttleton. I

brought it from the library in the capitol. Judge Chase looked into it,

and said the array should not be quashed; but I do not know the principle

on which he decided. When the jury had all answered, the gentlemen

proposed to propound a question to the jurors as they came to the book.

I do not recollect what the question was, but Judge Chase said he would

propound the proper question himself. The question which Judge Chase

said it was proper to propound, was: “Have you formed and delivered

an opinion (for he said it was necessary to have delivered as well as

formed it) on the indictment?” The answer of the first juror was, that

he had never seen or heard the indictment, and could not say that he had

formed an opinion respecting it. Eight or nine of the jurors were asked

the same question, and gave a like answer. The gentlemen who defended

the traverser then said it was unnecessary to ask the other jurors that

question; the rest were sworn, and the trial proceeded. The course it

took was pretty lengthy, and I cannot state all the circumstances that

took place. I recollect that the testimony of Colonel Taylor was refused,

but I do not recollect the particular circumstances attending it.

Mr. Giles was on a jury in the circuit court, on, I think, the 27th

of May, the day Callender was brought into court by the marshal. When

Mr. Giles’s name was called, Judge Chase asked me whether that was the

celebrated Mr. Giles, member of Congress. I said that it was. He said

that he had never seen him before. Nothing more passed at that time.

In the evening I was at Judge Chase’s lodgings. He asked me whether I

supposed Mr. Giles would remain in Richmond until the trial of Callender.

I said it was uncertain, that it was not customary for Mr. Giles to

remain any length of time when he came to town. Judge Chase said he

wished he would remain, and serve in Callender’s case; nay, he wished

that Callender might be tried by a jury of his own politics. He said

that if his situation as a judge would permit him to drop a hint to

the marshal with respect to the jury, he would intimate his wish that

Callender should be thus tried; but, in his situation, it would be

improper for him to interfere with the duty of the marshal.

Mr. Harper. Inform the Court at what time, if any, you were at Judge

Chase’s chambers, when a certain Mr. John Heath was there; what passed,

and what did not pass.

Mr. Marshall. Judge Chase was, as he informed me, a total stranger in

Richmond, and had never been there until he held the Court in 1800. He

asked me if I would call upon him from time to time. When I knew he was

at home, I used to go in an evening, and spend an hour or two with him

at his lodgings. I also generally went in the morning, about an hour

before the meeting of the Court. I recollect about ten o’clock going to

Mr. Chase’s lodgings. I went, I think, but of this I am not positive,

with Mr. Randolph. I found Mr. Heath in Judge Chase’s chamber, or in the

passage. Mr. Heath was, I think, in the act of leaving the room; he had

his hat in his hand, and I met him either in his way out of the room, or

in the passage.

President. Can you state the day of the month?

Mr. Marshall. I cannot, but I think it was the day before Judge Griffin

arrived. I recollect very well, on that day Mr. D. Randolph and myself

walked up to the court room. I was surprised at seeing Mr. Heath at Judge

Chase’s, and asked Mr. Randolph what could have brought him there.

Mr. Harper. Was Mr. Heath in the act of going out when you entered?

Mr. Marshall. Yes, sir, he was on the floor. He had taken his leave, as I

supposed, of Judge Chase, and was either out of the room, or in the act

of coming out of it. I do not recollect positively whether Mr. Randolph

went with me. I recollect going with Mr. Randolph to court, and that

it was the usual practice of Mr. R. and myself to go to Judge Chase’s

chambers in the morning and attend him to court. I do not certainly

recollect whether that morning we went together to the judge’s chambers,

but I am positive we left the chamber together. The Court met generally

at eleven o’clock. I had something particular to do that morning, and it

was from ten to half-past ten when I went to the judge’s chambers; it may

have been about ten. The time I saw Mr. Heath must have been about ten

o’clock.

Mr. Harper. Did any conversation take place between the judge and Mr.

Heath while you were there?

Mr. Marshall. I believe I met Mr. Heath outside of the door. There was

not a word of conversation at any rate.

Mr. Harper. Did any incident take place respecting a paper handed from

Mr. Randolph to Mr. Chase?

Mr. Marshall. There did not.

Mr. Harper. Did you hear any thing about creatures called democrats?

Mr. Marshall. I never heard any thing pass between them. I never heard

the judge say any thing about the jury, except what occurred either

at the judge’s lodgings or at court, which I took to be instructions

to summon twenty-four jurors about twenty-five years of age, and

freeholders; that there should be enough to supply the juries required at

that court.

SATURDAY, February 16.

The Court was opened at 10 o’clock A. M.

_David M. Randolph, sworn._

Mr. Harper. Were you marshal of the United States for the district of

Virginia in 1800?

Answer. I was, sir.

Mr. Harper. Did you attend the circuit court held in May of that year, as

marshal?

A. I did, sir.

Mr. Harper. Did you summon the panel of the jury that served on the trial

of Callender?

A. I did.

Mr. Harper. Had you any conversation with Judge Chase on the forming that

panel?

A. I had no conversation with him on that subject. There was a

conversation offered to me by Judge Chase.

Mr. Harper. What was it?

A. The judge recommended to me that I should get persons generally from

the country; represented that they should be twenty-five years of age, of

fair characters, untainted by party prejudices.

Mr. Harper. Did any gentlemen summoned apply to you to be discharged?

A. Several. At the moment I received orders to have two juries ready by

Monday, I called on my two deputies, and desired them to take down, on

distinct papers, the names I mentioned to them. I observed that I chose

to take the responsibility on myself. While they were taking down the

names, I summoned several persons whose names were not put down till

Monday. On Monday, finding my two deputies had not summoned a sufficient

number, I went in quest of them. I found them at the end of the town,

in the act of executing my orders. Mr. Moseby, one of my deputies, was

standing with Colonel Vanderval, I think in conversation with him. I

called him across the street, and asked him how they succeeded. At this

time I saw my other deputy. They told me they wanted but one or two

jurors. I told them they must make haste. About this time I saw Mr.

Basset entering town on horseback. I told him that he had been crossed as

a grand juror for non-attendance; that he must serve as a petit juror,

which would give him an opportunity of offering his apology. I took

out my watch, and told him that I allowed him five minutes. We arrived

at the capitol, and my deputies there gave me their memorandums, from

which, and my own, I made up the list of the jury. Two gentlemen, Mr.

Lewis and Mr. Blakely, offered something like excuses. I looked at Mr.

Blakely, and said there was only one excuse that I would admit, to wit:

his being under twenty-five years of age. He said he was under that age,

and I dismissed him. Mr. Lewis said he might make the same excuse. I

said I doubted it, but I let him off. As I went into the passage, I met

Mr. Samuel Myers, who also desired to be let off. I told him I could not

and would not. He said I would excuse him for a reason which he could

assign. He whispered, and said that he was prejudiced against Callender.

I permitted him to go, but begged him to keep that reason to himself.

Another juror summoned, was very warm and importunate to be excused. I

told him there was only one ground on which I would excuse him. He asked

me what it was. I answered that if it applied to him he already knew it.

I begged him to go to the court, and he would learn what it was. He did

so. Colonel Harvie stopped me in the passage in a hasty manner, and with

great warmth and friendliness urged me to let him off. He said he was

sheriff of Henrico County. I said I knew it, but that I also knew that

his duties were generally performed by deputies. I did not let him off.

He applied to the Court, and was excused.

_John Marshall, sworn._

Mr. Harper. Please to inform this honorable Court whether you did, or did

not, on the part of Colonel Harvie, make an application for his discharge

from the jury, and on what ground that application was made?

Mr. Marshall. I was at the bar when Colonel Harvie, with whom I was

intimately acquainted, informed me that he was summoned on the jury.

Some conversation passed, in which he expressed his unwillingness to

serve, and stated that he was an unfit person; for that his mind was

completely made up, that he thought the (sedition) law unconstitutional,

and that, whatever the evidence might be, he should find the traverser

not guilty; and requested me, on that ground, to apply to the marshal

for his discharge. I told the marshal that Colonel Harvie was extremely

desirous of being discharged, and, on his discovering great repugnance

to his discharge, I informed him that he was predetermined, and that no

testimony could alter his opinion. The marshal said that Colonel Harvie

might make his excuse to the Court; he observed that he was watched, and

to prevent any charge of improper conduct from being brought against him,

he should not interfere in discharging any of the jurors who had been

summoned. I informed Colonel Harvie of this conversation, and it was

then agreed that I should apply to the Court for his discharge, upon the

ground of his being sheriff of Henrico County; that his attendance was

necessary, as that Court was then in session. I moved the discharge of

the juror on that ground, and he was discharged by the Court.

Mr. Randolph. Were you in court during a part of the trial, or during the

whole of the trial?

Mr. Marshall. I think I was there only during a part of the time.

Mr. Randolph. Did you observe any thing unusual in the conduct on the

part of the counsel towards the Court, or the Court towards the counsel,

and what?

Mr. Marshall. There were several circumstances that took place on that

trial, on the part both of the bar and the bench, which do not always

occur in trials. I would probably be better able to answer the question,

if it were made more determinate.

Mr. Randolph. Then I will make the question more particular by asking

whether the interruptions of counsel were much more frequent than usual?

Mr. Marshall. The counsel appeared to me to wish to bring before the jury

arguments to prove that the sedition law was unconstitutional, and Mr.

Chase said that that was not a proper question to go to the jury; and

whenever any attempt was made to bring that point before the jury, the

counsel for the traverser were stopped. After this there was an argument

commenced (I think) by Mr. Hay, but I do not recollect positively, to

prove to the judge that the opinion which he had given was not correct

in point of law, and that the constitutionality of the law ought to go

before the jury; whatever the argument was which Mr. Hay advanced, there

was something in it which Judge Chase did not believe to be law, and he

stopped him on that point. Mr. Hay still went on, and made some political

observations; Judge Chase stopped him again, and the collision ended,

by Mr. Hay sitting down, and folding up his papers as if he intended to

retire.

Mr. Randolph. There were many preliminary questions, such as, with

respect to the continuance of the cause, the admissibility of testimony,

&c. Did the interruptions take place on the part of the Court only when

the counsel pressed the point of the unconstitutionality of the sedition

law?

Mr. Marshall. I believe that it was only at those times, but I do not

recollect precisely. I do not remember correctly what passed between

the bench and the bar; but it appeared to me that whenever Judge Chase

thought the counsel incorrect in their points, he immediately told them

so, and stopped them short; but what were the particular expressions

that he used, my recollection is too indistinct to enable me to state

precisely; what I do state is merely from a general impression which

remains on my mind.

Mr. Randolph. Was there any misunderstanding between the counsel and the

Court, and what was the cause of that misunderstanding, or what was your

opinion as to the cause, or did you form one?

Mr. Marshall. It is impossible for me to assign the particular cause. It

began early in the proceedings and increased as the trial progressed. On

the part of the judge it seemed to be a disgust with regard to the mode

adopted by the traverser’s counsel, at least I speak as to the part which

Mr. Hay took on the trial, and it seemed to increase also with him as he

went on.

Mr. Randolph. When the Court decided the point that the jury had not a

right to decide upon the constitutionality of a law, did the counsel for

the traverser begin an argument to convince Judge Chase that the opinion

which he had delivered on that point was not well founded? Is it the

practice in courts when counsel object to the legality of an opinion

given by the Court, to hear the arguments of counsel against such opinion?

Mr. Marshall. If the counsel have not been already heard, it is usual

to hear them, in order that they may change or confirm the opinion of

the Court, when there is any doubt entertained. There is, however, no

positive rule on this subject, and the course pursued by the Court will

depend upon circumstances; where a judge believes that the point is

perfectly clear and settled, he will scarcely permit the question to be

agitated. However, it is considered as decorous on the part of the judge

to listen while the counsel abstain from urging unimportant arguments.

Mr. Randolph. In the circuit courts of the United States, after a court

is opened for any district, is it the practice of such courts to adjourn

over from time to time, in order to hold a court in another district in

the intermediate time, and then to return back; or is not the uniform

practice to postpone causes when they cannot be conveniently tried, to

the next term?

Mr. Marshall. I can only speak of courts where I have attended, in which

the practice is, that the business of one term shall be gone through as

far as possible, before any other court is held.

Mr. Randolph. Was it ever the practice of any court, in which you have

practised or presided, to compel counsel to reduce to writing the

questions which they meant to propound to their witnesses?

Mr. Marshall. It has not been usual; but in cases of the kind, the

conduct of the Court will depend upon circumstances. If a question

relates to a point of the law, and is understood to be an important

question, it might be proper to require that it be reduced to writing.

Unless there is some special reason which appears to the Court, or on the

request of the adverse counsel, questions are not commonly reduced to

writing, but when there is a special reason in the mind of the Court, or

it is required by the opposite counsel, questions may be directed to be

committed to writing.

Mr. Randolph. When these questions are reduced to writing, is it for a

special reason, after the Court have heard the question, and not before

they have been propounded?

Mr. Marshall. I never knew it requested that a question should be reduced

to writing in the first instance in the whole course of my practice.

Mr. Randolph. Did you ever, sir, in a criminal prosecution, know a

witness deemed inadmissible, because he could not go a particular length

in his testimony--because he could not narrate all the circumstances of

the crime charged in an indictment, or in the case of a libel; and could

only prove a part of a particular charge, and not the whole of it?

Mr. Marshall. I never did hear that objection made by the Court except in

this particular case.

[Some inquiry was here made relative to the above question put by

Mr. Randolph, and objected to by Mr. Cocke, which Mr. R. answered by

observing that he withdrew it.]

Mr. Harper. Please to inform this honorable Court, sir, whether you

recollect that Judge Chase during any part of the proceedings made an

offer to postpone the trial of Callender, and if you do, to what time?

Mr. Marshall. I recollect at the time a motion was made for the

continuance till the next term, that Judge Chase declared, as his

opinion, that it ought to be tried at the present term. A good deal of

conversation took place on the subject. The counsel for the traverser

stated several circumstances in favor of their client, particularly

relative to the absence of his witnesses; but the whole terminated at

that time by a postponement for a few days; so many days as, I thought

at the time, were sufficient for obtaining the witnesses residing in

Virginia. I do not now recollect what the time was, nor do I say it was

sufficient. I simply recollect that I thought it was. When the cause

came on again, there was no proposition that I recollect on the part of

the traverser’s counsel for a continuance, but a desire was expressed

of a postponement for a few hours in order to give their witnesses time

to arrive at Richmond, as it was possible they had been impeded by the

badness of the roads; a considerable quantity of rain having fallen the

preceding day. There was a declaration on the part of the Court that they

might take until the next day, and they went on to say they might have

a longer time, if they thought it was necessary, but the precise length

of time offered I do not recollect; but I do remember that they said the

trial must come on before the present term closed.

The President. Do you recollect whether the conduct of the judge on this

trial was tyrannical, overbearing, and oppressive?

Mr. Marshall. I will state the facts. The counsel for the traverser

persisted in arguing the question of the constitutionality of the

sedition law, in which they were constantly repressed by Judge Chase.

Judge Chase checked Mr. Hay whenever he came to that point, and after

having resisted repeated checks, Mr. Hay appeared to be determined to

abandon the cause, when he was desired by the judge to proceed with his

argument, and informed that he should not be interrupted thereafter. If

this is not considered tyrannical, oppressive, and overbearing, I know

nothing else that was so.

Mr. Randolph. Are you acquainted with Mr. Wirt; was he a young man at

that time; was he single, married, or a widower?

Mr. Marshall. I am pretty well acquainted with him; he is about thirty

years of age, and a widower.

_Edmund J. Lee, sworn._

Mr. Harper. Were you at the circuit court in the spring of 1800, held at

Richmond, at which Judge Chase presided?

Mr. Lee. I was not in court when Callender was presented by the grand

jury; but I was when application was made for a continuance, and I

remember that Judge Chase, on an application made for a continuance, on

account of the absence of some of the witnesses, informed the counsel

that he could not continue the cause, but if they would fix upon any

determinate time, within which they could obtain their witnesses, without

its going over to the next term, the Court would postpone the trial.

Judge Chase also added that he had no objection to postpone it for a

fortnight or a month; I am not certain whether he did not say he would

postpone it for a longer time, I do not know but he said for six weeks,

but he said positively he would not postpone it to the next term. He

added, if the counsel conceived they could obtain the evidence within the

time mentioned, they might have it.

_Robert Gamble, sworn._

Mr. Harper. Were you at the circuit court of the United States for the

Virginia district, in the month of May or June, 1800, held at Richmond?

Mr. Gamble. I was one of the jurors, sir, and I was in court when a

motion was made for continuing the cause of Callender to the next term.

Mr. Harper. Do you recollect whether an offer was made by the Court to

postpone that cause?

Mr. Gamble. Yes, sir; Judge Chase said he would postpone it for a week, a

fortnight, a month, or more, and I think he mentioned he would postpone

it for six weeks, or as long as the term would admit, without its going

over to the next term.

_Philip Gooch, sworn._

Mr. Harper. What did you observe relative to the conduct of the Court and

counsel on that day? State what happened.

Mr. Gooch. When Mr. Basset suggested to the Court his wish to be informed

whether it was their opinion that he was a proper person to serve on the

jury, because he had formed and expressed an opinion on the extracts

which he had seen, and declared that if correctly copied from the work

called “The Prospect before Us,” the author was within the pale of the

sedition law; on that suggestion, I recollect, the Court decided, and

laid it down as law, that he must not only have formed an opinion, but

delivered it also, and the judge gave some reasons why he must not

only have formed, but delivered an opinion. I think he said that if a

notorious murder was committed in the body of a county, which every

man believed ought to be punished with death, and had so formed his

opinion, it would in that case be impossible to get a jury to try such

an offender, if it was an objection that a man had formed an opinion. I

understood that he had consulted Judge Griffin on this point. The court

was very crowded, but I had obtained a situation just behind the judges,

and had an opportunity of hearing in some degree what passed between

them, though not distinctly. Mr. Basset was eventually sworn upon the

jury. The cause proceeded.

Mr. Wirt opened the cause on the part of the traverser; he made some

allusion to the Court’s prohibiting the mode of defence which the counsel

for the traverser had adopted, but he was interrupted by the Court, and

was told that the decision of the Court must be binding for the present;

that if they objected, they might file their bill of error, and it should

be allowed.

Mr. W. proceeded in the cause, and was endeavouring to show that the

sedition law was unconstitutional; the Court interrupted him, and told

him that what he had to say must be addressed to the Court, but if he

was going on that point, he must again be informed that the Court would

not suffer it to be urged. Mr. W. appeared to be in some agitation, but

continued his argument, and when he came up to that point a second time,

he was again interrupted by the Court. Mr. W. resumed his argument, and

said he was going on. Judge Chase again interrupted him and said, “No,

sir, you are not going on, I am going on; sit down.” I recollect, also,

after the judge had made some observations, Mr. W. again proceeded, and

having observed that as the jury had a right to consider the law, and as

the constitution was law, it followed syllogistically that the jury had

a right to decide on the constitutionality of a law. Judge Chase replied

to him, A _non sequitur_, sir, and, at the same time, made him a bow.

Whether these circumstances took place exactly in the order in which I

have mentioned them, I am not positive, but I believe they did. Mr. W.

sat down, and the judge delivered a lengthy opinion. He stated that the

counsel must argue the law before the Court, and not before the jury, for

it was not competent for the jury to decide that point, or that the jury

were competent to decide whether the sedition law embraced this case or

not, but that they were not competent to decide whether the sedition law

was constitutional or not, and that he would not suffer that point to be

argued.

Mr. Harper. What was the effect produced by the reply of Judge Chase to

Mr. Wirt’s syllogism, a _non sequitur_?

Mr. Gooch. It appeared to me as if it was intended to excite merriment;

and if it was so intended, it certainly had that effect, and the

same appeared to me to be the motive of the judge in adding the word

_punctuatim_ after the words _verbatim et literatim_. I thought these

circumstances were calculated to display his wit.

Mr. Harper. When the judge told Mr. Wirt to sit down, did you conceive

the conduct of the court to be rude and peremptory, or was there any

thing like it in his application of the term “young gentlemen?”

Mr. Gooch. I did not perceive any thing rude or intemperate in his

conduct, unless it can be inferred from the words themselves, when

he said, You show yourselves clever young gentlemen, but the law is,

nevertheless, not as you have stated it.

MONDAY, February 18.

_Gunning Bedford, sworn._

Mr. Harper. Please to state to the Court whether you were present in your

judicial character at a circuit court held at Wilmington in 1800, and

relate the circumstances which occurred.

A. I attended that Court on the 27th of June. Judge Chase presided.

I arrived in the morning about half an hour before Judge Chase. We

went into court about eleven o’clock. The grand jury was called and

impanelled. The judge delivered a charge: they retired to their box;

after an absence of not more than an hour they returned to the bar.

They were asked by the judge whether they had any bills or presentments

to make to the Court. They said they had none. The Court called on the

attorney of the district to say whether there was any business likely

to be brought forward. He replied that there was none. Some of the

grand jury then expressed a wish to be discharged. Judge Chase said it

was unusual for the Court to discharge the grand jury so early in the

session; it is not the practice in any circuit court in which I have

sat. He turned round to me, and said, Mr. Bedford, what is your usual

practice? I said it depended upon circumstances, and on the business

before the Court; that when the Court was satisfied there was nothing to

detain them they were discharged. Judge Chase then turned to the jury,

and observed, “But, gentlemen of the jury, I am informed that there is

conducted in this State (but I am only _informed_) a seditious newspaper,

the editor of which is in the practice of libelling and abusing the

Government. His name is ----, but perhaps I may do injustice to the man

by mentioning his name. Have you, gentlemen of the jury, ever turned your

attention to the subject?” It was answered no. “But,” resumed the judge,

“it is your duty to attend to things of this kind. I have given you in

charge the sedition act among other things. If there is any thing in what

is suggested to you, it is your duty to inquire into it.” He added, “It

is high time that this seditious printer should be corrected; you know

that the prosperity and happiness of the country depend upon it.” He then

turned to the attorney of the district, and said, Mr. Attorney, can you

find a file of those papers? He answered that he did not know. A person

in court offered to procure a file. The attorney then said, as a file was

found, he would look it over. Can you, said the judge, look it over, and

examine it by to-morrow at ten o’clock. Mr. Attorney said he would. Judge

Chase then turned to the grand jury, and said, Gentlemen, you must attend

to-morrow at ten o’clock. Other business was gone into, and the Court

adjourned about two o’clock.

On my way to Judge Chase’s lodgings, I said to him, My friend, I believe

you know not where you are; the people of this country are very much

opposed to the sedition law, and will not be pleased with what you said.

Judge Chase clapped his hand on my shoulders and replied, “My dear

Bedford, no matter where we are, or among whom we are, we must do our

duty.”

The next day we went into court about ten o’clock. The grand jury went to

their chamber, and I believe Mr. Read returned with them into court. They

were asked if they had any thing to offer to the Court; and the attorney

was called on again to state whether he had found any thing in the file

of a seditious nature. He had a file of the paper before him, and he

said he had found nothing that was a proper subject for the notice of the

jury, unless a piece relating to Judge Chase himself. The judge answered,

Take no notice of that, my shoulders are broad, and they are able to bear

it; but where there is a violation of a positive law of the United States

it is necessary to notice it.

_Nicholas Vandyke, sworn._

Mr. Harper. Please to state whether you were at the circuit court for

Delaware in the year 1800?

A. I attended the circuit court held in Newcastle on the 27th and 28th

of June, 1800. I was not present when the Court opened; but I think I

entered the court house while Judge Chase was delivering a charge to

the grand jury. After its delivery the grand jury retired; they were

absent a short time: and as well as I can recollect before and when they

returned, I was either out of the court house, or engaged in conversation

with some person out of the bar. I think so, as I have no recollection

of the question put to the grand jury, whether they had found any bills,

and that put to the district attorney. I entered the bar while there was

a pause, and silence prevailed. I recollect that the first circumstance

that attracted my attention was the observation of Judge Chase to the

grand jury, that since he had come among them, he had been credibly

informed that there was a seditious printer within the State, in the

habit of libelling the Government of the United States, and having

received this information, he thought it his duty to call the attention

of the grand jury to the subject. He appeared to me to be proceeding to

state the name of the printer; but he did not name him. He said that

might be doing injustice to the man, or that it was improper in him. I

cannot say which was the term he used. I think he then asked the district

attorney if there were not two printers in the State. He answered that

there were. There was then some conversation between the judge and the

district attorney. My impression was that it conveyed a request from

Judge Chase to the district attorney to inquire into the subject on which

he had previously spoken to the jury. Mr. Attorney said that he had not

seen the papers. The judge asked him whether he could not procure a file

of them. I do not recollect that the name of the printer was mentioned

then, or during the whole sittings of the Court. Some person at the bar

said a file could be procured. Judge Chase asked the attorney, if he

could make the inquiry by to-morrow at ten o’clock. About this time I

heard some observations made respecting the discharge of the grand jury

on that day. Some of the gentlemen said it was a busy season, that they

were farmers, and were desirous of returning to their homes. Judge Chase

replied that might be very true; but that the business of the public

was also important; it must be attended to: and therefore he could not

discharge them. I do not pretend to say I have pursued the language

used. I have only attempted to give my impression of the facts that

occurred.

_Archibald Hamilton, sworn._

Mr. Harper. Please inform the Court whether you were present at a circuit

court for Delaware in 1800?

A. I recollect that I was present on the 27th of June. I arrived about 10

o’clock, at which time Judge Chase was not there. Some time after, the

Court was formed, the grand jury was sworn, and Judge Chase delivered

a charge. Having retired for about an hour, the grand jury returned to

the bar. Judge Chase asked them if they had any bills or presentments

to make. Their reply was that they had not. Judge Chase then asked the

attorney of the district if he had no business to lay before them. He

said he had not. The jury requested to be discharged. Judge Chase said,

it was not usual to discharge them so early, some business might occur

during the course of the day. He told them he had been informed that

there was a printer who was guilty of libelling the Government of the

United States; his name is ----; here he stopped, and said, “Perhaps

I may commit myself, and do injustice to the man. Have you not two

printers?” The attorney said there were. Well, said Judge Chase, cannot

you find a file of the papers of the one I allude to? Mr. Read said he

did not take the papers, or that he had not a file. Some person then

observed that a file could be got at Mr. Crow’s. Judge Chase asked the

attorney if he could examine the papers by the next morning. Mr. Read

said, that under the directions of the Court, he conceived it to be his

duty, and he would do it.

On the second day the same questions, whether they had found any bills,

were put to the grand jury. They answered that they had not. Mr. Chase

asked the attorney of the district if he had found any thing in the

papers that required the interposition of the jury. He said that he had

found nothing which in his opinion came within the sedition law; but

there was a paragraph against his honor. Judge Chase said, that was not

what he alluded to. He was abused from one end of the continent to the

other; but his shoulders were broad enough to bear it.

_Samuel Moore, affirmed._

Mr. Harper. Were you in the circuit court held in Delaware in June, 1800,

when it met?

A. No, sir. I did attend early enough on the first day to hear the charge

given to the grand jury. I think I did not attend before twelve o’clock.

I attended as a juror. On the next day I attended early, and was in

the court house when the Court met. When the jury returned into court,

inquiry was made whether they had any bills or presentments to make. They

answered no. The Court then inquired of the attorney of the district

whether he had any business to lay before the grand jury. He said he had

not. While he was making this reply, he rose, and laid hold of a file of

newspapers, which I took to be the Mirror of the Times, and while he

was in the act of presenting it, he observed that he had not seen any

thing that in his opinion required notice, unless it were a publication

reflecting on Judge Chase, which did not appear to him to come under the

sedition law. Judge Chase answered, No, sir; they have abused me from

one end of the continent to the other; but it is the Government, and not

myself, that I wish protected from calumny. Immediately after the grand

jury were discharged.

_William H. Winder, sworn._

Mr. Harper. I will ask you whether you were in the circuit court of

the United States, held at Baltimore, in May, 1803? I will, however,

previously observe that it is not my intention to say or to prove that

the witness, when he deposed to certain facts, knew that they had not

passed. I mean only to impeach his correctness, and to infer that, as he

was angry, he gave to what he heard the coloring of his own feelings.

Mr. Winder. I was present at that court when it was opened, and the jury

impanelled, and I heard Judge Chase deliver his charge. After delivering

the general and usual charge to the grand jury he said he begged leave to

detain them a few minutes, while he made some general reflections on the

situation of public affairs. He commenced by laying down some abstract

opinions, stating that that Government was the most free and happy that

was the best administered; that a republic might be in slavery and a

monarchy free. He also drew some distinctions with regard to the doctrine

of equal rights, and said that the idea of perfect equality of rights,

more particularly such as had been broached in France, was fanciful and

untrue; that the only doctrine contended for with propriety was, the

equal protection of all classes from oppression. He commented on the

repeal of the judiciary system of the United States, and remarked that

it had a tendency to weaken the judiciary, and to render it dependent.

He then adverted to the laws of Maryland respecting the judiciary, as

tending to the same effect. One was a law for the repeal of the county

court system. He also alluded to the depending law for the abolition of

two of the courts of Maryland. He said something of the toil and labor

and patriotism of those who had raised the fair fabric, (constitution

of Maryland,) and said that he saw with regret some of their sons now

employed in destroying it. He also said that the tendency of the general

suffrage law was highly injurious, as, under it, a man was admitted to

full political rights, who might be here to-day and gone to-morrow.

_James Winchester, sworn._

Mr. Harper. Please, sir, to state to this Court your recollection

respecting a charge delivered by Judge Chase in the circuit court of

Maryland in May, 1803.

Mr. Winchester. As already stated, that Court sat in May, 1803, in a room

in Evans’s tavern. The Court and gentlemen of the bar sat round several

dining tables. I sat on the left of Judge Chase, and the jury were on

his right. He addressed a charge to them, the beginning of which was

in the usual style of such addresses. He then commenced what has been

called the political part of the charge, with some general observations

on the nature of government. He afterwards adverted to two measures

of the Legislature of Maryland; the first related to an alteration of

the constitution on the subject of suffrage; the other contemplated an

alteration in the judiciary. He commented on the injurious tendency of

the principle of universal suffrage, and deprecated the evil effects

it was likely to have. Incidental to these remarks, he adverted to the

repeal of the judiciary law of the United States. I say incidental, for

my impression was that his object was to show the dangerous consequences

that would result to the people of Maryland from a repeal of their

judiciary system, and to show that as the act of Congress had inflicted

a violent blow on the independence of the federal judiciary, it was

more necessary for the State of Maryland to preserve their judiciary

perfectly independent. I was very attentive to the charge for several

reasons. I regretted it as imprudent. I felt convinced that it would be

complained of; and I am very confident from my recollection, and from

the publications respecting it, which I afterwards perused, that all the

political observations of the judge related to the State of Maryland.

TUESDAY, February 20.

_Walter Dorsey, sworn._

Mr. Harper. Please to inform the Court whether you were at a circuit

court held at Baltimore in 1803.

Mr. Dorsey. I was.

Mr. Harper. Were you present when Judge Chase delivered a charge to the

grand jury?

Mr. Dorsey. I was.

Mr. Harper. Were you in such a situation as to hear that charge?

Mr. Dorsey. I was.

Mr. Harper. Were you near Mr. Montgomery?

Mr. Dorsey. I was; I think there was only one person between us.

Mr. Harper. Did you attend to the charge?

Mr. Dorsey. I attended to what is generally called the political part

of it, because it was novel, and contained speculations with respect to

government in general, and remarks on national and State laws.

Mr. Harper. Do you recollect any thing in it respecting the

Administration?

Mr. Dorsey. I do not. I recollect a part of it relating to the State

and national judiciary, and to universal suffrage. I did not hesitate

to state that it was an indiscreet thing; my attention was particularly

drawn to it by seeing in the room the editor of a newspaper, and from

expecting that it would be the subject of newspaper animadversion.

_John Purviance, sworn._

Mr. Harper. Please to inform this honorable Court whether you were

present at a circuit court held at Baltimore in May, 1803.

Mr. Purviance. I was.

Mr. Harper. State what happened on that occasion.

Mr. Purviance. I do not pretend to recollect every thing which occurred;

but as I attended to what Judge Chase said in his charge to the grand

jury, I think I have a pretty distinct recollection as to the manner in

which he delivered that address; he appeared to me to read the whole from

a written paper lying before him. I never expected that this inquiry

would have been made of me, and after such a lapse of time I can only

speak of the impressions now on my mind.

Mr. Harper. Do you recollect whether Judge Chase made any mention of the

present Federal Administration, and what was it?

Mr. Purviance. I have no recollection that he mentioned it, but as it was

identified with the repeal of the law for establishing the circuit court

of the United States; and so far as the Executive composed a part of the

Legislature, he may have mentioned the Administration.

Mr. Harper. Was there any particular mention or allusion to the Executive

of the United States?

Mr. Purviance. No, sir, nothing of the kind; I have endeavored to retrace

in my mind every thing which was said, and I have not the smallest

recollection that any remark was made upon the Executive Department of

the United States.

_Nicholas Brice, sworn._

Mr. Harper. Please to inform this honorable Court whether you were at a

circuit court held in May, 1803, when a charge was delivered by Judge

Chase to the grand jury.

Mr. Brice. I was there and attended to the charge very particularly.

Mr. Harper. Did he say any thing respecting the present Administration?

Mr. Brice. Not in the slightest manner, further than mentioning the

repeal of the judiciary law of the United States, which he mentioned

incidentally in the course of his observations on the alterations of the

judiciary system in the State of Maryland. One thing more I will add,

with respect to the advice which it is alleged he gave to the grand jury:

shortly after the charge was delivered, in talking over this subject with

Mr. Stephen, I recollect that I rather thought it was an inference drawn

from the charge, than any express advice of the Court on that point.

Indeed, I am pretty sure the words were not used.

_James P. Boyd, sworn._

Mr. Harper. Please to inform this honorable Court whether you were

present at the circuit court held in Baltimore in May, 1803, and what

occurred at that time.

Mr. Boyd. I was there, but I do not know whether I was there at the

opening of the Court; but I was there when the charge was delivered

to the grand jury. After Judge Chase had gone through that part of the

charge which is an instruction to the grand jury relative to the duties

of their office, he proceeded to make some further observations, to which

I paid particular attention because they were novel to me. I was under an

impression at the time that Judge Chase was watched.

Mr. Harper. Did that charge contain a sentiment like those you have

heard, that the present Administration was weak, or wicked, &c.?

Mr. Boyd. I have not a scintilla of recollection of a word of the kind,

no further than as an inference to be drawn from what was said in

relation to the repeal of the Judiciary law. I have, however, a faint

trace of the idea in my mind, not from my own recollection, but from

having repeatedly heard it stated that there was such a remark made in

the charge.

_William McMechin, sworn._

Mr. Harper. Inform this honorable Court whether you were present at the

circuit court held at Baltimore, in May, 1803.

Mr. McMechin. I was present and heard the charge delivered by Judge Chase

to the grand jury.

Mr. Harper. Have you any recollection of his having said any thing

against the present Administration?

Mr. McMechin. I have no recollection of any thing of the kind, either

that they were weak, or of their having unfairly acquired power; such an

idea was mentioned in no way, unless it be inferred from the remark on

the repeal of the law establishing the sixteen circuit judges.

_William S. Govane, sworn._

Mr. Harper. Were you at the circuit court of Baltimore in May, 1803?

Mr. Govane. I was, and heard the charge delivered by Judge Chase. The

room in which the Court was held was a long one, in a tavern; a range of

tables formed the bar, and the seats around were occupied by professional

gentlemen. I went to the bottom of the table, opposite to Judge Chase,

and directed my attention towards him. Whilst he was delivering his

charge he appeared to read it from a book, but generally ended the

sentences by looking towards the grand jury; except this circumstance, he

appeared to read the whole time.

Mr. Harper. Do you retain a distinct recollection of the substance of

what the judge said?

Mr. Govane. I think I do.

Mr. Harper. Do you remember any part containing animadversions on

the present Administration, such as that they were weak, feeble, or

incompetent?

Mr. Govane. I think no such words were used. If I could swear to a

fact negatively after such a lapse of time, I could swear that no such

expressions fell from the judge. He said that a Monarchy might be free,

and a Republic a tyranny; and then proceeded to define what a free

government was.

_William Cranch, sworn._

Mr. Harper. Were you present at the circuit court held at Baltimore in

1803?

Mr. Cranch. I was. The Court was held at Evan’s tavern, in Baltimore.

Judge Chase was seated in an arm-chair, at one end of a long table

placed before him. The grand jury were on his right, some sitting on

benches placed along the wall and others standing. I stood myself about

fifteen feet from the judge, who was sitting during the whole time he was

delivering his charge; he generally held the book in his hand.

Mr. Harper--(showing a book). Is that the book?

Mr. Cranch. He appeared to be reading from such a book.

Mr. Harper. Did he read the whole, and did he read constantly?

Mr. Cranch. He appeared to me to read the whole charge, but I did not

keep my eyes so constantly fixed upon him as to declare positively that

he did.

Mr. Harper. Were there variations in his manner of delivering the charge,

as if he was at one time reading and at another speaking _ex tempore_?

Mr. Cranch. He delivered some parts with more emphasis than others.

He often raised his eyes from the book, but I did not observe that

he repeated more than one sentence without recurring to the book; he

repeated no more than a man might repeat after running his eyes hastily

over a passage.

Mr. Harper. Did he raise his eyes for a longer time than a man might be

supposed to do who was reading a composition of his own?

Mr. Cranch. I do not think he did.

Mr. Harper. Do you recollect the latter part of the charge?

Mr. Cranch. I recollect more of the latter part than of the beginning,

because I paid more attention to the latter part.

Mr. Harper. Do you recollect any sentiments expressed relating to the

weakness of the present Administration, and that they were not employed

in promoting the public good, but in preserving ill-gotten power?

Mr. Cranch. No, sir, there was no such expression, as I recollect.

Mr. Harper. Was there any expression at all relative to the present

Administration?

Mr. Cranch. Not as an Administration, nor any thing alluding to the

Administration separate from the Government of the United States.

Mr. Harper. In what way was the Government alluded to?

Mr. Cranch. By alluding to the repeal of the act of February, 1801, for

the establishment of the circuit judges. I recollect no other measure

of the General Government which was alluded to, or any allusion to the

present Executive.

WEDNESDAY, February 20.

[_The testimony on both sides being closed, the argument of the case

began, Mr. Early, one of the managers, opening for the prosecution._]

Mr. EARLY.--The relative rights of judges and juries have at some periods

of judicial history been so little understood, and the limits of each so

indistinctly marked, that the benefits of the institution of jury trial

were left much at the mercy of _arbitrary and overbearing judges_. But it

was reserved for the honor of modern times to dissipate this uncertainty

so baneful to justice, and to fix down the establishment upon its only

proper foundation; that of the right to determine, without control, both

the law and the fact _in all criminal cases whatsoever_. This right

has now been so long practised upon in the United States, and may be

considered as so well established, that it is scarcely to be expected

we shall witness upon that point any difference of opinion. Still less

is it to be expected that we shall witness such difference, when we are

discussing principles which apply to cases capital. In such case it is

the glory of the laws of this country, that the offence of the accused

should be left exclusively to the judgment of those least liable to be

swayed by the weight of accusing influence. It is no part of my intention

to deny the right of judges to expound the law in charging juries. But it

may be safely affirmed that such right is the most delicate they possess,

and the exercise of which should be guarded by the utmost caution and

humanity.

The accused shall enjoy the right to a “trial by an _impartial_ jury.”

We charge the respondent with deliberately violating this important

provision of the constitution, in arresting from John Fries the privilege

of having his case heard and determined by an impartial jury; for that

the respondent took upon _himself_ substantially to decide the case by

prejudging the law applying thereto, at the same time accompanying the

opinion thus formed and thus delivered, by certain observations and

declarations calculated necessarily to create a prepossession against the

case of Fries in the minds of those who had been summoned to serve upon

the jury, thereby making them the reverse of impartial.

These were the acts of a man, who, from his own declarations, appears

to have well understood upon what _points the defence would turn_. It

was the act of a man, who, it appears, had been well informed of all

that passed at the previous trial of Fries; who knew that there was no

dispute as to facts, and that the whole of the defence depended upon the

discussion and determination of those very principles of law which he

had thus prejudged, and upon the application of those authorities which

he had thus excluded in the hearing and very presence of those who were

to pass upon the life and death of the accused. No argument had been

heard from counsel; no opportunity had been afforded to prove that the

offence committed did not amount to the crime charged; no defending

voice had been raised in behalf of the accused; but, without being

heard, and without having had any opportunity to be heard, his case was

adjudged _against_ him. I say, _adjudged against him without the chance

of being heard_. For surely the case was adjudged against him, when the

only point upon which it was defensible was determined against him, and

that determination publicly announced from the bench. That this was done

before the accused could possibly have had a chance of being heard, is

placed beyond contradiction by all the testimony. And that the judge knew

the point which he thus prejudged, to be the only ground upon which the

defence rested, is perfectly clear. For, from his own declarations at the

time of announcing the opinion, it appears that he was well acquainted

with all that had passed at the previous trial of Fries.

But, sir, we must look further into the progress of this transaction.

It was not enough that the poor trembling victim of judicial oppression

should thus have his dearest privileges snatched from him, by a

prejudication of his case; it was not enough that the impartiality

of those who were to compose his jury should be converted into a

prepossession against him, by the imposing authority of solemn

declarations from the bench; but the small remaining, darling hope of

life, was to be smothered by a preclusion of his counsel from arguing

the law to the jury. This fact, though sternly denied in the answer of

the respondent, has, nevertheless, been established in a manner which

must irresistibly force conviction upon the mind. Mr. Lewis affirms

it positively. Mr. Dallas confirms it in a manner peculiarly strong.

Not being himself present when the opinion was delivered to the bar,

he received from Mr. Lewis a statement of what had passed, and, in an

address to the Court afterwards, repeated distinctly this statement,

and particularly that part which attributed to the judge a declaration,

that, if the counsel had any thing to say upon the law, they must

address themselves to the Court, and not to the jury. To this statement

no reply was made by the Court, either correcting or denying it. Thus

stands the evidence in the affirmative. Opposed to this we have the

negative testimony of Messrs. Rawle, Tilghman, and Meredith, who have

no recollection of any such declaration. I address myself to those who

well know the difference between affirmative and negative testimony. I

address myself to those who well know the established rule in the law

of evidence, that the testimony of one affirmative witness countervails

that of many negative ones; and I am sure that I address myself to

those who must feel the complete coincidence of this rule with the

dictates of common sense. Upon this ground alone we might safely rest

our proposition; but, sir, we will not rest it here. It appears from the

testimony of the witnesses on both sides, that almost every observation

from the council to the Court, on the second day, was predicated

upon the idea that something had been said on the preceding day,

restrictive of their privileges. These observations, although addressed

to the Court, and carrying this feature prominent in their face, were

neither contradicted nor corrected by the Court. This was a strong

tacit admission of the correctness of the idea upon which they were

bottomed. But, sir, we have not only this tacit admission, but we have in

testimony, this strong and impressive declaration from Judge Chase, that

“the counsel might be heard in opposition to the opinion of the Court at

the hazard of their characters.”

But, Mr. President, we have the positive admission of the respondent,

in page 18 of his answer, that certain observations were made by him

condemning the use of common law authorities upon the doctrine of

treason, and also condemning authorities under the statute of treasons,

but prior to the English Revolution. [Here the passage was read.] By a

recurrence to page 22 of the answer, it will be found that the respondent

admits that these observations of his were made on the first day; yet,

sir, nothing of all this is remembered by Messrs. Rawle, Tilghman, or

Meredith. How light, then, how extremely light, must their bare want of

recollection weigh against the positive affirmative testimony of Messrs.

Lewis and Dallas!

Considering my position as uncontrovertibly established, I will proceed

to observe that the offence with which Fries stood charged, was the

highest possible offence which can be committed in a state of society.

The punishment annexed to its commission, was the highest possible

punishment known to our laws. The accused was, therefore, entitled to

every possible indulgence. In favor of life, not only every possible

ground should be occupied by counsel to the jury, but every possible

argument listened to and weighed with patience and forbearance; and it

should never be forgotten that Judge Chase had such a conduct set as an

example before him in a previous trial of the same case. Yes, sir, a

brother judge of his, who has since gone to the world of spirits, had set

him an example conspicuous for the purity of its excellence, and which

should have arrested his career in the commission of this cruel outrage

upon all humanity. But Judge Chase predetermines the law, then prohibits

the counsel from proving to the jury that the law was not as laid down.

This was, in effect, an extinguishment at once of the whole right of

jury trial. All the privileges and all the benefits of that institution

were swept at once from an American court of justice, and scarcely the

external form preserved. The law was predetermined by the judge, and the

accused was debarred from pleading it to the jury. Of what avail is it,

sir, that the jury should be made judges of law and of fact, when the law

is not permitted to be expounded to them? Of what avail is it that the

accused should have a trial by jury, when he is prevented from stating

and explaining to the jury the only grounds upon which his case is

defensible? The right to hear and determine facts is _not more the right_

of a jury, than the right to hear and determine the law. To deprive them,

then, of the privilege of hearing and determining the law, is as much a

violation of their rights, as to deprive them of the privilege of hearing

and determining facts. The right of the accused to be heard upon the

facts to the jury, is not more his right, than the right of being heard

upon the law to the jury. To deprive him, then, of the privilege of being

heard upon the law to the jury, is as much a violation of his rights, as

to deprive him of the privilege of being heard upon the facts to the jury.

The second, third, and fourth articles, exhibited by the House of

Representatives, charge the defendant with a course of conduct upon a

particular trial which affords many grounds of accusation. In this case

it is true no unfortunate individual was charged with an offence which

demanded his life as an expiation; yet, sir, there were other rights

involved equally sacred in the laws of a free country. The liberty

and the property of the accused were the price of a conviction. In

casting our eyes over the ground upon which the different scenes of the

transaction now about to be examined are spread, we are struck with

a feature not usual in the history of human concerns. It would seem

that even the restraint of appearances was no longer felt. We find the

respondent setting out with a conduct, which seemed to prove that the

fate of the accused was fixed. We find him pursuing a system of conduct

throughout, which wrested from the accused some of his established and

most valuable privileges. We find him endeavoring to heap shame and odium

on those who occupied the station of advocates, because they would not

tamely yield to his unwarrantable invasion of long-established rights.

Mr. President, notwithstanding the labored attempts made by the defendant

in his answer to exculpate himself from imputation in compelling Mr.

Basset to serve upon the jury, in the trial of Callender; yet, sir, I

must be permitted to say that those attempts appear to me to be only

the exertions of a mind conscious of impropriety, and seeking to impose

upon the understanding of others. The test adopted, by which to try the

impartiality of the jurors, in that case may possibly by some be held

a correct one; but the manner of applying that test as then practised

upon, is what I believe can be accounted for upon no other supposition

than that of a determination on the part of the judge to procure the

conviction of the accused. Upon what other principle can it be accounted

for, that the jurors should be asked whether they had formed and

delivered an opinion upon the charges laid in the indictment, when they

knew not and were not suffered to know what those charges were? Why else

could it be laid down by the judge, that because the individuals called

to serve upon the jury did not know what charges were in the indictment,

(having never seen it nor heard it read,) that therefore they could not

have formed and delivered an opinion upon the subject? And why else did

the judge, when this monstrous logic was contradicted by the fact of one

of the jurors delivering in open court an opinion upon the whole subject

of those charges, without having seen or heard the indictment read; why

else did the judge, in the teeth of this damning fact, order the jurors

sworn?

Every juror sworn might, like Mr. Basset, have formed and delivered an

opinion which concluded the conviction of the accused, and yet because

they did not know that the subject-matter of such opinion constituted the

charges in the indictment, having neither seen it nor heard it read, the

expression of such opinion created no disqualification. Unworthy evasion!

An evasion which prevents the doctrine of disqualification in a juror

from receiving any practical operation. An evasion which effectually puts

at naught that principle of the constitution so often adverted to in a

former part of the argument, that “the accused shall enjoy the right of

a trial by an impartial jury.” Upon this point I beg leave to read two

authorities. [Mr. Early here cited 3 Bac. Abr. 176, and Co. L. 157.]

But, sir, the scene rises upon us. We have now to examine a part of the

transaction for which, I had supposed, human invention might be tortured

for a palliation in vain. I allude to the rejection of Mr. Taylor’s

testimony. The reason assigned for that rejection was, that the witness

could not prove the truth of the whole of _any one charge_. Let us, for

a moment, examine the consequences of this doctrine. According to the

judge’s own decisions then, as well as his doctrine now, each charge

laid in the indictment must have constituted a separate offence. For it

is explicitly declared both by Mr. Hay and Mr. Nicholas, that when an

application was made to continue the case, because of the absence of

some material witnesses, the application was rejected, upon the ground

that it did not appear from the affidavit filed that the witnesses, so

absent, could prove the truth of all the charges. That proof of the

truth of a part only, would be of no avail, and that the whole must be

proved to entitle the traverser to an acquittal. Each charge in the

indictment, then, must have constituted a _separate offence_; for the

charges cannot be made to help each other out. One charge, however, it

seems might consist of different facts. This was the case with several

in that indictment. It was particularly the case with the very charge,

the truth of which Mr. Taylor was called to prove. “The President was

a professed aristocrat. He had proved faithful and serviceable to the

British interest.” Here was a charge made up of two distinct facts;

so distinct in their nature, that the knowledge of their truth might

not only rest with different persons, but was extremely likely not to

rest with any _one_ witness. Put the case of a man charged with any

offence--murder, theft, or any other crime you please. There may be a

string of facts upon the proof of which the defence may depend; some

within the knowledge of one man, some within that of another. Was it ever

heard of before, that, because one witness could not prove the existence

of all those facts, that, therefore, such witness should not be examined

as to what he did know? Or, if some of the facts depended upon written

testimony, was it ever heard of before, that, therefore, a witness should

not be examined as to those resting on oral testimony? To these questions

no man will answer in the affirmative. Why, then, was an unheard-of and

palpably absurd doctrine brought to bear in Callender’s case? Was the

defence of justification, under the sedition law of the United States,

such an anomaly in its nature, that none of the established rules of

jurisprudence would apply to it? Was it a thing so _entire_ in its

nature, that it could not consist of different parts? I have always

been taught, and the respondent’s answer confirms the principle, that a

defence must apply to the whole of a charge. If, then, a charge consist

of different parts, surely, so must the defence. But, according to Judge

Chase, be the parts ever so many, they shall not be proven, unless the

proof can all be made by one witness, or unless it appear that the

defendant has proof in reserve to establish all.

The fifth and sixth articles rest upon grounds so extremely simple, and

so easily comprehended, that it appears totally unnecessary to fatigue

the patience of the honorable Court by dwelling upon them.

The seventh article is as follows:

“That at a circuit court of the United States, for the district of

Delaware, held at Newcastle, in the month of June, one thousand eight

hundred, whereat the said Samuel Chase presided, the said Samuel Chase,

disregarding the duties of his office, did descend from the dignity

of a judge, and stoop to the level of an informer, by refusing to

discharge the grand jury, although entreated by several of the said

jury so to do; and after the said grand jury had regularly declared,

through their foreman, that they had found no bills of indictment, nor

had any presentments to make, by observing to the said grand jury that

he, the said Samuel Chase, understood ‘that a highly seditious temper

had manifested itself in the State of Delaware, among a certain class

of people, particularly 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’--but checking himself, as if sensible of the

indecorum which he was committing, added, ‘that it might be assuming

too much to mention the name of this person, but it becomes your duty,

gentlemen, to inquire diligently into this matter,’ or words to that

effect; and that with intention to procure the prosecution of the printer

in question, the said Samuel Chase did, moreover, authoritatively enjoin

on the District Attorney of the United States, the necessity of procuring

a file of the papers to which he alluded, (and which were understood to

be those published under the title of ‘Mirror of the Times and General

Advertiser,’) and, by a strict examination of them, to find some passage

which might furnish the groundwork of a prosecution against the printer

of the said paper; thereby degrading his high judicial functions,

and tending to impair the public confidence in, and respect for, the

tribunals of justice, so essential to the general welfare.”

The respondent stands here charged with a conduct, than which, in my

opinion, nothing could be more at war with his official duty--nothing

more tarnish his official character. The constitution and laws of this

country certainly intended in erecting high judicial tribunals, that

those who might be appointed to minister therein, should be impartial

dispensers of justice between such as might resort thither for an

adjustment of their differences. In public prosecutions more especially

was it intended that such dispensation should be made without respect to

persons. In these, above all other cases, ought a judge to stand aloof

from influence, free from predilection towards one, or prejudice against

the other. Most peculiarly here is it his duty to stand firm at his post,

resisting the overbearing influence of a powerful public, and protecting

the rights of the accused in so unequal a contest. But Judge Chase,

disregarding these principles, always held sacred in a land of laws,

converts himself into a hunter after accusations. He who, in the humane

language of the laws, should be counsel for the accused, becomes himself

an accuser. He, whose duty it is impartially to decide between the

prosecutor and prosecuted, becomes himself the procurer of prosecutions.

The eighth article charges the respondent with prostituting

the judicial character by making a political speech to the

grand jury at Baltimore, in the State of Maryland, against the

Government of the United States and the Government of Maryland.

There are features in that part of the judge’s official conduct, charged

in this article, which place him in a point of view awfully grand.

We have heretofore been viewing him as bringing his talents to bear

upon individuals. Here we see his genius rising, in the majesty of its

strength, to far higher objects. Here we see him consigning over whole

governments to the scourge of his own avenging wrath. Whithersoever he

turned his eyes, whether to the State constitution and laws, or to the

laws and constitution of the whole Union, they were equally exposed to

the whip and the rack.

Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 3 (of 16) · 第 62 / 232 题