Chapter XXIV: Front Matter (24)

Judge Chase, after examining the questions, declared Col. Taylor’s evidence inadmissible. No evidence can be received, said the judge, which does not go to justify the whole charge; the charge is, that the President is a professed aristocrat, and has proved faithful and serviceable to the British interest. Now, you must prove both these points, or you prove nothing, and as your evidence relates to one only, it cannot be received; you must prove all or none. These, I believe, were the precise words of the judge. I think it right here to state that after Mr. Chase had declared Colonel Taylor’s evidence inadmissible, he said to the district attorney, that although the questions were improper, he wished the attorney would consent to let them be asked of the witness. The attorney said he could not consent. The evidence of Colonel Taylor being excluded, the attorney for the United States addressed the jury, and commented at considerable length on the indictment. After that, Mr. Wirt addressed the jury for the defendant. He premised that the counsel for the traverser were placed in a very embarrassed situation; that the prisoner during the same term was presented, indicted, arrested, arraigned, tried; and that this precipitation precluded the possibility of obtaining witnesses or making the necessary preparations for arguing a cause of so much magnitude. Here Judge Chase interrupted Mr. Wirt, and told him, that he would not suffer any thing to be said which reflected on the Court. Mr. Wirt said he did not mean to reflect on the Court; his object was only to apologize to the jury for the lameness of the defence. Mr. Chase replied that his apology contained the very reflection he disclaimed, and desired him to go on with the cause. Mr. Wirt then said, that an act of Assembly had adopted the common law of England as a part of the laws of Virginia; that an act of Congress had directed the United States courts sitting in Virginia to conform to the laws of the State in which such court might happen to sit; that by the common law the jury had a right to decide on the law as well as the fact. He then said, that if the jury upon inquiry should find the sedition law unconstitutional, they would not consider it as law, and if they did, they would violate their oaths. Here Mr. Chase said to Mr. Wirt, Sit down, sir. Mr. Wirt endeavored to explain, and said, I am going on, sir, to----No, sir, said Mr. Chase, you are not going on; I am going on. Judge Chase then read from a paper, which he held in his hand, an instruction to the counsel that they should not address the jury on the constitutionality of the act of Congress, but that arguments might be addressed to the Court to prove the right of the jury to consider the constitutionality. Mr. Wirt then addressed the Court. He said he had not considered the case elaborately; that it appeared to him so clearly that the jury had the right contended for, that he did not imagine it required any great research to prove it. He then proceeded to state that it was certainly the right of the jury to consider of and determine both law and fact. Mr. Chase here remarked that Mr. Wirt need not give himself trouble on that point; we all know, said he, that the jury have a right to decide the law. Mr. Wirt then said, that he supposed it equally clear that the constitution is the law. Yes, sir, said Mr. Chase, the supreme law. If, then, said Mr. Wirt, the jury have a right to decide on the law, and if the constitution is law, it follows syllogistically that they have a right to decide on the constitutionality of the law in question. A _non sequitur_, sir, said Judge Chase. Here Mr. Wirt sat down.

_John Thompson Mason, sworn._

Mr. Randolph. It has been contended on the part of the respondent, that the _quo animo_ determines the guilt or innocence of an action; now, if the _quo animo_ with which he went down to Richmond to execute the sedition law, can be shown, it will have an important bearing on his conduct. I wish, therefore, to ask the witness this question: Did you ever hear Judge Chase, previous to the trial of Callender, utter any expression, and, if any, what was it, on the subject of Callender’s prosecution, or respecting the book called “The Prospect before Us;” did he say that the counsel of the Virginia bar were afraid to press the execution of any law, and particularly the sedition law; did he say that he had a copy of that book, or what did he say? State the circumstances particularly.

Mr. Mason. The question refers to circumstances of which I have but an indistinct recollection, and which happened in a way which renders it extremely unpleasant on my part to relate them. Judge Chase presided in the circuit court held at Annapolis in the spring of the year 1800; during the term a man by the name of Saunders was tried for larceny, and found guilty. After sentence was passed upon him, he was taken out of court to receive it. The press of the people being very great, the judges and myself were detained within the room. Judge Winchester, Judge Chase, and myself had a conversation, altogether of a jocular complexion. I think it was just after he delivered his valedictory, but how to connect the circumstances at this time, I do not know. I remember, however, that he asked me my opinion of the book called “The Prospect before Us;” I told him I had not seen it, and from the character I had heard of it, I never wished to see it. He told me, in reply, that Mr. Luther Martin had sent a copy to him, and had scored the parts that were libellous, and that he would carry it to Richmond as a proper subject for prosecution. There was a good deal of conversation besides, but I do not recollect it. There was one expression, however, that he used, which just occurs to my memory, and which I will repeat, that before he left Richmond, he would teach the people to distinguish between the liberty and the licentiousness of the press. He said that he was as sincere a friend to the liberty, as he was an enemy to the licentiousness of the press. There was a sentiment he expressed, which I cannot undertake to give in his precise words, that if the Commonwealth or its inhabitants were not too depraved to furnish a jury of good and respectable men, he would certainly punish Calender. I do not precisely recollect the words: I never repeated this conversation before, and seldom or ever, after it occurred, thought of it.

_John Heath, sworn._

During the trial of J. T. Callender, I attended at the court in Richmond as one of the bar. I had occasion to apply to the Court for an injunction. The motion not having been decided upon, I went round to Crouch’s, where Judge Chase lodged, and found him in his chamber alone, in which I thought myself very fortunate. We then talked over the application I had made the day before for an injunction; while talking on it, Mr. David M. Randolph, the then marshal, stepped in with a paper in his hand. The judge accosted him, and asked him what he had in his hand? He said that he had the panel of the petit jury summoned for the trial of Callender. This was after the indictment was found by the grand jury. After Mr. Randolph had mentioned that it was the panel of the petit jury that he had in his hand, Judge Chase immediately replied, Have you any of those creatures called Democrats on the panel? Mr. Randolph hesitated a moment, and then said that he had not made any discrimination in summoning the petit jury. Judge Chase said, Look it over, sir, and if there are any of that description, strike them off. This is all I know of this affair.

The Court rose at 4 o’clock.

WEDNESDAY, February 13.

The Court was opened at half past 2 o’clock.

_James Triplett, sworn._

Mr. Randolph. I wish to know whether you ever heard previous to, or during the trial of Callender, any expressions used by the respondent, Judge Chase, manifesting a hostility toward J. T. Callender, and what were those expressions?

Mr. Triplett. I recollect to have had a conversation with Judge Chase on our passage in the stage down to Richmond. A book was handed to me by him, and I was asked if I had read it? I was asked whether I had seen him, (Callender?) I told him I had never seen him. There was a story recited about the arrest of Callender by a warrant of a magistrate, under the vagrant act of Virginia; I recollect that the judge’s reply was, “It is a pity you have not hanged the rascal.”

Mr. Randolph. Were there any other expressions of this nature used, after you got to Richmond?

Mr. Triplett. I did not hear any thing particular; but I think the judge did say something about the Government of the United States showing too much lenity towards such renegadoes. I do not recollect any other conversation passing between us at that time, until after the Court was sitting, when Judge Chase was the first who informed me of the presentment being made by the grand jury against Callender. At the same time, he informed me that he expected I would have the pleasure of seeing Callender next day before sundown, that the marshal had that day started after him for Petersburg.

Mr. Randolph. We wish you, as well as your memory serves, to state not only the substance, but the exact expressions used by the judge.

Mr. Triplett. I will state them as well as my memory serves me. Some time after this conversation, I met the judge at the place where he boarded; he said that the marshal had returned without Callender, and used this expression, “I am afraid we shall not be able to get the damned rascal at this court.”

_John Basset, sworn for the defence._

At the request of Mr. Harper, and with the consent of the Managers, _John Basset_, a witness on the part of Judge Chase, was sworn and examined, in consequence of the peculiar situation of his family requiring his immediate return home.

Mr. Harper. Relate the circumstances that took place relative to your being sworn on the jury, on the trial of Callender, and what the application to the Court was on your behalf?

Mr. Basset. The circuit court of the United States at which James T. Callender was presented and indicted for a libel, was held on Monday the second or third of June. I left home in the morning and arrived in Richmond as early as might be expected. On my arrival I saw David M. Randolph, who was standing at a corner of a street; perceiving me, he came towards me; before I alighted from my horse, he informed me that I had been summoned as a grand juror, and that for not appearing had been crossed, that it was my duty to go to the court and justify myself for my absence; that he summoned me on the petit jury for the trial of Callender, and that my serving in that capacity would be an apology for my previous absence. I presented myself to the Court, but the trial did not come on that day. The second day I attended also. I knew very well that the law under which the traverser was to be tried, was odious to my fellow-citizens; I knew it was conceived to be a great oppression to the liberty of the subject, and I believed that great umbrage would be given to the mass of the people by those who should undertake to execute that law. I was weak or wicked enough to be among that class of people called federalists, and I did believe that the law [sedition law] was constitutional. I felt myself bound, when called on to be a juryman, to make a declaration of my political sentiments. I made this declaration to relieve the impression on my own mind, and not in order that it should be considered that I declined, in consequence of my political opinions, to serve on Callender’s trial, or in any other case. I thought it possible that I might be excused; but if I were found by the Court to stand in a proper relation between my country and the traverser, I would cheerfully serve. My object was to justify my own conduct to myself and to the whole world. I made use of these expressions, and I believe I repeat the very words, but I am well assured that I shall express the force and efficacy of what I said. I declared to the judge that my politics were federal; that I had never seen the book called “The Prospect before Us,” but I had seen in a newspaper some extracts from it; that if the extracts were correctly taken from the book, and if the traverser was the author or publisher of that work, it appeared to me that it was a seditious act; that I had formed and expressed an unequivocal opinion, that the book was a seditious act; that I had never formed an opinion in respect to the indictment, for I had neither seen it nor heard it read. The Court considered me a good juror, and I was sworn accordingly.

Mr. Bayard. What was the general deportment of the judge to the counsel, and of the counsel to the Court?

Mr. Basset. The different coloring through which the same things are seen make some men see things differently from others. My own opinion is, that the judge conducted himself with decision unmixed with severity, and that he was witty without being sarcastic. It was my impression that the judge wished the prisoner to have a full hearing, that he might be acquitted, if innocent, and found guilty, if really guilty. It appeared to me that the sole point on which the counsel hoped to save their client was by proving the unconstitutionality of the sedition law, and it appeared to me that they could not form a reasonable expectation of acquitting him on any other ground. I believe his counsel believed the law unconstitutional, and thought they had eloquence and argument enough to convince the jury of it. I believe they thought the judge deprived them of their right to address the jury on that point; and that having the cause very much at heart, they were vastly mortified that the Court did not permit them to take the course they wished. They appeared to consider themselves as advocating the cause of an oppressed citizen, and they felt hurt at not being allowed the mode of defence which in their opinion the law authorized. In all their arguments they travelled but a little way before they came to the point that went to prove the law unconstitutional, and the judge declared, at every such time, that they had no right to address the jury on that point; that the constitution had made the Court the sole judges of the law as far as it respected its constitutionality. From these circumstances, it is my impression that the altercation between the bar and the Court arose solely from the sensibility of the counsel to this particular subject, and from being deprived, as they supposed, of their rights.

The President. What were the particular causes of irritation between the judge and the counsel?

Mr. Basset. I have stated what I considered the causes. They arose from the counsel adverting to that particular point, and their so frequently doing it occasioned the judge to elevate his voice, and to pronounce over and over again what he conceived to be the law.

The Court rose at 4 o’clock.

THURSDAY, February 14.

The Court was opened at 12 o’clock.

_George Read, sworn._

Mr. Randolph. The witness will please to state what he knows in relation to certain proceedings at a circuit court of the United States, held at Newcastle, in the State of Delaware, in the month of June, 1800.

Mr. Read. It is incumbent on me to state that several years have elapsed since the transactions which I am now about to relate occurred; of course I cannot pretend to say that the language I shall use to convey the sentiments delivered by Mr. Chase is precisely according to what occurred at the time; but the substance of what I relate will be correct. The transactions to which I presume I am called to testify took place at a session of the circuit court, held at Newcastle, for Delaware district, in June, 1800. The Court sat two days, viz: on the 27th and 28th days of the month. At that court, Samuel Chase, one of the associate justices, presided, and Gunning Bedford, district judge, was associated with him. Judge Chase, as usual, delivered a charge to the grand jury, on the first day of the term. The grand jury, after hearing the charge, retired to their chamber; after remaining there for some time, they returned into court, and on being asked whether they had found any bills, or had any presentments to make, they answered they had found no bills of indictment, and had no presentments to make. After receiving this answer, Judge Chase proceeded to observe, as nearly as I can recollect, addressing himself to the grand jury, that he had been informed, or heard, that a highly seditious temper had manifested itself in the State of Delaware among a certain class of people, especially 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 ----; the judge here paused, and said, perhaps it might be assuming, or taking upon himself too much to mention the name of this person; but, gentlemen, it becomes your special duty, and you must inquire diligently into this matter. Several of the jurors, I believe, made a request to the Court to dismiss them, and assigned as the reasons for their request, that some of them were farmers, and, as it was about the time of harvest, they were anxious to be on their farms. The judge observed that the business to which he had called their attention was of a very urgent and pressing nature, and must be attended to; that he could not, therefore, discharge them before the next day, when further information should be communicated to them on the subject he had referred to. The judge then addressing himself to me as the district attorney, asked me, as I believe is usual on such occasions, whether I had any criminal charges to submit to the grand jury? I said that none such had yet occurred, and I believed none were likely to occur during that term. Judge Chase, continuing his address to me, observed, You might, by prosecuting proper researches, make some discoveries. Have you not heard of some persons in this State who have been guilty of libelling the Government, or the administration of the Government of the United States? I am told, and the general circulation of the report induces me to believe it, that there is a certain printer in the town of Wilmington who publishes a most scandalous newspaper; but it will not do to mention names. Have you not two printers in that town? I answered that I believed there were. Judge Chase observed, that one of them was a seditious printer, adding, he shall be taken notice of, and it is your duty, Mr. Attorney, to examine unremittingly and minutely into affairs of that nature; times like these require that this seditious temper or spirit, which pervades too many of our presses, should be discouraged or repressed. Can you not find a file of these newspapers between this time and to-morrow morning, and examine them, and discover whether this printer is not guilty of libelling the Government of the United States? This, I say, sir, must be done; I think it is your duty. I observed, as this subject was pressed by the honorable judge, I believed I was acquainted with the duties of my office, and was willing to discharge them. I mentioned that I had not in my possession the papers alluded to by the judge, nor had read them; but that if a file of them were procured and handed to me, I had no objection to examine them, and communicate with the grand jury on the subject. The judge then said he was satisfied, and, turning to the jury, observed, that he could not discharge them, however inconvenient their stay; they must attend the ensuing day, at the usual hour. The judge then directed that a file of the papers should be procured for me. I understood him to mean the paper called the Mirror of the Times and General Advertiser, though I do not recollect to have heard the title of the paper mentioned during the proceedings. A file of those papers was brought to me in the afternoon, after the adjournment of the Court; by whom they were brought I do not recollect. I examined them, but in a very cursory manner, as I was very much interrupted by persons calling upon me. I did not discover during the course of this examination, any libellous matter coming within the provisions of the sedition act.

According to what I understood to be the wish of the judge, I sent this file of papers to the grand jury. Soon after the meeting of the Court on the second day, and at the request of the grand jury, I attended them in their room. On entering, the foreman of the jury addressed me, and directed my attention to a paragraph in a publication contained in the Mirror of the 21st June, 1800, republished from the Aurora, reflecting, perhaps in strong and pointed language, on the former conduct of Judge Chase. He observed that there was a difference of opinion among the jurors as to the nature of the paragraph--some doubted whether it was a libel or not, and, if libellous, whether they had a right to present it to the circuit court. I observed that it was not necessary for me to be very particular in my opinion of the publication, as I did not consider it as coming under the sedition law, though it might be considered as an offence at common law, because Judge Chase had decided that the circuit court could not take cognizance of cases arising at common law. I returned into court. After some time, the file was placed before the judge. Judge Chase asked me what had been done, and whether the grand jury had made any discoveries of libellous matter? I answered none, unless it were the paragraph which related to Judge Chase, which I showed him, observing that it did not appear to me to come under the sedition law. Judge Chase acquiesced, and the business passed over on his part in a very polite and affable manner. I do not recollect any thing further to have passed. I have, however, an indistinct recollection of a conversation between Judge Chase and myself, in the room of a tavern, before we went into court, in which I understood him to have made a general declaration of hostility against seditious printers.

_James Lea, affirmed._

Mr. Rodney. Please relate to the Court the occurrences which took place at a circuit court of the United States at Newcastle, and whether you were summoned as a grand juror at that court.

Mr. Lea. I was summoned by the marshal of the district of Delaware as a grand juror at the circuit court held in the month of June, 1800. I attended agreeably to that summons, and was qualified as a juror. After receiving a charge from Judge Chase, we retired into our room, and remained there for some time. There appearing to be no business for us, we returned into our box. The usual question was put to us, whether we had found any bills? We said that we had not. After some time, Judge Chase addressed the grand jury, and observed that a very seditious disposition had manifested itself in the State of Delaware, in the county of Newcastle, and particularly in the town of Wilmington; that a seditious printer lived in that place, who edited a paper called the Mirror of the Times and the General Advertiser, who was in the habit of libelling the Government of the United States, and that his name was ----, he said he would not mention his name, but that it was our duty to inquire if any seditious publications had been made; that he would not discharge us that day, nor until we had made the inquiry. Several of the jurors addressed the judge for leave to return home, stating that they were farmers, and were extremely anxious to be on their farms, as it was harvest time. Some conversation passed between Judge Chase and the attorney for the district, after which he said he would not discharge us until the next day. We returned the next day into court, and after sitting some time in our box, we retired to the jury room. A file of newspapers was produced by some persons, and we examined them. We found nothing in them of a libellous nature, in our opinion, excepting something relative to Judge Chase, which some of the jury thought came under the sedition law. We sent for the attorney of the district to inform us as to the nature of the paragraph. He told us it did not come under the sedition law. We went into the jury box, when a conversation of some length took place between Judge Chase and the attorney of the district, after which we were discharged.

_John Montgomery, sworn._

Mr. Randolph. The subject on which it is understood you are capable of giving some information to the Court is the conduct of Judge Chase, at a circuit court of the United States, held for the district of Maryland at Baltimore, in May, 1803, or about that time.

Mr. Montgomery. The point, I presume, on which I am called to give testimony, relates to a charge to a grand jury delivered by Judge Chase, at a circuit court where he presided, and Judge Winchester was associated with him. It will not, from the nature of the subject, be expected that I shall be able to detail, in the precise language of the judge, the whole of the charge which was delivered in 1803 at the May term. Though not one of the bar, I was present at the court, and took a chair among the gentlemen of the bar. After the grand jury were impanelled, Judge Chase addressed them. He appeared to address them from a written paper that lay before him. He proceeded in the usual manner to charge the jury as to the duties expected to be performed by them. After he had thus far proceeded in his charge, he mentioned, that before the jury retired to their chamber, he would make some observations, and that they would be considered as flowing from a wish for the happiness or welfare of the community. He stated that it was important that the people should be fully informed, particularly at such a crisis; that falsehood was more easily disseminated than truth; and that the latter was reluctantly attended to, when opposed to popular prejudice. I cannot pretend to state the sentiments delivered by the judge, in the order in which they were delivered. I can undertake to state, from my recollection, the substance of those he delivered. To the best of my recollection, the judge stated that the Administration was weak, relaxed, and inadequate to the duties devolved on it; and that its acts proceeded not from a view to promote the general happiness, but from a desire for the continuance of unfairly-acquired power. The language _unfairly-acquired power_ made a strong impression on my mind at the time; and when the judge called the attention of the jury to the observations he was about to make, I was prepared to expect something extraordinary from him, as I was at Annapolis when he pronounced the valedictory address which Mr. Mason, in his testimony, took occasion to mention. The judge stated the violation of the constitution that had taken place by the act of Congress repealing the judiciary act of 1800, and the consequent removal of sixteen judges; that it had made a violent attack on the independence of the Judiciary. He also found fault with a law passed by the Legislature of Maryland in 1800, the effect of which was the removal of all the judges on the county-court establishment. He stated that those acts were a severe blow against the independence of the Judiciary. He stated, that since the year 1776, he had been an advocate for a representative or republican form of government; that it was his wish that freemen should be governed by representatives chosen by that class of citizens who had a property in, a common interest with, and an attachment to, the community. The language might have been in the words of our constitution. He found fault with the law passed by the Legislature of Maryland, which he styled “The Universal-suffrage Law.” He stated that that also affected the independence of the Judiciary, and to the best of my recollection, he explained his ideas in this manner: that every free, white male citizen, in the language of the constitution, having the qualification of age and residence, though he had not a property in, an interest with, and an attachment to, the community, being suffered to choose those who constituted the Legislature, and the Judiciary being dependent on the Legislature for their support and continuance in office, few characters of integrity and ability, who are competent to discharge the duties of judges, would be found to accept appointments held by such a tenure. He stated that these measures were destructive of the happiness and welfare of the community; that they would have a tendency to sink our Republican Government into what he called a _Mobocracy_--the worst of all possible governments. At the close of the judge’s charge, he, in an impressive manner, called on the jury to pause, to reflect, and when they returned to their homes, to use their endeavors to prevent these impending evils, and save their country. He said that the people had been misled by misrepresentation, falsehood, art, and cunning; that, by correcting these errors, the threatened evils might be prevented--or words to that effect.

_Samuel H. Smith, sworn._

Mr. Nicholson. Please to state what you know of the charge delivered by Judge Chase at Baltimore.

Mr. Smith. The charge of Judge Chase having been published, I did not expect to be called upon to state in detail its general contents; supposing that the only inquiry made would be on the correspondence of my recollection with the contents of the published charge. I do not know that I should be able, under these circumstances, to give a particular statement, from memory, of its contents. On the evening subsequent to the delivery of the charge, I committed to paper the most important features of it, which were published in the National Intelligencer, and which form part of the printed testimony received by the committee of inquiry. If I could be indulged with access to it, I should be enabled to state more correctly my knowledge of the charge.

[Mr. Smith here, with permission, read the following, extracted from the National Intelligencer of May 20, 1803:--

“After a definition of the offences cognizable by the grand jury, Judge Chase said he hoped he should be pardoned for making a few additional observations. He had, he remarked, been uniformly attached to a free republican government, and had actively participated in our revolutionary struggle to obtain it. He still remained warmly attached to the principles of government then established. Since that period, however, certain opinions had sprung up which threatened with ruin the fair fabric then raised. It had been contended that all men had equal rights derived from nature, of which society could not rightfully deprive them. This he denied. He could conceive of no rights in a state of nature, which was in fact entirely a creature of the imagination, as there was no condition of man in which he was not, under some modification, subject to a particular leader or particular species of government. True liberty did not, in his opinion, consist in the possession of equal rights, but in the protection by the law of the person and property of every member of society, however various the grade in society he filled. Nor did it consist in the form of government in any country. A monarchy might be free, and a republic in slavery. Wherever the laws protected the person and property of every man, there liberty existed, whatever the government was. Such, said he, is our present situation. But much I fear that soon, very soon our situation will be changed. The great bulwark of an independent judiciary has been broken down by the Legislature of the United States, and a wound inflicted upon the liberties of the people which nothing but their good sense can cure. Judge Chase here went into an assertion of the right of the judiciary to decide on the constitutionality of laws. He then adverted to the proceedings of the Legislature of Maryland. He commented on the wisdom and patriotism of those who had framed the constitution of that State. That wisdom and patriotism had never conceived liberty to consist in every man possessing equal political rights. To secure property, the right of suffrage had been limited. The convention had not imagined, according to the new doctrine, that property would be best protected by those who had themselves no property. The great rampart established in the limitation of suffrage was now demolished by the principle of universal suffrage ingrafted in the constitution. In addition to this, a proposition was now submitted, whose ratification depended upon the next Legislature and which, if ratified, would destroy the independence and respectability of the judiciary, and make the administration of justice dependent upon legislative discretion. If this shall, in addition to that which establishes universal suffrage, become part of the constitution, nothing will remain that will be worth protecting. Instead of being ruled by a regular and respectable government, we shall be governed by an ignorant mobocracy. When he reflected on the ruinous effects of these measures, he could not but blush at the degeneracy of sons, who destroyed the fair fabric raised by the patriotism of their fathers.”]

President. Did you hear any reflections cast on the Administration?

Mr. Smith. I do not recollect any other beside those contained in the statement I have read.

_John Stephen, sworn._

I was at Baltimore when the charge was delivered by Judge Chase. My recollection of its contents is extremely vague. But, with regard to some of it, it coincides with that of Mr. Montgomery, Mr. Mason, and Mr. Smith. He spoke of the repeal of the judiciary law, and said that it was injurious to the independence of the judges. He also mentioned the general suffrage law as injurious; and said no man ought to be permitted to vote unless he had a property in, a common interest with, and an attachment to, the community; that the act violated this principle, and would be attended with very injurious consequences; he denied the doctrine of natural rights; and said that they were altogether derived from convention; and at the end of the charge he exhorted the jury to use their efforts to prevent the injury likely to result from the temper of the times. I cannot say whether Judge Chase confined himself to a written paper or not. He declared that the independence of the judiciary of the United States had been injured by the repeal of the judiciary system; and that the bill then pending before the Legislature of Maryland, if adopted, would have the same effect upon the judiciary of that State.

Mr. Nicholson stated, that all the witnesses present on the part of the prosecution had been examined; the managers would therefore proceed to offer certain records; but, as several material witnesses were absent, he hoped they would not be precluded from calling them, should they attend, at a future stage of the trial.

Mr. Randolph offered in evidence a copy of the record in the case of J. T. Callender; also in the case of Fries.

Mr. Randolph then stated that the Managers had submitted all the evidence they were prepared to adduce. Whereupon the Court rose.

FRIDAY, February 15.

The Court was opened at 10 A. M.

_Present_: The Managers, accompanied by the House of Representatives in Committee of the Whole: and Judge Chase attended by his counsel.

The evidence being closed on the part of the prosecution,

Mr HARPER, of counsel for the respondent, addressed the Court to this effect:

Mr. President: We feel so strong a reliance on the justice, impartiality, and discernment of this honorable Court, that nothing but an anxious regard for the character and feelings of the honorable gentleman who is the object of this prosecution, and a solicitude to remove even the slightest imputation of impropriety or incorrectness that may rest on his conduct, could induce us to occupy any portion of that time which we know to be so precious, by the introduction of testimony on his part. We believe the charges to be utterly unsupported by the testimony adduced on the part of the prosecution; and had we no other object than a mere legal acquittal, we should cheerfully rest the case on that testimony. But we are aware that some part of the honorable judge’s conduct, though not criminal nor punishable by impeachment, may, if left without explanation, appear in an unfavorable light. We are prepared with testimony to give this explanation; to show that, through all the transactions which form the matter of this prosecution, he has been governed by the purest motives, and that whatever errors he may have committed, are trivial in themselves, are imputable to human infirmity alone, and were instantly corrected by himself. This testimony we request the permission of this honorable Court to produce. But a consciousness of the strong ground on which we stand, and a recollection of the very important public business which now presses on the attention of this honorable Court, in its legislative capacity, have determined us to waive our right to a general opening of our case; and to confine ourselves, in this stage of the cause, to a brief statement of the points to which our testimony will be directed.

On the first article, which relates to the conduct of Judge Chase in the trial of John Fries for treason, we shall produce testimony to show, that the opinion contained in the paper which the judge delivered to the prisoner’s counsel was not only legal, but had been twice expressly decided, and once admitted in the same court, and had before that trial been laid down as a general principle of law, in a charge delivered to a grand jury in the same court, by one of Judge Chase’s predecessors.

We shall show, said he, by the most indisputable testimony, that the point of law respecting treason in levying war against the United States, which was stated in the paper delivered to the counsel of Fries, had been once informally decided by the same court, in a prior case, and twice after solemn argument and full discussion, and that one of those discussions was made in the case of John Fries himself, on an indictment for the same offence. We shall show that Judge Chase’s predecessor had, before counsel was heard and before an indictment was found, delivered the same opinion in a charge to the grand jury. We shall proceed to prove in a more particular manner the contents of the paper thus delivered to the counsel. We shall produce the original paper itself; and shall prove that delivered to the prisoner’s counsel to be a true copy of it; and we shall conclude, by showing that when the counsel of Fries had refused to proceed in his defence, and were informed by the judge that they might go on, and conduct the case as they thought proper, he employed no menacing expression, and uttered no such words as “proceed at the hazard of your characters:” but merely informed them that they should be under no other restriction but that which a regard to their professional character would impose. That, far from threatening, he did all in his power to soothe; and instead of restricting, gave the utmost latitude of indulgence.

Proceeding, then, to the second general head of accusation, the conduct of the respondent relative to the trial of Callender, which furnishes the matter of the second article, and embraces in the whole five articles, we shall show that the copy of the “Prospect before Us,” which the respondent carried with him to Richmond, was marked, not by him, but by another person, without any view to a prosecution of the author, and was given to him by that person without any request, on his part, as a performance which might amuse him on the road.

As to the private conversation at Annapolis, we shall prove that it was a mere jest between the respondent and the gentleman, who, after treasuring it up for five years, has this day brought it forward to support an impeachment; and whose recollection of it we shall show to be far less accurate than ought to be required of a man, who, after so great a lapse of time, adduces a private, confidential, and jocular conversation, to aid a criminal prosecution.

We shall then follow Judge Chase to Richmond, where we shall show that, far from having formed a corrupt determination to oppress Callender, he felt solicitous for the escape of that unfortunate wretch; that, far from entering into a combination with the marshal to pack a jury for the conviction of Callender, Judge Chase expressed a wish that he might be tried by men of that political party whose cause his book was intended to support. We shall prove, by testimony not to be doubted, that no conversation whatever took place between the judge and the marshal, relative to striking any person from the panel, much less such a conversation as has been sworn to by one witness for the prosecution. We shall show that no panel of the jury actually summoned was formed, until the opening of the Court on the day when the trial of Callender was to have commenced; that it was completed in open court, and was never seen by the judge. And we shall prove that the marshal, not by the direction of the judge, from whom he was bound to receive no directions on that subject, but with his entire approbation and according to his advice, took the utmost pains to select a jury of the most impartial, considerate, and respectable men; that, in this selection, no attention was paid to party distinctions; and that if no persons of Callender’s political opinion actually did serve on the jury, it was because, after being summoned, they made excuses, which were admitted by the Court, or refused to attend.

Thus much respecting the conduct of the judge previous to the trial. Proceeding then to the particular matter of the second article, which relates to the supposed rejection of John Basset’s application to serve on the jury, we shall prove, more fully than we have already done, that the nature of this application has been wholly misunderstood by the witnesses on the part of the prosecution; that the juror did not offer an excuse, or apply to be discharged, but merely suggested some scruples of delicacy, and was willing to serve if those scruples were not sufficient to constitute a legal disqualification. We shall fully corroborate the testimony which the juror himself has given on this head, and shall show clearly that his scruples were not of such a nature as to furnish a legal or proper ground of objection to his competence as a juror.

As to the refusal of a continuance, which has been so much relied on as a criminal violation of the law, with intent to oppress the party, we shall prove, that although no legal grounds for a continuance were shown, and it was therefore not in the power of the Court to grant it, Judge Chase did offer to postpone the trial for a month or six weeks, in order to accommodate Callender and his counsel, and to enable them to prepare; an offer which they thought proper to reject. And we shall also show, that when this motion for a continuance was made, the law of Virginia, by which it is now contended that the Court ought to have been governed, was not cited, nor even mentioned.

With respect to the conduct of Judge Chase towards Callender’s counsel, we shall prove that it was free from any appearance of harshness, or desire to intimidate, abash, or oppress; that the irritation which took place proceeded from the counsel themselves, and that the conduct of the Court was far more mild and forbearing than from those irritations could have been expected. That every decision on the law was the joint opinion of Judge Chase and his colleague, delivered after consultation between them. That every interruption of the counsel arose from their pertinacity in pressing points which had been decided, and on which propriety and duty required them to be silent; and that after the respondent had delivered the opinion of the Court on these points of law, he offered to assist the counsel for the traverser in framing a case for the opinion of all the judges of the Supreme Court, and thus to give them an opportunity of correcting any errors which he and his colleague might have committed in those decisions. And finally, we shall produce a witness who, having attended the trial and taken down all the proceedings in short-hand, will lay before this honorable Court an exact detail of all that passed.

Passing then to the matter of the fifth and sixth articles, we shall prove, by a rule solemnly made by the Supreme Court of the United States, that they never considered the State laws as regulating _process_, by virtue of the act of Congress which is relied on in support of these articles; but merely as governing the decision of rights acquired under them, when such rights come into question in the courts of the United States; that the practice in the courts of Virginia, under the State law in question, has been and is conformable to our construction, and not to that contended for on the other side. And as a proof how little the recollection of men, even the most correct, can be relied on, in cases where their feelings have been strongly excited, we shall produce a record, in which the learned gentleman who, though very young, was Attorney-General of Virginia in 1800, and who has delivered his testimony with the greatest candor and propriety, did himself order a capias, on a presentment in a case not capital. We shall produce evidence to prove that the capias is the proper process, in all cases of presentments, except those of petty offences, which are tried by the court, without an indictment, and are punishable by fine only, but not imprisonment. And to remove every possible doubt on this head of accusation, we shall prove that when the presentment against Callender was made, and it became necessary to issue process against him, Judge Chase applied to the district attorney for information as to what was the proper process, who answered, a capias; and that the capias, which was actually issued, was drawn up by the clerk, inspected and approved by the district attorney, and issued on his suggestion.

Respecting the transactions at Newcastle, in the State of Delaware, which constitute the matter of the seventh article, we shall prove that those offensive and improper expressions, which are attributed to the respondent, relative to a seditious temper, in the State of Delaware, and especially in the county of Newcastle and the town of Wilmington, never were uttered by him; that the witnesses who have deposed to those expressions are under a mistake; and that nothing was said or done by Judge Chase on that occasion, but what he has admitted in his answer; but what propriety justifies, and his duty required. To this end we shall offer the testimony of persons who were in a situation to remark every occurrence, to listen to every expression, and on whom such expressions, had they been uttered, could not have failed to make a strong impression. We shall then proceed to the charge delivered to the grand jury at Baltimore, which furnishes the eighth and last ground of accusation; and then we shall prove that the respondent said nothing of a political nature to the jury, except that which he has stated in his answer, and which he hopes to satisfy this honorable Court he had a right to say, however indiscreet or unnecessary the exercise of that right in this instance may have been. We shall produce a host of witnesses to prove that he never uttered such sentiments as are attributed to him by one witness, relative to the present Administration, its character, views, and manner of obtaining its power; sentiments which he admits would have been in the highest degree reprehensible on such an occasion; that the charge which was delivered was read from a book; and that he spoke nothing extemporary, as other witnesses for the prosecution have supposed. And, finally, we shall produce this book to speak for itself; shall prove it to be the same from which the charge was delivered; and shall conclude with the examination of witnesses who stood round the respondent while he read it, sat by his side, and almost looked over him while he delivered the charge which it contains.

This, Mr. President, will be the general bearing of our testimony; which we shall now, with the permission of this honorable Court, proceed to adduce, in the order in which it has been stated.

_Samuel Ewing, sworn._

Mr. Hopkinson. Please to state whether you were in the court the day subsequent to that on which the opinion was delivered by the Court, and what you recollect occurred at that time?

Mr. Ewing. I attended at the court the day succeeding, and I remember that Judges Chase and Peters, addressing Messrs. Lewis and Dallas, said they were not to consider any thing which took place the day before as a restriction on the course they wished to pursue; Judge Peters said that every thing done yesterday was withdrawn. Judge Chase asked them if they would go on in the cause; some conversation ensued, which ended in the determination of Messrs. Lewis and Dallas not to proceed in the defence of Fries. Judge Chase then made this observation: that if, after the Court had expressed their opinion on the law, they persisted in stating to the jury their sentiments on the law, they must do it at the hazard of their legal reputations. I did not understand this as a menace, but as a declaration to the counsel that they must do it on their standing at the bar, and from a regard to their reputations. If I state any thing further, it will only be a recapitulation of the testimony already given.

_Edward J. Coale, sworn._

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

Mr. Coale. It is a copy of the paper handed down by Judge Chase on the trial of Fries, made at the instance of Judge Chase, from a paper in his handwriting; there were some words in the original which I could not ascertain: I left blanks for them, and they were filled up by Judge Chase; the other parts are written by me. It was made out before the trial of Fries. When in the office of Judge Chase, I was frequently in the habit of transcribing papers from his handwriting. After I left him I went to Philadelphia, and lived there when Fries was tried. The judge occasionally, during my residence there, sent for me to transcribe his opinions; and on that occasion he called on me to transcribe this paper from the original handwriting of himself.

_William Meredith, sworn._

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