If, after a fair and full inquiry into the facts, illustrated by the

arguments for and against the accused, and a careful examination of the

law, commented on by those whose duty it is to support the impeachment,

and those who are opposed to it, the Senate shall be of opinion that

the charges have not been substantiated, and pronounce a verdict of

acquittal, believe me, sir, I, as a citizen faithful, obedient, and

affectionate to the laws of my country, shall most cheerfully acquiesce

in the decision. But I do confidently trust that it will not take place,

on the principles or the precedent established in the case of Warren

Hastings, the Governor of Bengal, that plunderer of India, that destroyer

of the people of Asia, that devastator of the East, whose crimes were

without number, and whose enormities exceeded calculation. What fields

have been dyed, what streams have been tinged with the innocent blood

of victims sacrificed on the altar of his avarice or his ambition! An

obligation however solemn, a treaty however sacred, interposed but

a weak and feeble barrier to the views of his personal or political

aggrandizement. Even a zenana, the sacred retreat of women, holy and

consecrated to the fairest work of the creation, by the religious customs

of that country, has been violated whenever the silver and the gold, the

jewels and the diamonds, were sufficient objects to attract his attention

or gratify his rapacity.

The House of Representatives, so far from deserving blame, in my humble

opinion, merit commendation for the reluctance with which they proceeded

to accusation, and for the care, caution, and dignity which have marked

their steps. I have frequently heard an unbecoming zeal reprobated in a

prosecutor; but never before did I hear from the lips of a counsel for an

offender, a complaint of delay and remissness in charging his client with

guilt. What a striking contrast does their conduct furnish, compared with

that of the defendant! They betrayed no thirst for prosecution, but an

unwillingness to accuse; no eager appetite for conviction, but an anxious

desire that impartial justice should take place between the public and

an individual, whom irresistible evidence had compelled them to present

before the highest judicial authority of the nation. Not, it is true,

for the murder of despotic princes whose will was the law, and whose

laws perhaps were as sanguinary as those of Draco; nor for the plunder

of empires, swayed by an iron sceptre as oppressive as the dominion of

Hastings. Far other crimes are laid to his charge. The defendant, a

citizen of this free land, sworn to support our mild constitution and

our equal laws, and bound by his oath of office to administer justice

impartially, having a perfect knowledge of his duty, (for of ignorance

the whole world will acquit him,) stands charged with plundering, in the

holy habit of a judge, a jury of his country of their most sacred rights,

and injured and insulted freemen of their constitutional privileges.

He was indeed providentially prevented from imbruing his hands in the

blood of poor Fries, but he stands accused of shedding, with unfeeling

severity, the life-blood of the constitution itself.

Such are the crimes for which he is arraigned at your bar, and which

one of the gentlemen has been pleased to term petty offences. In the

dark catalogue of criminal enormities, perhaps few are to be found of a

deeper dye. If I were an advocate of the doctrines of constructive and

cumulative treasons, of which the learned judge appears to have been a

great admirer and a zealous supporter, I would say that he himself was

guilty of judicial treason against the constitution of the country and

majesty of the people.

The independence of the Judiciary, the political tocsin of the day,

and the _alarm bell of the night_, has been rung through every change

in our ears. They have played upon this chord until its vibrations

produce no effect. The sound is rather calculated to stun us into an

insensibility against real attacks, for the poor hobby has been literally

rode to death. To the rational independence of the Judiciary, I am,

and ever have been a firm and uniform friend. But I am no advocate for

the inviolability of judges more than of kings. In this country I am

afraid the doctrine has been carried to such an extravagant length, that

the Judiciary may justly be considered like a spoiled child. They are

here placed almost beyond the reach of the people, though not beyond

the immediate power and influence of the Executive. I wish not to see

them the slaves of any administration, but the faithful and impartial

executors of justice. My desire is that the laws, like the providence of

the Deity, should shed their protecting influence equally over all.

It will be allowed that the hopes of an individual are as powerful

inducements to action as his fears. Whether the Executive can depress

or exalt him, his influence is equally great. Whether he can punish his

errors or reward his faults, his dominion is the same. We all know that

an associate judge may sigh for promotion, and may be created a Chief

Justice, whilst experience teaches us, that more than one Chief Justice

has been appointed a Minister Plenipotentiary. These facts are staring us

in the face, when we talk of judges being independent of the Government.

What has been the natural effect of such conduct? Have the judges stood

aloof during the political tempests which have agitated the country--or

have they united in the _Io triumphe_ which the votaries and idolaters of

power have sung to those who were seated in the car of Government? Have

they made no offerings at the shrine of party; have they not preached

political sermons from the bench, in which they have joined chorus with

the anonymous scribblers of the day and the infuriate instruments of

faction? Let a recurrence to past events decide.

I wish to be understood as speaking on these topics in the abstract, and

not with a view of imputing improper motives to those concerned in the

arrangements which have taken place.

The people of the United States, on the other hand, have no offices of

profit and emolument to bestow. They have no post immediately in their

power to give, except a station in the House of Representatives, which

a judge would not accept from their hands. But, let me ask, was there

no vacancy in the gift of the Executive, to which the defendant could

aspire, and to which his conduct might furnish him with a passport or a

letter of introduction?

Some observations have been made on the independence of the judges in

England. In that country they are removable by an address of both Houses

of Parliament. By what a slight tenure, by what a slender thread, are

their offices held! The voice, nay, the whisper, or the breath of the

Minister for the time being, may remove them, and yet they have generally

manifested a spirit of real independence, even in the season of alarm

and terror, of which I fear our judges at a similar period cannot boast.

But in that country, a seat on the bench is considered as a place of

rest, and they look not beyond it. There the judges are not made Envoys

Extraordinary or Ministers Plenipotentiary.

We ought not to be imposed upon by names in this country. Give any human

being judicial power for life, and annex to the exercise of it the kingly

maxim “that he can do no wrong,”--you may call him a judge or justice,

no matter what is the appellation--and you transform him into a despot,

regardless of all law but his own sovereign will and pleasure.

Suffer me at this place to notice the remarks of the learned counsel who

spoke yesterday, (Mr. Harper,) with so much sensibility and feeling for

his client, on the change of parties in popular governments, and the

proscriptions, persecutions, and punishments, too frequently inflicted

by those who are triumphant, on the fallen victims of their authority;

when acts, innocent in themselves, because against no known law, have

been converted into crimes to gratify the vindictive passions of the

victorious against those whom the fortune of political war has placed

within their power. No man can deprecate more sincerely than I do, such a

state of things. To the situation of affairs in this country, I presume

these remarks cannot have the most distant application. If they were

made with reference to the present Administration, to the Executive or

Legislative Departments of the Government, the allusion may, perhaps,

have the light support of visionary imagination, but has no substantial

foundation in reality. It may be fancy, but is not fact.

The illustrious Chief Magistrate of the Union[22] has furnished a

precedent, by his liberal and enlightened conduct, of which the

lamentable annals of mankind afford no example. Under his wise and

his mild guidance, what auspicious beams of public sunshine have been

diffused over the whole face of the country! until, to the discontented

few, the language of the Latin poet might justly be applied--

“O fortunati nimium sua si bona norint.”

This enlightened policy has been adopted in conjunction with the luminous

constellation of distinguished worthies, by whom he is surrounded; whose

exalted character and talents add to the usefulness, the dignity, and

splendor of his measures, and increase to an extent almost incalculable

the general sum of the happiness of this great and independent nation.

Turning our eyes to those who have exercised the high and responsible

functions of legislation, we find their acts equally deserving

commendation. Their proceedings are calculated to excite at once the

envy and the admiration of their opposers and the world. They breathe

not the fell spirit of resentment and persecution. To their honor be

it spoken, that, instead of enlarging the circle of offence, they have

reduced the scale of criminality. They have abolished an odious, and,

I believe, an unconstitutional sedition law, which had been executed

with a rigor and severity perfectly congenial with the passionate policy

which gave it birth. The decrees under it, if not written in the blood

of the sufferers, were written in their tears. A more dreadful engine of

persecution and oppression cannot well be conceived. With this instrument

in their hands, they could have smote their enemies and shielded

themselves. It would have been a sword and a buckler, but they disdained

the idea.

Actuated by the best motives, with the honest view of purifying the

fountain of justice, and restoring the characters of the American bench,

they are now engaged in the unpleasant, but indispensable task of

bringing to exemplary punishment a judge who has offended against the

letter and the spirit of the constitution, and the well-known statutes

of Congress; who has violated the bounden duties of his office, and

that high legislative act, which, to the sanction of a law, added the

solemnity and obligation of an oath.

In this important undertaking they are contending not for themselves,

but for posterity; not for those in power, but those whom power has

forsaken. Against all the wild theories of new-fangled opinions and the

monstrous iniquity of exploded doctrines, they wish to teach a lesson

of instruction to future judges that, when intoxicated by the spirit

of party, they may recollect the scale of power may one day turn, and

preserve the scales of justice equal.

It appears that Fries had been tried in the year 1799, before Judges

Iredell and Peters, and convicted of the crime of high treason. His

counsel afterwards moved for a new trial, on the ground that one of the

jury had been prejudiced against him--that he had not in fact been an

impartial juror in the case. The Court, consisting of the same judges,

upon argument, ordered a new trial to be had. A new trial, according to

the best authorities, is “a rehearing of the cause before another jury,

but with as little prejudice to either party as if it had never been

heard before.” In this light Judge Chase should have considered it. He

ought to have gone to Pennsylvania with a mind totally unprejudiced, and

viewed every circumstance of the case with the utmost impartiality. The

very circumstance which produced the second trial ought to have put him

sufficiently on his guard. When a new trial has been directed, to use the

language of the respondent in his answer, “solely on the ground that one

of the jury” (a single man out of twelve) “after he was summoned, but

before he was sworn on the trial, had made some declarations unfavorable

to the prisoner,” how ought an impartial judge to have felt and to have

acted? Mr. Chase, let it be recollected, presided in a court composed of

but two members. With this lesson before his eyes, we find the respondent

forming an opinion in his closet on the law of treason, applicable to the

case of poor Fries, and not satisfied with making up his own mind on this

subject, he took care to bind the judgment of his associate, by obtaining

his approbation of that opinion, which he reduced to writing for the

purpose. This irregular and reprehensible measure was adopted before the

hour of trial arrived, when the man whose life was at stake was to be

heard on a subject that involved his existence. This bold step in the

path to conviction, has been defended on plausible grounds, and by subtle

refinements.

The respondent in his answer and the learned counsel in their defence,

have endeavored to prove that this conduct was not only right, but

perfectly proper and correct. Among the various pretexts eagerly laid

hold of to justify this novel procedure, they urge as a reason for

prejudging and despatching a capital case, the multiplicity of civil

business pending in the same court! I will forbear to inquire into

the facts on this point, though I believe there is not a spark of

testimony to prove the allegation to its full extent, because, if the

docket had been loaded with civil suits, it would form no excuse for

hurrying through a criminal trial, on the issue of which the life of a

fellow-citizen depended. That cause must be bad indeed that requires to

be propped by such miserable expedients. When I first read this passage

in the answer, it struck me with astonishment, and excited a burst

of indignation which it is my duty to repress. “A multitude of civil

business is depending, and therefore I must make up my mind conclusively

on the law in a capital case, before the proper season arrives, without

hearing a single word from the prisoner or his counsel in defence!” The

learned judge certainly did not reflect on the effect of such an excuse,

which instead of palliating his conduct, aggravates it. That he was in a

great hurry, every part of his conduct proves. From the opinion, a copy

of which is annexed to his answer, it would appear that he did not intend

to make it public, at least until after the jury had been sworn and Fries

was on his trial. In that we find these expressions: “The Court heard the

indictment read on the arraignment of the prisoner some days past, _and

just now on his trial_, and they attended to the overt acts stated in the

indictment.”

This honorable Court will recollect that the whole current of the

testimony proves, and the defendant in his answer admits, that he

delivered the papers containing this _ex parte_ opinion before Fries’s

trial commenced. Such was his eagerness to despatch the case, with a

view, he says, of reaching expeditiously the civil list. As if gifted

with the spirit of intuition and with an infallible judgment, he seems

not to have proceeded on the principle of _castigatque auditque_, but to

have improved even upon that model, considering it not necessary for him

to hear arguments at any stage of a cause, for the purpose of forming a

correct opinion. His counsel ask us whether it be a fault in a judge to

have a profound knowledge of the law, which will enable him to decide

promptly any question that may occur; and the respondent said, on Fries’s

trial, that “he had an opinion in point of law as to every case which

could be brought before the Court, or else he was not fit to sit there.”

Yet, when Callender’s trial was progressing, we find this same judge,

upon a common point of practice relative to a challenge to the jury,

calling out for Coke on Littleton to be brought into court before he

could make up his mind on the subject.

The aid of precedent has been called in to justify this wide departure

from principle, and it is contended that the opinion was correct in

point of law. My honorable friend (Mr. Randolph) has detected and

exposed the fallacy of this species of justification. I will remark that

a great and respectable character (Lord Mansfield) has observed, that

he is a most unrighteous and wicked judge who decides without hearing

both sides--even when he decides correctly--because his judgment is the

effect of chance or accident, and not the result of a fair, full, and

impartial investigation. Precedents, let me observe, do not make the

law, they are merely evidence of it; nor is the law to be absolutely

decided by precedents, _judicandum est legibus, non exemplis_. “If a

judge conceives that a judgment given by a former court is erroneous,

he ought not in conscience to give the like judgment, he being sworn

to judge according to law,” says Lord Chief Justice Vaughan. But Judge

Chase declares that, had he differed in opinion from former precedents,

even in a capital case, he should have held himself bound by them. But

here let me ask, what are those precedents to which he subscribes? It is

not my intention to go at full length into the discussion of them, or

comment at large on the law of treason. My object is, on this interesting

occasion, to enter a solemn protest against doctrines which would entail

on us all the constructive treasons of another country, and to assign in

a few words the reasons of my opinion. I am not to be deterred from my

duty by the assertion that no counsel of eminence would controvert the

principles laid down by the respondent in his _ex parte_ opinion, more

especially when characters of such high standing at the bar as Mr. Lewis

and Mr. Dallas, have honorably and conscientiously opposed such monstrous

doctrines. The Western insurrection in Pennsylvania was materially

different from the momentary disturbances in the counties of Bucks and

Northampton. The precedents which arose from one could not be applicable

to the other, and the cases of Mitchell and Vigol, which have been cited,

are readily distinguished from that of Fries.

In the first, the combination was formed and organized to seize _all_

records and papers, and to destroy _all_ offices, to expel _all_ officers

in the whole survey. The insurgents traversed the country armed, seized

papers, attacked offices, and drove officers out of the country.

They seized and imprisoned the marshal, who escaped and returned to

Philadelphia by a circuitous route.

They assembled at Cooche’s fort, consulted on the attack upon Colonel

Neville’s house, marched thither in military array, summoned him to

surrender by a flag, set fire to his house, and destroyed his records.

They assembled at Braddock’s field; deliberated on taking the garrison

at Pittsburg; marched thither with that avowed object; but finding the

garrison prepared for defence they filed off.

They assembled after the proclamation, and after the militia were

ordered to march. They avowed an intention to resist. They compelled the

Government to negotiate. The leaders, Bradford and Marshal, fled on the

approach of the army, and the insurgents generally accepted the terms of

amnesty, as in a case of treason. The army was, however, maintained for

some time in the country.

In the last, the people were illiterate, ignorant of the laws and

language. They did not conspire to act themselves, but to prevent

_particular_ inferior officers from acting, by making the assessments in

_particular_ townships.

They acted like a mob, in obstructing the progress of the officers by

threats, hooting, &c., and once they took an officer’s tax list or

papers, but immediately returned them.

They assembled expressly to release or rescue a _particular_ set of

prisoners whom they called their neighbors.

They rescued the prisoners, and withdrew without injuring or attempting

to injure the marshal, or the tax officers who were at Bethlehem.

They never suggested the idea of resisting the army. They dispersed as

soon as the proclamation was issued, and they never met afterwards.

The distinctions are striking and obvious.

In the insurrection of 1794, the object was general; in the riot of 1799,

it was particular.

In 1794, the insurgents _acted_ as assailants; the rioters of 1799 stood

on the defensive, and only obstructed the officers in attempting to act.

In 1794, the design of attacking a fort and resisting the army was

deliberately formed, and overt acts committed to carry it into effect;

in 1799, the idea of attacking or resisting the military power of the

Government never was suggested.

In 1794, the sedition act had not provided for combinations to impede the

execution of a particular law. In 1799 that act was in existence.

In 1794, the outrage extended to the seizure of the marshal to prevent

his executing any process. In 1799, it was confined to the release of a

particular set of friends and neighbors.

The precedents, therefore, of Mitchell and Vigol, which have been so

much relied upon, did not, I humbly submit, apply to the case of poor

Fries. But the defendant has dwelt much on the opinion expressed by

Judge Iredell, in his charge to the petit jury on the former trial of

Fries, notwithstanding the verdict was set aside, which was given on that

occasion, and Judge Chase should have proceeded on the second trial, as

little prejudiced by any opinions on the former, as if such trial had

never taken place. It appears from the testimony of Mr. Dallas, that so

confident was he of the broad difference between the cases of 1794 and

1799, that in the first trial he did not advert to the former, little

suspecting that they would be considered as precedents for the latter.

When he found, by the charge of Judge Iredell, that he did unexpectedly

rely upon them, his intention was, in the second trial, to direct his

arguments to the manifest distinctions between them. In this, however, he

was disappointed by the arbitrary conduct of the defendant. Under these

circumstances, can this case be considered binding and obligatory; or, is

a single precedent to make the law, and absolutely prevent counsel from

controverting it?

The case of Fries was succeeded by that of Callender. There is seldom

one act of crying injustice without being followed by another. It is the

misfortune, if not the fault, of the respondent, that his conduct compels

us to unfold more than one solitary case, in which he grossly violated

his duty and the laws of the land.

Callender had written a book, which I never saw until since the

commencement of this trial--a wretched performance, which ought never

to have excited in the breasts of the honest supporters of the late

Administration any passion but contempt. They should have applied to it

the memorable declaration of one who once figured in political life, “a

wise and virtuous Administration is not to be battered down by mere paper

shot.” The respondent, it appears, was furnished by one of his present

counsel, (Mr. Martin,) when in the act of setting off for the district

of Virginia, with a copy of this formidable work, which threatened

destruction, in his opinion, to the Federal fabric. The book was ready

scored to his hands, so that, with a single glance, he might discover

the fatal passages. With this volume for a “_vade mecum_, or travelling

companion,” he proceeded to Richmond to hold a circuit court. Soon after

his arrival a presentment was made and an indictment found against

Callender. The miserable object of persecution was hunted up and down

the country. At length he was discovered by the marshal and brought into

court. To the indictment he pleaded not guilty, and able and eminent

counsel appeared to defend him.

Callender not being prepared with the testimony necessary to substantiate

his defence, an affidavit was filed in due form, which stated ample

grounds to postpone the trial of the cause, and upon which the Court

ought certainly to have granted a continuance.

What are the objections raised against the motion to postpone, founded

on this affidavit, and the reasons urged in support of the respondent’s

refusal to put off the trial? They are truly singular. One is a refined

technical objection to the form of the affidavit, because it does not

state in strict legal language that Callender expected to be able to

procure at a future time the attendance of the witnesses. But he states

facts which prove on the face of them, that by postponing the trial

he could obtain the benefit of their testimony, for he mentions the

places of their residence, all of them within the United States. I say

the case is stronger than if, _secundum formam_, he had sworn that he

could procure their attendance. When he tells where they lived, the

Court must have been satisfied on this point. However, the respondent

assigns a curious reason to be sure, for his conduct. If the witnesses

who were absent were actually before the Court, and were to prove all

that Callender had stated or expected, it would riot have justified all

the libellous passages that had been selected from the book and thrown

into the indictment. How was Judge Chase to know but that Callender had

testimony as to those points on which his absent witnesses would not have

deposed?

The respondent, it seems, was willing to postpone it for a particular

period, provided he would be present at the trial. Nay, he would go all

the way to Delaware, and return again to accomplish an object he seems to

have had so much at heart. In my humble opinion this part of the Judge’s

conduct proves stronger than almost any other of his acts, the motives

which influenced him. If I were to select any one circumstance to prove

that his intentions were improper, I would lay my hand on this. “I will

not postpone this important trial until the next term, because, according

to the arrangement, I shall not then be on this bench, but I will agree

to delay it for a shorter period, and travel three or four hundred miles

in order to accommodate Mr. Callender with my presence on the trial.”

Did any lawyer ever hear of such conduct? Did they ever hear of a court

adjourning to a particular time, to try a single solitary case of a

common misdemeanor?

I do respectfully submit, for the reasons assigned, that the conduct of

the learned judge, in refusing to postpone the trial of Callender, was a

most manifest violation of the principles of law, and was attended with

such circumstances as render it highly improbable that it proceeded from

a mere error in judgment.

From Virginia, flushed with success and elated with his triumph over

Callender, the respondent hastened to Delaware. The night preceding the

day on which the respondent was to hold the court, he lodged at the

village of Christiana, about five miles distant from the court-house.

From this place he rode into Newcastle the next morning with Dr. William

McMechin, who was summoned as a grand juror to the court, and it is in

evidence, was actually sworn on the panel. This is the very man, who,

it is represented, gave the respondent the information relative to the

seditious printer. As a grand juror it was his duty to communicate to

his fellows any offences against the laws of the land which had come to

his knowledge, and it was the duty of the grand jury to present every

criminal act punishable by the laws of the United States. We are bound to

pronounce that Mr. McMechin put the rest of the grand jury, for he was

sworn so to do, in complete possession of all the information which he

communicated to the respondent. With these circumstances, the respondent

was perfectly well acquainted. He saw with his own eyes the very man

impanelled on the inquest who had opened the budget to him, and knew it

was his duty to unfold the intelligence to his brethren. The respondent

proceeds to deliver an appropriate charge to the jury--a charge free

from all those blemishes which stain a subsequent performance of the

same kind. He presented to their view in chaste and eloquent language

the proper subjects for their inquiry. In my humble opinion it may have

been equalled but never excelled. I considered it, according to my poor

judgment at the time, a perfect model; the most finished piece in style

and substance that I ever heard addressed to a grand jury. Had he stopped

here he would have been an object of praise rather than complaint. Had

he been contented with discharging his official duty, he would have been

entitled to our thanks, rather than merited an accusation.

The grand jury retire to their chamber, and after some time return to

the box. To the credit of the then marshal of the Delaware district, I

must observe, that he had manifested on that occasion, (as I know him

uniformly to have done, even when the storm of party raged with the

greatest violence,) in the selection of his jurors, an independence

becoming the responsible station which he filled. They were not men of

pliant tempers, nor were they carefully culled from the ruling sect,

but chosen without respect to party, from the most respectable of both

sides. It gives me great pleasure to speak of such conduct, because I

wish to hold it up as an example. The grand jury were asked by the clerk

in the usual form, “Have you any bills or presentments to make?” Their

foreman respectfully answered they “had not.” On this, the judge could

no longer bridle his temper. He had anticipated perhaps a treat from the

prosecution of an obnoxious printer, and expected to regale his palate

with a favorite dish. Provoked by disappointment, his passion burst into

a flame, and he condescended to stoop from his bench, for the purpose of

seizing on his prey. It was at this period he betrayed emotions so highly

reprehensible, and so very unsuitable to the dignity of his situation.

In a tone, well adapted to the exceptionable language, he observed to

the grand inquest, “What! no bills or presentments?” This was matter

of astonishment to him, and he proceeded to make the observations so

correctly described by Mr. Read, the District Attorney of Delaware, a

gentleman of irreproachable life and manners, whose character is not

only unimpeached but unimpeachable, and Mr. Lea, one of the grand jury

themselves, to whom part of the observations were addressed, a merchant

of established reputation, and as a man respected by all who are

acquainted with him. Sir, after the observations I have made on positive

and negative testimony, I will not stop to demonstrate that every thing

stated by Mr. Read and Mr. Lea was said, though not recollected by some

other witnesses. I will barely mention that all the extra-judicial

remarks of the respondent were addressed to the grand jury or to the

district attorney. They must, therefore, naturally be presumed to have

paid the strictest and closest attention to all that fell from the

learned judge, and we have produced one of the grand inquest themselves,

and the district attorney, to prove the language he used. I feel

confident, under these circumstances, that implicit credit will be given

to them. I am also convinced that the statement made by the respondent

is scarcely more favorable to his cause. The grand jury repeat, to the

interrogatory put to them by the respondent, the answer which they gave

to the previous question of the clerk, and request additionally that they

may be discharged, as many of them were farmers, and it was hay harvest,

a very busy season with them. But no matter for that, the business of the

persecution, for I will not say prosecution, must go on if possible. The

judge would not discharge the grand jury on the first day, agreeably to

general practice, as proved by Judge Bedford, though pressed so to do.

He proceeds to give them information of the seditious temper which had

manifested itself in the State, and particularly in Newcastle County: a

county, which, suffer me to say, is well known from its old and unshaken

patriotism from the Revolution to the present day. But he did not stop

here; he proceeds to mention a seditious printer, point out the place

where he lived, and the borough of Wilmington, justly celebrated for

its uniform attachment to the cause of republicanism, and, according to

his own answer, to specify the title of his paper, and just as his name

was escaping from his lips, a returning sense of propriety checked his

speech. Sensible how deeply he had committed himself already, he paused

for reflection. But he had gone too far to effect a safe and honorable

retreat. He calls on the district attorney to know if a file of the

papers cannot be had. Some officious person offers to procure them, and

the respondent directs the district attorney to examine them and lay them

before the grand jury, who are ordered to attend the next morning. They

do accordingly attend, the file of the papers is laid before them and

examined. Behold, after all his exertions, the respondent had his labor

for his pains; after all this noise and bustle _montes parturiunt_, and

not even _ridiculus mus nascitur_. The grand jury return once more to

the box without any bills or presentments, and the learned judge with

admirable address covers his defeat.

The conduct of the learned judge at the circuit court in Maryland,

furnishes, I consider, one of the strongest articles of impeachment. I

had intended to have dilated very much at length on this charge, but

the fatigue of yesterday has really indisposed me, and I have already

trespassed too much on your time.

Every member of this Court must have been sensible of the impropriety

of the respondent’s conduct on that occasion. Every reflecting man must

be decidedly opposed to the idea of blending political discussion with

the legal observations which ought to proceed from the bench. A party

harangue little comports with the temperate and learned charges to be

delivered by the president of a court. The character of an electioneering

partisan, whose rostrum is a stump, or whose stage is the head of a

hogshead, is utterly inconsistent and incompatible with that of a grave

and upright judge. The duty of a judge is to expound the laws, and not

to exercise the office of a censor over them, and much less to disgrace

himself by reprobating them in a manner calculated to excite groundless

alarm and apprehensions in the minds of the people, and to alienate their

affections from the Government. Every man in his individual capacity

possesses the undoubted right to advocate the political principles

which he believes most beneficial to his country. The respondent

as an individual is entitled to this privilege in common with his

fellow-citizens, and to the free exercise of his splendid talents in such

a case. But does this justify him as a judge in his judicial character,

and from the judgment seat, to preach political sermons, and impose

his private dogmas on the people, under the garb of administering the

laws? Sophistry may for a moment confound two things perfectly distinct

in their nature and effect, but the mist vanishes before the light of

argument.

It will be conceded that there yet exist State jealousies against

the General Government, the acts of which are closely watched and

scrutinized. When the Constitution of the United States was framed, it

was the legitimate offspring of a liberal spirit of accommodation, which

reconciled jarring interests, _discordia semina rerum_. It requires

the patriotic exertion of every good man to preserve and to promote a

reciprocal cordiality between the General and State Governments. The

officers particularly of each should manifest a respect and reverence

which would inspire at once confidence and attachment. What language can

express the criminality of the respondent, when from the bench of the

United States he undertook to thunder anathemas against the act of the

Legislature of an individual State? Was this a part of his duty, or was

it not? Can there be a doubt, sir, but that it was a gross violation of

his duty, and that the respondent well knew it at the time? Yet such were

his unbridled passions and his uncontrolled prejudices, that, regardless

of the station which he held, and the dignified post which he occupied,

he did not hesitate to commit the character of the United States by

conduct which must have irritated the audience against the government

of Maryland and its officers. If ever a _mobocracy_ take place in this

country, it will be brought about by such instruments and such conduct.

Let those clothed with the laws become the violators of them, let the

judges of the United States issue fulminations against the measures of

individual States, and the judges of the different States retaliate,

by declaiming against the acts of the General Government, and the

consequences are easily foreseen.

When a poor miserable object like Callender, without character and

without influence, censures the measures of our Administration, or

reprobates an unconstitutional law, the respondent considered him guilty

of a crime and deserving of punishment. But a man elevated to the bench

may declaim in the strongest language against any measure or law of

the United States, or of an individual State with perfect impunity!

Recollect, sir, that if the defendant be justified in reprobating a

single law of the United States, he has the right to reprobate them

all indiscriminately. It is without question the duty of a judge to

inculcate a respect and a reverence for the laws of the land. But, sir,

the respondent, so far as he was able, has endeavored to excite the

indignation of the people against them, and to terrify them into an

opposition to measures which he has chosen from the bench to denounce,

by the dread of a _mobocracy_ and other alarming stories unworthy the

columns of a common newspaper, and scarcely equalled since the days of

the Rye House, and of Titus Oates.

WEDNESDAY, February 27.

Mr. RANDOLPH.--Mr. President: The course which has been pursued by my

learned colleagues and right excellent friends leaves but a barren field

in which to glean after them. I shall, therefore, present you with the

most condensed view that I can take of the subject, endeavoring, as far

as possible, to avoid the ground which has been already trodden; and

should I fail in this attempt, I hope to be pardoned, as having been

absent during a great part of this discussion. Very far indeed is it from

my intention, by tiresome repetitions, yet more to weary the patience of

the Court, and prolong that decision which is anxiously awaited by all.

I was not present when the defence was opened, in a style so honorable

to himself, by the junior counsel of the respondent, (Mr. Hopkinson.) I

was then ill abed. I regret the loss of the very able argument which he

is said to have urged against the first article. God forbid that the time

shall ever come with me when merit shall be disparaged because found in

an adversary. Report speaks fairly of the gentleman’s performance, and I

am willing to credit her to the utmost extent.

Suffer me to say a few words on the general doctrine of impeachment,

on which the wildest opinions have been advanced--unsupported by the

constitution, inconsistent with reason, and at war with each other.

It has been contended that an offence, to be impeachable, must be

indictable. For what then I pray you was it that this provision of

impeachment found its way into the constitution? Could it not have said,

at once, that any civil officer of the United States, convicted on an

indictment, should (_ipso facto_) be removed from office? This would be

coming at the thing by a short and obvious way. If the constitution did

not contemplate a distinction between an impeachable and an indictable

offence, whence this cumbrous and expensive process, which has cost us so

much labor, and so much anxiety to the nation? Whence this idle parade,

this wanton waste of time and treasure, when the ready intervention of a

court and jury alone was wanting to rectify the evil? In addition to the

instances adduced by my right worthy friend, (Mr. Nicholson,) who first

addressed the Court yesterday, permit me to cite a few others by way of

illustration. The President of the United States has a qualified negative

on all bills passed by the two Houses of Congress, that he may arrest

the passage of a law framed in a moment of legislative delirium. Let us

suppose it exercised, indiscriminately, on every act presented for his

acceptance. This surely would be an abuse of his constitutional power,

richly deserving impeachment; and yet no man will pretend to say it is

an indictable offence. The President is authorized by the constitution

to return any bill presented for his approbation, not exceeding ten

days, Sundays excepted, within which period he may return it to the

House wherein it originated, stating his reasons for disapproving it.

Now let us suppose that, at a session like the present, which must

necessarily terminate on the third of March, (and that day falls this

year on a Sunday,) the President should keep back until the last hour of

an expiring Congress, every bill offered to him for signature during the

ten preceding days, (and these are always the greater part of the laws

passed at any session of the Legislature,) and should then return them,

stating his objections, whether good or bad is altogether immaterial.

It is true that a vote of two-thirds of each branch may enact a law in

despite of Executive opposition; but, in the case I have stated, it would

be physically impossible for Congress to exercise its constitutional

power. Indeed, over the bills presented to the President within nine days

preceding its dissolution, the Legislature might be deprived of even the

shadow of control, since the Executive is not bound to make any return

of them whatever. Now, I ask whether such misconduct in the President

be an indictable offence? And yet is there a man who hears me who will

deny that it would be a flagrant abuse, under pretence of exercise of his

constitutional authority, for which he ought to be impeached, removed,

and disqualified? Sir, this doctrine, that impeachable and indictable are

convertible terms, is almost too absurd for argument. Nothing but the

high authority by which it is urged, and the dignified theatre where it

is advanced, could induce me to treat it seriously. Strip it of technical

jargon, and what is it but a monstrous pretension that the officers of

Government, so long as they steer clear of your penal statutes--so long

as they keep without the letter of the law--may, to the whole length of

the tether of the constitution, abuse that power, which they are bound to

exercise with a sound discretion, and under a high responsibility for the

general good?

Mr. President, through every stage of this transaction you perceive

every symptom of guilt--trepidation, remorse, and self-abasement. Look

at the consultation at Rawle’s, who was followed home by the judges as

soon as the Court rose. Recollect the conversation which ensued, and

the conduct of the Court on the following day, when the respondent is

said to have atoned for his misbehavior; although, in the same breath,

you are told there was no offence to expiate. Do you recognize in that

procedure an honorable and manly acknowledgment of unintentional error,

which, from a sense of justice, the respondent was anxious to rectify? Or

do you behold the sullen perverseness of guilt, half ashamed to confess

its offences, yet trembling at their consequences?--now soothing, now

threatening its adversary--every characteristic of conscious crime? Sir,

I blush for the picture which the gentleman has drawn of his client; and

I ask you, Mr. President, if such a character is fit to preside in a

court of justice?--a man whose violent temper and arbitrary disposition

perpetually drives him into acts of tyranny and usurpation, from which,

when vigorously opposed, he must disgracefully recede; equally ready to

take an untenable position, or meanly to abandon it. To-day, haughty,

violent, imperious; to-morrow, humble, penitent, and submissive;

prostrating the dignity of his awful function at the feet of an advocate,

over whom, but the day before, he had attempted to domineer. Is this

a character to dispense law and justice to this nation? No, sir! It

demands men of far different stamp--firm, indeed, but temperate; mild,

though unyielding; neither a blustering bravo, nor a timid poltroon. I

speak not of private character; with it I have nothing to do. It is the

official conduct only that concerns me. I have no hesitation in saying

that such men are not fit to preside in your judiciary; and that the

greatest abilities, when joined to such tempers, serve but still more to

disqualify their possessors.

I must here reiterate my regret at losing the argument of the gentleman

who opened the defence. I understand him to have said, (speaking of

Fries,) “Could that man be ‘innocent,’ who had been twice convicted

of treason? Could he be ‘illiterate,’ who pretended to expound the

constitution? Could he be ‘friendless,’ who had arrayed his numerous

followers in opposition to the laws of his country?” Sir, this is a very

pretty specimen of antithesis; but, unfortunately for itself, it proves

too much, whilst, as to the question before the Court, it proves nothing.

Does the gentleman believe the London mob, in 1780, to have been among

the most influential men in England? or, because their discontents grew

out of religion, that they were more deeply read in canon law than any

other body of men in that kingdom? They far surpassed the Northampton

rioters in depth and intricacy of research. They undertook to expound

the Constitution of the Church of England. But, unfortunately for this

gentleman, the guilt or innocence of his honorable client is in nowise

affected by the guilt or innocence of this poor German and his comrades.

The respondent stands charged with a departure from the principles of the

constitution and the established forms of law, in conducting the trial

which was to ascertain the guilt or innocence of John Fries. What has

this to do with his character? How does that affect the question? Guilty

or innocent, he was entitled to a fair and impartial trial, according to

the known usage and forms of law; for, be it remembered in such cases,

_form_ is _substance_. It is the denial of this sacred right, which

the constitution equally secures to the most hardened offender as to

persecuted virtue--this daring outrage on the free principles of our

criminal jurisprudence, that constitutes the respondent’s crime. If Fries

was innocent, what language can sufficiently reprobate the conduct of

the judge? An innocent man, by his procurement, iniquitously consigned

to an ignominious death. If guilty, he ought to have expiated his guilt

upon a gibbet. But what was the fact? The President of the United States,

in consequence of the arbitrary and unprecedented conduct of the Court,

was, in a manner, _compelled_ to pardon him. The public mind would never

have brooked the execution of any man thus tried and condemned. By the

misdemeanor of the respondent, then, to rescue the administration of

justice from the foulest imputation, to make some atonement for the

offended majesty of the constitution, the Executive was reduced to the

necessity of turning loose upon the country, again to sow the seeds of

disaffection and revolt, a man represented by the adverse counsel to be

every way desperate and daring--a traitor and a rebel. Upon what other

principle, sir, can you account for the President’s application to the

prisoner’s counsel, and his subsequent pardon? I repeat, Mr. President,

that it is wholly immaterial to the question before you, whether John

Fries was or was not a traitor. Either alternative is fatal to the

respondent. He is charged with oppression and injustice on the trial, and

you have not only the clearest testimony of the fact, but it is in proof

before you that such was the President’s motive in issuing the pardon. He

must have believed that the sentence was in itself unjust, (which serves

but to aggravate the respondent’s guilt,) or he must have acted (as I

am unwilling to concede he appears to have done) on the ground that,

however deserving of punishment, the prisoner had been unfairly tried,

and his condemnation illegally obtained. Whichsoever of these positions

be _true_, the defence set up on behalf of the respondent is _false_.

What have you seen? A man condemned to death, unheard, by a prejudiced

jury and an unrighteous judge, thirsting for his blood; the Executive

demanding to hear that defence, to which the Court would not listen,

and extending the arm of its protection to snatch the victim from the

oppressor’s grasp. And will you now turn this man loose upon society,

armed with the terrors of the law and secure in impunity, to perpetrate

similar offences?

But our opponents have not only resorted to the practice in civil cases,

which here is totally inapplicable, but they have brought forward English

precedents before the Revolution, and decisions of the court of _Star

Chamber_! Precedents drawn from the worst periods of their history,

from hard, unconstitutional times--decisions from the most flagitious

tribunals, whose very name has passed into a proverb of corrupt,

unfeeling tyranny. For an account of this Star Chamber I would refer you

to John, Lord Somers, of whom it has been said, not with more elegance

than justice, that, “like a chapel in a palace, he alone remained

unpolluted, whilst all around was profanation and uproar.”

“We had a privy council in England (says this great constitutional

lawyer) with great and mixed powers; _we suffered under it long and

much_. All the rolls of Parliament are full of complaints and remedies;

but none of them effectual till Charles the First’s time. _The Star

Chamber was but a spawn of our council_, and was called so only because

it sat in the usual council chamber. It was set up as a formal court in

the third year of Henry VIII., _in very soft words_, ‘to punish great

riots, to restrain offenders too big for ordinary justice; or, in modern

phrase, to preserve the peace.’ ‘_But in a little time it made the nation

tremble._ The privy council came at last _to make laws by proclamation,

and the Star Chamber ruined those that would not obey_. At last they fell

together.’” (Hatsell’s Precedents, vol. 4, page 65, Note.) Is this the

court whose adjudications are to justify the decisions of an American

tribunal in the nineteenth century? And in a case of _treason_, too? Is

this vile and detestable tribunal (whose decisions, even in England, are

scarce suffered to be drawn into precedent) to furnish rules of conduct

for the courts of this great confederate Republic? Yes, sir, you have not

only been obliged to listen to Star Chamber doctrines, but you have been

referred to one most arbitrary magistrate to justify the oppressions of

another. I allude to Chief Justice Keelyng. Who he was may be seen in the

same volume of Hatsell, page 113.

“On the 16th of October, 1667, the House being informed, ‘that there

have been some innovations of late in trials of men for their lives

and deaths;’ [the very offences charged upon the respondent;] ‘and in

some particular cases restraints have been put upon juries, in the

inquiries’--this matter is referred to a committee. On the 18th of

November, this committee are empowered to receive information against

the Lord Chief Justice Keelyng, for any other misdemeanors besides those

concerning juries. And on the 11th of December, 1667, this committee

report several resolutions against the Lord Chief Justice Keelyng, of

illegal and arbitrary proceedings in his office.” The first of these

resolutions is: “That the proceedings of the Lord Chief Justice, in

the cases now reported are innovations in the trial of men for their

lives and liberties: and that he hath used an arbitrary and illegal

power, which is of dangerous consequence to the lives and liberties of

the people of England, and tends to the introducing of an arbitrary

government.” The respondent’s own case. The second resolution is,

“that in the place of judicature”--[how does this bear upon the eighth

article?] “the Lord Chief Justice hath undervalued, vilified, and

contemned Magna Charta, the great preserver of our lives, freedom, and

property.” And the authority of this infamous judge, the minion of

Charles II.,--of judges in the most corrupt period of English history,

from the restoration of that king to the revolution, is relied upon by

his counsel to absolve the respondent from guilt. Permit me to do their

client more justice. I do believe that the man who is held up here as a

revolutionary patriot, of 1776, although in a moment of human infirmity

he hath imitated their crimes, would blush to be justified by their

example. For his sake I rejoice in that visitation of God which hath

saved him this last degradation: from seeing his defence rested upon the

authority of those infamous times, and yet more infamous men, with whom,

with all his weakness and all his infirmities upon him, he would yet

(I am persuaded) disdain a comparison. Yes, I do feel relieved that he

hath been spared the disgraceful spectacle of beholding himself defended

by his friends on principles more unjust and iniquitous, if possible,

than have ever been imputed to him by his enemies: that he hath not been

reduced to see those very decisions, prior to the revolution, cited in

his defence, which he himself denied to a fellow-creature put in jeopardy

of life! The benefit of these decisions (it seems) can be taken only by

the powerful oppressor--they offer no shelter to his victim. I thank God,

sir, that I have indeed studied at the feet of far different Gamaliels

from the honorable Attorney-General of Maryland, or those by whom, it

would appear, he has been brought up; that I have drawn my notions of

justice and constitutional law from a far different source--not from

the tribunals of Harry VIII., nor the tools and parasites of the house

of Stuart, but from the principles, the history, and the lives of those

illustrious patriots and their disciples, who brought the Star Chamber to

ruin, and its abettors to the block.

But I cannot consider the able Attorney-General of Maryland quite sincere

in the doctrine which he has advanced. He shines indeed a luminary in

this defence. Mr. President, there is an obliquity in human nature that

too often disposes us rather to applaud the brilliant, though pernicious

ingenuity that can “make the worse appear the better reason,” than

the humble but useful efforts of a mind engaged in an honest search

after truth. There is something fascinating in such a display of the

powers of the human mind. The vanity of the whole species soothes

itself with the excellence of an individual. We yield to the illusions

of self-love--“_we_ lay the flattering unction to our souls”--and are

cheated and abused. It is under this perverse bias of our nature that I

render to the honorable Attorney-General of Maryland the willing tribute

of my admiration. But, he will pardon me, I cannot suppose him serious. I

will not do him the injustice to believe that to a noble motive, to long

habits of political and social intercourse, a friendship of thirty years’

standing, he has refused what he himself tells you is done, every day,

nay in nine hundred and ninety-nine cases in a thousand, by persons of

his profession, for a mercenary consideration. What has he said? “That,

in defence of their clients, lawyers are in the daily habit of laying

down as law what they know not to be law.” Mr. President, when I see a

man of his unrivalled resources reduced to the miserable shift of Star

Chamber doctrines and precedents before the revolution--and, conscious,

no doubt, of the actual weakness of his defence, calling to his aid all

the force of wit, ingenuity, repartee, pleasantry, and good humor, what

inference must I draw? and what must be the conclusion of this honorable

Court?

On the subject of Mr. Taylor’s testimony, its rejection is attempted

to be defended by a solitary precedent, _in a civil case_, drawn from

a reporter, who, I am informed by gentlemen of the first professional

character, is far from being considered as very good authority. I mean

McNally. In support of this article I might urge as well the admissions

of the honorable Attorney-General of Maryland, as the universal practice

of our courts. What said Mr. Robertson--and what said the Chief Justice

of the United States, on whose evidence I specially rely? He never knew

such a case occur before. He never heard a similar objection advanced

by any court, until that instance. And this is the cautious and guarded

language of a man placed in the delicate situation of being compelled to

give testimony against a brother judge. What more could you expect from

a person thus circumstanced? What does it prove but that the respondent

was the first man to raise, to invent such an objection to a witness?

Can any one doubt Mr. Marshall’s thorough acquaintance with our laws?

Can it be pretended that any man is better versed in their theory or

practice? And yet in all his extensive reading, in his long and extensive

practice, in the many trials of which he has been spectator, and the yet

greater number at which he has assisted, he had never witnessed such a

case. It was reserved for the respondent to exhibit, for the first, and

I trust, for the last time, this fatal novelty, this new and horrible

doctrine that threatens at one blow all that is valuable in our criminal

jurisprudence.

Against the fourth article the Attorney-General of Maryland hath adduced

a similar and doubtful authority, in defence of his client. And here

again I bottom myself upon the testimony of the same great man, yet

more illustrious for his abilities than for the high station that he

fills, eminent as it is. He declares that he has never known a similar

requisition made by any court; that where the propriety of questions

verbally propounded, has been denied, or for the sake of precision,

(where they were intricate,) they have been reduced to writing, at the

request or order of the Court; but in the first instance, and before they

had been stated verbally, _never_, within the compass of his experience.

And what inference can any candid, unprejudiced mind draw from these

repeated, and, until then, unprecedented acts of interference by the

judge, on behalf of the prosecution, but that, instead of an umpire, he

was a partisan?

With regard to his deportment toward the counsel, I shall call the

attention of the Court not to the statement made by themselves--because

I question it in the slightest degree? God forbid--I know those able

and honorable men too well--but because I would deprive our opponents

of their almost sole argument--the personal irritation which they

allege those witnesses must have felt. Waiving then any remarks on

their testimony, powerful as it is, I again ask you, what said the

Chief Justice? And, if I may say so, _what did he look_? He felt all

the delicacy of his situation, and as he could not approve, he declined

giving any opinion on the demeanor of his associate. What does Mr.

Robertson say? In substance, every thing that has been deposed by

other witnesses: “That the judge always spoke in the first person

singular.” And here I will remark, that the short hand report which

this gentleman made of the trial, and which he has given in evidence,

was published, in the first instance, as a defence of Mr. Chase against

alleged misrepresentations of his conduct on that occasion. It cannot

be considered, therefore, as an _un_favorable view of the transaction,

at least so far as the respondent is concerned. What says Mr. Gooch?

That the judge was very ‘_yearnest_’ with the counsel; that they were

much abashed; that he set them down; that they appeared alternately red

and pale; that he exhibited their confusion to the mirth of all the

bystanders: and Colonel Taylor tells you, “that the conduct of the judge

had the full effect it seemed intended to produce--to abash the counsel

for the prisoner, and turn them into ridicule, for that every body

laughed but themselves.”

But the ingenious Attorney-General of Maryland, whose fruitful invention

is never without resource, has endeavored to persuade you, that this

conduct was not merely justifiable, but even meritorious. That the

design of the counsel was to irritate and inflame the people; and the

respondent, dreading a riot, had no object but to keep the audience in a

good humor; and that, by a seasonable exertion of his acknowledged wit

and pleasantry, he completely succeeded in turning their weapons upon

themselves, and totally defeated their purpose. This apology reflects

credit on the inventive faculty of him who makes it, and yet what is

it but an admission of the charge? Look to the evidence. You will see

nothing to support the twist which has been attempted to be given to

it--no apprehension of disorder and confusion but what grew out of the

insufferable tyranny and insolence of the judge. Where was the respondent

at this time? In some obscure corner of the Union--some remote district

notorious for disaffection, infamous for its spirit of insurrection, far

removed from the protection of State or Federal authority? No, sir, he

was in the enlightened capital of Virginia, a country never disgraced by

rebellion--unless the epithet be applied by some squeamish politician

to our glorious revolutionary struggle--a State whose soil has never

been stained by insubordination to law. No, sir, he was sitting within

a stone’s throw of the residence of the Governor of Virginia, a man of

whom I shall say nothing. Let the exalted stations he has more than

filled, the high public trusts on which he has seemed rather to confer

honor than receive it, his unshaken constancy in the worst of times, the

dismay and confusion of his enemies, whose vain aspersions have passed

him like the idle wind--let the confidence of a united people speak his

eulogium. The respondent was sitting within musket-shot of a cantonment

of Federal troops. Why were these troops placed there at that time, and

why were they kept there for some time afterwards, belongs not to my

present purpose. It is enough to say that they were a part of our famous

provisional army--“_fruges consumere nati_”--to ascertain their readiness

to protect, in any outrage on the law or constitution, (then practised,

or meditated,) the government that maintained them in dissolute idleness.

Governor Monroe was more interested in the respondent’s safety than he

himself appears to have been. He trembled lest the indignation of the

people should get the better of their good sense, and hurry them into

some act of violence, that would cast an odium on the State, and afford

matter of triumph to her enemies. That the respondent’s object was to

goad her citizens to some outrage, which might justify the humiliation

that was preparing for her, there is too much reason to believe, and that

he would have succeeded, but for the intervention and influence of that

excellent man, and the persuasions of the counsel themselves, whom the

Attorney-General of Maryland would represent as endeavoring to excite

public commotion, that he may find some shelter for the enormities of his

client.

But our doctrine, it is said, goes to prostrate the rights of the

accused--where?--at the feet of juries. There may they for ever lie, but

never at the foot of a judge. The gentleman from South Carolina (I beg

his pardon) deprecates the placing of criminal law solely in the power

of juries. He would not have the life of a man depend on their decision

of a point of law. But it is the glorious attribute of jury trial, that

the question of guilty or not guilty, involving both law and fact, _that_

law as well as _that_ fact the jury alone is competent to determine.

It is the necessary consequence of the general verdict which they are

required to find. The very able and learned Attorney-General of Maryland

indeed says that this is an incidental _power_, rather than a _right_ of

the jury. But, sir, what is that power which no man may question, but a

right? For, whether incidental or direct, the exercise of it is final and

complete, if in favor of the accused; and the power of the Court to award

him a new trial is further protection to the prisoner against abuse.

There is no specific power given, in so many words, by the constitution,

to Congress, to punish robberies of the mail; but it is incidental to

the right of establishing post offices and post roads, and necessary to

carry the specified power into effect. This curious distinction between

“_right_ and _power_, _direct_ and _incidental_,” is an _ignis fatuus_

of the learned gentleman’s composition to bewilder and mislead us from

our object, that we may be lost and led astray over a wide moor of

absurdities. The right of the jury is not the less, whether immediate,

or derivative; as Congress possess the power to pass all laws necessary

to carry any delegated power into effect, in like manner juries possess

every power necessary to the general verdict which they have a right to

give. The violation on the part of the judge of the incidental power, as

much subjects him to punishment, as if he had invaded the original right

over the fact, to which it is appendant. What would he say to a robber

of the mail claiming impunity because the power to make the offence

penal was incidental, and not specified in the constitution? But, say

gentlemen, we admit the _power_ in the jury, we only deny the _right_:

and in this tissue of self-contradictions they declare, that whilst a

jury is bound by the exposition of the law, as laid down by the Court,

yet they have not the right to determine whether the facts come within

the law. Can there be a greater absurdity?

“Whilst the jury have no right to decide the law, they must decide

whether the facts come within the law!” If the jury is tied down by the

Court’s construction of the law, is it not plain that _they_ do _not_

decide whether the fact is, or is not, embraced by the law? but that

whilst they find naked fact, it is the _Court_ that decides whether that

fact does, or does not, come within the law? Gracious God! is it come

to this? Are the great principles for which our forefathers contended,

and many of yourselves have bled, now to be frittered away by technical

sophistry? Is the same doctrine to be established here in capital

offences--in cases of treason--that Lord Mansfield attempted to impose

on the people of England as the law of libel, and which they would not

endure? Shall principles of criminal law which they have scouted, even

in cases not capital, be established here for the decision of capital

offences? that whilst the jury finds the facts, their application to the

law shall depend solely on the will of the Court? I deny the gentleman’s

law; and assert that, as an American citizen, I would refuse to be

bound by it. A man is charged with having committed certain treasonable

acts. The constitution has defined treason to consist “in levying war

against the United States, or in adhering to their enemies, giving them

aid and comfort.” But the Court, assuming to themselves a more than

Papal infallibility--the exclusive exposition and construction of the

constitution--tell me, as a juror, to surrender into their hands my

conscience and my understanding; that, as a levying of war is treason, so

is the picking up of a pin a levying of war; that I, an unlearned layman,

must not presume to expound the holy scripture of the constitution, but

must leave that to the elect; and, if the fact of his having picked up

the pin be proved to my satisfaction, I am bound to find the prisoner

guilty of levying war against his country--to convict him of treason.

Sir, the parallel runs on all-fours; for there is nothing to uphold this

monstrous judicial assumption, but that which supported the pretensions

of the Roman Pontiff--the willing obedience of ignorant superstition. If

the jury is contumacious, if, whilst they confess their entire conviction

of the truth of the fact charged in the indictment, they deny the legal

doctrine and acquit the prisoner, the Court is without redress. They

may bully and look big--there is no help. Put the case of murder. A

killing with malice aforethought is charged upon the prisoner--there is

no dispute about facts--it is admitted that the party arraigned did kill

the deceased. Shall I, a juror, contenting myself with deciding a fact

that nobody disputes, surrender to the Court the question of law, should

they attempt to usurp it, (as that killing with a particular weapon is

a killing with malice prepense,) and find a man guilty of murder whom I

believe to have acted in self-defence?--in defence of life, or, what is

dearer than life, of reputation? No, sir; I will not find him guilty,

although all the courts in the universe should instruct me to do so. I

will look to the great precept, “do as you would be done by,” and say, “I

would have done so too, and, therefore, I will not say, that man ought

not so to have done.” And what is there, sir, in the words, “_levying of

war_” more unintelligible than in the words, “_malice prepense_?” The

first, being altogether a matter of fact, would appear more exclusively

the province of the jury than the last, which rather partakes of a

question of opinion. If you leave the law in criminal cases to the jury,

(as well as the fact,) you are safe; but if your decision should sanction

the opposite doctrine, you set all our liberties, fixed by the decisions

of ages, afloat on an ocean of uncertainty and contention. We have no

beacon, no compass, no polar star to direct our course. If you suffer

the rights of a jury to be thus invaded on a criminal trial--on a trial

for life and death--you bind us in conclusions more fatal than those of

the Church of Rome. You force us one moment to say whether such a fact

amounts to such a crime, and, the next, you will not permit us to know

what the crime is. I hope the marshal will never summon me on such a

jury. I give him warning; I will never surrender the constitution, my

understanding, and my oath to the “_grim gribber_” of a court of law.

I should consider myself as much entitled to decide the law for the

judge in a civil case, as bound by his decision of it in a criminal one.

Vain and futile is the attempt of the constitution to settle and define

treason, if that definition is to mean any thing or nothing at the option

of a corrupt judge. If this doctrine, sir, be denied by any member of

this honorable Court, let him, in his legislative capacity, move for a

bill “to render juries more obedient to the judges, and _especially in

criminal cases_.” Until that is done, I shall refuse obedience to their

dictates, and act as a juror upon the principles which I have avowed.

Mr. President, much as I regret the trespass that I have already

committed on your patience, I must (painful as it may be to you, and it

is not less so to myself) attempt something like a review of the conduct

of this judge. In May, 1800, you find him in Philadelphia, engaged in

propagating and establishing the detestable doctrine of constructive and

implied treason, which, in England, has proved the dreadful engine of

persecution and murder. From thence you trace him to Annapolis; (not by

the blood of John Fries--no thanks, however, to him for that;) you hear

his declaration in presence of Mr. Mason. But this, his counsel tell you,

was all a joke, nothing but humor, sir; like his conduct at Richmond. If

you listen to them, you must become a Pythagorean, and believe that the

soul of Yorick himself has transmigrated into the body of this judge. It

is true he could not be the king’s jester, because, _unfortunately_, we

have no king, we have not yet reached that stage of civilization; but,

sir, he is the jester of the sovereign people, a jester at your laws

and constitution, and it is for you to say whether he shall continue

to exercise his function. This jocular conversation is likely to prove

a bitter and biting jest to the respondent. So serious did that most

intelligent and respectable witness deem it to be, that he locked it up

in his own bosom, without venturing to mention it to any human being.

He did not consider himself authorized to play with the fame of the

respondent, however disposed _he_ might be to sport with the feelings and

rights of others. This merry fit lasted a long time. He indulges the same

humor in the stage with Mr. Triplett, an entire stranger; and here let

me observe, in justice to this gentleman, that never did any man deliver

a more clear and unimpeachable testimony in a court of justice than this

witness. It is conclusive. When the judge made personal declarations

against Callender, could he be said to administer justice without respect

to persons? But, sir, one of our adversaries (Mr. Harper) protests

against this sort of evidence, and deems it highly inadmissible. Why?

Because, forsooth, it violates the sanctity of private conversation, and

wounds the feelings of gentlemen who may be called on as witnesses. Thank

God! sir, we live in a country where the law is open to all, and knows no

distinction between _gentlemen_ and _simple-men_. No man, I trust, has a

greater respect for the real gentleman than myself. When Francis I., the

accomplished monarch of the most gallant people of Europe, deemed it his

first distinction to be ranked as the first gentleman of his kingdom, he

did not hold that sacred character in higher reverence than I do. But

the respondent himself has told you that a court of justice is a coarse

sort of thing, blind to these nice discriminations; that the polished

address of a Chesterfield, and the rugged scowl of a Thurlow, in the eye

of the law are equal. Suppose a person killed, will not the Court hear

evidence of a previous declaration by the prisoner, of ill-will to the

deceased, as “that he would be the death of him,” &c.? or, will they stop

to ask whether it was uttered in a tippling-house, or a drawing-room; by

a ruffian in rags, or in ermine? and yet we are accused of lying in wait

for the respondent, of watching his unguarded and convivial hours, of

wounding the nerve of social intercourse to the quick. We are ministers

of justice, and as such, we know nothing of these delicate distresses,

equally unknown to our forefathers, to the framers of our free and manly

institutions. Their composition was of sterner stuff than this modern,

flimsy, fashionable ware. To their robust constitutions and strong

common-sense, these qualmish megrims, these sickly sensibilities of

modern refinement were happily unknown.

Follow the respondent, then, with the steady and untired step of justice,

from Philadelphia to Annapolis, from Annapolis to Richmond, and back

again to Newcastle. You see a succession of crimes each treading on the

heel, galling the kibe of the other--so connected in time, and place, and

circumstance, and so illustrated by his own confessions, as to leave no

shadow of doubt as to his guilt. You are to take the facts, not, as his

counsel would have you, isolated and dismembered, but embodied; a series

of acts indissolubly linked together, each supporting, each animated by

the vital principle of guilt that pervades and gives life to the whole.

God hath joined them; no man shall or can put them asunder. Carry your

mind back to the state of things in 1800; then advert to the testimony in

the case of Fries. Lewis, Dallas, Tilghman, and _even Rawle_, declaring

that they had never witnessed such a proceeding before; pronouncing the

conduct of the judge, on that occasion, to be altogether novel in the

annals of our criminal jurisprudence. The same spirit pervades his whole

career. But you are warned by the counsel (Mr. Harper) not to tarnish the

laurels of your political victory by an unmanly triumph over a fallen

adversary. He implores the tribute of a sigh for the mournful yew and

funeral cypress that bedecks the hearse of his political reputation.

Dreading the decision of your judgment, your sympathies are enlisted for

his client. An aged patriot, whose head is whitened with the hoar of

threescore and ten years, is presented to your afflicted imaginations:

broken with disease, compelled to employ his few and short intervals

from pain and sickness, to spend the last moments of a life devoted to

a thankless country’s service, in defending himself against a criminal

prosecution. Do we thirst for his blood? yet, even there, English

authorities would bear us out. Do we seek to lead him to Tower Hill? If

his heart will fly in his face, is it we who cast it there? Do we even

ask his disfranchisement? No, sir, we only demand the removal of a man,

whom the very suspicion of such crimes unfits for the high station which

he fills. A man bent with age and infirmity, struggling with misfortune,

is a venerable object, entitled to your sympathy, even although he were

not a patriot. Mine shall never be denied to such a character. But, sir,

mark the difference between Samuel Chase, powerful and protected, and

John Fries, feeble and oppressed. Look at the one lodged in a sumptuous

hotel, partaking of the best cheer, surrounded and supported by every

comfort of life, by a large and respectable circle of friends, indulged

with ample time for his defence, assisted by counsel second to none in

the land, unrestricted in the conduct of their cause. When I give a man

so situated my sympathy, it is not of so jejune a cast as to refuse

itself to the victim of his injustice--a hardy yeoman wrestling with

indigence and persecution--selling his last bit of property to support

a long imprisonment and meet the expenses of this very prosecution; a

soldier of the Revolution, with whom the words “stamp act” and “window

tax” were synonymous with slavery; who, in a moment of political

delirium, perhaps of intoxication, had instinctively raised his hand

against what he deemed an oppressive tax--immured in a dungeon, listening

only to the clanking of fetters; snatched from the bosom of his family,

to whom no doubt he was a kind parent and an affectionate husband--for be

it remembered he was popular and beloved among his neighbors--this man,

caught in the trap of judicial and constructive treason, at which common

sense revolts, laid by the heels, trembling at the charge, ignorant of

the extent of the law, without a friend to comfort and console him, no

counsel in his defence; such a man, so situated, is as much entitled to

my sympathy as any king that ever wore a crown, and he shall have it; he

shall have more, he shall have justice from this honorable Court. Yes,

sir, to my shame I confess, that my sympathy is not of this exclusive

sort. It is not scared by the homely garb of poverty and wretchedness. It

can feel for misfortune, even if it be not sumptuously arrayed.

We are asked to assign any rational motive for the conduct imputed to the

respondent. His object might have been to court the Administration which

he upheld and supported, to recommend himself to the President of the

United States, to obtain the Chief Justiceship. Those who are anxious to

attract the notice and favor of the powers that be, are not apt to put

their light under a bushel. The fulsomeness of sycophants, who always

overact their part, is proverbial. Sir, he might be aspiring to the

Presidency itself, and anxious to engage the favor of the leaders of his

party. Let it be remembered, the triumph of that day was complete, and

the reckoning of this day too remote from probability to be taken into

the account. Here, sir, you have a key to his whole conduct. It becomes

you, then, Mr. President and gentlemen of the Senate, to determine

whether a man whose whole judicial life hath been marked by habitual

outrage upon decorum and duty, too inveterate to give the least hope of

reformation, interwoven and incorporated with his very nature, shall

be arrested in his career, or again let loose upon society, to prey

upon the property, liberty, and life of those who will not rally around

his political standard. We have performed our duty; we have bound the

criminal and dragged him to your altar. The nation expects from you that

award which the evidence and the law requires. It remains for you to

say whether he shall again become the scourge of an exasperated people,

or whether he shall stand as a landmark and a beacon to the present

generation, and a warning to the future, that no talents, however great,

no age, however venerable, no character, however sacred, no connections,

however influential, shall save that man from the justice of his country,

who prostitutes the best gifts of nature and of God, and the power

with which he is invested for the general good, to the low purposes of

an electioneering partisan. We adjure you, on behalf of the House of

Representatives and of all the people of the United States, to exorcise

from our courts the baleful spirit of party, to give an awful memento to

our judges. In the name of the nation, I demand at your hands the award

of justice and of law.

FRIDAY, March 1.

The Court being opened by proclamation, the Managers, accompanied by the

House of Representatives, attended.

The counsel for the respondent also attended.

The consideration of the motion, made yesterday for an alteration of one

of the rules in cases of impeachments, was resumed: Whereupon,

_Resolved_, That in taking the judgment of the Senate upon the articles

of impeachment now depending against Samuel Chase, Esq., the President

of the Senate shall call on each member by his name, and upon each

article, propose the following question, in the manner following: “Mr.

----, how say you; is the respondent, Samuel Chase, guilty or not guilty

of a high crime or misdemeanor, as charged in the ---- article of

impeachment?”

Whereupon, each member shall rise in his place, and answer guilty or not

guilty.

The PRESIDENT rose, and addressing himself to the members of the Court,

said:

Gentlemen: You have heard the evidence and arguments adduced on the trial

of Samuel Chase, impeached for high crimes and misdemeanors: you will now

proceed to pronounce distinctly your judgment on each article.

The Secretary then read the first article of impeachment, as follows:

ARTICLE 1. That, unmindful of the solemn duties of his office,

and contrary to the sacred obligation by which he stood bound

to discharge them “faithfully and impartially, and without

respect to persons,” the said Samuel Chase, on the trial of

John Fries, charged with treason, before the circuit court

of the United States, held for the district of Pennsylvania,

in the city of Philadelphia, during the months of April and

May, one thousand eight hundred, whereat the said Samuel Chase

presided, did, in his judicial capacity, conduct himself in a

manner highly arbitrary, oppressive, and unjust, viz:

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

law, on the construction of which the defence of the accused

materially depended, tending to prejudice the minds of the jury

against the case of the said John Fries, the prisoner, before

counsel had been heard in his defence:

2. In restricting the counsel for the said Fries from recurring

to such English authorities as they believed apposite, or from

citing certain statutes of the United States, which they deemed

illustrative of the positions upon which they intended to rest

the defence of their client:

3. In debarring the prisoner from his constitutional privilege

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

well as on the fact, which was to determine his guilt, or

innocence, and at the same time endeavoring to wrest from the

jury their indisputable right to hear argument, and determine

upon the question of law, as well as the question of fact,

involved in the verdict which they were required to give:

In consequence of this irregular conduct of the said Samuel

Chase, as dangerous to our liberties as it is novel to our

laws and usages, the said John Fries was deprived of the

right, secured to him by the eighth article amendatory of the

constitution, and was condemned to death without having been

heard, by counsel, in his defence, to the disgrace of the

character of the American bench, in manifest violation of law

and justice, and in open contempt of the rights of juries, on

which ultimately rest the liberty and safety of the American

people.

When the PRESIDENT took the opinion of the members of the Court

respectively, in the form following:

“Mr. ----, how say you; is the respondent, Samuel Chase, guilty or not

guilty of a high crime or misdemeanor, as charged in the first article

of impeachment?”

Those who pronounced guilty, are:

Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Condit,

Ellery, Franklin, Howland, Logan, Maclay, Moore, Stone, Sumter,

Worthington, and Wright--16.

Those who pronounced not guilty, are:

Messrs. Adams, Bayard, Bradley, Dayton, Gaillard, Giles,

Hillhouse, Jackson, Mitchill, Olcott, Pickering, Plumer,

Smith of Maryland, Smith of New York, Smith of Ohio, Smith of

Vermont, Tracy, White--18.

The second article was read by the Secretary, as follows:

ART. 2. That, prompted by a similar spirit of persecution and

injustice, at a circuit court of the United States, held at

Richmond, in the month of May, one thousand eight hundred,

for the district of Virginia, whereat the said Samuel Chase

presided, and before which a certain James Thompson Callender

was arraigned for a libel on John Adams, then President of the

United States, the said Samuel Chase, with intent to oppress

and procure the conviction of the said Callender, did overrule

the objection of John Basset, one of the jury, who wished to

be excused from serving on the said trial because he had made

up his mind as to the publication from which the words charged

to be libellous in the indictment were extracted; and the said

Basset was accordingly sworn and did serve on the said jury, by

whose verdict the prisoner was subsequently convicted.

Those who pronounced guilty on this article, are:

Messrs. Anderson, Breckenridge, Cocke, Condit, Ellery, Giles,

Howland, Maclay, Moore, and Sumter--10.

Those who pronounced not guilty, are:

Messrs. Adams, Baldwin, Bayard, Bradley, Brown, Dayton,

Franklin, Gaillard, Hillhouse, Jackson, Logan, Mitchill,

Olcott, Pickering, Plumer, Smith of Maryland, Smith of New

York, Smith of Ohio, Smith of Vermont, Stone, Tracy, White,

Worthington, and Wright--24.

The third article was read by the Secretary, as follows:

ART. 3. That, with intent to oppress and procure the conviction

of the prisoner, the evidence of John Taylor, a material

witness on behalf of the aforesaid Callender, was not permitted

by the said Samuel Chase to be given in, on pretence that the

said witness could not prove the truth of the whole of one of

the charges contained in the indictment, although the said

charge embraced more than one fact.

Those who pronounced guilty on this article, are:

Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Condit,

Ellery, Franklin, Giles, Howland, Jackson, Logan, Maclay,

Moore, Smith of Maryland, Sumter, Worthington, and Wright--18.

Those who pronounced not guilty, are:

Messrs. Adams, Bayard, Bradley, Dayton, Gaillard, Hillhouse,

Mitchill, Olcott, Pickering, Plumer, Smith of New York, Smith

of Ohio, Smith of Vermont, Stone, Tracy, and White--16.

The fourth article was read by the Secretary, as follows:

ART. 4. That the conduct of the said Samuel Chase was marked,

during the whole course of the said trial, by manifest

injustice, partiality, and intemperance; viz:

1. In compelling the prisoner’s counsel to reduce to writing,

and submit to the inspection of the Court, for their admission

or rejection, all questions which the said counsel meant to

propound to the above-named John Taylor, the witness:

2. In refusing to postpone the trial, although an affidavit was

regularly filed, stating the absence of material witnesses on

behalf of the accused; and although it was manifest, that, with

the utmost diligence, the attendance of such witnesses could

not have been procured at that term:

3. In the use of unusual, rude, and contemptuous expressions

towards the prisoner’s counsel; and in falsely insinuating that

they wished to excite the public fears and indignation, and to

produce that insubordination to law to which the conduct of the

judge did, at the same time, manifestly tend:

4. In repeated and vexatious interruptions of the said counsel,

on the part of the said judge, which at length induced them

to abandon their cause and their client, who was thereupon

convicted and condemned to fine and imprisonment:

5. In an indecent solicitude manifested by the said Samuel

Chase for the conviction of the accused, unbecoming even a

public prosecutor, but highly disgraceful to the character of a

judge, as it was subversive of justice.

Those who pronounced guilty on this article, are:

Messrs. Anderson, Breckenridge, Brown, Cocke, Condit, Ellery,

Franklin, Giles, Howland, Jackson, Logan, Maclay, Moore, Smith

of Maryland, Stone, Sumter, Worthington, and Wright--18.

Those who pronounced not guilty, are:

Messrs. Adams, Baldwin, Bayard, Bradley, Dayton, Gaillard,

Hillhouse, Mitchill, Olcott, Pickering, Plumer, Smith of New

York, Smith of Ohio, Smith of Vermont, Tracy, and White--16.

The fifth article was read by the Secretary, as follows:

ART. 5. And whereas it is provided by the act of Congress,

passed on the 24th day of September, 1789, entitled “An act to

establish the judicial courts of the United States,” that for

any crime or offence against the United States, the offender

may be arrested, imprisoned, or bailed, agreeably to the

usual mode of process in the State, where such offender may

be found: and whereas it is provided by the laws of Virginia,

that upon presentment by any grand jury of an offence not

capital, the Court shall order the clerk to issue a summons

against the person or persons offending, to appear and answer

such presentment at the next court; yet the said Samuel Chase

did, at the court aforesaid, award a capias against the body

of the said James Thompson Callender, indicted for an offence

not capital, whereupon the said Callender was arrested and

committed to close custody, contrary to law in that case made

and provided.

All the members pronounced not guilty on this article.

The sixth article was read by the Secretary, as follows:

ART. 6. And whereas it is provided by the 34th section of the

aforesaid act, entitled “An act to establish the judicial

courts of the United States,” that the laws of the several

States, except where the constitution, treaties, or statutes

of the United States shall otherwise require or provide, shall

be regarded as the rules of decision in trials at common law,

in the courts of the United States, in cases where they apply;

and whereas by the laws of Virginia it is provided, that in

cases not capital, the offender shall not be held to answer any

presentment of a grand jury until the court next succeeding

that during which such presentment shall have been made, yet

the said Samuel Chase, with intent to oppress and procure the

conviction of the said James Thompson Callender, did, at the

court aforesaid, rule and adjudge the said Callender to trial

during the term at which he, the said Callender, was presented

and indicted, contrary to law in that case made and provided.

Those who pronounced guilty on this article, are:

Messrs. Breckenridge, Cocke, Howland, and Maclay--4.

Those who pronounced not guilty, are:

Messrs. Adams, Anderson, Baldwin, Bayard, Bradley, Brown,

Condit, Dayton, Ellery, Franklin, Gaillard, Giles, Hillhouse,

Jackson, Logan, Mitchill, Moore, Olcott, Pickering, Plumer,

Smith of Maryland, Smith of New York, Smith of Ohio, Smith

of Vermont, Stone, Sumter, Tracy, White, Worthington, and

Wright--30.

The seventh article was read by the Secretary, as follows:

ART. 7. That at a circuit court of the United States, for the

district of Delaware, held at Newcastle, in the month of June,

one thousand eight hundred, whereat the said Samuel Chase

presided--the said Samuel Chase, disregarding the duties of his

office, did descend from the dignity of a judge and stoop to

the level of an informer, by refusing to discharge the grand

jury, although entreated by several of the said jury so to do,

and after the said grand jury had regularly declared, through

their foreman, that they had found no bills of indictment,

nor had any presentments to make, by observing to the said

grand jury, that he, the said Samuel Chase, understood

“that a highly seditious temper had manifested itself in

the State of Delaware, among a certain class of people,

particularly in Newcastle county, and more especially in the

town of Wilmington, where lived a most seditious printer,

unrestrained by any principle of virtue, and regardless

of social order--that the name of this printer was”--but

checking himself, as if sensible of the indecorum which he

was committing, added, “that it might be assuming too much to

mention the name of this person, but it becomes your duty,

gentlemen, to inquire diligently into this matter,” and that

with intention to procure the prosecution of the printer in

question, the said Samuel Chase did, moreover, authoritatively

enjoin on the District Attorney of the United States the

necessity of procuring a file of the papers to which he

alluded, (and which were understood to be those published under

the title of “Mirror of the Times and General Advertiser,”)

and by a strict examination of them to find some passage which

might furnish the groundwork of a prosecution against the

printer of the said paper; thereby degrading his high judicial

functions, and tending to impair the public confidence in, and

respect for, the tribunals of justice, so essential to the

general welfare.

Those who pronounced guilty on this article, are:

Messrs. Breckenridge, Cocke, Franklin, Howland, Jackson,

Maclay, Smith of Maryland, Stone, Sumter, and Wright--10.

Those who pronounced not guilty, are:

Messrs. Adams, Anderson, Baldwin, Bayard, Bradley, Brown,

Condit, Dayton, Ellery, Gaillard, Giles, Hillhouse, Logan,

Mitchill, Moore, Olcott, Pickering, Plumer, Smith of New

York, Smith of Ohio, Smith of Vermont, Tracy, White, and

Worthington--24.

The eighth article was read by the Secretary as follows:

ART. 8. And whereas mutual respect and confidence between the

Government of the United States and those of the individual

States, and between the people and those Governments,

respectively, are highly conducive to that public harmony,

without which there can be no public happiness, yet the said

Samuel Chase, disregarding the duties and dignity of his

judicial character, did, at a circuit court, for the district

of Maryland, held at Baltimore, in the month of May, one

thousand eight hundred and three, pervert his official right

and duty to address the grand jury then and there assembled,

on the matters coming within the province of the said jury,

for the purpose of delivering to the said grand jury an

intemperate and inflammatory political harangue, with intent

to excite the fears and resentment of the said grand jury, and

of the good people of Maryland, against their State government

and constitution--a conduct highly censurable in any, but

peculiarly indecent and unbecoming in a judge of the Supreme

Court of the United States; and, moreover, that the said

Samuel Chase, then and there, under pretence of exercising his

judicial right to address the said grand jury, as aforesaid,

did, in a manner highly unwarrantable, endeavor to excite

the odium of the said grand jury, and of the good people of

Maryland, against the Government of the United States, by

delivering opinions, which, even if the judicial authority were

competent to their expression, on a suitable occasion and in

a proper manner, were at that time, and as delivered by him,

highly indecent, extra-judicial, and tending to prostrate the

high judicial character with which he was invested, to the low

purpose of an electioneering partisan.

Those who pronounced guilty on this article, are:

Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Condit,

Ellery, Franklin, Giles, Howland, Jackson, Logan, Maclay,

Moore, Smith of Maryland, Stone, Sumter, Worthington, and

Wright--19.

Those who pronounced not guilty, are:

Messrs. Adams, Bayard, Bradley, Dayton, Gaillard, Hillhouse,

Mitchill, Olcott, Pickering, Plumer, Smith of New York, Smith

of Ohio, Smith of Vermont, Tracy, and White--15.

The PRESIDENT rose and said, on the first article, sixteen gentlemen

have pronounced guilty, and eighteen not guilty; on the second article,

ten have said guilty, and twenty-four not guilty; on the third article,

eighteen have said guilty, and sixteen not guilty; on the fourth article,

eighteen have said guilty, and sixteen not guilty; on the fifth article,

there is a unanimous vote of not guilty; on the sixth article, four have

said guilty, and thirty not guilty; on the seventh article, ten have said

guilty, and twenty-four not guilty; and on the eighth article, nineteen

have said guilty, and fifteen not guilty.

Hence, it appears that there is not a constitutional majority of votes

finding Samuel Chase, Esq., guilty, on any one article. It, therefore,

becomes my duty to declare that Samuel Chase, Esq., stands acquitted of

all the articles exhibited by the House of Representatives against him.

Whereupon the Court adjourned without day.