It has been objected that the judge misconducted himself towards the

counsel during the trial of Callender in various instances, which it

has been argued proceeded from a desire to convict and punish the

traverser, howsoever innocent. I will observe with great deference, that

if in the opinion of some gentlemen the judge did not act with becoming

politeness to the counsel, it is not a high crime or misdemeanor that

may be examined or tried in this honorable Court. But I trust, upon a

view of the circumstances as they have been given in evidence, that this

Court will be of opinion that the respondent behaved to the counsel with

sufficient propriety. One of the counsel, Mr. Wirt, offered to the Court

a syllogism, to which the honorable judge promptly replied in a technical

phrase of logic, and this excited in the audience some diversion. When

another of the counsel, Mr. Nicholas, was speaking on the favorite

topic of the right of the jury to consider the constitutionality of the

sedition law, he was not interrupted by the judge. But Mr. Nicholas has

been proved to have been always civil, always respectful to a court of

justice, consequently the Court would be civil to him. A third counsel,

Mr. Hay, who was extremely desirous, as he has himself testified, to

make an oration, not only for the purpose of satisfying the jury but the

audience that a jury had a right to judge of the constitutionality of the

sedition law, was interrupted by the judge, who denied his position. Mr.

Hay had stated other matters during the trial which appeared to the judge

to be erroneous. He had stated that a jury in this case of Callender, was

the proper tribunal to assess the fine, in which he had been corrected

by the Court; that one of the jurors, Mr. Basset, was not qualified to

serve, &c. His zeal in the cause of liberty and the constitution made

him pertinacious in some things which the judge pronounced to be errors.

It was no wonder then that such an advocate was stopped and often

interrupted by the Court. If any thing was done amiss by the judge during

the trial, it was his desiring Mr. Hay to proceed in his own way, and

promising to interrupt him no more let him say what he would; but this

circumstance plainly evinces that the interruptions did not arise from

corrupt motives. It may truly be said that Judge Chase, in his behavior

to counsel, was “all things to all men.” To the logical Mr. Wirt, he was

logical; to the polite Mr. Nicholas, he was polite; to the zealous and

pertinacious Mr. Hay, he was warm and determined. If the counsel had

conducted themselves with propriety towards the Court there would have

been no interruptions; but when the judge found that the opinions of

the bench were slighted, and that the conduct of the bar had a tendency

to mislead and influence the public mind against a statute of Congress,

he endeavored to turn their sentiments and reasoning into ridicule,

and he produced by his wit a considerable degree of merriment at their

expense, of which no doubt Colonel John Taylor, who has proved it for the

prosecutors, was, from his natural temper, a full partaker.

You are now about to set an example in a case of impeachment which will

have a most important influence in our country. It will be an example

to the tribunals in the several States who like you possess the power

of trying impeachments, and who may learn from you by what rules the

doctrine of impeachment is to be regulated. It will be a polar star to

guide in prosecutions of this kind. You are about to set an example to

the ordinary tribunals of justice in every corner of the United States.

They will know how this high Court has done justice between the House

of Representatives of the American nation and a single individual, and

hence they may learn how to do justice to the most weak and friendless

individual, when accused in their courts by the most powerful. An upright

and independent judiciary is all-important in society. Let your example

be as bright in its justice as it will be extensive in its influence.

If the people shall find that their confidential servants, the House

of Representatives, have brought forward an accusation against another

of their servants for high crimes and misdemeanors in his exalted

office, which after a fair and patient hearing has not been supported

by evidence, it will afford them pleasure to hear of his honorable

acquittal, and such, may it please this honorable Court, will be, I

trust, the result of your deliberations.

SATURDAY, February 23.

Mr. MARTIN.--Mr. President: Did I _only_ appear in defence of a

friend, with whom I have been in habits of intimacy for nearly thirty

years, I should feel less anxiety on the present occasion, though

that circumstance would be a sufficient inducement; but I am, at this

time, actuated by superior motives. I consider this cause not only of

importance to the respondent and his accusers, but to my fellow-citizens

in general, (whose eyes are now fixed upon us,) and to their posterity,

for the decision at this time will establish a most important precedent

as to future cases of impeachment.

My observations thus far have been principally with a view to establish

the true construction of our constitution, as relates to the doctrine of

impeachment. I now, Mr. President, will proceed to the particular case

before this honorable Court; and, in the first place, I agree with the

honorable Managers, that there is a manifest difference even between

the credibility of witnesses, and the credibility of testimony, for, I

admit, if witnesses are equally credible, and some swear that words were

uttered, or acts were done, and others, that they did not hear the words,

or that they did not see the acts done, the presumption is certainly in

favor of the positive, and against the negative testimony. But this must

be admitted with considerable restrictions.

If immediately after a transaction, there is a full and clear memory

of the words spoken, or the acts done, there is great reason to credit

the testimony; but, even in that case, if there are a number of persons

equally respectable, having equal opportunity to hear and see, and who

were attentive to what took place, and none of them heard or saw what is

testified by a single witness, there would be great reason to suspect

the affirmative witness to be mistaken; more so if the transactions had

happened for some years antecedent to the examination.

But, as to _Heath_, we do not contradict him _merely by negative

testimony_; we contradict him by a series of positive facts which my

honorable colleague (Mr. Key) has detailed, proved by characters, whose

_veracity cannot be doubted_, which positive facts incontestably show

that what he swore never could have taken place. And, here again, permit

me, sir, to make a further observation, that, where a person is charged

_criminally_ for words he is supposed to have uttered, those words ought

to be proved _with precision_. Every witness on _this_ occasion, who hath

been examined as to expressions used by my honorable client, either on

the one or the other charge, which are held as exceptionable, declares he

cannot pretend to recollect the express words uttered by the judge, but

only to state what at this distance of time he can consider the amount of

what was said. Nay, Messrs. Lewis and Dallas declare further, that they

cannot pretend to say with accuracy, what part of the conversation, of

which they give testimony, took place on the first or the second day, or

in what order. Such kind of testimony, therefore, ought to be received

with great caution, and not to be considered as conclusive.

Having laid down these general principles as to the relative rights and

duties of the Court, the bar, and the jury, I shall proceed with my

honorable client to the State of Pennsylvania.

It was known that John Fries, charged with treason, had, on a former

trial, been found guilty, and that a new trial had been granted upon

a suggestion, which I hope will not become a precedent, will never be

a rule for decisions. When I say this, I mean not to detract from the

merit of that highly-respectable character who presided, and who granted

the new trial. His conduct flowed, I am convinced, from his humanity;

his was the error of the heart, not of the head. It was an honest,

nay, an amiable error. My honorable client knew, when he arrived at

Philadelphia, that the trial of Fries was to take place that term. He

has been acknowledged by the honorable Managers, to be a gentleman of

the highest legal talents. In this they have only done him justice; and

have been as prodigal of their praise as his warmest friends could have

wished. It would have given me great pleasure if they had been as just in

expressing their sense of his integrity. He had been in the practice of

the law for forty years, and also a judge for a number of years, and for

about six years, I believe, presided in the criminal court of Baltimore

County, where, during that time, there were more criminal trials probably

than in any other court in America. I believe I speak moderately, when

I say, that I have attended, on behalf of the State, at least five

thousand criminal trials in that court. From those circumstances it is

to be presumed that he was not deficient in knowledge of what related

to criminal proceedings; but would he have acted the part of an upright

judge, if he had not endeavored to make himself master of the law of

treason, when a case of that nature was about to come before him;

particularly the law of treason, as it related to levying war against

the United States, or in adhering to those who levied war against them,

which is the only kind of treason that our constitution acknowledges;

although I have heard, I must own, of _treason_ against the _principles_

of the constitution, and _treason_ against the _sovereignty_ of the

people--words well enough suited to a popular harangue, or a newspaper

essay, but not for a court of justice.

When Judge Chase arrived at Philadelphia he had the advantage of perusing

the notes of Judge Peters and the district attorney, relating to the

former trial; he thereby became well acquainted with all the points at

that time made by the counsel for Fries; and Mr. Lewis has sworn, that

all the points which were intended to have been made before Judge Chase,

had been made at the former trial. Why then should the Court either wish,

or be obliged to hear counsel again on the law? In two previous cases

the law had been settled. Judge Patterson, a gentleman of the first

abilities, mild and amiable, whom no person will charge of being of a

vindictive, oppressive disposition, and who certainly has more suavity

of manners than my honorable client had, after a most patient and full

hearing, where eminent counsel attended, decided the law as it was

decided by the respondent. Judge Iredell, whose encomium has been most

justly given us by the Managers, a gentleman of great legal talents,

than whom no worthier man has left this for a better world; and who,

while living, honored me with his friendship, after having heard Messrs.

Lewis and Dallas, and after full and patient investigation, gave, in the

case of Fries himself, a similar decision; in both which opinions Judge

Peters perfectly coincided. Under these circumstances, Judge Chase, who

had no doubt of the propriety of those decisions, to prevent waste of

time when there was so much business to transact, and to facilitate the

business, thought it best to inform the counsel on each side, that the

Court considered the law to be settled, and in what manner. For which

purpose they delivered to the clerk three copies of their opinion, one

for the counsel on each side, the third to be given to the jury, when

they left the bar. On this subject, Mr. Lewis, in his testimony, said it

was to be given to the jury when the counsel of the United States had

opened, or after he had closed the pleadings, but he believed the last.

Mr. Rawle is clear that it was to be given to them, when the case was

finished, to take out with them.

No gentleman on behalf of the impeachment has denied the correctness of

this opinion. But the criminality of the judge is, we are told, not in

the opinion itself, but in the _manner_ and the _time_ in which it was

given.

Was there any thing improper that the opinion should be reduced to

_writing_? Why are opinions given? Surely to regulate the conduct

of those to whom given; for this purpose they ought to be perfectly

understood, and in no degree subject to misconception; delivering the

opinion, _in writing_, greatly facilitates these objects; if, therefore,

it was _proper_ to give an opinion, it was _meritorious_ to reduce it

to writing, and Judge Chase, in so doing, most certainly acted with

the strictest propriety. And, unless a court of justice is bound to

sit and hear counsel on points of law, where they themselves have no

doubts, before they give their opinion, my honorable client could not

be incorrect in delivering it at the time when it was delivered. If the

opinion was _proper_, how, I pray, could any _injury_ be done to Fries

by its being delivered? The honorable Managers say, it was intended to

influence the jury. In the first place, this assertion is not supported

by the evidence. When the paper was thrown on the clerk’s table, not one

word was said of its contents; nor did the Court declare any opinion

on Fries’s case. They only determined the indictment correct in point

of form, and not liable to be quashed. They determined that the overt

acts stated were overt acts of treason, if Fries had committed them, but

whether Fries had committed those acts remained for the jury to determine

upon the evidence; as to that part of the case the Court gave no opinion.

But the honorable Managers have told us that Judge Chase must have known

what were the facts in the case, because they had been disclosed in the

former trial. And I pray you, sir, if he had the knowledge, could it

_alter the law in the case_, or render the declaration of what the law

was _more improper_? But, as a new trial was granted, the judge could not

know what additional evidence might be brought forward to vary the case

from its former appearance.

But if the opinion had been publicly read and known, how could it have

_injured_ Fries? He was to have an _impartial_ trial. What is the meaning

of these expressions? It is a trial according to law and fact, in which,

if he is proved innocent, he shall be acquitted; if guilty, convicted.

If, then, the opinion was agreeable to law, it could not prevent, it

could not interfere with his having an impartial trial. If in any case a

person is acquitted, when the facts are clearly proved, and the law is

against him, it must be because he has had a _partial_, not an _impartial

trial_.

Well, be it so, and let us consider the trial of Fries as if it had

been conducted on that principle. The judges, with their minds like

this white sheet of paper, were to sit still and suffer the counsel to

scrawl thereon whatever characters they pleased, to blot and to blur it,

until they were perfectly satisfied. After this ceremony, the judges,

examining the impressions thus made upon the antecedent clean sheet,

were from these, and these _only_, to form their opinion of the law; and

this opinion, having been thus formed from nothing but what occurred

_during_ the trial, and _after_ the jury were sworn, would not be called

a prejudicated opinion, and therefore, I presume, would be perfectly

satisfactory to the honorable Managers. So far we should have done very

well as it related to the trial of Fries. But next day another criminal

is to be tried for a _similar_ offence; Messrs. Lewis and Dallas are not

his defenders. Getman has selected Mr. Tilghman for his counsel. How, I

pray you, are the judges to be qualified to preside with propriety in

this trial? Yesterday they gave a solemn determination in Fries’s case

upon the _same_ question of law which now must come forward in the case

of Getman. Mr. Tilghman was not then heard. The opinion then given is,

as _to Mr. Tilghman and his client_, as much a prejudicated opinion,

an opinion as contaminating to the hands of a lawyer to receive, and

as highly criminal for a court to give, as was the opinion given by my

honorable client. What can be done? The minds of the judges are _no

longer a pure unsullied sheet of paper_. Yesterday, in the trial of

Fries, they had been scrawled upon and sullied by Lewis and Dallas;

the impressions still remain. I, sir, can think of no remedy in this

difficulty, except that the judges should be supplied with a reasonable

quantity of _India rubber_, or something which will answer in its place,

with which they might wipe off and erase every impression which had been

made the day before by Lewis and Dallas, during the trial of Fries;

and thus _once more_ take their seats on the bench for the trial of

Getman, with minds again like clean sheets of white paper, ready to be

again scrawled over, again to be blotted and blurred at the pleasure

of Mr. Tilghman, and from these scrawls, blots, and blurs, and from

these _alone_, to take their impressions as to the law, and form their

decision as to Getman’s case, without regarding, or even _remembering_

the decision they had given the day before; and in this manner to proceed

in every case that might come before them successively in their judicial

capacity.

I shall conclude what relates to this article by observing that the

conduct of Fries’s counsel to the Court on that trial was such as

nothing can excuse. It can only be palliated by the reflection, that

for his crimes he was liable to suffer death. Feelings of humanity and

compassion, independent of interest, might excite in their bosoms an

earnest anxiety to save his life; this may serve to mitigate censure;

but even those feelings, however amiable, ought not to be gratified at

the expense of national justice, nor by an endeavor to stamp upon judges

of uprightness and integrity the dishonorable charge of partiality and

oppression. I fear, sir, I have been tedious on this article; but it will

be considered that, whatever may be my own sentiments of the futility

of any part of these charges, I cannot determine how far this honorable

Court may correspond with me in sentiment; nor can I do otherwise than

treat, as of consequence, any charge brought forward by the honorable

House of Representatives, or not consider it as being of importance.

The second article goes on to charge Judge Chase with overruling the

objection of John Basset, who wished to be excused from serving on the

jury in the trial of Callender, and causing him to be sworn, and to serve

on the said jury by whose verdict Callender was convicted.

This article requires a discussion of the law relating to challenges of

jurors, and whether Mr. Basset was legally sworn on that jury. And here

again, as well as in the case of Fries, I meet with the most perfect

novelties, for except in those trials I never heard of jurors, when

called to be sworn, examined on oath whether they had formed, or formed

or delivered, or whether they had formed and delivered an opinion on the

subject about to be tried. And here also let me observe, that there is no

just grounds for the charge that Judge Chase from partiality administered

the oath differently in Callender’s case from the manner in which he

administered it to the jurors in the case of Fries; for Mr. Rawle,

referring to his notes taken at the time, has told us that in the case of

Fries, one or two of the first jurors were only asked whether they had

formed an opinion, after which the question was put whether he had formed

_or_ delivered an opinion, but ultimately the question asked was, whether

they had formed _and_ delivered an opinion, which question was put to the

greater part of the jurors; so that the interrogatory _ultimately_ fixed

upon in the case of Fries, is the same which was put to all the jurors

who were interrogated in the case of Callender.

I have, Mr. President, been in the practice of the law for thirty

years. Before the Revolution I attended, two or three years, the two

counties on the Eastern Shore of Virginia--Sussex County in Delaware,

and Somerset and Worcester in Maryland; since the Revolution I have

constantly attended the general courts on the Western and Eastern Shores

of Maryland, and the civil and criminal courts of Baltimore County, and

for about six years several other counties in Maryland. In the whole

course of my practice, I have never known a single case, either civil

or criminal, in which the jurors have been, when called to the book,

demanded to answer upon oath either of the aforesaid questions which the

defendant’s counsel requested to be put to them.

If either party choose to challenge a juror for favor, on account of

declarations made by the juror, the only ground for it is that he has

used expressions showing his determination to decide for one party or the

other without regard to truth and justice. In which case the party makes

his objection to the particular juror, specifying the expressions uttered

by the juror indicative of such improper determination, and produces

witnesses to establish his objection; for the juror cannot be examined

on oath to substantiate the charge; and, unless by mutual consent, the

objection made must be decided, not by the Court, but by triers. And the

only matter to be decided is, whether the juror has made any declaration

of a design to give a verdict one way or the other, whether right or

wrong; for if the juror made the declarations from his knowledge of the

facts in the case, this would be no cause of challenge, nor any objection

to his being sworn on the jury. And as the juror himself against whom

such objection is made cannot be examined on oath, it follows, of

course, he cannot be challenged for having formed an opinion, but only

for having delivered it, as third persons cannot know of an opinion

being formed but by its having been delivered. And, as I have observed

already, even the delivery of an opinion is no cause of challenge, if it

appears to have been founded upon the juror’s knowledge of facts, and

not from partiality. In consequence of this principle of law, it can be

no objection against a juror being sworn, even though he should have the

most perfect knowledge of every fact relative to the issue, to try which

he is about to be sworn; on the contrary, the principal reason assigned

why trials ought to be by jurors from the vicinage, is the presumption

that they will be best acquainted with the facts which will be put in

issue for their decision.

I now come, Mr. President, to the third article, wherein my honorable

client is criminally charged for the rejection of the evidence proposed

to be derived from Colonel John Taylor.

In this part of the case the facts are admitted. The next question of

law, therefore, which presents itself for discussion is, whether or not

Col. Taylor’s evidence ought to have been received, or was properly

rejected. Here again I must observe that the honorable Managers, to

support their charge, resort to principles which are to me, to the last

extremity, strange and novel. We are told that the Court have no right to

order questions which are meant to be put to a witness to be reduced to

writing. Nay, that the Court have no right to know what evidence is meant

to be given by the witnesses, or its connection with other testimony, or

its bearing on the cause, but to receive it drop by drop, as the counsel

think proper to deal it out. In answer to these extraordinary ideas which

we have had thus introduced, I must be permitted to assert that the Court

have, in my opinion, an undoubted _right_ to require of the counsel that

they should open their case, explain the nature of the evidence meant to

be given, and on the production of a witness, state what they expect to

prove by such witness. In the course of my practice it has been the usual

method of proceeding for counsel to conduct themselves in this manner,

and on this subject McNally, in his rules of evidence, page 14, expressly

lays it down as a _rule_, “that counsel ought not to call a witness

without first opening to the Court the nature of the evidence they intend

to examine into. This has been _often solemnly adjudged_, though _not

strictly adhered to in practice_.” And in page second he gives us as the

_first_ rule, “that no evidence _ought to be admitted to any point_ but

that on which the issue is joined.” But how is a court to prevent, and

it is only the Court which can prevent, evidence being admitted which

is not pertinent to the point on which the issue is joined, unless they

are first informed what evidence is meant to be given? It is then upon

the authority of McNally established that the Court have the legal right

to know what counsel mean to prove by a witness; and having that right,

they may exercise it whenever, in their discretion, they may think it

necessary.

Let us now examine the set of words to which Colonel Taylor’s evidence

was meant to apply; they were without any innuendo, as follows: “He was

a professed aristocrat; he had proved faithful and serviceable to the

British interest.”

This sentence consists of two separate distinct clauses or parts; the

first, that “he was a professed aristocrat;” the second, that “he had

proved faithful and serviceable to the British interest.” I ask this

honorable Court if either of these clauses or parts, of themselves, and

without an innuendo, carry with them any charge of criminality, or any

thing libellous? To say that a man is an aristocrat, a democrat, or a

republican, is not of itself charging the person with any thing criminal,

nor is it slanderous, unless indeed the charge is accompanied with an

innuendo, stating that, by the epithet so _used_, something very bad was

intended; and _that_ government would indeed merit contempt in which a

person should be punished upon such a charge. So, also, to say that a

man had been faithful and serviceable to the British interest charges him

with nothing criminal, and therefore cannot be slanderous, because the

British and the American interest in many instances have been and may be

the same.

There may be a variety of instances in which the interest of two nations

may concur. There have been many in which the interest of America and of

Britain did concur; many also in which the interest of America and France

have combined. In the first instance a man may have been faithful and

serviceable to Britain, in the other to France, without the violation of

any duty to the United States--without having been guilty of the least

criminality.

The sentence then taken altogether, connecting the two clauses, does not

of itself import any thing criminal, and consequently is not slanderous,

if it remained without any innuendo; and if it was free from an

innuendo, being not slanderous, would not require any evidence relative

thereto. Nay, it would be no part of the charge put in issue, for in

legal construction it is only such part of the publication stated in an

indictment which is slanderous; that is the point in issue.

As to the second question, to wit: “Whether Mr. Adams, while Vice

President, had expressed his disapprobation of the funding system?” the

question could not be in any degree relevant to the one or the other

clause in the sentence. Whether Mr. Adams expressed his disapprobation,

while he was Vice President, of the funding system, or not, could in no

respect go to prove or disapprove his being a professed aristocrat, or

his having sacrificed the interest of the United States to the interest

of Great Britain. The Court, therefore, considering this question totally

irrelevant to the “point in issue,” did as was their duty to do, they

refused to suffer it to be put to the witness.

So much for the two first questions. We now come to the third, respecting

the votes of Mr. Adams, when Vice President, against the bill for the

sequestration of British debts, and the bill for suspending intercourse

with Great Britain. For the conduct of my honorable client in refusing

to permit this question to be put to Colonel Taylor, two reasons may be

assigned; the first, that if the fact was as stated, it could not be

proved by Colonel Taylor. The second, that if the fact was established it

would be totally immaterial to the issue; Colonel Taylor’s evidence was

not the best which the nature of the case admitted. I will not say that

the traverser, in order to prove this vote, was under the necessity of

procuring a copy from the Journal of the Senate, properly authenticated

by their clerk, but he certainly ought at least to have produced a

printed copy of the votes and proceedings of the Senate, as published

by them. One thing at least is certain, that the traverser could not,

consistently with rules of law, give parol evidence to establish the

vote of Mr. Adams, and therefore that Colonel Taylor could not be

legally examined on that subject. But I will go further in defence of my

client, and will say, that if they had had the best possible evidence

of the fact, if they had had an attested copy from the records of the

Senate, the judge would have departed from his duty if he had permitted

the evidence which was wished to have been obtained from Colonel Taylor

to have been given to the jury. Ought any evidence to be given to a

jury which is not proper and pertinent to prove the _fact in issue_, or

to prove some fact from which the fact in issue _ought_ legally to be

_inferred_--evidence not relevant to the point before the Court and jury?

Was not, as to this part of the charge, the fact in issue, whether Mr.

Adams had swerved from his duty by intentionally prostrating the interest

and welfare of his country to the interest and welfare of Great Britain?

Should not a charge of so atrocious a nature be proved by some direct act

of this criminal sacrifice of the interests of the United States to the

interest of Great Britain, or by the proof of some other act from which

such criminal sacrifice must and ought on principles of law to be clearly

and necessarily inferred? And what was the proof proposed to be offered

for the purpose? That upon the question whether British debts should be

sequestered, and whether our intercourse with Great Britain should be

suspended, after full discussion one-half the members of the Senate voted

in favor of those measures, and one-half of the Senate against them;

and that in this situation Mr. Adams, thinking them of too hazardous a

nature, and such as might involve our country in a war, did not choose to

take upon himself so great a responsibility as to give his casting voice

in the affirmative.

I shall now, sir, proceed to the fourth article, which charges the

respondent’s conduct to have been marked during the whole course of the

trial by manifest injustice, partiality, and intemperance.

From the evidence it certainly appears that Judge Chase prevented

the counsel from arguing to the jury that the sedition law was

unconstitutional; and this seems to have given rise to a great portion of

the altercation and ill-humor between the Court and the bench.

I admit that the constitution gives to a criminal the right of having

counsel; but the constitution has not defined the rights or duties of

counsel, or to what extent they are to exercise them. One thing, however,

is certain; that they have no constitutional right to impose upon the

Court or mislead the jury.

When Callender’s counsel contended that if the jury have a right to

decide questions of law, then the constitution being the supreme law

of the land, the jury must of course have the power of deciding on the

_constitutionality_ of a law; the judge might well say it was a _non

sequitur_.

What has been allowed to the jurors as their incidental right on the

general issue? Not to decide whether there is an existing law, or

whether a law is in force, but to declare the true construction of an

_existing_ law, and whether the case at issue comes within the true

construction of such law.

But those who contend that the jury have a right to determine the

constitutionality of a law, insist not for the power of the jury to

decide its true construction and whether the prisoner’s case comes

within it, but to decide whether what is produced as law is not void, a

mere nullity, a dead letter; or in other words, whether such a law is

in existence. The maddest enthusiasts for the rights of jurors, their

most zealous advocates, have never contended for such a right before

the cases of Fries and Callender. Whether a law exists, whether a law

has been enacted, whether a law has been repealed, whether a law has

become obsolete or is in force? The decision of these questions hath

always been allowed the exclusive right of the Court. The power of the

Court to decide exclusively upon these questions hath never been before

controverted. Nay, the very right claimed on behalf of jurors, that they

may determine what is the true construction of the law, and whether the

case is within its provisions, of itself necessarily presupposes, and is

predicated upon the _existence of a law_, the _construction or meaning of

which_ they are to determine. It has indeed been seriously questioned,

and that by gentlemen of great abilities, whether even the Judiciary

have a right to declare a law, passed by the Legislature, to be contrary

to the constitution and, therefore, void! I shall not enter into an

examination of that question, but I have no hesitation in saying that

a jury have no such right, that it never was intended they should have

such right, and that if they had the right, we might as well be without a

constitution.

The first specific instance of my client’s unjust, partial, and

intemperate conduct, which is stated in this fourth article is, that he

compelled the traverser’s counsel to reduce to writing the questions

which they meant to propound to Colonel Taylor. The correctness of this

procedure will depend on the question whether the Court had by law

such a power, for if such a power was possessed by them, it is to be

presumed that they, on that occasion, exercised it according to their

best discretion, nor can it be inferred that their conduct was criminal,

because the procedure was _novel_ in Virginia. There are cases in which

the practice of a court may be considered the law of the court; but these

are not in any manner analogous to the case in question; nor do I find

the _practice_ of the State courts is obligatory “in any case of this

kind on the courts of the United States.” My honorable client did not

consider what was usual in Virginia, but what was correct and proper;

he knew that the law authorized him to make this demand. In Maryland,

where he imbibed his legal knowledge, and where at the bar and on the

bench he had carried it into practice, nothing was more common than

for questions to be reduced to writing at the request of counsel, or

at the request of the Court. If counsel doubt of the propriety of the

evidence meant to be drawn from the witness, or the correctness of the

question meant to be propounded to him, they have a right to request

it to be reduced to writing. So also, if the Court, without whose

approbation no testimony can be given to a jury, and whose duty it is

to prevent improper testimony to be given, has reason to suspect an

intention to introduce such evidence, they have a right, and they ought

to require the questions to be reduced to writing, that there may be no

misapprehension of the tendency of the question, and that they may more

deliberately decide whether it is proper to be put to the witness. And

in this case, the counsel were not required to reduce their questions to

writing in the first instance, or before they had stated what they had

meant to prove, as hath been suggested. When Colonel Taylor was called

and sworn, the Court desired to be informed what they meant to prove by

him. McNally is an authority that in so doing they acted legally. The

counsel stated the facts, to prove which Colonel Taylor was called; upon

which, the Court doubting the admissibility of the testimony directed the

question to be reduced to writing for their consideration. It cannot for

a moment be seriously contended, but that the Court had a right so to

do. As my respectable colleague (Mr. Key) has observed, the practice of

this honorable Court during this trial, hath perfectly sanctioned that

part of my client’s conduct. If at any time a question has been put,

the propriety of which hath been doubted, it has been directed to be

reduced to writing. It is true, that this has been, principally, when an

objection has been made by the counsel; but there can be no doubt, that

if any honorable member of this Court had apprehended the question to

be improper, the Court would have had a right, and would have directed

the question to be propounded in writing for their consideration. The

propriety, the principle, in each case is the same. On this part of the

charge I need not dwell any longer.

The _next instance_ of the judge’s conduct specified in this article

is his refusal to continue Callender’s case to the next term,

notwithstanding the affidavit filed, and the applications made. On

this subject, I shall not make many observations as to the law; but I

may venture to assert that the conduct of Judge Chase in this instance

also appears to have been free from any corrupt or oppressive motive or

design; no part of his conduct on this occasion has been produced to show

that he entertained a disposition to prevent Callender from obtaining

the testimony of his witnesses, or deprive him of the necessary time to

procure their attendance. Let it be recollected that the first affidavit

prepared and proposed to be filed in order to obtain a continuance of

the cause was a general affidavit. By the laws of England a general

affidavit is not sufficient to entitle the party to a continuance, and

upon principles of law as adopted in England and the United States, at

least in Maryland, a supplemental affidavit cannot in a case of this

nature be received.

If, then, Judge Chase had wished that Callender should have been, at all

events, prevented from a continuance of his cause, he would have suffered

them to file their general affidavit.

Why should capital cases, rather than inferior crimes, be tried at the

first court? The honorable Managers admit that it is the general rule

not to continue, but to try at the first term, capital cases. Surely if

indulgence, if delay is necessary in any case, it is in a capital case,

where life is at risk; where an injury, if done, is irretrievable!

There are many reasons which show the propriety that prosecutions of

every kind should be decided with as little delay as possible. One of the

principles as to criminal jurisprudence, as Governor Claiborne has justly

observed, is, that though punishments should be mild, yet they ought to

be _speedy_; by having an immediate decision there is a great certainty

that the criminal shall not elude justice by flight.

The next specification, in this article, of improper conduct in

the judge, is, that he “used _unusual_, _rude_, and _contemptuous

expressions_ towards the prisoner’s counsel; and insinuated that they

wished to excite the public fears and indignation, and to produce that

insubordination to the law, to which the conduct of the judge did at

the same time manifestly tend.” As to this part of the charge, there

is but little of a legal nature contained in it, I shall, therefore,

hastily pass over it. If true, it seems to be rather a violation of the

principles of politeness, than of the principles of law; rather the want

of decorum, than the commission of a _high crime and misdemeanor_. I will

readily agree that my honorable client has more of the “_fortiter in

re_,” than the “_suaviter in modo_,” and that his character may in some

respects be considered to bear a stronger resemblance to that of Lord

Thurlow than to that of Lord Chesterfield; yet Lord Thurlow has ever been

esteemed a great legal character, and an enlightened judge.

But let me ask this honorable Court whether there is not great reason

to believe that the sentiments my honorable client expressed with

respect to the conduct of the counsel, and their object, was just and

correct? What was the conduct of Callender’s counsel? Was it not such

as immediately tended to inflame the minds of the bystanders, and to

excite their indignation against the Court, and highly insulting to the

judges? In the first place, they endeavored to obtain a continuance of

the cause to the next court, merely with an intention to procure delay,

and to prevent the cause being tried before Judge Chase, acknowledging

that they had no hopes or expectation from _any testimony_ to save their

client if the law was determined to be constitutional; and yet they

brought forward their client to swear just what they pleased, in order

to procure this delay, with respect to the necessity of witnesses, whose

testimony they acknowledged they were conscious could be of no service

to them, and yet they wished the bystanders to consider the Court acting

highly _improper_ for not granting that continuance? Was this even to

serve Callender? No, they avow they did not appear to serve him, but to

serve _the cause_. Sir, it appears from their own evidence that Callender

would have submitted to the Court, but for their interference; that

they volunteered on the occasion not for _him_, but for _their cause_;

and yet the volunteers wanted the Court to give them to another term to

prepare themselves, and made Callender swear what they pleased to effect

their purpose. They said they were not well acquainted with the law upon

libels, and therefore wanted time to examine the subject; but surely when

persons undertake to volunteer their services on any subject, they ought

to be masters of it, and are entitled to no indulgence of delay. And as

they declare they had formed the determination, on the first instance of

an indictment under the sedition law, to come forward and volunteer their

services for the sake not of the man, but of their cause, common decency

to the Court, and a proper respect for themselves, ought to have dictated

to them in the interim to have made themselves fully acquainted with

all the law relative to that subject in which they had thus determined

officiously to interpose.

When my honorable client went from Baltimore to Richmond, to hold the

circuit court, he knew how violently that State was opposed to the

enforcement of this law; but he equally knew that it was his duty to

carry it into execution, without regard to the sentiments of any portion

of the community, or however disagreeable it might be to them. Under

these circumstances he went to Richmond, and found the counsel, from

the first step in this cause, attempting, as he could not but consider

it, to inflame the audience and excite their indignation against him.

My honorable client, who well knows mankind, and has been accustomed to

popular assemblies, appears to have been anxious, as his best security,

to keep the bystanders in good humor, and to amuse them at the expense

of the very persons who were endeavoring to excite the irascibility of

the audience against him. Hence the mirth, the humor, the facetiousness,

by which his conduct was marked during the trial; and which, most

fortunately, was attended with the happy consequence he hoped from it,

for it is admitted that he kept the bystanders in great good humor, and

excited peals of laughter at the expense of the counsel, as the witness

very justly concludes, for he says, “the counsel did not appear to join

in the laugh.” And this, sir, most satisfactorily accounts for the more

than usual exertion of his facetious talents on the trial of Callender;

and I doubt not was the real cause of that exertion.

But the judge is also charged with great rudeness in the manner in which

he replied in one part of the argument to Mr. Wirt, just at a time when

that gentleman had finished a syllogism, by replying that it was a _non

sequitur_. I will state the transaction: Mr. Wirt having, as he supposed,

established the position, that the jury had a right to decide the law as

well as the fact, he proceeded to state that the constitution was the

supreme law of the land, and, therefore, that since the jury had a right

to decide the law, and the constitution was also the law, the jury must

certainly have a right to decide the constitutionality of a law made

under it; and this conclusion was, as he declared, perfectly syllogistic.

As Mr. Wirt had assumed the character of a _logician_ in his argument,

nothing could be more natural than for the judge, in his answer, to

assume the _same character_; he therefore replied, like a logician,

“A _non sequitur_, sir”--the correct answer to a syllogism which is

rather lame in its conclusion. But it seems this answer was accompanied

by a _certain bow_. As _bows_, sir, according to the manner they are

_made_, may, like _words_, according to the manner they are _uttered_,

convey very different meanings; and as it is as difficult to determine

the merit or demerit of _a bow_ without having seen it, as it is the

expression of words without having _heard_ them; to discover, therefore,

whether there was any thing _rude_ or _improper_ in this _bow_, I could

have wished that the witness, who complained so much of its effect,

had given us a _fac simile_ of it. Had we been favored not only with

the answer, but also with a complete _fac simile_ of the _bow_, we

might have been enabled to have judged of the propriety of my honorable

client’s conduct in this instance. But it seems this _bow_, together

with the “_non sequitur_,” entirely discomfited poor Mr. Wirt, and down

he sat “and never word spake more!” If so, it was a saving of time.

But we have no proof that Mr. Wirt meant to have proceeded any further

in the argument, even had he not been encountered with this formidable

bow and non sequitur. And the presumption is, that having condensed the

whole force of his argument into a syllogistic form, and, finding his

syllogism did not produce the conviction intended, he took his seat

without wishing to spend more of his breath in what, after the failure

of his logical talents, he no doubt considered a fruitless attempt.

Mr. Nicholas followed Mr. Wirt. He is a gentleman mild and polite in

his manners; he was treated by the Court with politeness. He did not

_persist_ in addressing the jury contrary to the decisions of the Court;

he, therefore, met with no interruptions.

But, sir, there is another charge which has been made against my

honorable client, to justify that part of the article which accuses

him of _rudeness_. It is said that speaking of Callender’s counsel, or

addressing himself to them, he called them “_young gentlemen_.” To me

it appears astonishing that these expressions, if used by the judge,

should be thought reproachful to the counsel, or a proper subject of

a criminal charge; and it gave me real pleasure to find that Mr.

Nicholas, whose whole conduct marks him as a gentleman, did not consider

them as offensive. He has observed that he was young at the time, and

whoever has seen him as a witness, must be convinced of the truth of his

assertion. But we are told that Mr. Wirt was at that time about thirty

years of age, had been a married man, and was then a widower. It doth

not appear that Judge Chase knew of these circumstances; but if he had,

considering that Mr. Wirt was a widower, he certainly erred on the right

side, if it was an error, in calling _him_ a _young_ gentleman. But,

sir, let it be considered that my honorable client has been stated by

the honorable Managers, to be nearly threescore and ten, let also his

great legal attainments be considered, and let me ask, if any person can

think his addressing gentlemen, so much inferior to himself in age and

knowledge, by the epithet of “young gentlemen,” offensive to them, much

less criminal as to the public? But as another instance of his rudeness

we are told, that, addressing himself to Mr. Wirt, who observed that “he

was going on,” the judge replied, “No, sir, I am going on, therefore sit

down, sir.” This address was made by the judge to Mr. Wirt, when he (the

judge) was about to give a long opinion to him and the counsel employed

with him, which opinion, upon Mr. Wirt’s sitting down, the Court did

give; and pray, sir, was there the least impropriety in a situation of

that nature, that the Court should desire the counsel to be silent and to

take their seats?

Before Judge Chase went from Baltimore to hold the circuit court at

Richmond, he knew that the sedition law had been violated in Virginia.

I had myself put into his hands “The Prospect before Us.” He felt it

his duty to enforce the laws of his country. What, sir, is a judge in

one part of the United States to permit the breach of our laws to go

unpunished because they are there unpopular, and in another part to carry

them into execution, because there they may be thought wise and salutary?

And would you really wish your judges, instead of acting from principle,

to court only the applause of their auditors? Would you wish them to be

what Sir Michael Foster has so correctly stated, the most contemptible

of all characters, popular judges; judges who look forward, in all their

decisions, not for the applause of the wise and good, of their own

consciences, of their God, but of the rabble, or any prevailing party? I

flatter myself that this honorable Senate will never, by their decision,

sanction such principles! Our Government is not, as we say, tyrannical,

nor acting on whim or caprice. We boast of it as being a Government of

laws. But how can it be such, unless the laws, while they exist, are

sacredly and impartially, without regard to popularity, carried into

execution? What, sir, shall judges discriminate? Shall they be permitted

to say, “This law I will execute, and that I will not; because in the

one case I may be benefited, in the other I might make myself enemies?”

And would you really wish to live under a Government where your laws

were thus administered? Would you really wish for such unprincipled,

such time-serving judges? No, sir, you would not. You will with me say,

“Give me the judge who will firmly, boldly, nay, even _sternly_, perform

his duty, equally uninfluenced, equally unintimidated by the “_Instantis

vultus tyranni_,” or the “_ardor civium prava jubentium_!” Such are

the judges we ought to have; such I hope we have, and shall have. Our

property, our liberty, our lives, can only be protected and secured by

such judges. With this honorable Court it remains, whether we shall have

such judges!”

MONDAY, February 25.

Mr. HARPER.--It was greatly to be desired, Mr. President, and might have

been confidently expected, that in a case every way so important, where

it so greatly concerns the public happiness that the decision should

command the public confidence, nothing would be presented to the view

of this honorable Court in aid of the prosecution, except the law which

ought to govern the decision, and the proofs relied on for supporting the

allegations.

But it has not so seemed good to the honorable Managers. They have

thought proper to introduce into the discussion, the political opinions

and party connections of the respondent, for the purpose of throwing

a shade of doubt over his motives and of establishing inferences

unfavorable to his character. How far this conduct ought to be commended,

it is not for me to decide. My confidence in the justice and discernment

of this honorable Court forbids me to apprehend that it can be successful.

But since these opinions and connections have been introduced, permit me

to use them for a different purpose.

The duty imposed on judges is at all times delicate, and in criminal

cases, where life or liberty may be affected, where reputation, dearer

than both, depends on the issue, this duty becomes peculiarly arduous and

painful to an honorable and generous mind. But if there be a situation

more delicate, more embarrassing than every other to such a mind, it is

that of a judge sitting on the trial of a person who, from political

opposition, or any other cause, may have excited hostile or angry

feelings in his mind. It is then that he most fears to trust himself. It

is then that he most dreads the influence of his passions in misleading

his judgment. It is then that he feels the strongest alarm for his

reputation, lest he should possibly afford ground for the suspicion

that he had gratified his resentments under the semblance of executing

the law. Hence he constantly leans towards the side of the accused, and

requires the clearest conviction before he condemns. Hence he rejects

all doubtful or contradictory testimony, lays out of the case all little

indiscretions and slight shades of suspicion; and is rigid in requiring

from the prosecutors the unequivocal proof of unequivocal offences. That

his enemy is in his power, is always a reason for the utmost forbearance.

The fear that he may possibly be misled by his passions, is always a

reason for acquittal, where doubt can exist.

Need I invoke these noble and generous sentiments in the breasts of this

honorable Court? No! my heart tells me I need not. I see on those benches

distinguished soldiers and eminent statesmen, who have triumphed alike in

the fields of politics and war, and who always disdained to tarnish their

laurels by the blood or humiliation of a vanquished foe.

If, then, the person now arraigned at your bar be connected with a

political party in opposition to any of those who sit as his judges; if

it were possible that, in promoting the views of that party, he may have

excited feelings of anger or resentment in the mind of any member of this

honorable tribunal; if it were possible that any portion of the angry

passions engendered by the conflicts of party could find a place within

these hallowed walls, and could attach itself to him who stands upon his

trial at this bar, the existence of such a possibility would furnish

every member of this honorable Court with the strongest motives that can

operate on a generous and noble mind, for leaning constantly to the side

of the accused, and for pronouncing in favor of an acquittal, wherever

there remains a doubt of guilt.

Attempts have also been made to enlist the sympathy of this honorable

Court on the side of the prosecution, and for this purpose, a criminal

twice convicted, who did not hesitate to risk civil bloodshed in support

of political theories, and is now indebted for his life to the clemency

of that Government against whose laws he armed his ignorant and misguided

neighbors, is presented to view, decked out in all the ornaments which

rhetoric can bestow. We, Mr. President, disclaim the aids, and protest

against the interference of rhetoric and sympathy. However proper in

other situations, they ought to be excluded from courts of justice, whose

decisions should be governed by truth and not by feeling.

But if sympathy could find a place in this tribunal, what object more

fit to awake it than that now presented at your bar? An aged patriot

and statesman, bearing on his head the frost of seventy winters, and

broken by the infirmities brought upon him by the labors and exertions

of half a century, is arraigned as an offender, and compelled to employ,

in defending himself against a criminal prosecution, the few and short

intervals of ease allowed to him by sickness. Placed at the bar of a

court, after having sat with honor for sixteen years on the bench, he is

doomed to hear the most opprobrious epithets applied to his name by those

whose predecessors were accustomed to look up to him with admiration and

respect, and whose fathers would have been proud to have been numbered

among his pupils. His footsteps are hunted from place to place, to find

indiscretions which may be exaggerated into crimes. The jests which,

flowing from the gayety and openness of his temper, were uttered in the

confidence of private conversation; the expressions of warmth produced

by the natural impetuosity of his character, are detailed by companions

converted into spies and informers, and are adduced as proofs of criminal

intention.

This cup, so full of bitterness for one who has been accustomed for forty

years to fill the most honorable stations in his country, he drinks to

the dregs without complaining. In this sad reverse, he supports himself

with a calmness, a fortitude, and a resigned dignity which melt the

hearts of those who are not his enemies, and extort the respect of those

who are.

If sympathy must be excited, here let it find a nobler object. If from

generous breasts it cannot be excluded, let it be turned towards

“A brave man struggling with the storms of Fate,”

and greatly supporting himself under a pressure of evils the most

afflicting that an elevated mind can know.

Not content with endeavoring to blow up a flame of party spirit against

the respondent, and to engage sympathy in the ungracious, and to her

unnatural, task of aiding a criminal prosecution, the honorable Managers

have resorted to a principle as novel in our laws and jurisprudence as

it is subversive of the constitutional independence of the judicial

department, and dangerous to the personal rights and safety of every

man holding an office under this Government. They have contended “that

an impeachment is not a criminal prosecution, but an inquiry in the

nature of an inquest of office, to ascertain whether a person holding

an office be properly qualified for his situation; or, whether it may

not be expedient to remove him.” But if this principle be correct--if

an impeachment be not indeed a criminal prosecution, but a mere inquest

of office--if a conviction and removal on impeachment be indeed not a

punishment, but the mere withdrawal of a favor of office granted--I ask

why this formality of proceeding, this solemn apparatus of justice,

this laborious investigation of facts? If the conviction of a judge on

impeachment is not to depend on his guilt or innocence of some crime

alleged against him, but on some reason of State policy or expediency,

which may be thought by the House of Representatives, and two-thirds

of the Senate, to require his removal, I ask why the solemn mockery of

articles alleging high crimes and misdemeanors, of a court regularly

formed, of a judicial oath administered to the members, of the public

examination of witnesses, and of a trial conducted in all the usual

forms? Why not settle this question of expediency, as all other

questions of expediency are settled, by a reference to general political

considerations, and in the usual mode of political discussion? No! Mr.

President! This principle of the honorable Managers, so novel and so

alarming; this desperate expedient, resorted to as the last and only

prop of a case, which the honorable gentlemen feel to be unsupported by

law or evidence; this forlorn hope of the prosecution, pressed into its

service, after it was found that no offence against any law of the land

could be proved, will not, cannot avail. Every thing by which we are

surrounded informs us that we are in a court of law. Every thing that we

have been three weeks employed in doing reminds us that we are engaged

not in a mere inquiry into the fitness of an officer for the place which

he holds, but in the trial of a criminal case on legal principles. And

this great truth, so important to the liberties and happiness of this

country, is fully established by the decisions of this honorable Court,

in this case, on questions of evidence--decisions by which this Court has

solemnly declared, that it holds itself bound by those principles of law

which govern our tribunals in ordinary cases. These decisions we accepted

as a pledge, and now rely on as an assurance that this cause will be

determined on no newly discovered notions of political expediency, or

State policy, but on the well settled and well known principles of law

and the constitution.

Having taken this view of these preliminary points, I now proceed, Mr.

President, to consider the various charges against our honorable client,

in the order in which they have been stated by the prosecutors. It is not

my design to go over the same ground which has been so recently trodden

by my able colleagues. The task assigned to me, is to range rapidly over

the first six articles; to present some views of the subject, which the

multiplicity of the matter induced my learned colleagues to omit; and

then to discuss at large the law and the facts, under the seventh and

eighth articles, which have not yet been touched.

Let the charge, Mr. President, be carefully examined, and it will be

found to have no object in view but to convince the people of Maryland,

by arguments drawn from reason and experience, of the danger of adopting

a change in their State constitution, which had been submitted to their

consideration, and the object of which was to abolish all their supreme

courts of law; to introduce a system entirely new and untried; and above

all, to destroy the independent tenure of judicial office, secured to

them by their existing constitution; and to leave the judges dependent

on the Executive for their continuance in office, and on the Legislature

for their support. The respondent, who had contributed largely to the

formation and establishment of the State constitution, was greatly

alarmed at these changes. He considered them as of the most destructive

tendency to the liberty and happiness of the State to which he belonged,

and he resolved to take this opportunity of warning his fellow-citizens

against them. This is the whole scope of his address to the grand jury,

to show the importance of an independent judiciary, the dangerous

tendency of changes already made, and the mischiefs which would result

from taking this additional step in the career of innovation. He did,

indeed, advert to the act of Congress for repealing the circuit court

law, and remarked that it had shaken to its foundation the independence

of the Federal judiciary; but the manifest and sole object of this was,

to show that the spirit of innovation had gone forth, and ought to be

carefully watched; that the public respect for great constitutional

principles had begun to be weakened; and that by how much the security

which might have been derived from an independent Federal judiciary

had been diminished, by so much the more vigilantly it behooved us to

guard our State institutions. No other object can be discovered in

the charge, or inferred from its general tenor, or from the language

in which it is expressed; neither is there any evidence which has the

most remote tendency to show that he had any other object in view. And

was not this an object which a citizen of this country might lawfully

pursue? Is it not lawful for an aged patriot of the Revolution to warn

his fellow-citizens of dangers, by which he supposes their liberties and

happiness to be threatened? Or will it be contended that a citizen is

deprived of these rights because he is a judge? That his office takes

from him the liberty of speech which belongs to every citizen, and is

justly considered as one of our most invaluable privileges? I trust

not. And if there could be any doubt on this point, I would remove it

by referring to a recent instance of two judges of the Supreme Court

of Maryland, who, in a late political contest, entered the lists as

champions for the rival candidates, and travelled over a whole county,

making political speeches in opposition to each other. Yet these

gentlemen justly possess the confidence and respect of the public; their

conduct in this instance has never been considered as a violation of

duty; and he who espoused the interest of the successful candidate has

been far from receiving any marks of displeasure from the Government of

this country.

If, therefore, a judge retain this right, notwithstanding his official

character; if it still be lawful for him to express his opinions of

public measures, to oppose by argument such as are still pending, and to

exert himself for obtaining the repeal, by constitutional means, of such

as have been adopted, I ask what law forbids him to exercise these rights

by a charge from the bench? In what part of our laws or constitution

is it written that a judge shall not speak on politics to a grand

jury?--shall not advance, in a charge from the bench, those arguments

against a public measure which it must be admitted he might properly

employ on any other occasion? Such conduct may perhaps be ill-judged,

indiscreet, or ill-timed. I am ready to admit that it is so; for I am one

of those who have always thought that political subjects ought never to

be mentioned in courts of justice. But is it contrary to law? Admitting

it to be indecorous and improper, which I do not admit, is every breach

of decorum and propriety a crime? The rules of decorum and propriety

forbid us to sing a song on the floor of Congress, or to whistle in a

church. These would be acts of very great indecorum, but I know of no law

by which they could be punished as crimes. Will they who contend that it

is contrary to law for a judge to speak of politics to a grand jury, be

pleased to point out the law of the land which forbids it? They cannot do

so. There is no such law. Neither is there any constitutional provision

or principle, or any custom of this country, which condemns this practice.

And will this honorable body, sitting not in a legislative but a judicial

capacity, be called on to make a law, and to make it for a particular

case which has already occurred? What, sir, is the great distinction

between legislative and judicial functions? Is it not that the former

is to make the law for future cases; and that the latter is to declare

it as to cases which have already occurred? Is it not one of the

fundamental principles of our Constitution, and an essential ingredient

of free government, that the legislative and judicial powers shall be

kept distinct and separate? That the power of making the general law

for future cases shall never be blended in the same hands, with that

of declaring and applying it to particular and present cases? Does not

the union of these two powers in the same hands constitute the worst of

despotisms? What, sir, is the peculiar and distinguishing characteristic

of despotism? It consists in this, sir, that a man may be punished for

an act which, when he did it, was not forbidden by law. While, on the

other hand, it is the essence of freedom, that no act can be treated as

a crime, unless there be a precise law forbidding it at the time when it

was done.

It is this line which separates liberty from slavery; and if the

respondent be condemned to punishment for an act, which far from being

forbidden by any law of the land, is sanctioned by the custom of this

country for more than twenty years past, then we have the form of free

government, but the substance of despotism.

Let the gentlemen, before they establish this principle, recollect

that it is a two-edged sword. Let them remember that power must often

change hands in popular governments; and that after every struggle the

victorious party come into power, with resentments to gratify by the

destruction of their vanquished opponents, with a thirst of vengeance

to be slaked in their blood. Let them remember that principles and

precedents, by which actions innocent when they were done, may be

converted into crimes, are the most convenient and effectual instruments

of revenge and destruction with which a victorious party can be

furnished. Let them beware how they give their sanction to principles

which may soon be turned against themselves; how they forge bolts which

may soon be hurled on their own heads. In a popular government, where

power is so fluctuating, where constitutional principles are therefore

so important for the protection of the weaker party against the violence

of the stronger, it above all things behooves the party actually in power

to adhere to the principles of justice and law, lest by departing from

them they furnish at once the provocation and the weapons for their own

destruction.

This charge, therefore, fails like the rest; and what remains of the

accusation? It has dwindled into nothing. It has been scattered by the

rays of truth, like the mists of the morning before the effulgence of

the rising sun. Touched by the spear of investigation, it has lost its

gigantic and terrifying form, and has shrunk into a toad. Every part

of our honorable client’s conduct has been surveyed; all his motives

have been severely scrutinized; all his actions have been brought to

the test of law and the constitution; his words and even his jocular

conversations, have been passed in strict review; and the ingenuity and

industry of the honorable Managers have proved unable to detect one

illegal act, one proof, or one fair presumption of improper motive.

TUESDAY, February 26.

The Court opened at about half past ten o’clock, A.M.; the Managers, the

House of Representatives, and the counsel of the respondent having taken

their seats.

Mr. NICHOLSON, as one of the Managers, addressed the Court in reply to

the counsel of the accused. He said the House of Representatives having

impeached Samuel Chase, one of the associate justices of the Supreme

Court of the United States, of high crimes and misdemeanors; the evidence

on their part having been adduced, and that on behalf of the accused,

and the arguments of his counsel having been fully and patiently heard,

it now became his duty to reply in support of the impeachment. To me,

Mr. President, this duty is an unpleasant one. Upon all occasions and

under all circumstances, the office of a public accuser is the most

painful that can be imposed on us; but it is more peculiarly so when the

object of accusation appears before us covered with age and infirmities.

I think I speak the sentiment of my brother Managers of the House of

Representatives, when I say, that this impeachment never would have been

instituted, that it never would have arrived at its present crisis, if we

had not believed that the best interests of our common country required

that the conduct complained of should not go unpunished. There is no

nation on earth, sir, in which the freedom of man and the consequent

happiness of society are not inseparably interwoven with the full, free

and impartial administration of justice.

“Una salus ambobus erit commune periculum.”

It was to preserve this unity of safety, to avert this common danger,

that we thought ourselves bound by the most solemn obligation to bring

these charges before the highest tribunal of the nation. We may in vain

make laws to secure our property, to protect our liberty, and to guard

our lives, if those to whom we appeal, and to whose decrees we are bound

to submit, shall prove unfaithful in the discharge of their duty. If

our laws are not faithfully administered; if the holy sanctuary of our

courts is to be invaded by party feeling; if justice shall suffer her

pure garment to be stained by the foul venom of political bigotry, we may

indeed boast that we live in a land of freedom, but the boast will be

vain and illusory.

In this point of view, therefore, this cause may justly be called an

important one. I need not however urge its importance to the Court, for

the feelings of every honorable member will speak its importance more

forcibly than any thing that I can utter. But I do trust that those

frequent appeals which you have heard, those frequent instances in which

you have been reminded that posterity will pass between the accused,

his accusers, and his judges, will have no influence on your minds. A

desire to secure the approbation of posterity is an honorable feeling,

pervading every human breast, and is most inseparable from our nature:

but to secure the approbation of posterity, we must take care to pursue

the dictates of our own consciences, and, by doing justice here, trust to

posterity to do us justice too.

Our country, it is true, are now looking on with anxious solicitude for

the event of this cause; but the sentence which they shall pass will

not depend upon the judgment given here. To the world and to posterity

the conviction of the accused, by this Court, will not establish his

guilt; and I thank God, as the case has been put in issue between us,

his acquittal will not prove his innocence. The facts in the cause, sir,

those facts which we have proved by the most undeniable evidence, and

upon which your judgment must be given; those facts will be presented to

the eyes of the world and of posterity, and upon those only will they

decide. If it should ever be the fortune of my humble name to descend to

posterity, by the vote which I gave for instituting this impeachment,

and by my conduct in discharging the great duty now committed to me,

I cheerfully consent to be tried. To this awful tribunal I willingly

submit. If the judge is guilty, posterity will heap on him all that odium

which his guilt deserves; if he is innocent, let that odium be turned

upon his accusers.

Because Sidney and Russell bled upon a scaffold, have their names been

less the objects of veneration with posterity? and because Scroggs and

Jeffries escaped the punishment due to their crimes, have they therefore

been less the objects of universal execration? No, sir; and the honorable

counsel (Mr. Hopkinson) who first addressed you on behalf of the accused,

gave us himself a memorable example of the poor respect which posterity

will feel for the decisions of those who have gone before them. That

honorable gentleman told you that Warren Hastings was impeached for the

murder of princes and the plunder of empires, and yet he was acquitted.

But, is there any who hears me, that believes he was innocent? If we read

the history of that trial; if we look to the facts charged, and listen to

the unexampled eloquence by which they were supported, our only wonder

will be, that he was not condemned. Sir, it has been said that those

plundered millions were the best witnesses to prove his innocence; and

I greatly fear that the day will come when the crying blood of those

murdered princes will be the best witnesses to prove his guilt. The most

splendid action in Edmund Burke’s life was his accusation of Warren

Hastings; the foulest stain upon the national justice of England was his

acquittal.

We have been charged, sir, by one of the honorable counsel (Mr. Harper)

with having endeavored to enlist on our side the sympathies of the

Court. Permit me to ask, what sympathy have we endeavored to excite?

What feelings have we endeavored to engage? To what passion have we

addressed ourselves? None, sir. We came here to demand justice. The

constitution has placed in your hands the power of punishing guilt; we

have proved the guilt of the person accused, and at your hands we demand

his punishment. To your consciences and your understandings we appeal,

and not to your feelings. These have been assailed by our adversaries.

They have exhibited their client to you, covered, as they say, with the

frost of seventy winters, and have endeavored to hide the magnitude of

his crimes, in the length of his years, and the infirmity of his health.

In attempting to excite your compassion, they have wished to drown the

voice of justice, and have addressed you not as judges but as men. I do

trust, however, that if any sympathy is to be excited, it will be neither

for the accused, nor his accusers. Let your feelings be turned toward

the nation! Let your sympathy be awakened for those who are to come

after you, for by the sentence which you pronounce in this case, it must

ultimately be determined whether justice shall hereafter be impartially

administered, or whether the rights of the citizen are to be prostrated

at the feet of overbearing and tyrannical judges. We, who are engaged

in this prosecution, feel that our fathers handed down to us a glorious

birthright, and we appear at this bar to demand that it be transmitted

to our children unimpaired and unpolluted. Do the nation justice, and

you will do justice to us, to yourselves, and to posterity. We were also

told by the honorable counsel for the accused, that when we found the

accusation shrunk from the testimony, and that the case could no longer

be supported, we resorted to the forlorn hope of contending that an

impeachment was not a criminal prosecution, but a mere inquest of office.

For myself I am free to declare, that I heard no such position taken. If

declarations of this kind have been made, in the name of the Managers, I

here disclaim them. We do contend that this is a criminal prosecution,

for offences committed in the discharge of high official duties, and

we now support it, not merely for the purpose of removing an individual

from office, but in order that the punishment inflicted on him may deter

others from pursuing the baneful example which has been set them.

Nor do we mean to take another ground which the counsel for the accused

have thought proper to assign us, for we never entertained the most

distant idea that any citizen might be impeached. It was with no little

surprise that I heard such doctrines ascribed to us, and I was astonished

to hear the Attorney-General of Maryland combating positions which we had

not laid down, and searching for argument to prove that which we should

not have hesitated to admit.

But, sir, there is one principle upon which all the counsel for the

accused have relied, upon which they have all dwelt with great force, and

to the maintenance of which they have directed all their powers, that we

cannot assent to; we mean to contend against it, because we believe it to

be totally untenable, and because it is of the first importance in the

decision of the question now under discussion. We do not contend that,

to sustain an impeachment, it is not necessary to show that the offences

charged are of such a nature as to subject the party to an indictment,

for the learned counsel have said that the person now accused is not

guilty, because the misdemeanors charged against him are not of a nature

for which he might be indicted in a court of law.

To show how entirely groundless this position is, I need only pursue

that course which has been pointed out to us by the respondent himself,

and his counsel. I might refer to English authorities of the highest

respectability, to show that officers of the British Government have

been impeached for offences not indictable under any law whatever. But

I feel no disposition to resort to foreign precedents. In my judgment,

the Constitution of the United States ought to be expounded upon its

own principles, and that foreign aid ought never to be called in. Our

constitution was fashioned after none other in the known world, and if we

understand the language in which it is written, we require no assistance

in giving it a true exposition. As we speak the English language, we

may, indeed, refer to English authorities for definitions, as we should

refer to English dictionaries for the meaning of English words; but upon

this, as upon all occasions, where the principles of our Government are

to be developed, I trust that the Constitution of the United States will

stand upon its own foundation, unsupported by foreign aid, and that the

construction given to it will be, not an English construction, but one

purely and entirely American.

The constitution declares, that “the judges both of the supreme and

inferior courts shall hold their commissions during good behavior.” The

plain and correct inference to be drawn from this language is, that a

judge is to hold his office so long as he demeans himself well in it;

and whenever he shall not demean himself well, he shall be removed. I

therefore contend that a judge would be liable to impeachment under the

constitution, even without the insertion of that clause which declares,

that “all civil officers of the United States shall be removed for the

commission of treason, bribery, and other high crimes and misdemeanors.”

The nature of the tenure by which a judge holds his office is such that,

for any act of misbehavior in office, he is liable to removal. These acts

of misbehavior may be of various kinds, some of which may, indeed, be

punishable under our laws by indictment; but there may be others which

the law-makers may not have pointed out, involving such a flagrant breach

of duty in a judge, either in doing that which he ought not to have done,

or in omitting to do that which he ought to have done, that no man of

common understanding would hesitate to say he ought to be impeached for

it.

The words “good behavior” are borrowed from the English laws, and if I

were inclined to rest this case on English authorities, I could easily

show that, in England, these words have been construed to mean much

more than we contend for. The expression _durante se bene gesserit_,

I believe, first occurs in a statute of Henry VIII. providing for the

appointment of a _custos rotulorum_, and clerk of the peace for the

several counties in England. The statute recites, that ignorant and

unlearned persons had, by unfair means, procured themselves to be

appointed to these offices, to the great injury of the community, and

provides that the _custos_ shall hold his office until removed, and the

clerk of the peace shall hold his office _durante se bene gesserit_.

The reason for making the tenure to be during good behavior, was, that

the office had been held by incapable persons, who were too ignorant

to discharge the duties; and it was certainly the intention of the

Legislature that such persons should be removed whenever their incapacity

was discovered. Under this statute, therefore, I think it clear that the

officer holding his office during good behavior, might be removed for

any improper exercise of his powers, whether arising from ignorance,

corruption, passion, or any other cause. To this extent, however, we do

not wish to go. We do not charge the judge with incapacity. His learning

and his ability are acknowledged on all hands; but we charge him with

gross impropriety of conduct in the discharge of his official duties, and

as he cannot pretend ignorance, we insist that his malconduct arose from

a worse cause.

It has been alleged by the counsel for the accused, that my honorable

colleagues have argued this case upon the articles and not upon the

evidence; and this allegation contains an admission, that if the articles

are proved, the guilt of the party is established. It shall be my

endeavor to show that there is no material variance between the charges

as laid in the articles, and the evidence brought to support them; but

that they are amply and fully proved by the very best testimony which

could be adduced.

One of the learned counsel in commenting upon the first article, declared

that he discovered but a single truth in it, which was, that the judge

had formed and reduced to writing an opinion upon the law; and that

gentleman, as well as the Attorney-General of Maryland, labored with

great zeal and with much display of talent, to convince the Senate that

there could be nothing wrong in this. Unfortunately for these learned

gentlemen, even that truth is not to be found in it, for by recurring to

the article it will be found that the judge is not charged for having

formed an opinion, or for having reduced that opinion to writing, but for

“having delivered 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 prisoner before

counsel had been heard in his defence.”

In this we find no charge against him for having formed an opinion, or

for having reduced it to writing, and certainly the learned counsel might

have spared themselves the trouble of proving what I am sure every member

of the Court was fully convinced of before, that there was no impropriety

in a judge’s forming an opinion on any subject whatever, whether legal

or philosophical. It is not, however, usual for skilful advocates to

attempt to draw the attention from the material points in dispute, for

the purpose of fixing it on others of little or no importance. Such has

been the course pursued by our adversaries. But, Mr. President, the

real charge is, that Samuel Chase did, upon the trial of John Fries for

treason, endeavor to prejudice the minds of the jury against him, by

delivering an opinion to them upon the law before his counsel were heard;

and this too in a case of life and death, where the jury had an ample,

uncontrollable right, to decide as well the law as the fact. It is the

right and duty of judges to inform their minds upon all questions of law

whatsoever, but it is an unwarrantable proceeding, it is an unauthorized

assumption of power in them, to deliver that opinion to the jury in a

criminal cause before the jury is sworn, and before the counsel of the

prisoner have been heard in his defence.

Much has been said with a view to convince the Court that the opinion

thus delivered was a correct one, and it has therefore been argued that

his conduct was perfectly justifiable. For my own part, I consider it

totally immaterial in the present case whether the doctrine of treason,

as laid down by the judge, was correct or not; for even if it were

correct, the time and manner of delivering it, and the persons to whom

it was delivered, form the substance of the charge against him. It is a

misdemeanor, a high misdemeanor in a judge, wantonly to give an opinion

upon any case which is to come before him, previously to the swearing

of the jury, and the offence is made much greater by the opinion being

publicly declared in the presence of the jury, who ought to come to the

trial of every cause with minds wholly free from prepossession against

either party.

Although the judge has said in his answer, that no gentleman of

established reputation for legal knowledge would deliberately give a

contrary opinion, yet I have not the slightest apprehension that any

little reputation which I may possess, can in any manner be affected by

my expressing, as I now do, my entire conviction that the doctrine of

treason, as laid down in Fries’s case, is wholly repugnant to the spirit

and meaning of the constitution. It is not my intention at this time

to enter into an argument to prove this, for I have before said that

I consider it quite immaterial in the present discussion; but I will

offer some few observations, to demonstrate to the Senate that there

was nothing very unreasonable in the wish expressed by Mr. Lewis and

Mr. Dallas, to show that the constitution was susceptible of another

construction.

The constitution declares that “treason against the United States

shall consist only in levying war against them, or in adhering to

their enemies, giving them aid and comfort.” John Fries was indicted

for _levying war_ against the United States, and the facts I believe

were, that he, with some others, did, in a forcible manner, rescue some

prisoners from the marshal of Pennsylvania. This was called a resistance

to a law of the United States, and, by construction, was determined at

the former trial to be the treason of levying war. It was in opposition

to this construction of the constitution that Mr. Lewis and Mr. Dallas

wished to be heard. It was certainly not a very extravagant wish on their

part, for it ought to be recollected that we are a young nation, and

it is deeply interesting to us all that the Constitution of the United

States should not receive a construction unwarranted by its letter.

After the decisions had taken place in the courts upon the Western

insurrection, (I mean in the cases of Vigol and Mitchell,) Congress had

passed an act declaring that to resist a law of the United States should

be deemed a high misdemeanor, punishable by fine and imprisonment; and

they had before provided, by the act of 1789, that to rescue prisoners

from the custody of the marshal should also be punishable by fine and

imprisonment. Mr. Lewis and Mr. Dallas were desirous of showing that

Fries’s case came within the provisions of these laws, and that his

offence was not of such a nature as to forfeit his life. They also wished

to have an opportunity of proving that the terms _levying war_ ought

not to receive the same construction here as in England. To convince

the Senate that they were not singular in their ideas, and that the

construction given by the Court has not been unanimously assented to, I

shall take the liberty of referring to an author of merited reputation,

to whom I believe our adversaries will not refuse their respect.

Judge Tucker of Virginia, in his valuable edition of Blackstone’s

Commentaries, in the appendix to the fourth volume, under the title of

_treason_, after reciting that part of the constitution relating to the

subject, observes:

[Here the opinions of Judge Tucker were read.]

Such we find are the opinions of Judge Tucker, an able and upright

lawyer, who thinks that the constitution ought to be construed agreeably

to the plain import of its language, and ought not to be involved in

technical abstruseness. In that series of publications entitled the

Federalist, written at the commencement of the present Government, by

some of the ablest men in this nation, for the purpose of defending the

constitution, it is matter of boast, that treason was fully defined,

and not left to wild and arbitrary construction. But what avails the

definition, if the constructive treasons of England are to be drawn in as

precedents for us?

I before stated that I did not mean to enter into an argument against the

correctness of the Court’s opinion; nor have I done so, but have offered

these remarks to show that it was not unreasonable in Mr. Lewis and Mr.

Dallas to wish that another construction of the constitution might be

received. The counsel for Judge Chase seem to think it monstrous that

they should have wished to argue the point after the law had been settled

by three former decisions, which had taken place in the course of four

years. Let it be remembered that Sir Matthew Hale doubted, after the

lapse of one hundred and fifty years from the first of these constructive

treasons, and after, for aught I know, one hundred and fifty cases had

been decided. Mr. President, far from thinking their conduct on that

occasion extraordinary, I, as a free man of America, most cheerfully

accord them my thanks for the stand they made; and I do hope and trust,

that if ever a similar case should occur, in which the same doctrine of

constructive treasons shall be urged to a jury, men like Mr. Lewis and

Mr. Dallas will be found, men of exalted talents and extensive learning,

who will be bold enough to assert the rights of the citizen, and save the

constitution of their country from destruction.

Another justification of a peculiar nature is set up in defence of

Judge Chase, by a statement made in Keelyng’s Reports. It is there

said that “after the _happy_ restoration of King Charles the Second,

Sir Orlando Bridgman, chief justice of the King’s Bench, and some six

or eight others, judges, prosecutors, and King’s solicitors, assembled

for the purpose of determining in what manner the _regicides_ should be

tried, and they settled many points which it was supposed would occur

upon the trials.” This, sir, is an unfortunate period to refer to for

justification of the conduct of judges in our day. Never was there a

moment of such fawning servility; never was there a period of such

unbounded licentiousness. The hope of reward or the fear of punishment

brought almost every man crouching at the footstool of the throne, and

all united in singing hosannas to the King, and crying aloud for the

crucifixion of the miserable regicides. This conspiracy (which has been

quoted) against the wretched victims whose sacrifice was resolved on, was

headed by that most servile of all servile tools, Sir Orlando Bridgman.

His character and those of his brother judges who conspired with him,

may be recollected from the charge which he gave to the grand jury on

that occasion. It will be found in the fourth volume of State Trials,

and it will there be seen how flamingly he talked of the _divine right

of Kings_, whom he called _God’s vicegerents_ on earth; their persons he

said were too _sacred_ for their conduct to be inquired into: _they held

their power from God, and were accountable to him alone: it was treason

in their subjects to inquire into the propriety of what they did_; with

much more of the same cast. These are the times, these the men, and this

is the conduct now introduced for the justification of Judge Chase. If

they will afford him a justification he is welcome to it for me. They

were woful times indeed; one would have thought the Parliament which

the King found in session upon his return, was submissive enough; but

he was not satisfied, and finding the whole nation ready to bow at his

nod, he ordered a new one elected, and they proved so compliant to all

his wishes, that he continued them for eighteen years. This sufficiently

proves the servile spirit of those whom the King thought proper to

employ on this noted occasion, and it is not much to Mr. Keelyng’s honor

that he was one of them. The points which they did settle were of an

extraordinary nature, and one of them was read a few days since by one of

the counsel (Mr. Key) to show that Basset was a good juror in Callender’s

trial.

If, however, this famous precedent had been made in the best of times, it

does not apply to the present case. For these judges, bad as they were,

yet had modesty enough to keep their opinions to themselves, till after

the trials had commenced, and did not deliver them until the occasions

arose which called for them. Judge Chase, we have fully proved, delivered

his opinion beforehand, publicly, and in the hearing of the jury, so that

the authority of Mr. Justice Keelyng and Sir Orlando Bridgman does not

justify him. He outstripped even them.

Having thus, as I conceive, fully established the first specification

contained in this article, and having answered the only colorable

excuses advanced in favor of the judge, I shall proceed to the second

specification. This is a charge against him for “restricting Fries’s

counsel from recurring to such English authorities as they believed

apposite, and 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.”

I must therefore be permitted to insist that Fries’s counsel were

prohibited from recurring to English authorities, and from citing

certain statutes of the United States. It is fully proved by Mr. Lewis,

and corroborated by Mr. Dallas. The latter was not in Court when the

conversation took place; but coming in immediately after, he was informed

of it by Mr. Lewis, and then stated to the Court what Mr. Lewis had told

him. The Court did not deny it, and certainly it is to be presumed, if

Mr. Lewis had made an erroneous statement of facts to Mr. Dallas, and

they had been repeated by Mr. Dallas, the Court would have contradicted

them. This was not done, and both these gentlemen now swear that they

were prohibited.

An attempt, however, is made to shelter the judge from this part of the

accusation, by saying that he declared counsel would be heard although

this opinion was given. Sir, this is another evasion. The opinion itself

carries with it internal, uncontrovertible evidence of the determination

of the Court that the counsel should not address the jury. What is the

principal ground of the defence? what is the leading reason urged for

giving this extraordinary opinion before the jury was sworn? It was,

as the judge says, and as his counsel have argued, to save time. They

state that there were more than one hundred civil causes then depending,

that the delay of business in Pennsylvania had been long a subject of

complaint, and the judge was anxious to make Fries’s trial a short one,

in order that they might have time to proceed with the other business.

Now suffer me to inquire how time was to be saved; how the trial of Fries

was to be shortened, if his counsel were to be allowed to address the

jury on the law which the Court had already decided? Was not the opinion

of the Court given for the express purpose of preventing them from

addressing the jury; or, if not for this, let me ask for what purpose it

was given? Was it to prejudice the minds of the jury; to close their ears

and their understandings against any arguments which might be offered

them? Gentlemen say no. Was it to save time? This was impossible, because

the time was still to be occupied by the counsel being permitted to

address the jury. Why then, let me ask, was the opinion given? The answer

is ready. It was intended to produce both these effects. The minds of the

jury were to be preoccupied by the imposing authority of the Court, and

in this manner it was expected to deter the counsel from addressing them

on the law. Nothing, therefore, can be clearer, than that the counsel

were prevented from addressing the jury, and that the judge “_endeavored_

(in the language of the article) to wrest from the jury their right

to hear argument, and determine upon the question of law.” But it is

said that the right of the jury to decide the law does not give them a

dispensing power over the law, and that therefore they are bound by the

opinion of the Court. Nor does the right of the _Court_ to decide the law

give _them_ a dispensing power over the law. The jury have a right to

decide the law, and are not bound by the opinion of the Court. In order

to enable them to decide correctly they have a right to hear argument,

and any attempt to prevent this, is an attempt to wrest from them their

right to decide the law, and is a high misdemeanor.

We are told, however, that if any thing wrong was done on the first

day, ample atonement was made on the second. It is true that the judge

exhibited some appearance of a wish that the counsel would proceed on

the second day, but Mr. Lewis well remarked, that although the papers

were withdrawn, the impression which had been made on the minds of the

jurors could not be removed. What sort of an atonement, too, was this? It

carried insult with it; and the language in which it was made had a still

greater tendency to strengthen the impression made the day before. The

counsel were publicly informed they might proceed as they pleased, _but

it must be at the hazard of their characters_, under the direction of the

Court. Is there a man of reputation on earth, possessed of the smallest

spark of feeling, that would consent to disgrace himself by addressing

a jury under such circumstances? This alone, if nothing else had taken

place, was sufficient to drive them from the defence of their client; and

if they thought that their abandoning him might eventually save his life,

they were fully justified in doing so.

The learned advocates for the judge have talked highly of the

independence of the judiciary, and have asked what inducements any judge

could have to act as we have charged Judge Chase with acting. Are there

then no inducements for a judge to swerve from his duty? Has he no

feelings to gratify, and is it impossible for him to become a partisan?

Does his character as a judge divest him of his ambition as a man? Is

he so incorruptible that temptation cannot assail him? Look through the

annals of other nations--read the history of England for the last forty

years. Judicial independence has been for a long time as well secured

there as here; and yet how many instances shall we find in that country

of prosecutions in which the feelings of the Ministry had been engaged,

and in which their influence over the judges has been too flagrant to be

mistaken? In Ireland, miserable Ireland, a still more gloomy prospect

presents itself. They, too, have boasted an independent judiciary; but an

overruling influence has crumbled it into ruins. The demon of destruction

has entered their courts of justice, and spread desolation over the

land. Execution has followed execution, until the oppressed, degraded,

and insulted nation has been made to tremble through every nerve, and to

bleed at every pore. Let us then be warned by the fate of Ireland. In

State prosecutions her judges look to the Castle; although they cannot be

put down, they may be elevated. Some of our judges have been elevated to

places of high political importance; splendid embassies have been given

to them. I will not say that they were given or accepted with improper

views; but they have been given, and surely they hold out inducement

enough for a judge to bend to the ruling party. It is our duty to prevent

party spirit from entering into our courts of justice. Let us nip the

evil in the bud, or it may grow to an enormous tree, bearing destruction

upon every branch. You have now an opportunity of doing it, and I trust

you will not suffer it to escape you. I therefore hope that you will not

only remove Judge Chase from the high office which he now fills, but that

by your judgment you will for ever hereafter disqualify him from holding

any office of profit or trust under the Government of the United States.

Mr. RODNEY.--Mr. President, and Gentlemen of the Senate: The present

trial exhibits a spectacle truly solemn and impressive. A man who holds

one of the highest judicial offices under the Government, who, from

the period of the Revolution, has filled many of the most important

public situations, and whose hairs have been bleached in the service

of his country, is charged before this dignified tribunal, by the

Representatives of the American people, with the commission of acts in

violation of his duty as a judge, and of the laws and constitution of the

land.

On one hand, the character of an aged and respectable individual, which

may be dearer to him than the small remnant of his life, is involved in

your decision; on the other, the most precious rights of free citizens,

and the dearest interests of society.

The mind which could contemplate, unmoved, such a scene, cannot feel

for the welfare of the people, or the honor of the nation, and must be

equally insensible to the finer sympathies of life, and the practice of

its charities and affections.

The public anxiety manifested by this deeply interesting trial must be

evident to all--a trial of the first importance, because of the first

impression--a trial not confined to a single act in the conduct of the

accused, but embracing a variety of transactions at different periods of

his life--a trial which departs from the ordinary mode of decision, whose

novelty and magnitude have excited so much interest and attention that

it seems to have superseded for the moment, not only every other grave

object or pursuit, but every other fashionable amusement or dissipation.

The task of prosecuting is always very unpleasant, and to me extremely

painful; but my rule has ever been not to suffer private considerations

or personal feelings to stand in the way of a firm and independent

discharge of public duty.

To this exalted tribunal I look with confidence for a display of that

dignified impartiality, which will do credit to their elevated situation,

and reflect honor on their country. You will raise yourselves, I am

convinced, above the common level of human prejudices, personal or

political, and will suffer no considerations but those which are

perfectly correct to be blended with your inquiries or mingled with your

decisions.

Party, it is true, is a spirit of so subtle a nature as to diffuse itself

almost imperceptibly over the human mind; it frequently pervades the

system without being felt, and sometimes warps the judgment when least

suspected. Against the influence of this spirit I need scarcely caution

the judges whom I have the honor to address. It cannot approach within

the pale of this Court, or enter their hallowed walls.

I have marked, Mr. President, in the questions which you have so

correctly put to the witnesses in the course of their examination, that

singleness of eye, which looks to the discovery of truth alone, without

reference to the party whose case it may affect; whilst your conduct

in maintaining that order and decorum suitable to the solemnity of the

occasion has exhibited an example worthy of imitation.

I have observed, with heartfelt pleasure and honest pride, the unwearied

and impartial attention paid by the members of this Court during the

progress of this momentous cause. To my mind it presages a decision

worthy of themselves, and serviceable to their country, and is a sure

pledge that their determination will be honest, upright, and independent.