M. CAMPBELL then rose and spoke as follows.

Mr. President and Gentlemen of the Senate: The scene, presented to the

nation by this trial, is more than usually interesting and important. One

of the highest officers of the government, called upon by the voice of

the people, through their representatives, before the highest tribunal

known to our constitution--that same tribunal that sanctioned his

elevation--to answer for the abuse of the power with which he had been

intrusted! It is a melancholy truth, that derogates much from the dignity

of human nature, but it is a truth that has been for ages established by

experience, that high and important powers have a tendency to corrupt

those on whom they are conferred. Few minds are possessed of sufficient

integrity and independence, when elevated above the ordinary level of the

great mass of their fellow-citizens, to resist the impulse their high

station gives them, to grasp at still greater powers, and prostitute

those which they already possess.

Hence it has been the great exertion of all governments, who regard the

rights and liberties of the people, and still must continue to be so, to

watch over the conduct of the high and confidential officers of State,

and guard against their abusing the powers reposed in them. For this

purpose the mode of trial by impeachment was resorted to in very early

times in that country from which we have derived most of our laws and

usages. Near five hundred years ago, the representatives of the people in

that nation felt themselves clothed with sufficient authority to check

the abuses of power, in the highest officers under the Crown, by calling

upon them by impeachment to answer before the House of Lords for their

conduct, and punishing them for such acts as were unauthorized, illegal,

or oppressive.

It was a wise and politic measure to have charges of this nature tried

by the highest tribunal in the nation, that would not be _awed_ by the

great powers and elevated standing of the accused, nor influenced by the

popular voice of the accusers, further than a strict regard to impartial

justice would require. As I conceive, therefore, that pure and unstained

impartiality ought to be the characteristic feature in the trial by

impeachment, I shall for myself, and I conceive I may in the name of the

representatives of the people, utterly disclaim any design or wish that

party considerations, or difference in political sentiments, should,

in the remotest degree, enter into the investigation, or affect the

decision of this question. Yet, in order to ascertain the motives that

actuated the respondent, it may become necessary to notice the difference

of political sentiments, so far as regarded the accused, and those

who are stated to have been injured by his conduct, at the time those

transactions took place, that gave origin to this prosecution.

In the view which I propose taking on this subject, I shall in the first

place notice the provisions in the constitution relative to impeachment,

and endeavor to ascertain the precise object and extent of such

provision, so far as the same may relate to the present case.

The first provision in the constitution on this subject, (art. 1st,

sec. 3,) declares, that the Senate shall have the sole power to try all

impeachments. Here we discover the great wisdom of the framers of the

constitution. The highest and most enlightened tribunal in the nation is

charged with the protection of the rights and liberties of the citizens

against oppression from the officers of Government under the sanction of

law; unawed by the power which the officer may possess, or the dignified

station he may fill, complete justice may be expected at their hands. The

accused is called upon before the same tribunal, and in many instances,

before the same men, who sanctioned his official elevation, to answer for

abusing the powers with which he had been intrusted. Men who are presumed

to have had a favorable opinion of him once, are to be his judges; no

inferior or co-ordinate tribunal is to decide on his case, which might

from motives of jealousy or interest be prejudiced against him and wish

his removal. No, sir, his judges, without the shadow of temptation to

influence their conduct, are placed beyond the reach of suspicion.

The next provision in the constitution declares that judgment in cases

of impeachment shall not extend further than to removal from office and

disqualification to hold and enjoy any office of honor, trust, or profit

under the United States.

Here the constitution seems to make an evident distinction between

such misdemeanors as would authorize a removal from office, and

disqualification to hold any office, and such as are criminal, in the

ordinary sense of the word, in courts of common law, and punishable by

indictment. So far as the offence committed is injurious to society,

only in consequence of the power reposed in the officer being abused

in the exercise of his official functions, it is inquirable into

only by impeachment, and punishable only by removal from office, and

disqualification to hold any office; but so far as the offence is

criminal, independent of the office, it is to be tried by indictment,

and is made punishable according to the known rules of law in courts

of ordinary jurisdiction. As, if an officer take a bribe to do an act

not connected with his office, for this he is indictable in a court of

justice only. Impeachment, therefore, according to the meaning of the

constitution, may fairly be considered a kind of inquest into the conduct

of an officer, merely as it regards his office; the manner in which he

performs the duties thereof; and the effects that his conduct therein may

have on society. It is more in the nature of a civil investigation, than

of a criminal prosecution. And though impeachable offences are termed in

the constitution high crimes and misdemeanors, they must be such only

so far as regards the official conduct of the officer; and even treason

and bribery can only be inquired into by impeachment, so far as the same

may be considered as a violation of the duties of the officer, and of

the oath the officer takes to support the constitution and laws of the

United States, and of his oath of office; and not as to the criminality

of those offences independent of the office. This must be inquired into

and punished by indictment.

THURSDAY, February 21.

Mr. CAMPBELL, _in continuation_.

I will now proceed, as well as my indisposition will permit, to examine

in a brief manner the second part of the subject, containing the several

charges founded on the trial of Callender, at Richmond, as stated in the

second, third, and fourth articles of the impeachment. I will consider

these several articles in the order in which the transactions on which

they are founded took place in court. In order to ascertain the motives

that actuated the judge in this whole transaction, it will only be

necessary to view his conduct as proved, so far as the same relates to

this subject, previous to the trial. The first account we have of the

intended prosecution, or I might say persecution, of Callender, is at

Annapolis. Here the judge received the famous book called the “Prospect

before Us,” and upon which the prosecution was founded, and here the

determination was formed to convict and punish Callender. The respondent

said he would take the book with him to Richmond; that the libellous

parts had been marked by Mr. Martin, and that before he returned he

would teach the lawyers of Virginia to know the difference between the

liberty and licentiousness of the press; and that, if the Commonwealth of

Virginia was not totally depraved, if there was a jury of honest men to

be found in the State, he would punish Callender before he returned from

Richmond. This is the evidence of Mr. Mason, nearly in his own words,

and no person will pretend to doubt its correctness. What language could

be used that would more clearly show the partiality and predetermination

of the judge to punish Callender, and the spirit of persecution by

which he was actuated? Again: on his way to Richmond, according to the

evidence of Mr. Triplett, the judge reviles the object of his intended

vengeance; states his surprise and regret that he had not been hanged in

Virginia; remarks that the United States had shown too much lenity to

such renegadoes; and after arriving at Richmond, informs the deponent

he was afraid they would not be able to get the damned rascal at that

court. Thus evincing in every stage of this business that intolerant

spirit of oppression and vengeance that seems to have given spring to

all his actions. After the indictment is found against Callender, the

panel of the petit jury is presented to the judge; he inquires if he

had any of the creatures called Democrats on that panel, directs the

marshal to examine it, and if there were any such on it, to strike them

off. This is the evidence of Mr. Heath, whose character and standing

in society are known to many of the members of this honorable Court.

And, though his evidence is opposed to the negative declarations of Mr.

Randolph, who affirms that he did not present the panel of the jury to

the judge, or receive such directions, yet I conceive the Court will give

more weight to the affirmative declarations of Mr. Heath, with regard

to these facts, than to the negative assertions of Mr. Randolph, who

may have forgotten the transaction. This point rests upon the integrity

and veracity of Mr. Heath. He could not receive the impression of these

facts, unless the transaction had taken place; he could not reasonably be

mistaken; the affair was new and extraordinary, and must have arrested

his attention; and in this case there is no ground to make allowance

for a treacherous memory, for it is not pretended that the witness, Mr.

Heath, has forgot the facts, but that they never existed. If you do

not, therefore, believe the statement he makes, it must follow that you

admit the witness has wilfully and corruptly stated a falsehood. This,

I presume, will not be admitted. But, on the other hand, Mr. Randolph

may have forgotten the transaction in the bustle of business, and this

will account for the difference in the evidence of the witnesses without

impeaching the veracity of either. This mode of reconciling the evidence

is agreeable to the rules of law. I take the facts, therefore, as stated

by Mr. Heath, to be correct, and they afford an instance of judicial

depravity hitherto unequalled and unknown in our country--a direct

attempt to pack a jury of the same political sentiments with the judge to

try the defendant. This is a faint representation of the previous conduct

of the judge relative to this subject, before whom the defendant was

about to be tried, or rather before whom he was to be called for certain

conviction and punishment, for it ought not to be dignified with the name

of a trial. With this view, therefore, of the temper and disposition of

the judge, and of his previous conduct on this occasion, we will examine

the first important step taken in the trial, in which the designs of

the judge begin more clearly to unfold themselves, viz: his refusal to

postpone or continue the trial until the next term, on an affidavit

regularly filed, stating the absence of material witnesses and the places

of their residence, being the second charge in the fourth article.

The next charge which I propose to examine is contained in the second

article of the impeachment, and consists in the judge’s overruling the

objection of John Basset, one of the jury, who wished to be excused from

serving on the trial of Callender, because he had made up his mind as to

the book from which the words charged to be libellous in the indictment

had been drawn. The constitution secures to defendants charged with

crimes, the right of a trial by an impartial jury; any thing, therefore,

that goes to show that a man has made up an opinion with regard to the

guilt or innocence of the accused, or with regard to the matter in

question, or decided it in his own mind, proves him to be disqualified

to serve as a juror, because it proves he is not impartial, has a bias

upon his mind, and cannot be said to be indifferent. The same doctrine

is supported by the laws of England. In order to show this, I will refer

the Court to 3 Bac. Ab. (new ed.) 756, and also Co. Litt. 158; where

it is stated, if a juror has declared his opinion, touching the matter

in question, &c., or has done any thing by which it appears that he

cannot be indifferent or impartial, &c., these are principal causes of

challenge; and therefore such juror would be disqualified. Here it is

manifest, that though declaring an opinion is good cause of challenge to

a juror, if it is not necessary he should declare such opinion in order

to disqualify him; it is sufficient that he has done something, whether

making up an opinion, or doing any act whatever, by which it appears he

is not indifferent, is not perfectly impartial.

The next charge to be inquired into, is that stated in the third article,

in rejecting the evidence of Colonel Taylor, a material witness in favor

of the defendant, on the pretence that he could not prove the truth of

the whole of one charge. In this instance the judge acted contrary to all

former precedents in courts of justice, and without the shadow of law

or reason to justify his conduct. Not a solitary case could be stated

by any of the witnesses of a similar conduct in a judge. The rule here

adopted, with regard to the admissibility of evidence, would deprive the

jury of their undoubted right to decide on the credibility and weight

of evidence, as well as on the extent to which it proved the matter

in question; would transfer in substance this right to the Court, and

thereby shake to its very centre the fabric so justly admired, and held

so sacred, _of trial by jury_. It would make it necessary for the party

to present to the Court all the evidence relied upon to make out his

case. This evidence, the Court or judge would first deliberately examine,

compare it with the charges or case to be supported, and if it did not,

in his opinion, prove the whole of one charge, or go the whole extent

of the case to be established by it, he would reject it, and not permit

the jury to hear it. This would strip the jury of the very prerogative

that renders this kind of trial so much superior to all others, that of

deciding on the weight and credit of evidence.

But it is stated that Judge Griffin concurred with him in opinion, and

this is insisted upon by the accused in different parts of his answer,

as an excuse for the errors he committed, if, as he states, they were

errors. This seems to be a kind of forlorn hope resorted to, when all

other expedients fail. To this argument of the judge I would in this

place answer, once for all, that it can be no excuse for him, nor any

justification of his offences, that another has been equally guilty with

himself; and it must strongly prove the weakness of his defence to rely

upon this ground. Though Judge Griffin has not yet been called to an

account for his conduct on this occasion, that is no reason why he should

not hereafter be made to answer for it. The nation has not said he was

innocent, or that he will not be proceeded against for this conduct; and

there is no limitation of time that would screen him from the effects of

charges of this kind, if they should be brought forward and supported

against him hereafter. No ground of excuse therefore can arise from the

circumstance of Judge Griffin not having been called upon to answer for

his conduct in this respect.

I will now proceed to notice very briefly the conduct of the judge in

the subsequent part of this trial. Compelling the defendant’s counsel to

reduce to writing all questions to be asked the witness, was a direct

innovation on the practice in our courts of justice, and tended to

embarrass the management of and weaken the defence. It is proved by the

testimony of all the witnesses, that no such practice ever prevailed

in our courts of justice, for such a purpose as that avowed in this

instance; the only cases in which it is required to reduce to writing

questions to be asked a witness, and the only cases in which it can be

proper or consistent with reason and justice to do so, are those in which

an objection is made to a question proposed to be asked, on the ground of

its being improper and contrary to the rules of evidence; and in order to

ascertain the precise meaning and effect of the question, so as to decide

on the objection made to it, it may be proper to require it to be reduced

to writing, but it never was before done, so far as we can discover, for

the purpose of ascertaining how far the witness could prove the matter

in question, and whether he could prove the whole of one charge or not,

and thereby decide whether the witness should or should not be examined.

According to this rule the judge would first try the cause himself upon

the evidence offered, by the questions thus reduced to writing, and if

he did not consider such evidence fully sufficient to support the whole

of the charge or case to which it was offered, he would reject it, and

not permit the jury to hear a word of it, lest they might consider it

stronger than he did, and give it sufficient weight to support the

case to which it was offered. This mode of proceeding was left to be

discovered and adopted by Judge Chase.

Barely to notice the conduct of the respondent, at Newcastle in Delaware,

as charged in the seventh article, is sufficient to show that he was

there actuated by the same spirit of persecution and oppression that has,

as already stated, marked the whole of his conduct during the course

of these transactions. That he should descend from the elevated and

dignified station in which he was placed as a judge, to hunt for crimes

as a common informer against his fellow-citizens; urge the jury to take

notice of, and present certain persons sufficiently designated though not

named; and press the attorney for the district to search for evidence

among the files of newspapers to support a prosecution, was degrading

to the sacred character of a judge, and was perverting the judicial

authority to a mere engine of persecution to answer party purposes.

Of the same complexion with this is the conduct of the respondent in

delivering an inflammatory and disorganizing charge to the grand jury

at Baltimore, as stated in the eighth article of the impeachment.

This proceeding evinced a mind inflamed by party spirit and political

intolerance; it was calculated to disturb the peace of the community,

and alarm the people at the measures of Government: to force them by

the terror of judicial denunciation to relinquish their own political

sentiments and adopt those of the judge. This was the favorite object

of this whole proceeding, and to obtain it no means were left untried.

It was attempted to excite the fears of the public mind, to destroy the

confidence of the people in the administration of their Government. The

judicial authority was prostituted to party purposes, and the fountains

of justice were corrupted by this poisonous spirit of persecution, that

seemed determined to bear down all opposition in order to succeed in a

favorite object. Citizens of all descriptions felt alarmed at this new

and unusual conduct. All the counsel at the bar, wherever the respondent

went, though consisting of the ablest and most enlightened in the nation,

were agitated into a general ferment, and the whole community seemed

shocked at such outrages upon common sense; for to go to trial was to go

to certain conviction. Is this, Mr. President, the character that ought

to distinguish the Judiciary of the United States? No, sir. The streams

of justice that flow from the American bench ought to be as pure as the

sunbeams that light up the morning. The accused should come before the

Court, with a well-founded confidence that the law will be administered

to him with justice, impartiality, and in mercy. When this is the case,

he submits without a murmur to his fate, and hears the sentence of

condemnation pronounced against him, with a mind that must approve the

justice of the law and the impartiality of those who administer it.

The decision of this cause may form an important era in the annals of

our country. Future generations are interested in the event. It may

determine a question all-important to the American people; whether the

laws of our country are to govern, or the arbitrary will of those who are

intrusted with their administration. Mr. President, we, on this important

occasion, behold the rights and liberties of the American people hover

round this honorable tribunal, about to be established on a firm basis by

the decision you will make, or sent afloat on the ocean of uncertainty,

to be tossed to and fro by the capricious breath of usurped power and

innovation.

Mr. CLARK addressed the Chair as follows--Mr. President: I rise only to

make a few remarks on two of the articles, the fifth and sixth, that

the counsel for the respondent may be possessed of all the points we

mean to make. I will endeavor, in a few words, to state the practice

which we think ought to have been pursued in the case of Callender. The

practice in the federal courts is regulated by that in each State. If

this position be correct, we contend, that the proper process in the

case of Callender was a summons. An act of Virginia, passed in the year

1792, provides that the grand jury “shall present all treasons, murders,

felonies, _or other misdemeanors whatsoever_, which shall have been

committed or done within the district for which they are impanelled.”

By another act of Virginia, passed in the same year, it is enacted that,

“upon presentment made by the grand jury of an offence not capital, the

Court shall order the clerk to issue a summons or other proper process

against the person or persons so presented, to appear and answer such

presentment _at the next Court_, and thereupon hear and determine the

same according to law.”

In this last provision, the words, “_or other proper process_,” have

a direct application to the previous provision, which enacts that the

grand jury shall present all treasons, murders, felonies, “or other

misdemeanors.” For treasons, murders, and felonies, we admit that a

capias is the proper process; and when the law directs _other proper

process_, it had reference to a class of crimes where a capias was

required. It is in vain alleged, that the counsel for Callender made

no objection to the process issued. They were not at that time to be

considered as his counsel; it was only after he was brought into court

that their duty commenced.

Further, whether the proper process was a capias or summons, the law of

Virginia requires that it shall be returnable to the next Court; and I

contend that this point is established by the English practice. To show

which I refer to Hawkins’s Pleas of the Crown, where it is stated that

a _venire facias_, which is in the nature of a summons, is the proper

process, and that it is returnable to the next Court.

It was surely, then, the duty of the judge to be acquainted with the

laws of England, however unacquainted he may have been with the laws of

Virginia. He cannot, therefore, on this ground, attempt a justification

from ignorance. In his answer he informs us that ignorance of the law

is no excuse. If it is no excuse in an unlettered individual, shall it

constitute the apology of him who was expressly appointed to expound

the law and administer justice? And if, on this occasion, he was not

acquainted with the law, did it, therefore, become him to proceed with

such fatal precipitancy? No sooner was the presentment made than the

marshal, before any indictment was brought in, was despatched after

Callender. We can only account for this by supposing that it was the

intention of the judge to act in conformity to his previous declaration,

however jocularly it may have seemed to have been made; and that this

was one of the means he had determined to pursue in order to convict

Callender, regardless of the dignity of his station or the innocence of

the man. Having offered these remarks, I am instructed to say that the

case is fully opened on the part of the prosecution.

_Argument for the Defence._

Mr. HOPKINSON.--Mr. President: We cannot remind you, and this honorable

Court, as our opponents have so frequently done, that we address you

in behalf of the majesty of the people. We appear for an ancient and

infirm man, whose better days have been worn out in the service of that

country which now degrades him; and who has nothing to promise you for

an honorable acquittal but the approbation of your own consciences.

We are happy, however, to concur with the honorable Managers in one

point; I mean the importance they are disposed to give to this cause.

In every relation and respect in which it can be viewed, it is, indeed,

of infinite importance. It is important to the respondent to the full

amount of his good name and reputation, and of that little portion of

that happiness the small residue of his life may afford. It is important

to you, Senators and judges, inasmuch as you value the judgment which

posterity shall pass upon the proceedings of this day. It is important

to our country, as she estimates her character for sound, dignified,

and impartial justice, in the eyes of a judging world. The little, busy

vortex that plays immediately round the scene of action, considers this

proceeding merely as the trial of Judge Chase, and gazes upon him as the

only person interested in the result. This is a false and imperfect view

of the case. It is not the trial of Judge Chase alone. It is a trial

between him and his country, and that country is as dearly interested as

the judge can be, in a fair and impartial investigation of the case, and

in a just and honest decision of it. There is yet another dread tribunal

to which we should not be inattentive. We should look to it with solemn

impressions of respect. It is posterity; the race of men that will come

after us. When all the false glare and false importance of the times

shall pass away; when things shall settle down into a state of placid

tranquillity, and lose that bustling motion that deceives with false

appearances; when you, most honorable Senators, who sit here to judge,

as well as the respondent who sits here to be judged, shall alike rest

in the silence of the tomb, then comes the faithful, the scrutinizing

historian, who, without fear or favor, will record this transaction; then

comes a just and impartial posterity, who, without regard to persons

or to dignities, will decide upon your decision. Then, I trust, the

high honor and integrity of this Court will stand recorded in the pure

language of deserved praise, and this day will be remembered in the

annals of our land, as honorable to the respondent, to his judges, and to

the justice of our country.

We have heard, sir, from the honorable Managers who have addressed

you, many harsh expressions. I hope, sir, they will do no harm.

We have been told of the respondent’s unholy sins, which even the

heavenly expectation of sincere repentance cannot wash away; we have

been told of his volumes of guilt, every page of which calls loudly

for punishment. This sort of language but pursues the same spirit

of asperity and reproach which was begun in the replication to our

answer. But we come here, sir, not to complain of any thing; we come

expecting to bear and to forbear much. It does, indeed, seem to me,

that the replication filed by the honorable Managers on behalf of the

House of Representatives and of all the people, carries with it more

acrimony than either the occasion or their dignity demanded. It may be

said that they have resorted for it to English precedent, and framed it

from the replication filed in the celebrated case of Warren Hastings.

There is, however, no similarity between that case and ours. Precedents

might have been found more mild in their character, and more adapted

to the circumstances of our case. The impeachment of Hastings was not

instituted on a petty catalogue of frivolous occurrences, more calculated

to excite ridicule than apprehension, but for the alleged murder of

princes and plunder of empires. If, however, the choice of this case

as a precedent for our pleadings, has exposed us to some unpleasant

expressions, it also furnishes to us abundance of consolation and hope.

There, the most splendid talents that ever adorned the British nation,

were strained to their utmost exertion to crush the devoted victim of

malignant persecution. But in vain; the stern integrity, the enlightened

perception, the immovable justice of his judges, stood as a barrier

between him and destruction, and safely protected him from the fury of

the storm. So, I trust in God, it will be with us.

In England, the impeachment of a judge is a rare occurrence. I recollect

but two in half a century. But, in our country, boasting of its superior

purity and virtue, and declaiming ever against the vice, venality, and

corruption of the Old World, seven judges have been prosecuted criminally

in about two years. A melancholy proof either of extreme and unequalled

corruption in our Judiciary, or of strange and persecuting times amongst

us.

The first proper object of our inquiries in this case is, to ascertain

with proper precision what acts or offences of a public officer are the

objects of impeachment. This question meets us at the very threshold

of the case. If it shall appear that the charges exhibited in these

articles of impeachment are not, even if true, the constitutional

subjects of impeachment; if it shall turn out on the investigation

that the judge has really fallen into error, mistake, or indiscretion,

yet if he stands acquitted in proof of any such acts as by the law of

the land are impeachable offences, he stands entitled to discharge on

his trial. This proceeding by impeachment is a mode of trial created

and defined by the constitution of our country; and by this the Court

is exclusively bound. To the constitution, then, we must exclusively

look to discover what is or is not impeachable. We shall there find

the whole proceeding distinctly marked out; and every thing designated

and properly distributed necessary in the construction of a court of

criminal jurisdiction. We shall find, 1. Who shall originate or present

an impeachment. 2. Who shall try it. 3. For what offences it may be

used. 4. What is the punishment on conviction. The first of these points

is provided for in the second section of the first article of the

constitution, where it is declared that “the House of Representatives

shall have the sole power of impeachment.” This power corresponds with

that of a grand jury to find a presentment or indictment. In the third

section of the same article, the Court is provided before whom the

impeachment thus originated shall be tried: “The Senate shall have the

sole power to try all impeachments.” And the fourth section of the second

article points out and describes the offences intended to be impeachable,

and the punishment which is to follow conviction; subject to a limitation

in the third section of the first article.

I offer it as a position I shall rely upon in my argument, that no judge

can be impeached and removed from office for any act or offence for which

he could not be indicted. It must be by law an indictable offence. One

of the gentlemen, indeed, who conduct this prosecution, (Mr. Campbell,)

contends for the reverse of this proposition, and holds that for such

official acts as are the subject of impeachment no indictment will lie or

can be maintained. For, says he, it would involve us in this monstrous

oppression and absurdity, that a man might be twice punished for the same

offence--once by impeachment, and then by indictment. And so most surely

he may; and the limitation of the punishment on impeachment takes away

the injustice and oppression the gentleman dreads.

The House of Representatives has the power of impeachment; but for what

they are to impeach, in what cases they may exercise this delegated

power, depends on other parts of the constitution, and not on their

opinion, whim, or caprice. The whole system of impeachment must be taken

together, and not in detached parts; and if we find one part of the

constitution declaring who shall commence an impeachment, we find other

parts declaring who shall try it, and what acts and what persons are

constitutional subjects of this mode of trial. The power of impeachment

is with the House of Representatives--but only for impeachable offences.

They are to proceed against the offence in this way when it is committed,

but not to _create_ the offence, and make any act criminal and

impeachable at their will and pleasure. What is an offence, is a question

to be decided by the constitution and the law, not by the opinion of a

single branch of the Legislature; and when the offence thus described

by the constitution or the law has been committed, then, and not until

then, has the House of Representatives power to impeach the offender. So

a grand jury possesses the sole power to indict; but in the exercise of

this power they are bound by positive law, and do not assume under this

general power to make any thing indictable which they might disapprove.

If it were so, we should indeed have a strange, unsettled, and dangerous

penal code. No man could walk in safety, but would be at the mercy of the

caprice of every grand jury that might be summoned, and that would be

crime to-morrow which is innocent to-day.

What part of the constitution then declares any of the acts charged and

proved upon Judge Chase, even in the worst aspect, to be impeachable?

He has not been guilty of bribery or corruption; he is not charged with

them. Has he then been guilty of “_other high crimes and misdemeanors_?”

In an instrument so sacred as the constitution, I presume every word

must have its full and fair meaning. It is not then only for crimes and

misdemeanors that a judge is impeachable, but it must be for _high_

crimes and misdemeanors. Although this qualifying adjective “_high_”

immediately precedes and is directly attached to the word “_crimes_,”

yet, from the evident intention of the constitution and upon a just

grammatical construction, it must be also applied to “_misdemeanors_.”

Observe, sir, the crimes with which these “other high crimes” are classed

in the constitution, and we may learn something of their character. They

stand in connection with “_bribery and corruption_;” tried in the same

manner and subject to the same penalties. But if we are to lose the force

and meaning of the word “_high_” in relation to misdemeanors, and this

description of offences must be governed by the mere meaning of the term

“misdemeanors,” without deriving any grade from the adjective, still my

position remains unimpaired, that the offence, whatever it is, which

is the ground of impeachment, must be such a one as would support an

indictment. “Misdemeanor” is a legal and technical term, well understood

and defined in law; and in the construction of a legal instrument we must

give to words their legal signification. A misdemeanor or a crime, for in

their just and proper acceptation they are synonymous terms, is an act

committed or omitted, in violation of a _public_ law, either forbidding

or commanding it. By this test let the conduct of the respondent be

tried, and, by it, let him stand justified or condemned.

Does not, sir, the Court, provided by the constitution for the trial

of an impeachment, give us some idea of the grade of offences intended

for its jurisdiction? Look around you, sir, upon this awful tribunal

of justice--is it not high and dignified, collecting within itself

the justice and majesty of the American people? Was such a court

created--does such a court sit to scan and punish paltry errors and

indiscretions, too insignificant to have a name in the penal code, too

paltry for the notice of a court of quarter sessions? This is indeed

employing an elephant to remove an atom too minute for the grasp of an

insect. Is the Senate of the United States, solemnly convened, and held

together in the presence of the nation, to fix a standard of politeness

in a judge, and mark the precincts of judicial decorum?

If I am correct in my position that nothing is impeachable that is not

also indictable, for what acts then may a man be indicted? May it be on

the mere caprice or opinion of any ten, twenty, or one hundred men in the

community; or must it not be on some known law of the society in which he

resides? It must unquestionably be for some offence, either of omission

or commission, against some statute of the United States--or some statute

of a particular State, or against the provision of the common law.

Against which of these has the respondent offended? What law of any of

the descriptions I have mentioned has he violated? By what is he to be

judged, by what is he to be justified or condemned, if not by some known

law of the country; and if no such law is brought upon his case--if no

such violation rises on this day of trial in judgment against him, why

stands he here at this bar as a criminal? Whom has he offended? The House

of Representatives--and is he impeached for this?

I maintain as a most important and indispensible principle, that no man

should be criminally accused, no man can be criminally condemned, but

for the violation of some known law by which he was bound to govern

himself. Nothing is so necessary to justice and to safety as that the

criminal code should be certain and known. Let the judge, as well as the

citizen, precisely know the path he is to walk in, and what he may or

may not do. Let not the sword tremble over his unconscious head, or the

ground be spread with quicksands and destruction, which appear fair and

harmless to the eye of the traveller. Can it be pretended there is one

rule of justice for a judge and another for a private citizen; and that

while the latter is protected from surprise, from the malice or caprice

of any man or body of men, and can be brought into legal jeopardy only

by the violation of laws before made known to him, the latter is to be

exposed to punishment without knowing his offence, and the criminality

or innocence of his conduct is to depend not upon the laws existing at

the time, but upon the opinions of a body of men to be collected four

or five years after the transaction? A judge may thus be impeached and

removed from office for an act strictly legal, when done, if any House of

Representatives, for any indefinite time after, shall for any reason they

may act upon, choose to consider such act improper and impeachable. The

constitution, sir, never intended to lay the judiciary thus prostrate at

the feet of the House of Representatives, the slaves of their will, the

victims of their caprice. The judiciary must be protected from prejudice

and varying opinion, or it is not worth a farthing. Suppose a grand jury

should make a presentment against a man, stating that most truly he had

violated no law or committed any known offence; but he had violated their

notions of common sense--for this was the standard of impeachment the

gentleman who opened gave us--he had shocked their nerves or wounded

their sensibility. Would such a presentment be received or listened to

for a moment? No, sir. And on the same principle, no judge should be put

in jeopardy because the common sense of one hundred and fifty men might

approve what is thus condemned, and the rule of right, the objects of

punishment or praise, would thus shift about from day to day. Are we to

depend upon the House of Representatives for the innocence or criminality

of our conduct? Can they create offences at their will and pleasure,

and declare that to be a crime in 1804, which was an indiscretion or

pardonable error, or perhaps an approved proceeding in 1800? If this

gigantic House of Representatives, by the usual vote and the usual forms

of legislation, were to direct that any act heretofore not forbidden by

law, should hereafter become penal, this declaration of their will would

be a mere nullity; would have no force and effect, unless duly sanctioned

by the Senate and the approbation of the President. Will they then be

allowed, in the exercise of their power of impeachment, to create crimes

and inflict the most serious penalties on actions never before suspected

to be criminal, when they could not have swelled the same act into an

offence in the form of a law? If this be truly the case, if this power of

impeachment may be thus extended without limit or control, then indeed is

every valuable liberty prostrated at the foot of this omnipotent House

of Representatives; and may God preserve us! The President may approve

and sign a law, or may make an appointment which to him may seem prudent

and beneficial, and it may be the general, nay the universal sentiment

that it is so; and it is undeniable that no law is violated by the act.

But some four or five years hence there comes a House of Representatives

whose common sense is constructed on a new model, and who either are or

affect to be greatly shocked at the atrocity of this act. The President

is impeached. In vain he pleads the purity of his intention, the legality

of his conduct; in vain he avers that he has violated no law and been

guilty of no crime. He will be told, as Judge Chase now is, that the

common sense of the House is the standard of guilt, and their opinion of

the error of the act conclusive evidence of corruption. We have read,

sir, in our younger days, and read with horror, of the Roman Emperor

who placed his edicts so high in the air that the keenest eye could not

decipher them, and yet severely punished any breach of them. But the

power claimed by the House of Representatives to make any thing criminal

at their pleasure, at any period after its occurrence, is ten thousand

times more dangerous, more tyrannical, more subversive of all liberty

and safety. Shall I be called to heavy judgment now for an act which,

when done, was forbidden by no law, and received no reproach, because

in the course of years there is found a set of men whose common sense

condemns the deed! The gentlemen have referred us to this standard,

and being under the necessity to acknowledge that the respondent has

violated no law of the community, they would on this vague and dangerous

ground accuse, try, and condemn him. The code of the Roman tyrant was

fixed on the height of a column, where it might be understood with some

extraordinary pains; but here, to be safe, we must be able to look into

years to come, and to foresee what will be the changing opinions of men

or points of decorum for years to come. The rule of our conduct, by which

we are to be judged and condemned, lies buried in the bosom of futurity,

and in the minds and opinions of men unknown, perhaps unborn.

The gentleman (Mr. Early) who has offered you his observations on these

articles of impeachment, appears to have grounded his argument not on the

evidence, but on the articles. Supposing, perhaps, that they would be

proved, he has taken it for granted that they have been proved, and has

shaped his remarks accordingly. Had we filed a general demurrer to these

charges, thereby admitting them as stated, the argument of the gentleman

might have had the force and application he intended. But, if I mistake

not, the respondent has pleaded not guilty, and the case must therefore

be decided by the amount of the evidence, and not by the averments of the

articles. I admit, indeed, that the honorable Managers are put to some

difficulty in this respect. They are under the necessity of making their

election between the articles and the evidence as the foundation of their

argument; for they are so totally dissimilar, that they could not take

them both; they meet in so few and such immaterial points, that no man

can argue from them both for five sentences. This being the situation

of the gentleman, he has thought proper to select the articles and the

facts therein set forth as the foundation of his argument in defiance of

the testimony. In the observations I shall have the honor to submit, I

propose to take the evidence as my text and guide, and leave the articles

to shift for themselves, under the care and patronage of our honorable

opponents.

Upon reading this first article of impeachment against the respondent,

after a due degree of horror and indignation at the monstrous tyranny

and oppression portrayed in it, the first question that would strike the

mind of the inquirer would naturally be, when did this horrid transaction

take place--when and where was it that Judge Chase thus persecuted an

unfortunate wretch to the very brink of the grave, from which he was

snatched by the interference of executive mercy, shocked at the injustice

of his condemnation? When were the rights of juries and the privileges

of counsel and their clients thus thrown down and prostrated at the feet

of a cruel and inexorable judge? What would this inquirer think and

believe on being informed that these atrocious outrages upon justice,

law, and humanity, were perpetrated five years since? Why and where has

the justice of the country slumbered so long? What now awakens it from

this lethargic sleep? Why has this monstrous offender so long escaped

the punishment of his crimes? To what region of refuge did he fly? But

will not surprise be greatly increased when it is told that at the time

of the trial of John Fries, this injured and oppressed man,--at the very

time when these crimes of the judge were committed, the Congress of the

United States, the guardian of our lives and liberties, were actually

in session in the very city where the deeds were done, and probably

witnessed the whole transaction? I do not expect to be answered here, for

I cannot suspect our honorable opponents of so much illiberality, that

at that period the administration of our affairs was in the hands of the

political friends of the judge, and therefore he was permitted to escape,

however atrocious his crimes. Whatever, sir, may have been the character

of that Administration, even if a weak and wicked one, as it has been

represented, it could have no object in protecting any individual at

so great a risk to themselves and their reputation. If Judge Chase had

really violated the law and constitution to come at the blood of Fries,

and had done this in the face of the public, the Administration would

have put too much at hazard by endeavoring to shelter him. I hope,

however, no such reason will be given for the neglect of these charges;

and as we most cheerfully and truly confide in the justice of the present

Administration, we trust no such distrust will be avowed of the integrity

of the former; we feel as safe under trial now as we should have done

then, and look without distrust for the same impartial justice from this

honorable Court, as we should have expected and received at any time.

This first article, sir, charges, “that unmindful of the solemn duties

of his office, and contrary to the sacred obligations by which he stood

bound to discharge them faithfully and impartially and without regard to

persons, the said Samuel Chase on the trial of John Fries, charged with

treason, before the circuit court of the United States, held for the

district of Pennsylvania, in the city of Philadelphia, during the months

of April and May, 1800, whereat the said Samuel Chase presided, did, in

his judicial capacity, conduct himself in a manner highly arbitrary,

oppressive, and unjust.” This general accusation is followed by three

distinct specifications of offence, to wit:

“1. In delivering an opinion, in writing, on the question of law, on the

construction of which the defence of the accused materially depended,

tending to prejudice the minds of the jury against the case of the said

John Fries, the prisoner, before counsel had been heard in his defence:

“2. In restricting the counsel for the said Fries from recurring to such

English authorities as they believed apposite, or from citing certain

statutes of the United States, which they deemed illustrative of the

positions, upon which they intended to rest the defence of their client:

“3. In debarring the prisoner from his constitutional privilege of

addressing the jury (through his counsel) on the law, as well as on the

fact, which was to determine his guilt, or innocence, and at the same

time endeavoring to wrest from the jury their indisputable right to hear

argument and determine upon the question of law, as well as the question

of fact, involved in the verdict which they were required to give.”

In the whole of these specifications I am able to discover but one truth;

the rest is wholly contradicted and disproved by the evidence. It is

true, that Judge Chase did form and reduce to writing, and, in a limited

manner, deliver an opinion on a question of law, on the construction

of which the defence of the accused materially depended--but when the

article goes on to charge that this opinion tended to prejudice the

minds of the jury against the case of John Fries the prisoner, before

counsel had been heard in his defence, it is utterly unfounded and

untrue. To whom was this opinion delivered? To the counsel for Fries

and to the Attorney for the United States; and to no other person. The

third copy, and but three were made, never was delivered to the jury or

to any other person, and never could produce any prejudice or injury to

John Fries--nor indeed was it ever intended to come to the knowledge of

the jury, until they had completely heard the discussion of the case by

counsel, when they were to have _taken out_ with them this opinion of the

judge upon the law of the case submitted to them. At that period of the

trial when it was not only the right but the duty of the Court to state

to the jury their opinion of the law arising on the facts, then, and not

until then, was it the intention of the judge to communicate to them this

deliberate opinion. Could this be done with any intention to injure or

oppress the prisoner? If such was the intention of the act, then, and not

otherwise, it was criminal. In inquiring into the nature of this act, I

confine myself now to the forming and delivery of this opinion, and to

decide its innocence or criminality we should consider it in relation to

its _motives_, its _time and manner_, and its _consequences_. If nothing

partial, oppressive, or corrupt, is to be found in any of these, I know

not in what or whence the criminality is to be established. In deciding,

sir, upon the _motive_ which prompted the judge to this act, we must look

for materials in the testimony: by this we must be governed, and not by

the imputations, surmises, and constructions of our opponents, however

eloquent and ingenious. The judge and his motives are not only strongly

denounced in the article, but have also had the same fate from the mouths

of the Managers. I take the evidence for my guide, and I know it will be

the guide of this honorable Court.

What then, sir, is the whole amount of the crime of the judge on

this occasion? That he, a law judge, had been bold enough to form an

opinion--not on John Fries’s case, or the facts or circumstances of it,

for he knew them not; but on certain abstract points of law, without

first consulting and hearing Messrs. Lewis and Dallas. And further, he

had not only formed such opinions, but he had the audacity to put them

into the hands of these gentlemen, which, in the article of impeachment,

is called “delivering the opinion.” The judge, then, on mature

deliberation, from a full consideration both of English and American

precedents and decisions, had really made up his mind upon what overt

acts would constitute the treason of levying war; and to prevent mistake,

he had reduced this opinion to writing, and for the information of the

counsel on both sides (no partial selection) he gave a copy of this

opinion to each of them, and intended to give another to the jury to take

out with them. The jury should have this opinion where they could not

mistake it, instead of their memories where it might be misunderstood. Is

not this, sir, a fair and just epitome of the facts given in evidence? Is

it not the full measure and amount of the judge’s crime and corruption?

We have heard much about the agitation of the bar on this occasion. The

particular cause of it has not been clearly explained. It might have been

produced by the demeanor of Mr. Lewis, which, from his own account, was

violent and indignant, or it might have been the mere bustle produced

by the different efforts that were made to get hold of the obnoxious

paper which Mr. Lewis cast from him with so much feeling as too foul

for his hand; or from a combination of these with other causes. Another

circumstance equally immaterial has been dignified with much importance

by the attention the Managers have bestowed upon it--I mean the _novelty_

of the proceeding. Every witness was asked in solemn form, “Did you ever

see the like before?” “How long have you been a practising lawyer?”

“How many criminals have you defended?” “Was not this mode of forming

and giving opinions by the Court a novelty to you?” Granted--it was a

_novelty_--I say granted for argument’s sake--it was a novelty; and what

follows? Is it therefore impeachable? Every innovation, however just and

beneficial, is subject to the same consequence. But, sir, if this novelty

proceeded not from impure intentions, and was not followed by oppressive

or injurious consequences, where is its injustice or criminality? There

were many other novelties in that trial. It was a novelty that a man

named John Fries should commit treason, and be tried and convicted for

it. I never heard of precisely the same thing before. It was a novelty

that counsel should desert their cause in the abrupt manner in which it

was then done. But I presume it will not be pretended that these things

were wrong merely because they were novel; much less that a judge is to

be convicted of high crimes and to be removed from office for a harmless

novelty. The articles charge not the judge with innovations and novelties

in legal forms, but with depriving John Fries and his counsel of their

constitutional rights; and if he has not done this, the rest is of no

importance now. But what is this strange novelty that excites so much

interest and alarm? Is it that a law judge had a law opinion, and was

capable of making it up for himself without the assistance of learned

counsel? I hope not. I should be sorry to suppose this is a novelty in

the United States. Was it then the reducing this opinion to writing,

putting it on paper with pen and ink, that makes the dangerous novelty?

To have the opinion is nothing; but to write it constitutes the crime.

And yet, sir, where is the difference to the prisoner? Except that in

the latter case there is more certainty; less chance of misapprehension

and mistake on the part of the jury than when it is delivered to them

verbally. It should be recollected, sir, and I am sure it is too

important to be forgotten by this honorable Court, this written opinion

contained all the limitations and discriminations on the law of treason

which could serve the prisoner, as well as those which might operate

against him. But, sir, I deny that there was so much novelty either in

forming this opinion, or in reducing it to writing, as is pretended.

Is it uncommon for judges to state their opinions on particular points

of law to counsel, even before argument, for the direction of their

observations? And was it ever before considered a prejudication of the

case, or an encroachment upon the rights of the bar? In criminal courts

the practice is constant and universal. Previous to the trial of the

cases of treason, after the restoration of Charles II., the judges of

England met together, and did form and reduce to writing opinions, not

only upon the mode of proceeding upon the trials, but also on all those

questions or points of law which they supposed would arise and require

their decision in the course of the trials. (See Kelynge’s Reports, pp.

1, 2, &c.--11.) Here the judges met in consultation expressly for the

purposes now deemed so criminal in Judge Chase, and took to their aid the

King’s counsel. Our judge did not take to his assistance the Attorney of

the United States in forming his opinion; nor did the judges in England

deliver to the counsel of the accused the result of their deliberations,

but doubtless it would have been received as a favor if they had. In the

only two points of difference, therefore, between the two cases, we have

most decidedly the advantage.

Suffer me now, sir, to offer you some observations on the second

specification of the first article of impeachment. I hope it will not

be necessary to trespass greatly on your patience in refuting it. It

charges Judge Chase with “restricting the counsel for the said John

Fries from recurring to such English authorities as they believed

apposite, or from citing certain statutes of the United States, which

they deemed illustrative of the positions upon which they intended to

rest the defence of their client.” This charge consists of two parts;

it complains of a restriction as to English authorities, and as to

American statutes. I will consider them distinctly. First, sir, permit

me to remark that these allegations are made to support the general

charge of partiality, oppression, and injustice. But what becomes of

these pretences when we bear in mind the testimony of Mr. Rawle, the

district attorney, and always, and in every situation, a gentleman whose

character, in all its relations both public and private, bears the

first stamp of respectability, and fears no competition for credit? He

has informed this honorable Court that this restriction so grievously

complained of, and now the subject of a criminal prosecution, was imposed

upon him as well as upon the counsel of Fries. Is this the character

or the conduct of partiality or oppression? Does it evince that strong

appetite the judge is said to have, to drink the heart’s blood of this

unfortunate German, and stain the pure ermine of justice with his gore?

I have always understood by partiality in a judge, a favoring bias to

one party to the prejudice of the other; but where a restriction is put

equally on both sides, I cannot conjecture how it can be resolved into

partiality or oppression. It will be seen presently that as far as this

restriction could have any operation, it was friendly in that operation

to John Fries. But, sir, what was this restriction so much complained

of, and now magnified into a high crime? That certain English decisions

in the law of treason, made before the Revolution of 1688, should not

or ought not to be read to the jury; and pray, sir, what were these

decisions? I will take their character from Mr. Lewis himself, and no

man is better acquainted with them. He says they were decisions of

dependent and corrupt judges, who carried the doctrine of constructive

treason to the most dangerous and extravagant lengths. True, they were

so--sanguinary, cruel, and tyrannical in the extreme; and could the

exclusion of such cases injure John Fries? If cases which extenuated and

softened the crime of treason had been rejected, he might indeed have

suffered; but how he was or could be injured by keeping from the jury

those cases which aggravated his offence, I am really at a loss to learn.

The restriction there was on the United States. Had they been adduced

by the Attorney-General, no doubt they would have been ably answered by

the defendant’s counsel; but the ability of the counsel was not inferior

to Fries’s counsel; and if Judge Chase had indeed a design to oppress

and injure John Fries, and to convict him on strained constructions of

treason, his best policy would surely have been to have suffered these

cases to have come forward, and if supported by his authority and the

talents of the counsel of the United States, they might have had their

influence with the jury, notwithstanding the able refutations they might

have received.

May I not now flatter myself, sir, that all the criminality charged

upon the respondent, in the second specification of the first article

of impeachment, is washed away from the minds of this honorable Court?

Under this hope and impression, I will proceed to consider, as briefly

as possible, the third and last specification. In this the judge is

charged with “debarring the prisoner from his constitutional privilege

of addressing the jury (through his counsel) on the law as well as on

the fact which was to determine his guilt or innocence, and at the same

time endeavoring to wrest from the jury their indisputable right to hear

argument, and determine upon the question of law, as well as the question

of fact, involved in the verdict which they were required to give.” This

charge is absolutely unfounded and untrue, and is, in all its parts, most

completely disproved by the evidence. As to debarring counsel from being

heard, I need only refer you, sir, to the testimony of Messrs. Tilghman

and Meredith, who expressly swear, that Judge Chase, when he threw

down the paper containing the opinion the Court had formed on the law,

explicitly declared, that, nevertheless, counsel would be heard against

that opinion. It is, indeed, true that Mr. Lewis seems, throughout the

business, to have been under an impression that nothing would be heard

in contradiction to that opinion; and that his professional rights

were invaded. But this appears to be a hasty and incorrect inference

or conclusion of his own, from the conduct of the Court. He wholly

misapprehended the Court, and has charged his misapprehension to their

account. This is the usual effect of such precipitate proceedings. The

Managers have greatly relied on this circumstance; they urge that Mr.

Lewis, through the whole affair, and in all he said concerning it, took

for granted and stated that he was debarred from his constitutional

privileges. He did so; but he did so under a mistake of his own, not

proceeding from the Court. It is not only that no other witness speaks

of any such restriction, but expressly negative it and say, some of them

at least, that none such was imposed; but Mr. Rawle has further informed

you, that it appeared to him throughout the business that Mr. Lewis had

wholly misunderstood the Court and mistook their intention. But, surely,

sir, we are not to be condemned because we have been misunderstood;

especially as the mistake seems to have been peculiar to Mr. Lewis, and

no other witness fell into the same error. I rely most implicitly on

Mr. Rawle’s testimony, not only from the strength and correctness of

his character, but from the unusual pains he took to be accurate in his

knowledge of this transaction. His notes are copious, connected, and

satisfactory, and although he has no notes of the first day’s proceeding,

yet he seems to have given an uncommon and cautious attention to every

circumstance to which he has testified. This gentleman negatives every

idea of any restriction upon the arguments of counsel, and is supported

by every witness but Mr. Lewis.

But, sir, there is one circumstance in this second day’s proceeding,

which has been introduced to show, that the respondent continued the

same tyrannical spirit with which he is charged on the first day, and

which it may be incumbent on him to remove. I mean the “unkind menace,”

as it has been termed by one of the witnesses, used to the counsel of

Fries, when the judge told them they would proceed in the defence at

the hazard or on the responsibility of their character. To ascertain

the true nature of the expression, whatever it was, which fell from the

Court in this respect, I will refer to the same guide I have endeavored

to follow throughout my argument, I mean the evidence. The aspect of this

pretended menace will then be changed into a complimentary confidence

in the discretion of the counsel, or at least into no more than such

a menace as every gentleman of the bar acts under in every case; that

is, to manage every cause before a jury with a due regard to their own

reputation; to urge nothing as law to the jury, which they are conscious

is not law, and to introduce no matter which they know to be either

improper or irrelevant. This, in its worst character, will be found

to be the whole amount of this terrible menace. What account does Mr.

Lewis give of this occurrence? After stating that the Court manifested a

_strong desire_ that he and his colleague should proceed in the defence

of their client; that every restriction, if any had been imposed, was now

removed, and that they were at full liberty to address the jury on the

law and the fact as they thought proper; the judge said that this would

be done “under the direction of the Court, and at the peril of their own

character, _if we conduct ourselves with impropriety_.” And was it not

so? And where is the criminality of saying so? Mr. Lewis did not consider

this as a menace intended to restrict him in the exercise of the rights

just before conceded him by the Court, but rather as an unwarranted

suspicion of his sense of propriety; for, says he, “I did not know of any

conduct of mine to make this caution necessary.”

A very strange and unexpected effort has been made, sir, to raise a

prejudice against the respondent on this occasion, by exciting or rather

forcing a sympathy for John Fries. We have heard him most pathetically

described as the ignorant, the friendless, the innocent John Fries. The

ignorant John Fries! Is this the man who undertook to decide that a

law which had passed the wisdom of the Congress of the United States,

was impolitic and unconstitutional, and who stood so confident of this

opinion as to maintain it at the point of the bayonet? He will not thank

the gentleman for this compliment, or accept the plea of ignorance as an

apology for his crimes. The friendless John Fries! Is this the man who

was able to draw round himself a band of bold and determined adherents

resolved to defend him and his vile doctrines at the risk of their own

lives, and of the lives of all who should dare to oppose? Is this the

John Fries who had power and friends enough actually to suspend, for

a considerable time, the authority of the United States over a large

district of country, to prevent the execution of the laws, and to command

and compel the officers appointed to execute the law to abandon the

duties of their appointment, and lay the authority of the Government at

the feet of this _friendless usurper_? The innocent John Fries! Is this

the man against whom a most respectable grand jury of Pennsylvania, in

1799, found a bill of indictment for high treason; and who was afterwards

convicted by another jury, equally impartial and respectable, with the

approbation and under the direction of a judge, whose humanity and

conduct, on that very occasion, have received the most unqualified praise

of the honorable Manager who thus sympathizes with Fries? Is this the

John Fries, against whom a second grand jury, in 1800, found another

bill for the same offence, founded on the same facts, and who was again

convicted by a just and conscientious petit jury? Is this _innocent_

German the man who, in pursuance of a wicked opposition to the power

and laws of the United States, and a mad confidence in his ability to

maintain that opposition, rescued the prisoners duly arrested by the

officers of the Government, and placed those very officers under duress;

who, with arms in his hands and menace on his tongue, arrayed himself in

military order and strength, put to hazard the safety and peace of the

country, and threatened us with all the desolation, bloodshed, and horror

of a civil war; who, at the moment of his desperate attack, cried out to

his infatuated followers, “Come on! I shall probably fall on the first

fire, then strike, stab, and kill all you can?” In the fervid imagination

of the honorable Manager, the widow and orphans of this man, even before

he is dead, are made in hypothesis to cry at the judgment seat of God

against the respondent; and his blood, though not a drop of it has been

spilt, is seen to stain the pure ermine of justice. I confess, sir, as a

Pennsylvanian, whose native State has been disgraced with two rebellions

in the short period of four years, my ear was strangely struck to hear

the leader of one of them addressed with such friendly tenderness, and

honored with such flattering sympathy by the honorable Manager.

It is not unusual, sir, in public prosecutions for the accused to appeal

to his general life and conduct in refutation of the charges. How proudly

may the respondent make this appeal! He is charged with a violent attempt

to violate the laws and constitution of his country, and to destroy the

best liberty of his fellow-citizens. Look, sir, to his past life, to

the constant course of his opinions and conduct, and the improbability

of the charge is manifest. Look to the days of doubt and danger; look

to that glorious struggle so long and so doubtfully maintained for that

independence we now enjoy; for those rights of self-government you now

exercise, and do you not see the respondent among the boldest of the

bold, never sinking in hope or in exertion, aiding by his talents and

encouraging by his spirit; in short, putting his property and his life in

issue on the contest, and making the loss of both certain by the active

part he assumed, should his country fail of success! And does this man,

who thus gave all his possessions, all his energies, all his hopes to

his country and to the liberties of the American people, now employ the

small and feeble remnant of his days, without interest or object, to

pull down and destroy that very fabric of freedom, that very Government,

and those very rights he so labored to establish? It is not credible; it

cannot be credited, but on proof infinitely stronger than any thing that

has been offered to this honorable Court on this occasion. Indiscretions

may have been hunted out by the perseverance of persecution; but I trust

most confidently that the just, impartial, and dignified sentence of

this Court, will completely establish to our country and to the world,

that the respondent has fully and honorably justified himself against

the charges now exhibited against him; and has discharged his official

duties, not only with the talents that are conceded to him, but with an

integrity infinitely more dear to him.

FRIDAY, February 22.

Mr. KEY.--Mr. President, I rise to make some observations on the second,

third, and fourth articles of the impeachment. I shall not apologize for

the manner in which I shall discharge a duty which I have voluntarily

undertaken, but merely regret that indisposition has prevented my giving

the subject that attention which it merits. It will be at once perceived

that these articles relate to the trial of Callender. Before, however,

I go into an examination of the second article, it may be proper to

notice the situation in which the judge found himself and the state

of the public mind at the time. The sedition law was passed in the

year 1799. It immediately arrested the public attention, and strongly

agitated the public feelings. In the State of Virginia it was peculiarly

obnoxious; many of the most respectable characters considered it as

unconstitutional, and as a violation of the liberty of the press; most

deemed it impolitic; while some viewed it as a salutary restraint on

the licentiousness of the press, more calculated to preserve than to

destroy it. In this state of the public mind it became the duty of the

respondent, in the ordinary assignment of judicial districts, to go into

the district of Virginia, where he was entirely a stranger, to carry the

laws into execution. It is scarcely necessary to observe that when laws

are considered obnoxious, much of the odium attending them inevitably

falls on those who carry them into effect. In May, 1800, Judge Chase

went to Richmond to hold a court; and soon after it was in session, the

grand jury found a presentment and afterwards a bill against James T.

Callender for an infraction of this law, in publishing the book entitled

“The Prospect before Us,” which brought into issue its constitutionality.

Professional men of talents, carried along by the tide of public opinion,

volunteered their services in defence of the accused; and every effort

was exhausted to wrest the decision from the respondent. Exceptions were

accordingly taken at every stage of the case; and when the jurors were

brought to the book, a question arose which forms the foundation of the

charge contained in the second article.

If we extract from this article the epithets it contains nothing will

remain, and epithets fortunately do not constitute crimes. The offence

and fact charged is, the permitting Mr. Basset to be sworn on the jury

with an intention to oppress the traverser, which is not in the least

supported by the testimony. The article alleges that Mr. Basset wished

to be excused. I appeal to the testimony, whether he did wish or desire

to be excused. The observations he made arose entirely from a scruple

in his own mind, and not from any objection to serving. Instead of

his wishing to be excused, the real fact is that which he said flowed

from the peculiar situation in which he stood; and he says that he

declared himself willing to serve, provided in law he was competent. The

fact, therefore, on which this article rests, is not supported by the

testimony, and not being supported, I might here dismiss this branch of

the subject without further animadversion.

Suppose we are mistaken in the fact, which we say is proved, that

Mr. Basset did not desire to be excused; admit that he did pray to

be excused; still, so far as he has himself, on oath, explained the

situation of his mind, there was no cause for challenge.

Admit, also, that we are mistaken in the law we have laid down, does it

follow as a necessary consequence that the directing Basset to be sworn

on the jury, was done with an intent to oppress the traverser? We call

for the facts that impeach the motives of Judge Chase. In the opening of

this case we were told that the respondent was highly gifted with rich

attainments of mind. It was correctly said; and it might have been added

that his integrity was equal to his talents. But the observation was

made to raise his head at the expense of his heart. I will examine this

argument.

The truth is that no judge is liable for an error of judgment. I

apprehend this is conceded by the article itself, which states a criminal

intent. Now for the evidence. What criminal intention do the honorable

Managers draw from it? It is said that the respondent is highly gifted

with intellectual powers, and must have known in this instance the

law. _Timeo Danaos et dona ferentes._ I dislike the compliment; the

best-gifted mortals are frail, and a single erroneous decision may be

made by any man.

I will now proceed to the third article, which, when correctly

understood, will be found as destitute of impeachable matter as either

of the other articles. It is as follows: “That, with intent to oppress

and procure the conviction of the prisoner, the evidence of John Taylor,

a material witness on behalf of the aforesaid Callender, was not

permitted by the said Samuel Chase to be given in, on pretence that the

said witness could not prove the truth of the whole of one of the charges

contained in the indictment, although the said charge embraced more than

one fact.”

In opening the case one of the honorable Managers inquired what human

subtilty or ingenuity could devise to extenuate this act of the

respondent. Our reply is that it requires no subtilty or ingenuity; that

it was correct in point of law, and that the case is so clear, that he

who runs may read. The Court must permit me to observe that the article

presents an abstract case, not growing out of, or connected with the

evidence. This Court, I apprehend, is not sitting here to decide this

abstract point, whether in any case it is admissible to prove one fact

contained in a particular charge by one witness, and one by another; but

to determine whether in this case, where one witness was offered to prove

part of one charge, and no other witness offered to the same charge, it

was proper to receive testimony offered. I contend that the decision was

correct on the case before the Court.

Mr. Robertson says, “The attorney for the United States having concluded,

the counsel for the traverser introduced Colonel Taylor as a witness,

and he was sworn; but at the moment the oath was administered, the

judge called on them, and desired to know what they intended to prove

by the witness. They answered, that they intended to examine Colonel

Taylor, to prove that Mr. Adams had avowed principles in his presence

which justified Mr. Callender in saying that the President was an

aristocrat--that he had voted against the sequestration law, and the

resolutions concerning the suspension of commercial intercourse with

Great Britain.” This was then the object and view with which Colonel

Taylor was called on. What is the charge in the articles of impeachment?

That the testimony of Colonel Taylor was rejected “on pretence that

the said witness could not prove the truth of the whole of one of the

charges, contained in the indictment, although the said charge embraced

more than one fact.” The charge in the indictment is that the President

“was a professed aristocrat; that he proved faithful and serviceable

to the British interest:” and Colonel Taylor was called to prove that

Mr. Adams had voted against the sequestration law, and the resolutions

concerning the suspension of commercial intercourse with Great Britain.

Was it competent to Colonel Taylor to give evidence on this point? The

best evidence the nature of the case will admit must be adduced. Colonel

Taylor then was clearly an incompetent witness on this point; as there

was better evidence, the journals of this honorable body, within the

reach of the traverser. It only then remained for Colonel Taylor to

prove that the President had avowed principles which showed him to be an

aristocrat; which, if proved, would have been altogether immaterial. To

prove no other facts was he called upon. Are then counsel to be indulged

in consuming the time of courts in the examination of witnesses, who have

nothing relevant to offer?

I will now proceed to the fourth article, which contains five distinct

specifications of facts charging misconduct on the respondent at Richmond.

This conduct is said to have been evinced, in the first place, “In

compelling the prisoner’s counsel to reduce to writing, and submit to the

inspection of the Court, for their admission or rejection, all questions

which the said counsel meant to propound to the above-named John Taylor,

the witness.”

If this was incorrect, I cannot perceive its injustice to Callender, nor

its partiality or intemperance. But did the conduct of the Court in this

instance correspond with the law and the practice? I apprehend that it

did. I understand it to be a clear and admitted principle of law, that

the Court is the only competent tribunal to determine the competency,

the admissibility, and the relevancy of evidence; when admitted, its

credibility is the exclusive province of the jury. I have before stated

the reasons which rendered it necessary in this case to know what

Colonel Taylor could prove. To understand the object for which he was

produced with greater certainty and precision, the judge ordered the

questions proposed to be put to be previously reduced to writing. I am

not sufficiently acquainted with the practice in the courts of Virginia

to say this was not novel, but I may surely venture to affirm that there

was nothing criminal in it. I know well that in different States there

are different forms of practice. I can only say, that Judge Chase, going

from Maryland, where the practice does prevail, would naturally carry to

Virginia the knowledge of the practice of the State from which he went.

The _second_ specification is in the following words:

“In refusing to postpone the trial, although an affidavit was regularly

filed, stating the absence of material witnesses on behalf of the

accused; and although it was manifest that, with the utmost diligence,

the attendance of such witnesses could not have been procured at that

term.”

This charge is grounded on the fact of a refusal to postpone the trial on

an affidavit. That the Court acted correctly in this instance will appear

from this consideration. Nothing is more clear than that, under the

common law, all applications for a continuance, on affidavit, are founded

on the discretion of the Court. Is it not wonderfully singular that there

should have been an application founded on an affidavit, if the law of

Virginia, as stated in the 6th article, applied to the case? One thing is

clear: either that the Attorney-General and Mr. Hay lost all recollection

of the existence of this law of Virginia respecting continuances, or

that they considered it inapplicable; for they would not otherwise have

founded the application on an affidavit. They would have produced the

law and have demanded a continuance. Did they do so? No. If, then, the

law officer of the State and Mr. Hay both forgot that it existed, is it

surprising that it should be unknown to Mr. Chase? If those gentlemen did

recollect the existence of the law, they must surely have been of opinion

that it did not apply to the case of Callender, or they would have saved

themselves the trouble of filing an affidavit. It will however be shown

that it did not apply, and hence their application founded on affidavit.

On the third specification, which charges the respondent with “the use

of unusual, rude, and contemptuous expressions towards the prisoner’s

counsel; and in falsely insinuating that they wished to excite the public

fears and indignation, and to produce that insubordination to law, to

which the conduct of the judge did, at the same time, manifestly tend;”

I have but a few observations to make. I should indeed have spared many

of the remarks I have made, were it not for an ignorance of the peculiar

ground on which the honorable Managers mean to rely in their reply, and

were it not for the fear that an omission to notice any of the charges

preferred, might be considered as an abandonment of our defence as far as

related to them.

I have nowhere discovered in the evidence any thing that supports in

point of fact the charge against Judge Chase, of falsely insinuating that

the prisoner’s counsel wished to excite the public fears and indignation

to produce insubordination to law. The judge did say that the counsel

used a popular argument, calculated to mislead and deceive the populace;

and this is the extent and head of his offending; but there is a wide

difference between this and the charge laid to his door. He told the

counsel, and told them truly, that they were availing themselves of a

popular argument, calculated to mislead and deceive the people. Attend,

I pray you, to the testimony of Mr. Hay. Did not the counsel for the

prisoner say they had no hope of exculpating him on the facts? Did they

not say they did not argue for Callender? That it was the cause, and not

the man, they defended? That they did not expect to convince Judge Chase,

or any other federal judge, of the unconstitutionality of the sedition

act? Were they not then laboring with their whole talents to catch the

popular ear? Did they not expressly declare that they had little hopes of

the jury, and that their object was to make an impression on the public

mind? And when the judge declared that the constitutionality of the act

could not be discussed before the jury, did they not, failing in their

object, abandon the defence? The ground which they meant to have taken

was withdrawn, and they withdrew with it.

As to the use of unusual, rude, and contemptuous expressions towards

the prisoner’s counsel, no particular facts appear to be relied on. The

term _captious_ may be unusual; the phrase _young gentlemen_, which in

the opening the honorable Manager metamorphosed into _boys_, but which

last word does not by the testimony appear to have been used, may have

been obnoxious to the ears of those to whom it was applied. There may

not have been manifested in this language the most refined decorum; but

let us recollect that our honorable client is not now on his trial for a

violation of the decorums of society. Possessed of great ardor of mind

and quickness of feeling, he conceives with rapidity, and expresses

with energy his ideas. This may be a weakness; but it is a weakness of

nature. Had he a colder heart, and weaker head, he might not be exposed

to these little indiscretions. But where is the _vade mecum_ from which

a judge is to derive precedents for his behavior? Courts are instituted,

not to polish and refine, but to administer justice between man and man.

One judge may possess a more pleasing urbanity of manners than another;

but are we to infer that because a man is warm in the expression of his

sentiments, he is, therefore, angry? It will not be contended that when

the counsel for the traverser spoke of the necessity of the indictment

being _verbatim et literatim_, in the witty reply of the judge that

they might as well insist that it should be _punctuatim_, there was any

violation of decorum manifested. The reply grew out of the occasion, and

never was a remark better applied.

I know of no other unusual language, except the expression of _non

sequitur_; and surely there was nothing improper in that. We have been

told that it is the usual habit of Judge Chase to interrupt counsel

when they attempt to lay down as law that which is not law. In this

case, he certainly did so; but it does not appear that he departed from

his ordinary course; and if he had, where is the rule which, on such

occasions, is to govern a judge? Such conduct, as I have before observed

on another point, violates no moral obligation, infringes no statutory

provision. The judge may not have displayed the urbanity, the suavity,

and the patience, which so happily characterize some high characters; but

where or when has the absence of these minor qualities been considered

as criminal? Some of the witnesses, and among them Colonel Taylor, have

described the conduct of the judge as imperious, sarcastic, and witty;

but no witness has pronounced it tyrannical or oppressive.

With regard to the fourth specification, which relates to the

interruption of counsel, I shall say but little. A judge has a right at

all times to interrupt counsel whenever they act improperly. It is the

inherent right of courts. When that is laid down as law which is not

law, it is not only their right, but it is their duty, to stop them.

Such interruptions may be considered vexatious by the counsel that are

interrupted; but of such matters the Court only can be the judge. One

witness, examined on the frequency of the interruptions of counsel on the

trial of Callender, has said that more interruptions occurred in a case

before Judge Iredell, whose eulogium has been pronounced by an honorable

Manager; and another witness has informed us that it is the habit of

Judge Chase frequently to interrupt counsel in civil as well as criminal

cases; that the habit arises from the vigor of his mind, and the ardor

of his feelings; that this is somewhat embarrassing to counsel, but that

a little suavity on their part soon restores the judge to good humor. On

this point I have no further observations to make. I will leave it to the

good sense of this honorable body to determine how far the conduct of the

respondent was, on this occasion, indecorous, and how far, on account of

this conduct, he is liable to impeachment.

As to the fifth specification, which is in these words: “In an indecent

solicitude, manifested by the said Samuel Chase, for the conviction of

the accused, unbecoming even a public prosecutor, but highly disgraceful

to the character of a judge, as it was subversive of justice.” I have no

precise idea of the meaning of the term _indecent solicitude_--solicitude

means _mental_ anxiety. If we are to understand by solicitude that the

judge felt anxiety for the furtherance of justice, that is simply an

operation of the mind, and to determine whether it is praiseworthy or

reprehensible, some overt act must be shown. For is it possible that, in

any interesting case, a judge can sit on the bench without feeling some

interest in the issue? This is more than falls to the lot of mortal. No,

he must have feelings; and all that can be required is, that he restrain

them from breaking out into acts subversive of justice. I will endeavor,

on this point, to condense the testimony. It is said that the solicitude

of the respondent is evinced by his indecent behavior to the counsel, and

by his conduct previous to the trial. A jocular conversation is resorted

to; and expressions made in the most unguarded moments are drawn forth in

judgment against him. After he had delivered a charge at Annapolis, Mr.

Mason came up to him, and asked him what kind of charge he had delivered,

whether it was to be considered as legal, religious, moral, or political.

To which the judge replied that it was a little of all. Some conversation

ensued on the licentiousness of the press, and he observed that when he

went to Richmond, if a respectable jury could be found, he would have

Callender punished. All this is worked up, as it were by magic, to prove

a deliberate purpose on his part to institute a prosecution. That a man

of the intelligence of Judge Chase, had he conceived such a project,

should thus jocosely, as is proved, and in public have divulged it,

is beyond all belief. Let not a casual conversation of this light and

sportive kind be tortured into evidence of a deliberate design. No man,

the least acquainted with the general character of Judge Chase, will

entertain the idea for a minute.

Another circumstance complained of, is, that Judge Chase was provided

with a _scored_ copy of “The Prospect before Us;” and this is adduced to

prove his purpose to oppress Callender. But we have given it in testimony

that this copy was scored by Mr. Martin, who handed it to the judge, when

he was about going to Richmond, to amuse him on the road, and to make

such other use of it as he pleased. What was there improper or indecent

in this? Further: the respondent is next hunted through a line of stages

on his passage from Dumfries to Richmond; and Mr. Triplet is brought

forward to prove that he expressed a wish that the damned rascal had been

hanged. Had there been a settled purpose to convict or oppress Callender,

would it not have been manifested by concealment and prudence, instead of

being divulged by such an intemperate impulse of feeling?

We next find the respondent at Richmond. And here a gentleman states

that having moved the Court for an injunction, he went to the chambers

of Judge Chase on the subject, on the morning subsequent to the motion

being made, and before the judge had gone to court; that while he was

there, Mr. David M. Randolph, the marshal, came in, and showed the judge

the panel of jurors for the trial of Callender; that the judge asked

him whether there were on it any of the creatures called democrats; and

added, if there are, strike them off. Here must be some mistake. The

witness must have heard some other person say so. Sure I am that the

testimony will show that the statement of Mr. Heath cannot be received as

correct. I impute no criminal intention to the witness; this is not my

habit; but, for ascertaining the weight which it ought to have, I will

collect and compare the several parts of the testimony on this point.

It appears that Mr. Heath was at the judge’s chambers but once. Mr.

Marshall, the clerk of the Court, called on Judge Chase the same morning

that Mr. Heath was there--he cannot recollect whether Mr. Randolph went

with him, according to his usual practice, but he is certain, from a

conversation he states, that they walked together to court; he met Mr.

Heath either in the act of coming out of the judge’s room, or exterior

to the door; and he heard no such conversation as he relates. What says

Mr. Randolph? That no such conversation ever did take place. Here, then,

the testimony is directly opposed. But it is said that our testimony is

negative, and is therefore outweighed by the positive testimony of Mr.

Heath; this, however, is not the fact. Much of our testimony is positive.

Mr. Randolph declares that he has never shown the panel of a jury to a

judge, except in the case of a grand jury offered to the Court to select

a foreman; and he is positive that the panel in the case of Callender was

not made out until the morning of the third of July, in court, when his

deputies came forward with the names of the jurors they had summoned, on

small slips of paper; and in corroboration of this evidence, it appears

on the testimony of Mr. Basset, who was sworn on the jury, that he was

not summoned until the third of July; and that the marshal sent out his

deputies that very morning to summon jurors. We oppose, then, to the

simple declaration of Mr. Heath, unaccredited by other witnesses, the

clear and strong evidence of Mr. Randolph, corroborated by that of Mr.

Marshall and Mr. Basset.

It does, then, appear to me that none of the alleged facts are so

supported as to show an indecent solicitude on the part of the respondent.

Mr. LEE.--May it please this honorable Court: We are now arrived,

Mr. President, in the course of the defence, to the fifth article

of impeachment. I have, sir, been led to believe, that the present

prosecution is brought before this honorable Court as a court of criminal

jurisdiction, and that this high Court is bound by the same rules of

evidence, the same legal ideas of crime, and the same principles of

decision which are observed in the ordinary tribunals of criminal

jurisdiction. The articles themselves seem to have been drawn in

conformity to this opinion, for they all, except the fifth, charge, in

express terms, some criminal intention upon the respondent. This doctrine

relative to impeachment is laid down in 4 Black., 259, and in 2 Woodeson,

611. “As to the trial itself, it must of course vary in external

ceremony, but differs not in essentials from criminal prosecutions before

inferior courts. The same rules of evidence, the same legal notions of

crimes and punishments, prevail. For impeachments are not framed to

alter the law, but to carry it into more effectual execution, where it

might be obstructed by the influence of too powerful delinquents, or

not easily discerned in the ordinary course of jurisdiction, by reason

of the peculiar quality of the alleged crimes. The judgment, therefore,

is to be such as is warranted by legal principles and precedents.” The

Constitution of the United States appears to consider the subject in the

same light. By the third section of the third article, “the trial of

all crimes, except in cases of impeachment, shall be by jury;” and by

the fourth section of the second article, the nature and extent of the

punishment in cases of impeachment is defined. Hence it may be inferred

that a person is only impeachable for some criminal offence. With this

view, I have examined and re-examined the fifth article of impeachment,

to know against what the defence should be made. Looking at it with a

legal eye, I find no offence charged to have been committed; and although

it may seem strange, it is not the less true, this circumstance has

produced the greatest difficulty and embarrassment in what manner the

defence should be made.

In conformity to the rule of the Supreme Court and the authority of the

case just cited, Judge Chase determined that the laws of the State

of Virginia, which require a summons to be issued in cases of the

Commonwealth, did not apply to the courts of the United States. Why, let

me again ask, should this section receive the construction contended

for by the honorable Managers? It has been shown that the laws of the

United States provide fully in regard to the process to be issued by

their courts: that, for the furtherance of justice, such a construction

is neither necessary nor convenient, and is inconsistent with other parts

of the same statute. It is therefore perfectly correct in the Court to

bestow no attention upon the laws of Virginia concerning the process to

be awarded against Callender. When a presentment was found by the grand

jury, it was the duty of the Court to act; it was their duty to award a

proper process for arresting the offender. This is not only warranted

by the principles and reasons already adduced, but is inferrible from

various passages of the laws of Congress, particularly from the 19th and

20th sections of the statute passed 30th April, 1790, 1st vol. page 108.

I will now proceed to make some observations upon the sixth article of

impeachment: “And whereas it is provided by the 24th section of the

aforesaid act, entitled ‘An act to establish the judicial courts of the

United States,’ that the laws of the several States, except where the

constitution, treaties, or statutes of the United States, shall otherwise

require or provide, shall be regarded as the rules of decision in trials

at common law in the courts of the United States, in cases where they

apply; and whereas by the laws of Virginia it is provided, that in cases

not capital, the offender shall not be held to answer any presentment

of a grand jury until the Court next succeeding that during which such

presentment shall be made; yet the said Samuel Chase, with intent to

oppress and procure the conviction of the said James Thompson Callender,

did, at the Court aforesaid, rule and adjudge the said Callender to

trial, during the term at which he, the said Callender, was presented and

indicted, contrary to law in that case made and provided.”

The charge in this article against the respondent is in substance that

he, with intent to oppress and procure the conviction of Callender, ruled

him to trial during the term at which he was presented and indicted,

contrary to the laws of Virginia, which it is alleged have provided

that in cases not capital, the offender shall not be held to answer any

presentment of a grand jury until the next succeeding Court.

This article it is admitted does contain an accusation of crime; but

I hope I shall be able to satisfy this honorable Court, that in this

instance no crime or offence was committed. I shall undertake to show

that no error in law was committed, and that if the judge had done

otherwise he would have been more liable to censure than he now is. If

this be made to appear, as a supposed illegality of his conduct is the

foundation of the charge, there will remain nothing to support the charge.

The accused judge had sworn to support the Constitution of the United

States, and to administer justice without respect to persons, and to

perform all the duties of his office according to the laws of the United

States. If in ruling Callender to trial at the same term at which he was

indicted, he acted according to law, the judge performed his duty, and

ought not to be charged with oppression.

The article may be understood as affirming, that there exists some law

of Virginia which positively prohibits the trial of a misdemeanor at

the same term at which the indictment is found. No such law has been

produced, and I must be allowed to deny that any such law of Virginia

exists. When the party appears and answers the presentment, the trial may

immediately take place. When the party appears and answers an indictment,

the trial may immediately take place, _if_ so ruled by the Court, who are

vested with a discretion unfettered by any positive statute. The defence

of this article may therefore be placed on two grounds, either of which

will be sufficient. 1st. There is no law of Virginia which prohibits the

trial of a misdemeanor at the same term the indictment is found. And,

2dly. If there be such a law, the same is not binding on the courts of

the United States, in respect to offences against the United States.

In cases where bail is requirable, to delay the trial may be used to the

oppression of the accused. It is therefore enjoined by the constitution

and by the laws that there shall be no delay. If the honorable judge, who

stands accused of trying Callender too soon, had deferred the trial to

another term, that is to say six months, and the traverser could not have

given bail, he would have been imprisoned six months without a trial.

After he was convicted, the sentence of imprisonment pronounced by the

same judge was only an imprisonment of about nine months. He had acted,

therefore, not only according to law, but with humanity, in bringing

the traverser to trial at the same term at which he was indicted. If

the trial had been postponed to another term, and Callender in the mean

time had been imprisoned, such a conduct in the Court would have given

cause of complaint against the judge, who would then have been accused of

postponing the trial of an innocent man, for the purpose of oppression.

What in such a case ought the judge to have done? Exactly what he did.

Obeying the constitution and the laws of the United States, he brought

the traverser to a speedy and public trial.

It is, may it please the honorable Court, upon these grounds that the

respondent stands justified in his conduct, in relation to the charge

contained in the sixth article of impeachment.

In the distribution of the articles of impeachment among the counsel

of the respondent, he assigned to me the 5th and 6th, and I humbly

indulge the hope that the defence which has been made will be deemed

satisfactory. But before I conclude, I hope I may be allowed shortly

to advert to some of the remarks which have fallen from the honorable

Managers in respect to this part of the accusation.

The honorable Managers have attempted to show a difference between a

presentment and an indictment, and that until the indictment was found,

a capias ought not to have been issued, even if it were lawful to issue

it upon an indictment. That there is no such distinction, I appeal to

those passages of the acts of Congress to which reference has been

already made. I appeal to the reason of the thing and to the nature of a

presentment. It is a species of indictment, an informal indictment; it is

an accusation of a grand jury. There are cases where it would be improper

in a court to wait until a presentment shall be put in the form of an

indictment. Circumstances may be such that the offender would escape if

process was not issued upon the presentment.