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.