Chapter XXV: Front Matter (25)

Mr. Meredith. On the 22d day of April, 1800, I went to the court house for the purpose of attending the trial. It was rather at a late hour; I think after eleven o’clock before I reached the court house. I met several persons coming from the court room; I thought therefore that the Court had adjourned, but not seeing any gentlemen of the bar, or the judges, I went on; when I came into court, I saw Judge Chase holding a paper in his hand, and he said that the Court had with great deliberation considered the overt acts in the indictment against Fries, that they had made up their minds on the extent of the constitutional definition of treason, and that to prevent their being misunderstood, they had committed their opinion to writing, one copy of which was intended to be given to the district attorney, another to the counsel for the prisoner, and a third to be given to the jury; perhaps something else might have been said, but I do not recollect it. The paper was then thrown down by him to the bar, and a sentiment of this kind expressed by Judge Chase: that this opinion was not intended by the Court to prevent the counsel from proceeding in the usual manner. I felt a desire to take a copy of the paper. I do not recollect whether more than one was thrown down. I had not, however, an opportunity of doing it. The paper was so fully occupied till the adjournment of the Court, that although I made two or three attempts to obtain it, I could not succeed. The Court adjourned a short time afterwards. After I went home I recollect that an application was made to me by the clerk of the court to return the copy, which he understood I had taken. I informed him I had not taken a copy. On the following day I was in the court room at the opening of the Court. Fries was put to the bar, and the judge then inquired whether the counsel were ready to proceed on the trial. I remember Mr. Lewis addressing himself to the Court, and objecting to proceed in the defence, because the counsel had been restrained by the Court from proceeding in the manner which they deemed most beneficial to their client. I remember also that Judge Chase told him that he ought not to refer to the opinion which had been delivered on the preceding day; that the counsel were not to be bound by that opinion, as it had been withdrawn. Mr. Lewis referring to that opinion, however, considered it as the formed and decided opinion of the Court, and that although the Court had withdrawn it, it still would have an operation upon their minds; that while the Court was under its influence, they could not expect to be heard in any of their arguments with effect. Judge Peters replied that the opinion was withdrawn, and I think Judge Chase repeated the opinion before expressed, that the counsel were not to be bound by that opinion, might enter fully into the case, and argue as well on the law as on the fact before the jury. I recollect Mr. Lewis stating to the Court his opinion of the appositeness of cases decided at common law in England. I remember Judge Chase expressing his opinion and belief that they were perfectly inapplicable; and afterwards remarking, that if, however, the counsel would go on, it was not the intention of the Court to circumscribe them, or to take from the jury the decision of the law as well as the fact. He further added, that the counsel might manage the defence in such way as they thought proper, having a regard to their own characters. I am the more particular and positive of these expressions, because very shortly after the trial I made a summary of the proceedings. I find it stated as coming from the mouth of Judge Chase, and that he repeated that the counsel for the prisoner might go on in their own way, having a regard to their own characters. Judge Peters made a remark which I thought was calculated to put the counsel into good humor, but they persisted in their refusal to proceed. Thus far the Court manifested, in my opinion, a desire that the cause might progress, and a persuasive and conciliatory temper; but Mr. Lewis having again decidedly said that he would not proceed, Judge Chase said, if you suppose by conduct like this to put the Court into a difficulty, you are mistaken. After a pause, Judge Chase addressed himself to the prisoner, and asked him if he was ready to proceed on his trial, or whether he would have other counsel assigned to him. Fries replied he did not know what was best for him to do, but he would leave his case to the Court. Mr. Rawle stated that from the peculiarity of the circumstances of the case, and the prisoner being left without the assistance of counsel, his wish was that the trial might be postponed for a day, and the postponement took place by order of the Court. The following morning when the Court was assembled, Fries was again put to the bar, and Judge Chase inquired of him whether he wished the Court to assign him counsel? His reply was, that he would trust himself to the Court and jury. Judge Chase replied, Then by the blessing of God the Court will be your counsel, and will do you as much justice as could be done by the counsel that were assigned you, or nearly in those words. The trial proceeded, but I was not present during the whole of it.

_Luther Martin, sworn._

Mr. Harper. Did you furnish Judge Chase with a copy of the book, entitled the “Prospect before Us,” and at what time did you furnish him with it?

Mr. Martin. It is not a pleasing thing for me to be a witness on this point, as I may be considered as a party concerned, and especially from being one of the counsel for Judge Chase. Yet, as it is required from me, I will proceed to state what I know. When I was in New York, I observed in a newspaper which I took up at a barber’s shop an advertisement for the sale of the “Prospect before Us.” I mentioned it to Judge Washington, and he sent his servant to procure a copy, and I desired him to purchase two copies. I read it, and as was usual with me with respect to books any wise interesting, I scored such passages as were remarkable either for their merit or demerit, and I did score a great portion of the book. But I did not score them with the least idea of an indictment being founded upon them. When I scored the book I did not know that Judge Chase was going on the circuit of Virginia. My scoring was for my own amusement, and for that of my friends. Afterwards I saw Judge Chase. I asked him if he was going down to Richmond; he answered yes. I asked if he had seen the book called the “Prospect before Us?” He said he had not. I then told him, I will put it into your hands; you may amuse yourself with it as you are going down, and make what use of it you please. There was a great deal more scored than was contained in the indictment. I most solemnly declare that I had no view to a prosecution in scoring it; though I have no hesitation in saying that in common with every worthy inhabitant of America I detested the book.

Mr. Nicholson. What do you mean by detest?

Mr. Martin. I am ready candidly to acknowledge that I did think it a book that ought to be prosecuted; and I did not think that Judge Chase would have an opportunity of seeing it unless I gave him a copy of it. Having since heard it suggested that I had some share in drawing up the indictment against Callender, I most solemnly declare I did not put pen to paper on the subject.

_James Winchester, sworn._

Mr. Harper. Will you please to state whether you were in Annapolis in 1800, in court with Judge Chase, and Mr. John T. Mason, and what was the conversation which then took place?

Mr. Winchester. I attended a circuit court held at Annapolis in 1800. I do not recollect either the day the Court commenced or ended. I think on the last day of the term sentence was passed on ---- Saunders for stealing, in his character of postmaster, the contents of a letter. A crowd gathered round the door, and retarded our passage out of court. I do not remember what persons remained; but Mr. Mason came up and addressed himself to Judge Chase. My recollection is at best but imperfect, and of this conversation necessarily indistinct. In the account of it, therefore, I shall use my own language. I may occasionally use the language of Judge Chase and Mr. Mason. According to the impression on my mind the conversation commenced in this way: Judge Chase had delivered a charge to the grand jury. Mr. Mason came up, and in a laughing manner jocosely asked, In what light are we to consider the charge, as moral, political, judicial, or religious? These are the words, I believe, but of this I am not certain. The judge replied in the same style and manner, I believe, that it was a little of all. I cannot be certain, but I think Mr. Mason intimated to the judge that he would not deliver such sentiments in Virginia. It appeared to me that the language of Mr. Mason conveyed to Judge Chase the idea that he was afraid to deliver such sentiments in Virginia, though I am not myself confident that such was his meaning. The judge replied that he would, and that he would at all times and in all places execute the laws in the manner he had declared.

_William Marshall, sworn._

Mr. Harper. Inform the Court how soon you saw Judge Chase after his arrival at Richmond, what passed between you, &c.

Mr. Marshall. Judge Chase arrived in Richmond, but whether on the 21st or 22d of May, I do not recollect; but my impression is that it was Tuesday. I waited on him, as was usual with me, and gave him information respecting the state of the docket. The associate judge did not attend on the 22d, when the Court was opened and the grand jury received their charge. They went to their room, and did not return till Saturday the 24th of May, when they returned a presentment against James T. Callender, which I have. [The original presentment was produced by the witness, read, and delivered to the Secretary.]

As soon as I had read the presentment, at the request of the attorney of the district the jury were taken back to their chamber, and progress was made in preparing the indictment. There was some conversation between Judge Chase and Mr. Nelson, which lasted for a few minutes. Judge Chase inquired what was the proper process on the presentment. The answer which the district attorney made, was, that he supposed a capias was the proper process. I recollect that Judge Chase said something of a bench warrant, which was a practice unknown to us. Judge Chase asked me to draw the warrant. I said I could not. He then said he would endeavor to draw it. Afterwards Judge Chase desired the district attorney to draw out the form of a capias; the judge said he would draw one himself, and that I might draw out another; and he said he would take the most approved of the three. I recollect mine was drawn first; but whether before Judge Chase and Mr. Nelson had finished theirs, I do not recollect. On looking over mine, he said he was better satisfied with mine than his own; and he requested me to sign, seal, and deliver it to the marshal.

[Mr. Marshall here produced and read the original capias.]

On Saturday the 24th of May, in the afternoon, the grand jury brought in the indictment. I have taken these circumstances from a copy of the minutes of my office, which, if the Court wish to see, I can produce, as I have them with me. Judge Chase alone formed the Court from the 22d to the 29th of May, inclusive. On the 27th of May the marshal brought Callender into court, Judge Chase being at that time the only member of the Court. A chair was handed to him, and he remained in court while the Court proceeded with the docket in the usual way, until near evening, when Judge Chase observed that as the traverser was in court, he might perhaps have some application to make. I do not recollect whether the counsel afterwards employed for the defence of Callender were then in court; but if they were, they made no observations. But Mr. Meriwether Jones, with whom Callender resided, said that Callender was not then prepared to make any application; but that perhaps to-morrow he would move a continuance. Then Judge Chase applied to Callender, and asked if he could give bail. Mr. Jones replied that he could give bail in a moderate sum. Judge Chase asked Callender what were his circumstances; that in fixing the sum, he would be governed by that circumstance. Callender said they were nearly equal. The judge repeated the question, and then Callender said he was indebted about two hundred dollars, and there was about as much due to him which he expected to receive; and therefore he did not consider himself worth any thing. Judge Chase then asked if he could give bail, himself in two hundred dollars, and another in a like sum. The reply made by Mr. Callender or Mr. Jones was, that he could find bail to that amount; and he accordingly gave bail. On the 28th May, an application was made by Mr. Hay; this was the first instance in which Mr. Callender took any steps for his defence. Mr. Hay stated that he was not well acquainted with the practice in such cases; that he had an affidavit, of a general nature, stating the impossibility of going into the trial, with any prospect of success, without the attendance of a number of witnesses who lived at a great distance. Mr. Hay also inquired whether a general affidavit was sufficient, or whether a special affidavit, stating the names of the witnesses and the facts they were expected to prove, would be required. Judge Chase said that the strict practice of the law required a special affidavit; but they might take till to-morrow to prepare a special affidavit, submitting it to their discretion to manage the cause as they thought proper. I beg pardon for being a little too hasty in my narrative. When Mr. Hay offered his motion for a continuance, the Court said that before they could hear the motion it was necessary that the traverser should plead to the indictment. For if he pleaded guilty, there would be no necessity for an application. Mr. Hay assured the Court that the traverser would not plead guilty. Mr. Callender was arraigned and he plead not guilty; and then the conversation which I have stated took place. The reply of Judge Chase was, after a general affidavit is made, it must be relied on, but you may withdraw the general, and file a special affidavit. Nothing further passed on the 28th.

On the 29th, in the morning, Mr. Hay produced a special affidavit; I have the original here. It is stated therein, that there were a number of witnesses, one from New Hampshire; one from Massachusetts; some from Pennsylvania, and some from South Carolina, absent; who were material witnesses for his defence; that there were also sundry documents to be procured; and an essay written by Mr. Adams on canon and feudal law, which the traverser supposed it important to have for his defence. Mr. Hay, on these grounds, moved for a continuance to the next term, in a pretty long speech. Judge Chase observed, that every person before he made a publication, if he meant to justify it, ought to know the names of his witnesses; and if he meant to justify it by documents, they ought to have been within his reach. It was not to be presumed, indeed, that he could calculate upon being able to procure his witnesses in a few days; that in this case, it was alleged that one witness resided in New Hampshire, which was a great way off. He said that the ordinary sittings of the Court would be too short for him to obtain witnesses from so great a distance. He said that the prisoner should have time, and he should have a fair trial, but he could not allow him to the next term. He said he might have two weeks--but that might be too short a time--you may have three weeks, a month, nay, six weeks. We cannot sit so long, because we are obliged to hold a court in the district of Delaware; but I will adjourn this Court, to go to Delaware, and will return in six weeks. In the course of the observations offered by Mr. Hay to the Court, as well as I can recollect, he said, if the documents and witnesses were here, he did not think he would be prepared during that term to investigate all the facts, and the law arising on them; but he would be prepared against the next term, if the Court would indulge him with a continuance. After Judge Chase had made this offer of a postponement, I do not distinctly remember that Mr. Hay or Mr. Nicholas made any reply. After a short interval Judge Chase said, as they did not seem disposed to take the time he had offered, the trial should come on within the time the testimony of the witnesses residing in Virginia, deemed material, can be procured. He asked the marshal what was the distance of the residences of Mr. Giles and General Mason, and in what time they could conveniently come to Richmond; and, whether his deputy marshals could go for them? The reply of the marshal was, that his deputies were prepared to execute any orders of the Court. Judge Chase then directed me to make out the subpœnas for Monday, the 2d of June; and I issued subpœnas for Messrs. Giles, Mason, and Taylor; but Colonel Taylor’s name does not appear in the affidavit. The deputy marshals were directed to use all possible expedition in serving the subpœnas: they were all returned executed on Monday the 2d of June, endorsed with the hour of the day on which they were executed.

[Here Mr. Marshall offered the originals with the endorsements of the time of service.]

On Monday, the 2d day of June, Colonel Taylor appeared in court. The other witnesses were called, but they did not appear. A postponement was asked by one of the gentlemen, for two hours, who stated that it had rained on Sunday preceding, which might have impeded travelling, and it was granted. Some time in the course of the day, Judge Chase observed he might have till to-morrow, which was accepted.

On Tuesday morning, soon after the opening of the Court, the motion for a continuance was renewed, founded on the affidavit of Callender, which gave rise to the first motion. Judge Griffin was then in court, having arrived on the 30th of May, and continued during the remainder of the term. It was argued much at length, and received the same decision as on the 29th. The marshal was then ordered to call the petit jury; twelve jurors appeared; there were some objections which I do not precisely recollect, to the panel of the jury; and a motion made to quash the array. An argument was made and some authorities quoted; Judge Chase said they were not to be relied on, and he asked for Coke upon Lyttleton. I brought it from the library in the capitol. Judge Chase looked into it, and said the array should not be quashed; but I do not know the principle on which he decided. When the jury had all answered, the gentlemen proposed to propound a question to the jurors as they came to the book. I do not recollect what the question was, but Judge Chase said he would propound the proper question himself. The question which Judge Chase said it was proper to propound, was: “Have you formed and delivered an opinion (for he said it was necessary to have delivered as well as formed it) on the indictment?” The answer of the first juror was, that he had never seen or heard the indictment, and could not say that he had formed an opinion respecting it. Eight or nine of the jurors were asked the same question, and gave a like answer. The gentlemen who defended the traverser then said it was unnecessary to ask the other jurors that question; the rest were sworn, and the trial proceeded. The course it took was pretty lengthy, and I cannot state all the circumstances that took place. I recollect that the testimony of Colonel Taylor was refused, but I do not recollect the particular circumstances attending it.

Mr. Giles was on a jury in the circuit court, on, I think, the 27th of May, the day Callender was brought into court by the marshal. When Mr. Giles’s name was called, Judge Chase asked me whether that was the celebrated Mr. Giles, member of Congress. I said that it was. He said that he had never seen him before. Nothing more passed at that time. In the evening I was at Judge Chase’s lodgings. He asked me whether I supposed Mr. Giles would remain in Richmond until the trial of Callender. I said it was uncertain, that it was not customary for Mr. Giles to remain any length of time when he came to town. Judge Chase said he wished he would remain, and serve in Callender’s case; nay, he wished that Callender might be tried by a jury of his own politics. He said that if his situation as a judge would permit him to drop a hint to the marshal with respect to the jury, he would intimate his wish that Callender should be thus tried; but, in his situation, it would be improper for him to interfere with the duty of the marshal.

Mr. Harper. Inform the Court at what time, if any, you were at Judge Chase’s chambers, when a certain Mr. John Heath was there; what passed, and what did not pass.

Mr. Marshall. Judge Chase was, as he informed me, a total stranger in Richmond, and had never been there until he held the Court in 1800. He asked me if I would call upon him from time to time. When I knew he was at home, I used to go in an evening, and spend an hour or two with him at his lodgings. I also generally went in the morning, about an hour before the meeting of the Court. I recollect about ten o’clock going to Mr. Chase’s lodgings. I went, I think, but of this I am not positive, with Mr. Randolph. I found Mr. Heath in Judge Chase’s chamber, or in the passage. Mr. Heath was, I think, in the act of leaving the room; he had his hat in his hand, and I met him either in his way out of the room, or in the passage.

President. Can you state the day of the month?

Mr. Marshall. I cannot, but I think it was the day before Judge Griffin arrived. I recollect very well, on that day Mr. D. Randolph and myself walked up to the court room. I was surprised at seeing Mr. Heath at Judge Chase’s, and asked Mr. Randolph what could have brought him there.

Mr. Harper. Was Mr. Heath in the act of going out when you entered?

Mr. Marshall. Yes, sir, he was on the floor. He had taken his leave, as I supposed, of Judge Chase, and was either out of the room, or in the act of coming out of it. I do not recollect positively whether Mr. Randolph went with me. I recollect going with Mr. Randolph to court, and that it was the usual practice of Mr. R. and myself to go to Judge Chase’s chambers in the morning and attend him to court. I do not certainly recollect whether that morning we went together to the judge’s chambers, but I am positive we left the chamber together. The Court met generally at eleven o’clock. I had something particular to do that morning, and it was from ten to half-past ten when I went to the judge’s chambers; it may have been about ten. The time I saw Mr. Heath must have been about ten o’clock.

Mr. Harper. Did any conversation take place between the judge and Mr. Heath while you were there?

Mr. Marshall. I believe I met Mr. Heath outside of the door. There was not a word of conversation at any rate.

Mr. Harper. Did any incident take place respecting a paper handed from Mr. Randolph to Mr. Chase?

Mr. Marshall. There did not.

Mr. Harper. Did you hear any thing about creatures called democrats?

Mr. Marshall. I never heard any thing pass between them. I never heard the judge say any thing about the jury, except what occurred either at the judge’s lodgings or at court, which I took to be instructions to summon twenty-four jurors about twenty-five years of age, and freeholders; that there should be enough to supply the juries required at that court.

SATURDAY, February 16.

The Court was opened at 10 o’clock A. M.

_David M. Randolph, sworn._

Mr. Harper. Were you marshal of the United States for the district of Virginia in 1800?

Answer. I was, sir.

Mr. Harper. Did you attend the circuit court held in May of that year, as marshal?

A. I did, sir.

Mr. Harper. Did you summon the panel of the jury that served on the trial of Callender?

A. I did.

Mr. Harper. Had you any conversation with Judge Chase on the forming that panel?

A. I had no conversation with him on that subject. There was a conversation offered to me by Judge Chase.

Mr. Harper. What was it?

A. The judge recommended to me that I should get persons generally from the country; represented that they should be twenty-five years of age, of fair characters, untainted by party prejudices.

Mr. Harper. Did any gentlemen summoned apply to you to be discharged?

A. Several. At the moment I received orders to have two juries ready by Monday, I called on my two deputies, and desired them to take down, on distinct papers, the names I mentioned to them. I observed that I chose to take the responsibility on myself. While they were taking down the names, I summoned several persons whose names were not put down till Monday. On Monday, finding my two deputies had not summoned a sufficient number, I went in quest of them. I found them at the end of the town, in the act of executing my orders. Mr. Moseby, one of my deputies, was standing with Colonel Vanderval, I think in conversation with him. I called him across the street, and asked him how they succeeded. At this time I saw my other deputy. They told me they wanted but one or two jurors. I told them they must make haste. About this time I saw Mr. Basset entering town on horseback. I told him that he had been crossed as a grand juror for non-attendance; that he must serve as a petit juror, which would give him an opportunity of offering his apology. I took out my watch, and told him that I allowed him five minutes. We arrived at the capitol, and my deputies there gave me their memorandums, from which, and my own, I made up the list of the jury. Two gentlemen, Mr. Lewis and Mr. Blakely, offered something like excuses. I looked at Mr. Blakely, and said there was only one excuse that I would admit, to wit: his being under twenty-five years of age. He said he was under that age, and I dismissed him. Mr. Lewis said he might make the same excuse. I said I doubted it, but I let him off. As I went into the passage, I met Mr. Samuel Myers, who also desired to be let off. I told him I could not and would not. He said I would excuse him for a reason which he could assign. He whispered, and said that he was prejudiced against Callender. I permitted him to go, but begged him to keep that reason to himself. Another juror summoned, was very warm and importunate to be excused. I told him there was only one ground on which I would excuse him. He asked me what it was. I answered that if it applied to him he already knew it. I begged him to go to the court, and he would learn what it was. He did so. Colonel Harvie stopped me in the passage in a hasty manner, and with great warmth and friendliness urged me to let him off. He said he was sheriff of Henrico County. I said I knew it, but that I also knew that his duties were generally performed by deputies. I did not let him off. He applied to the Court, and was excused.

_John Marshall, sworn._

Mr. Harper. Please to inform this honorable Court whether you did, or did not, on the part of Colonel Harvie, make an application for his discharge from the jury, and on what ground that application was made?

Mr. Marshall. I was at the bar when Colonel Harvie, with whom I was intimately acquainted, informed me that he was summoned on the jury. Some conversation passed, in which he expressed his unwillingness to serve, and stated that he was an unfit person; for that his mind was completely made up, that he thought the (sedition) law unconstitutional, and that, whatever the evidence might be, he should find the traverser not guilty; and requested me, on that ground, to apply to the marshal for his discharge. I told the marshal that Colonel Harvie was extremely desirous of being discharged, and, on his discovering great repugnance to his discharge, I informed him that he was predetermined, and that no testimony could alter his opinion. The marshal said that Colonel Harvie might make his excuse to the Court; he observed that he was watched, and to prevent any charge of improper conduct from being brought against him, he should not interfere in discharging any of the jurors who had been summoned. I informed Colonel Harvie of this conversation, and it was then agreed that I should apply to the Court for his discharge, upon the ground of his being sheriff of Henrico County; that his attendance was necessary, as that Court was then in session. I moved the discharge of the juror on that ground, and he was discharged by the Court.

Mr. Randolph. Were you in court during a part of the trial, or during the whole of the trial?

Mr. Marshall. I think I was there only during a part of the time.

Mr. Randolph. Did you observe any thing unusual in the conduct on the part of the counsel towards the Court, or the Court towards the counsel, and what?

Mr. Marshall. There were several circumstances that took place on that trial, on the part both of the bar and the bench, which do not always occur in trials. I would probably be better able to answer the question, if it were made more determinate.

Mr. Randolph. Then I will make the question more particular by asking whether the interruptions of counsel were much more frequent than usual?

Mr. Marshall. The counsel appeared to me to wish to bring before the jury arguments to prove that the sedition law was unconstitutional, and Mr. Chase said that that was not a proper question to go to the jury; and whenever any attempt was made to bring that point before the jury, the counsel for the traverser were stopped. After this there was an argument commenced (I think) by Mr. Hay, but I do not recollect positively, to prove to the judge that the opinion which he had given was not correct in point of law, and that the constitutionality of the law ought to go before the jury; whatever the argument was which Mr. Hay advanced, there was something in it which Judge Chase did not believe to be law, and he stopped him on that point. Mr. Hay still went on, and made some political observations; Judge Chase stopped him again, and the collision ended, by Mr. Hay sitting down, and folding up his papers as if he intended to retire.

Mr. Randolph. There were many preliminary questions, such as, with respect to the continuance of the cause, the admissibility of testimony, &c. Did the interruptions take place on the part of the Court only when the counsel pressed the point of the unconstitutionality of the sedition law?

Mr. Marshall. I believe that it was only at those times, but I do not recollect precisely. I do not remember correctly what passed between the bench and the bar; but it appeared to me that whenever Judge Chase thought the counsel incorrect in their points, he immediately told them so, and stopped them short; but what were the particular expressions that he used, my recollection is too indistinct to enable me to state precisely; what I do state is merely from a general impression which remains on my mind.

Mr. Randolph. Was there any misunderstanding between the counsel and the Court, and what was the cause of that misunderstanding, or what was your opinion as to the cause, or did you form one?

Mr. Marshall. It is impossible for me to assign the particular cause. It began early in the proceedings and increased as the trial progressed. On the part of the judge it seemed to be a disgust with regard to the mode adopted by the traverser’s counsel, at least I speak as to the part which Mr. Hay took on the trial, and it seemed to increase also with him as he went on.

Mr. Randolph. When the Court decided the point that the jury had not a right to decide upon the constitutionality of a law, did the counsel for the traverser begin an argument to convince Judge Chase that the opinion which he had delivered on that point was not well founded? Is it the practice in courts when counsel object to the legality of an opinion given by the Court, to hear the arguments of counsel against such opinion?

Mr. Marshall. If the counsel have not been already heard, it is usual to hear them, in order that they may change or confirm the opinion of the Court, when there is any doubt entertained. There is, however, no positive rule on this subject, and the course pursued by the Court will depend upon circumstances; where a judge believes that the point is perfectly clear and settled, he will scarcely permit the question to be agitated. However, it is considered as decorous on the part of the judge to listen while the counsel abstain from urging unimportant arguments.

Mr. Randolph. In the circuit courts of the United States, after a court is opened for any district, is it the practice of such courts to adjourn over from time to time, in order to hold a court in another district in the intermediate time, and then to return back; or is not the uniform practice to postpone causes when they cannot be conveniently tried, to the next term?

Mr. Marshall. I can only speak of courts where I have attended, in which the practice is, that the business of one term shall be gone through as far as possible, before any other court is held.

Mr. Randolph. Was it ever the practice of any court, in which you have practised or presided, to compel counsel to reduce to writing the questions which they meant to propound to their witnesses?

Mr. Marshall. It has not been usual; but in cases of the kind, the conduct of the Court will depend upon circumstances. If a question relates to a point of the law, and is understood to be an important question, it might be proper to require that it be reduced to writing. Unless there is some special reason which appears to the Court, or on the request of the adverse counsel, questions are not commonly reduced to writing, but when there is a special reason in the mind of the Court, or it is required by the opposite counsel, questions may be directed to be committed to writing.

Mr. Randolph. When these questions are reduced to writing, is it for a special reason, after the Court have heard the question, and not before they have been propounded?

Mr. Marshall. I never knew it requested that a question should be reduced to writing in the first instance in the whole course of my practice.

Mr. Randolph. Did you ever, sir, in a criminal prosecution, know a witness deemed inadmissible, because he could not go a particular length in his testimony--because he could not narrate all the circumstances of the crime charged in an indictment, or in the case of a libel; and could only prove a part of a particular charge, and not the whole of it?

Mr. Marshall. I never did hear that objection made by the Court except in this particular case.

[Some inquiry was here made relative to the above question put by Mr. Randolph, and objected to by Mr. Cocke, which Mr. R. answered by observing that he withdrew it.]

Mr. Harper. Please to inform this honorable Court, sir, whether you recollect that Judge Chase during any part of the proceedings made an offer to postpone the trial of Callender, and if you do, to what time?

Mr. Marshall. I recollect at the time a motion was made for the continuance till the next term, that Judge Chase declared, as his opinion, that it ought to be tried at the present term. A good deal of conversation took place on the subject. The counsel for the traverser stated several circumstances in favor of their client, particularly relative to the absence of his witnesses; but the whole terminated at that time by a postponement for a few days; so many days as, I thought at the time, were sufficient for obtaining the witnesses residing in Virginia. I do not now recollect what the time was, nor do I say it was sufficient. I simply recollect that I thought it was. When the cause came on again, there was no proposition that I recollect on the part of the traverser’s counsel for a continuance, but a desire was expressed of a postponement for a few hours in order to give their witnesses time to arrive at Richmond, as it was possible they had been impeded by the badness of the roads; a considerable quantity of rain having fallen the preceding day. There was a declaration on the part of the Court that they might take until the next day, and they went on to say they might have a longer time, if they thought it was necessary, but the precise length of time offered I do not recollect; but I do remember that they said the trial must come on before the present term closed.

The President. Do you recollect whether the conduct of the judge on this trial was tyrannical, overbearing, and oppressive?

Mr. Marshall. I will state the facts. The counsel for the traverser persisted in arguing the question of the constitutionality of the sedition law, in which they were constantly repressed by Judge Chase. Judge Chase checked Mr. Hay whenever he came to that point, and after having resisted repeated checks, Mr. Hay appeared to be determined to abandon the cause, when he was desired by the judge to proceed with his argument, and informed that he should not be interrupted thereafter. If this is not considered tyrannical, oppressive, and overbearing, I know nothing else that was so.

Mr. Randolph. Are you acquainted with Mr. Wirt; was he a young man at that time; was he single, married, or a widower?

Mr. Marshall. I am pretty well acquainted with him; he is about thirty years of age, and a widower.

_Edmund J. Lee, sworn._

Mr. Harper. Were you at the circuit court in the spring of 1800, held at Richmond, at which Judge Chase presided?

Mr. Lee. I was not in court when Callender was presented by the grand jury; but I was when application was made for a continuance, and I remember that Judge Chase, on an application made for a continuance, on account of the absence of some of the witnesses, informed the counsel that he could not continue the cause, but if they would fix upon any determinate time, within which they could obtain their witnesses, without its going over to the next term, the Court would postpone the trial. Judge Chase also added that he had no objection to postpone it for a fortnight or a month; I am not certain whether he did not say he would postpone it for a longer time, I do not know but he said for six weeks, but he said positively he would not postpone it to the next term. He added, if the counsel conceived they could obtain the evidence within the time mentioned, they might have it.

_Robert Gamble, sworn._

Mr. Harper. Were you at the circuit court of the United States for the Virginia district, in the month of May or June, 1800, held at Richmond?

Mr. Gamble. I was one of the jurors, sir, and I was in court when a motion was made for continuing the cause of Callender to the next term.

Mr. Harper. Do you recollect whether an offer was made by the Court to postpone that cause?

Mr. Gamble. Yes, sir; Judge Chase said he would postpone it for a week, a fortnight, a month, or more, and I think he mentioned he would postpone it for six weeks, or as long as the term would admit, without its going over to the next term.

_Philip Gooch, sworn._

Mr. Harper. What did you observe relative to the conduct of the Court and counsel on that day? State what happened.

Mr. Gooch. When Mr. Basset suggested to the Court his wish to be informed whether it was their opinion that he was a proper person to serve on the jury, because he had formed and expressed an opinion on the extracts which he had seen, and declared that if correctly copied from the work called “The Prospect before Us,” the author was within the pale of the sedition law; on that suggestion, I recollect, the Court decided, and laid it down as law, that he must not only have formed an opinion, but delivered it also, and the judge gave some reasons why he must not only have formed, but delivered an opinion. I think he said that if a notorious murder was committed in the body of a county, which every man believed ought to be punished with death, and had so formed his opinion, it would in that case be impossible to get a jury to try such an offender, if it was an objection that a man had formed an opinion. I understood that he had consulted Judge Griffin on this point. The court was very crowded, but I had obtained a situation just behind the judges, and had an opportunity of hearing in some degree what passed between them, though not distinctly. Mr. Basset was eventually sworn upon the jury. The cause proceeded.

Mr. Wirt opened the cause on the part of the traverser; he made some allusion to the Court’s prohibiting the mode of defence which the counsel for the traverser had adopted, but he was interrupted by the Court, and was told that the decision of the Court must be binding for the present; that if they objected, they might file their bill of error, and it should be allowed.

Mr. W. proceeded in the cause, and was endeavouring to show that the sedition law was unconstitutional; the Court interrupted him, and told him that what he had to say must be addressed to the Court, but if he was going on that point, he must again be informed that the Court would not suffer it to be urged. Mr. W. appeared to be in some agitation, but continued his argument, and when he came up to that point a second time, he was again interrupted by the Court. Mr. W. resumed his argument, and said he was going on. Judge Chase again interrupted him and said, “No, sir, you are not going on, I am going on; sit down.” I recollect, also, after the judge had made some observations, Mr. W. again proceeded, and having observed that as the jury had a right to consider the law, and as the constitution was law, it followed syllogistically that the jury had a right to decide on the constitutionality of a law. Judge Chase replied to him, A _non sequitur_, sir, and, at the same time, made him a bow. Whether these circumstances took place exactly in the order in which I have mentioned them, I am not positive, but I believe they did. Mr. W. sat down, and the judge delivered a lengthy opinion. He stated that the counsel must argue the law before the Court, and not before the jury, for it was not competent for the jury to decide that point, or that the jury were competent to decide whether the sedition law embraced this case or not, but that they were not competent to decide whether the sedition law was constitutional or not, and that he would not suffer that point to be argued.

Mr. Harper. What was the effect produced by the reply of Judge Chase to Mr. Wirt’s syllogism, a _non sequitur_?

Mr. Gooch. It appeared to me as if it was intended to excite merriment; and if it was so intended, it certainly had that effect, and the same appeared to me to be the motive of the judge in adding the word _punctuatim_ after the words _verbatim et literatim_. I thought these circumstances were calculated to display his wit.

Mr. Harper. When the judge told Mr. Wirt to sit down, did you conceive the conduct of the court to be rude and peremptory, or was there any thing like it in his application of the term “young gentlemen?”

Mr. Gooch. I did not perceive any thing rude or intemperate in his conduct, unless it can be inferred from the words themselves, when he said, You show yourselves clever young gentlemen, but the law is, nevertheless, not as you have stated it.

MONDAY, February 18.

_Gunning Bedford, sworn._

Mr. Harper. Please to state to the Court whether you were present in your judicial character at a circuit court held at Wilmington in 1800, and relate the circumstances which occurred.

A. I attended that Court on the 27th of June. Judge Chase presided. I arrived in the morning about half an hour before Judge Chase. We went into court about eleven o’clock. The grand jury was called and impanelled. The judge delivered a charge: they retired to their box; after an absence of not more than an hour they returned to the bar. They were asked by the judge whether they had any bills or presentments to make to the Court. They said they had none. The Court called on the attorney of the district to say whether there was any business likely to be brought forward. He replied that there was none. Some of the grand jury then expressed a wish to be discharged. Judge Chase said it was unusual for the Court to discharge the grand jury so early in the session; it is not the practice in any circuit court in which I have sat. He turned round to me, and said, Mr. Bedford, what is your usual practice? I said it depended upon circumstances, and on the business before the Court; that when the Court was satisfied there was nothing to detain them they were discharged. Judge Chase then turned to the jury, and observed, “But, gentlemen of the jury, I am informed that there is conducted in this State (but I am only _informed_) a seditious newspaper, the editor of which is in the practice of libelling and abusing the Government. His name is ----, but perhaps I may do injustice to the man by mentioning his name. Have you, gentlemen of the jury, ever turned your attention to the subject?” It was answered no. “But,” resumed the judge, “it is your duty to attend to things of this kind. I have given you in charge the sedition act among other things. If there is any thing in what is suggested to you, it is your duty to inquire into it.” He added, “It is high time that this seditious printer should be corrected; you know that the prosperity and happiness of the country depend upon it.” He then turned to the attorney of the district, and said, Mr. Attorney, can you find a file of those papers? He answered that he did not know. A person in court offered to procure a file. The attorney then said, as a file was found, he would look it over. Can you, said the judge, look it over, and examine it by to-morrow at ten o’clock. Mr. Attorney said he would. Judge Chase then turned to the grand jury, and said, Gentlemen, you must attend to-morrow at ten o’clock. Other business was gone into, and the Court adjourned about two o’clock.

On my way to Judge Chase’s lodgings, I said to him, My friend, I believe you know not where you are; the people of this country are very much opposed to the sedition law, and will not be pleased with what you said. Judge Chase clapped his hand on my shoulders and replied, “My dear Bedford, no matter where we are, or among whom we are, we must do our duty.”

The next day we went into court about ten o’clock. The grand jury went to their chamber, and I believe Mr. Read returned with them into court. They were asked if they had any thing to offer to the Court; and the attorney was called on again to state whether he had found any thing in the file of a seditious nature. He had a file of the paper before him, and he said he had found nothing that was a proper subject for the notice of the jury, unless a piece relating to Judge Chase himself. The judge answered, Take no notice of that, my shoulders are broad, and they are able to bear it; but where there is a violation of a positive law of the United States it is necessary to notice it.

_Nicholas Vandyke, sworn._

Mr. Harper. Please to state whether you were at the circuit court for Delaware in the year 1800?