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 onlyinformed) 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.
Mr. Harper. Please to state whether you were at the circuit court for Delaware in the year 1800?
A. I attended the circuit court held in Newcastle on the 27th and 28th of June, 1800. I was not present when the Court opened; but I think I entered the court house while Judge Chase was delivering a charge to the grand jury. After its delivery the grand jury retired; they were absent a short time: and as well as I can recollect before and when they returned, I was either out of the court house, or engaged in conversation with some person out of the bar. I think so, as I have no recollection of the question put to the grand jury, whether they had found any bills, and that put to the district attorney. I entered the bar while there was a pause, and silence prevailed. I recollect that the first circumstance that attracted my attention was the observation of Judge Chase to the grand jury, that since he had come among them, he had been credibly informed that there was a seditious printer within the State, in the habit of libelling the Government of the United States, and having received this information, he thought it his duty to call the attention of the grand jury to the subject. He appeared to me to be proceeding to state the name of the printer; but he did not name him. He said that might be doing injustice to the man, or that it was improper in him. I cannot say which was the term he used. I think he then asked the district attorney if there were not two printers in the State. He answered that there were. There was then some conversation between the judge and the district attorney. My impression was that it conveyed a request from Judge Chase to the district attorney to inquire into the subject on which he had previously spoken to the jury. Mr. Attorney said that he had not seen the papers. The judge asked him whether he could not procure a file of them. I do not recollect that the name of the printer was mentioned then, or during the whole sittings of the Court. Some person at the bar said a file could be procured. Judge Chase asked the attorney, if he could make the inquiry by to-morrow at ten o’clock. About this time I heard some observations made respecting the discharge of the grand jury on that day. Some of the gentlemen said it was a busy season, that they were farmers, and were desirous of returning to their homes. Judge Chase replied that might be very true; but that the business of the public was also important; it must be attended to: and therefore he could not discharge them. I do not pretend to say I have pursued the language used. I have only attempted to give my impression of the facts that occurred.
Mr. Harper. Please inform the Court whether you were present at a circuit court for Delaware in 1800?
A. I recollect that I was present on the 27th of June. I arrived about 10 o’clock, at which time Judge Chase was not there. Some time after, the Court was formed, the grand jury was sworn, and Judge Chase delivered a charge. Having retired for about an hour, the grand jury returned to the bar. Judge Chase asked them if they had any bills or presentments to make. Their reply was that they had not. Judge Chase then asked the attorney of the district if he had no business to lay before them. He said he had not. The jury requested to be discharged. Judge Chase said, it was not usual to discharge them so early, some business might occur during the course of the day. He told them he had been informed that there was a printer who was guilty of libelling the Government of the United States; his name is ——; here he stopped, and said, “Perhaps I may commit myself, and do injustice to the man. Have you not two printers?” The attorney said there were. Well, said Judge Chase, cannot you find a file of the papers of the one I allude to? Mr. Read said he did not take the papers, or that he had not a file. Some person then observed that a file could be got at Mr. Crow’s. Judge Chase asked the attorney if he could examine the papers by the next morning. Mr. Read said, that under the directions of the Court, he conceived it to be his duty, and he would do it.
On the second day the same questions, whether they had found any bills, were put to the grand jury. They answered that they had not. Mr. Chase asked the attorney of the district if he had found any thing in the papers that required the interposition of the jury. He said that he had found nothing which in his opinion came within the sedition law; but there was a paragraph against his honor. Judge Chase said, that was not what he alluded to. He was abused from one end of the continent to the other; but his shoulders were broad enough to bear it.
Mr. Harper. Were you in the circuit court held in Delaware in June, 1800, when it met?
A. No, sir. I did attend early enough on the first day to hear the charge given to the grand jury. I think I did not attend before twelve o’clock. I attended as a juror. On the next day I attended early, and was in the court house when the Court met. When the jury returned into court, inquiry was made whether they had any bills or presentments to make. They answered no. The Court then inquired of the attorney of the district whether he had any business to lay before the grand jury. He said he had not. While he was making this reply, he rose, and laid hold of a file of newspapers, which I took to be the Mirror of theTimes, and while he was in the act of presenting it, he observed that he had not seen any thing that in his opinion required notice, unless it were a publication reflecting on Judge Chase, which did not appear to him to come under the sedition law. Judge Chase answered, No, sir; they have abused me from one end of the continent to the other; but it is the Government, and not myself, that I wish protected from calumny. Immediately after the grand jury were discharged.
Mr. Harper. I will ask you whether you were in the circuit court of the United States, held at Baltimore, in May, 1803? I will, however, previously observe that it is not my intention to say or to prove that the witness, when he deposed to certain facts, knew that they had not passed. I mean only to impeach his correctness, and to infer that, as he was angry, he gave to what he heard the coloring of his own feelings.
Mr. Winder. I was present at that court when it was opened, and the jury impanelled, and I heard Judge Chase deliver his charge. After delivering the general and usual charge to the grand jury he said he begged leave to detain them a few minutes, while he made some general reflections on the situation of public affairs. He commenced by laying down some abstract opinions, stating that that Government was the most free and happy that was the best administered; that a republic might be in slavery and a monarchy free. He also drew some distinctions with regard to the doctrine of equal rights, and said that the idea of perfect equality of rights, more particularly such as had been broached in France, was fanciful and untrue; that the only doctrine contended for with propriety was, the equal protection of all classes from oppression. He commented on the repeal of the judiciary system of the United States, and remarked that it had a tendency to weaken the judiciary, and to render it dependent. He then adverted to the laws of Maryland respecting the judiciary, as tending to the same effect. One was a law for the repeal of the county court system. He also alluded to the depending law for the abolition of two of the courts of Maryland. He said something of the toil and labor and patriotism of those who had raised the fair fabric, (constitution of Maryland,) and said that he saw with regret some of their sons now employed in destroying it. He also said that the tendency of the general suffrage law was highly injurious, as, under it, a man was admitted to full political rights, who might be here to-day and gone to-morrow.
Mr. Harper. Please, sir, to state to this Court your recollection respecting a charge delivered by Judge Chase in the circuit court of Maryland in May, 1803.
Mr. Winchester. As already stated, that Court sat in May, 1803, in a room in Evans’s tavern. The Court and gentlemen of the bar sat round several dining tables. I sat on the left of Judge Chase, and the jury were on his right. He addressed a charge to them, the beginning of which was in the usual style of such addresses. He then commenced what has been called the political part of the charge, with some general observations on the nature of government. He afterwards adverted to two measures of the Legislature of Maryland; the first related to an alteration of the constitution on the subject of suffrage; the other contemplated an alteration in the judiciary. He commented on the injurious tendency of the principle of universal suffrage, and deprecated the evil effects it was likely to have. Incidental to these remarks, he adverted to the repeal of the judiciary law of the United States. I say incidental, for my impression was that his object was to show the dangerous consequences that would result to the people of Maryland from a repeal of their judiciary system, and to show that as the act of Congress had inflicted a violent blow on the independence of the federal judiciary, it was more necessary for the State of Maryland to preserve their judiciary perfectly independent. I was very attentive to the charge for several reasons. I regretted it as imprudent. I felt convinced that it would be complained of; and I am very confident from my recollection, and from the publications respecting it, which I afterwards perused, that all the political observations of the judge related to the State of Maryland.
Mr. Harper. Please to inform the Court whether you were at a circuit court held at Baltimore in 1803.
Mr. Dorsey. I was.
Mr. Harper. Were you present when Judge Chase delivered a charge to the grand jury?
Mr. Dorsey. I was.
Mr. Harper. Were you in such a situation as to hear that charge?
Mr. Dorsey. I was.
Mr. Harper. Were you near Mr. Montgomery?
Mr. Dorsey. I was; I think there was only one person between us.
Mr. Harper. Did you attend to the charge?
Mr. Dorsey. I attended to what is generally called the political part of it, because it was novel, and contained speculations with respect to government in general, and remarks on national and State laws.
Mr. Harper. Do you recollect any thing in it respecting the Administration?
Mr. Dorsey. I do not. I recollect a part of it relating to the State and national judiciary, and to universal suffrage. I did not hesitate to state that it was an indiscreet thing; my attention was particularly drawn to it by seeing in the room the editor of a newspaper, and from expecting that it would be the subject of newspaper animadversion.
Mr. Harper. Please to inform this honorable Court whether you were present at a circuit court held at Baltimore in May, 1803.
Mr. Purviance. I was.
Mr. Harper. State what happened on that occasion.
Mr. Purviance. I do not pretend to recollect every thing which occurred; but as I attended to what Judge Chase said in his charge to the grand jury, I think I have a pretty distinct recollection as to the manner in which he delivered that address; he appeared to me to read the whole from a written paper lying before him. I never expected that this inquiry would have been made of me, and after such a lapse of time I can only speak of the impressions now on my mind.
Mr. Harper. Do you recollect whether Judge Chase made any mention of the present Federal Administration, and what was it?
Mr. Purviance. I have no recollection that he mentioned it, but as it was identified with the repeal of the law for establishing the circuit court of the United States; and so far as the Executive composed a part of the Legislature, he may have mentioned the Administration.
Mr. Harper. Was there any particular mention or allusion to the Executive of the United States?
Mr. Purviance. No, sir, nothing of the kind; I have endeavored to retrace in my mind every thing which was said, and I have not the smallest recollection that any remark was made upon the Executive Department of the United States.
Mr. Harper. Please to inform this honorable Court whether you were at a circuit court held in May, 1803, when a charge was delivered by Judge Chase to the grand jury.
Mr. Brice. I was there and attended to the charge very particularly.
Mr. Harper. Did he say any thing respecting the present Administration?
Mr. Brice. Not in the slightest manner, further than mentioning the repeal of the judiciary law of the United States, which he mentioned incidentally in the course of his observations on the alterations of the judiciary system in the State of Maryland. One thing more I will add, with respect to the advice which it is alleged he gave to the grand jury: shortly after the charge was delivered, in talking over this subject with Mr. Stephen, I recollect that I rather thought it was an inference drawn from the charge, than any express advice of the Court on that point. Indeed, I am pretty sure the words were not used.
Mr. Harper. Please to inform this honorable Court whether you were present at the circuit court held in Baltimore in May, 1803, and what occurred at that time.
Mr. Boyd. I was there, but I do not know whether I was there at the opening of the Court; but I was there when the charge was delivered to the grand jury. After Judge Chase had gone through that part of the charge which is an instruction to the grand jury relative to the duties of their office, he proceeded to make some further observations, to which I paid particular attention because they were novel to me. I was under an impression at the time that Judge Chase was watched.
Mr. Harper. Did that charge contain a sentiment like those you have heard, that the present Administration was weak, or wicked, &c.?
Mr. Boyd. I have not a scintilla of recollection of a word of the kind, no further than as an inference to be drawn from what was said in relation to the repeal of the Judiciary law. I have, however, a faint trace of the idea in my mind, not from my own recollection, but from having repeatedly heard it stated that there was such a remark made in the charge.
Mr. Harper. Inform this honorable Court whether you were present at the circuit court held at Baltimore, in May, 1803.
Mr. McMechin. I was present and heard the charge delivered by Judge Chase to the grand jury.
Mr. Harper. Have you any recollection of his having said any thing against the present Administration?
Mr. McMechin. I have no recollection of any thing of the kind, either that they were weak, or of their having unfairly acquired power; such an idea was mentioned in no way, unless it be inferred from the remark on the repeal of the law establishing the sixteen circuit judges.
Mr. Harper. Were you at the circuit court of Baltimore in May, 1803?
Mr. Govane. I was, and heard the charge delivered by Judge Chase. The room in which the Court was held was a long one, in a tavern; a range of tables formed the bar, and the seats around were occupied by professional gentlemen. I went to the bottom of the table, opposite to Judge Chase, and directed my attention towards him. Whilst he was delivering his charge he appeared to read it from a book, but generally ended the sentences by looking towards the grand jury; except this circumstance, he appeared to read the whole time.
Mr. Harper. Do you retain a distinct recollection of the substance of what the judge said?
Mr. Govane. I think I do.
Mr. Harper. Do you remember any part containing animadversions on the present Administration, such as that they were weak, feeble, or incompetent?
Mr. Govane. I think no such words were used. If I could swear to a fact negatively after such a lapse of time, I could swear that no such expressions fell from the judge. He said that a Monarchy might be free, and a Republic a tyranny; and then proceeded to define what a free government was.
Mr. Harper. Were you present at the circuit court held at Baltimore in 1803?
Mr. Cranch. I was. The Court was held at Evan’s tavern, in Baltimore. Judge Chase was seated in an arm-chair, at one end of a long table placed before him. The grand jury were on his right, some sitting on benches placed along the wall and others standing. I stood myself about fifteen feet from the judge, who was sitting during the whole time he was delivering his charge; he generally held the book in his hand.
Mr. Harper—(showing a book). Is that the book?
Mr. Cranch. He appeared to be reading from such a book.
Mr. Harper. Did he read the whole, and did he read constantly?
Mr. Cranch. He appeared to me to read the whole charge, but I did not keep my eyes so constantly fixed upon him as to declare positively that he did.
Mr. Harper. Were there variations in his manner of delivering the charge, as if he was at one time reading and at another speakingex tempore?
Mr. Cranch. He delivered some parts with more emphasis than others. He often raised his eyes from the book, but I did not observe that he repeated more than one sentence without recurring to the book; he repeated no more than a man might repeat after running his eyes hastily over a passage.
Mr. Harper. Did he raise his eyes for a longer time than a man might be supposed to do who was reading a composition of his own?
Mr. Cranch. I do not think he did.
Mr. Harper. Do you recollect the latter part of the charge?
Mr. Cranch. I recollect more of the latter part than of the beginning, because I paid more attention to the latter part.
Mr. Harper. Do you recollect any sentiments expressed relating to the weakness of the present Administration, and that they were not employed in promoting the public good, but in preserving ill-gotten power?
Mr. Cranch. No, sir, there was no such expression, as I recollect.
Mr. Harper. Was there any expression at all relative to the present Administration?
Mr. Cranch. Not as an Administration, nor any thing alluding to the Administration separate from the Government of the United States.
Mr. Harper. In what way was the Government alluded to?
Mr. Cranch. By alluding to the repeal of the act of February, 1801, for the establishment of the circuit judges. I recollect no other measure of the General Government which was alluded to, or any allusion to the present Executive.
[The testimony on both sides being closed, the argument of the case began, Mr. Early, one of the managers, opening for the prosecution.]
Mr.Early.—The relative rights of judges and juries have at some periods of judicial history been so little understood, and the limits of each so indistinctly marked, that the benefits of the institution of jury trial were left much at the mercy ofarbitrary and overbearing judges. But it was reserved for the honor of modern times to dissipate this uncertainty so baneful to justice, and to fix down the establishment upon its only proper foundation; that of the right to determine, without control, both the law and the factin all criminal cases whatsoever. This right has now been so long practised upon in the United States, and may be considered as so well established, that it is scarcely to be expected we shall witness upon that point any difference of opinion. Still less is it to be expected that we shall witness such difference, when we are discussing principles which apply to cases capital. In such case it is the glory of the laws of this country, that the offence of the accused should be left exclusively to the judgment of those least liable to be swayed by the weight of accusing influence. It is no part of my intention to deny the right of judges to expound the law in charging juries. But it may be safely affirmed that such right is the most delicate they possess, and the exercise of which should be guarded by the utmost caution and humanity.
The accused shall enjoy the right to a “trial by animpartialjury.” We charge the respondent with deliberately violating this important provision of the constitution, in arresting from John Fries the privilege of having his case heard and determined by an impartial jury; for that the respondent took uponhimselfsubstantially to decide the case by prejudging the law applying thereto, at the same time accompanying the opinion thus formed and thus delivered, by certain observations and declarations calculated necessarily to create a prepossession against the case of Fries in the minds of those who had been summoned to serve upon the jury, thereby making them the reverse of impartial.
These were the acts of a man, who, from his own declarations, appears to have well understood upon whatpoints the defence would turn. It was the act of a man, who, it appears, had been well informed of all that passed at the previous trial of Fries; who knew that there was no dispute as to facts, and that the whole of the defence depended upon the discussion and determination of those very principles of law which he had thus prejudged, and upon the application of those authorities which he had thus excluded in the hearing and very presence of those who were to pass upon the life and death of the accused. No argument had been heard from counsel; no opportunity had been afforded to prove that the offence committed did notamount to the crime charged; no defending voice had been raised in behalf of the accused; but, without being heard, and without having had any opportunity to be heard, his case was adjudgedagainsthim. I say,adjudged against him without the chance of being heard. For surely the case was adjudged against him, when the only point upon which it was defensible was determined against him, and that determination publicly announced from the bench. That this was done before the accused could possibly have had a chance of being heard, is placed beyond contradiction by all the testimony. And that the judge knew the point which he thus prejudged, to be the only ground upon which the defence rested, is perfectly clear. For, from his own declarations at the time of announcing the opinion, it appears that he was well acquainted with all that had passed at the previous trial of Fries.
But, sir, we must look further into the progress of this transaction. It was not enough that the poor trembling victim of judicial oppression should thus have his dearest privileges snatched from him, by a prejudication of his case; it was not enough that the impartiality of those who were to compose his jury should be converted into a prepossession against him, by the imposing authority of solemn declarations from the bench; but the small remaining, darling hope of life, was to be smothered by a preclusion of his counsel from arguing the law to the jury. This fact, though sternly denied in the answer of the respondent, has, nevertheless, been established in a manner which must irresistibly force conviction upon the mind. Mr. Lewis affirms it positively. Mr. Dallas confirms it in a manner peculiarly strong. Not being himself present when the opinion was delivered to the bar, he received from Mr. Lewis a statement of what had passed, and, in an address to the Court afterwards, repeated distinctly this statement, and particularly that part which attributed to the judge a declaration, that, if the counsel had any thing to say upon the law, they must address themselves to the Court, and not to the jury. To this statement no reply was made by the Court, either correcting or denying it. Thus stands the evidence in the affirmative. Opposed to this we have the negative testimony of Messrs. Rawle, Tilghman, and Meredith, who have no recollection of any such declaration. I address myself to those who well know the difference between affirmative and negative testimony. I address myself to those who well know the established rule in the law of evidence, that the testimony of one affirmative witness countervails that of many negative ones; and I am sure that I address myself to those who must feel the complete coincidence of this rule with the dictates of common sense. Upon this ground alone we might safely rest our proposition; but, sir, we will not rest it here. It appears from the testimony of the witnesses on both sides, that almost every observation from the council to the Court, on the second day, was predicated upon the idea that something had been said on the preceding day, restrictive of their privileges. These observations, although addressed to the Court, and carrying this feature prominent in their face, were neither contradicted nor corrected by the Court. This was a strong tacit admission of the correctness of the idea upon which they were bottomed. But, sir, we have not only this tacit admission, but we have in testimony, this strong and impressive declaration from Judge Chase, that “the counsel might be heard in opposition to the opinion of the Court at the hazard of their characters.”
But, Mr. President, we have the positive admission of the respondent, in page 18 of his answer, that certain observations were made by him condemning the use of common law authorities upon the doctrine of treason, and also condemning authorities under the statute of treasons, but prior to the English Revolution. [Here the passage was read.] By a recurrence to page 22 of the answer, it will be found that the respondent admits that these observations of his were made on the first day; yet, sir, nothing of all this is remembered by Messrs. Rawle, Tilghman, or Meredith. How light, then, how extremely light, must their bare want of recollection weigh against the positive affirmative testimony of Messrs. Lewis and Dallas!
Considering my position as uncontrovertibly established, I will proceed to observe that the offence with which Fries stood charged, was the highest possible offence which can be committed in a state of society. The punishment annexed to its commission, was the highest possible punishment known to our laws. The accused was, therefore, entitled to every possible indulgence. In favor of life, not only every possible ground should be occupied by counsel to the jury, but every possible argument listened to and weighed with patience and forbearance; and it should never be forgotten that Judge Chase had such a conduct set as an example before him in a previous trial of the same case. Yes, sir, a brother judge of his, who has since gone to the world of spirits, had set him an example conspicuous for the purity of its excellence, and which should have arrested his career in the commission of this cruel outrage upon all humanity. But Judge Chase predetermines the law, then prohibits the counsel from proving to the jury that the law was not as laid down. This was, in effect, an extinguishment at once of the whole right of jury trial. All the privileges and all the benefits of that institution were swept at once from an American court of justice, and scarcely the external form preserved. The law was predetermined by the judge, and the accused was debarred from pleading it to the jury. Of what avail is it, sir, that the jury should be made judges of law and of fact, when the law is not permitted to be expounded to them? Of what avail is it that the accused should have a trial by jury, when he is prevented from stating and explaining to the jury theonly grounds upon which his case is defensible? The right to hear and determine facts isnot more the rightof a jury, than the right to hear and determine the law. To deprive them, then, of the privilege of hearing and determining the law, is as much a violation of their rights, as to deprive them of the privilege of hearing and determining facts. The right of the accused to be heard upon the facts to the jury, is not more his right, than the right of being heard upon the law to the jury. To deprive him, then, of the privilege of being heard upon the law to the jury, is as much a violation of his rights, as to deprive him of the privilege of being heard upon the facts to the jury.
The second, third, and fourth articles, exhibited by the House of Representatives, charge the defendant with a course of conduct upon a particular trial which affords many grounds of accusation. In this case it is true no unfortunate individual was charged with an offence which demanded his life as an expiation; yet, sir, there were other rights involved equally sacred in the laws of a free country. The liberty and the property of the accused were the price of a conviction. In casting our eyes over the ground upon which the different scenes of the transaction now about to be examined are spread, we are struck with a feature not usual in the history of human concerns. It would seem that even the restraint of appearances was no longer felt. We find the respondent setting out with a conduct, which seemed to prove that the fate of the accused was fixed. We find him pursuing a system of conduct throughout, which wrested from the accused some of his established and most valuable privileges. We find him endeavoring to heap shame and odium on those who occupied the station of advocates, because they would not tamely yield to his unwarrantable invasion of long-established rights.
Mr. President, notwithstanding the labored attempts made by the defendant in his answer to exculpate himself from imputation in compelling Mr. Basset to serve upon the jury, in the trial of Callender; yet, sir, I must be permitted to say that those attempts appear to me to be only the exertions of a mind conscious of impropriety, and seeking to impose upon the understanding of others. The test adopted, by which to try the impartiality of the jurors, in that case may possibly by some be held a correct one; but the manner of applying that test as then practised upon, is what I believe can be accounted for upon no other supposition than that of a determination on the part of the judge to procure the conviction of the accused. Upon what other principle can it be accounted for, that the jurors should be asked whether they had formed and delivered an opinion upon the charges laid in the indictment, when they knew not and were not suffered to know what those charges were? Why else could it be laid down by the judge, that because the individuals called to serve upon the jury did not know what charges were in the indictment, (having never seen it nor heard it read,) that therefore they could not have formed and delivered an opinion upon the subject? And why else did the judge, when this monstrous logic was contradicted by the fact of one of the jurors delivering in open court an opinion upon the whole subject of those charges, without having seen or heard the indictment read; why else did the judge, in the teeth of this damning fact, order the jurors sworn?
Every juror sworn might, like Mr. Basset, have formed and delivered an opinion which concluded the conviction of the accused, and yet because they did not know that the subject-matter of such opinion constituted the charges in the indictment, having neither seen it nor heard it read, the expression of such opinion created no disqualification. Unworthy evasion! An evasion which prevents the doctrine of disqualification in a juror from receiving any practical operation. An evasion which effectually puts at naught that principle of the constitution so often adverted to in a former part of the argument, that “the accused shall enjoy the right of a trial by an impartial jury.” Upon this point I beg leave to read two authorities. [Mr. Early here cited 3 Bac. Abr. 176, and Co. L. 157.]
But, sir, the scene rises upon us. We have now to examine a part of the transaction for which, I had supposed, human invention might be tortured for a palliation in vain. I allude to the rejection of Mr. Taylor’s testimony. The reason assigned for that rejection was, that the witness could not prove the truth of the whole ofany one charge. Let us, for a moment, examine the consequences of this doctrine. According to the judge’s own decisions then, as well as his doctrine now, each charge laid in the indictment must have constituted a separate offence. For it is explicitly declared both by Mr. Hay and Mr. Nicholas, that when an application was made to continue the case, because of the absence of some material witnesses, the application was rejected, upon the ground that it did not appear from the affidavit filed that the witnesses, so absent, could prove the truth of all the charges. That proof of the truth of a part only, would be of no avail, and that the whole must be proved to entitle the traverser to an acquittal. Each charge in the indictment, then, must have constituted aseparate offence; for the charges cannot be made to help each other out. One charge, however, it seems might consist of different facts. This was the case with several in that indictment. It was particularly the case with the very charge, the truth of which Mr. Taylor was called to prove. “The President was a professed aristocrat. He had proved faithful and serviceable to the British interest.” Here was a charge made up of two distinct facts; so distinct in their nature, that the knowledge of their truth might not only rest with different persons, but was extremely likely not to rest with anyonewitness. Put the case of a man charged with any offence—murder, theft, or any other crime you please. There may be a string of facts upon the proofof which the defence may depend; some within the knowledge of one man, some within that of another. Was it ever heard of before, that, because one witness could not prove the existence of all those facts, that, therefore, such witness should not be examined as to what he did know? Or, if some of the facts depended upon written testimony, was it ever heard of before, that, therefore, a witness should not be examined as to those resting on oral testimony? To these questions no man will answer in the affirmative. Why, then, was an unheard-of and palpably absurd doctrine brought to bear in Callender’s case? Was the defence of justification, under the sedition law of the United States, such an anomaly in its nature, that none of the established rules of jurisprudence would apply to it? Was it a thing soentirein its nature, that it could not consist of different parts? I have always been taught, and the respondent’s answer confirms the principle, that a defence must apply to the whole of a charge. If, then, a charge consist of different parts, surely, so must the defence. But, according to Judge Chase, be the parts ever so many, they shall not be proven, unless the proof can all be made by one witness, or unless it appear that the defendant has proof in reserve to establish all.
The fifth and sixth articles rest upon grounds so extremely simple, and so easily comprehended, that it appears totally unnecessary to fatigue the patience of the honorable Court by dwelling upon them.
The seventh article is as follows:
“That at a circuit court of the United States, for the district of Delaware, held at Newcastle, in the month of June, one thousand eight hundred, whereat the said Samuel Chase presided, the said Samuel Chase, disregarding the duties of his office, did descend from the dignity of a judge, and stoop to the level of an informer, by refusing to discharge the grand jury, although entreated by several of the said jury so to do; and after the said grand jury had regularly declared, through their foreman, that they had found no bills of indictment, nor had any presentments to make, by observing to the said grand jury that he, the said Samuel Chase, understood ‘that a highly seditious temper had manifested itself in the State of Delaware, among a certain class of people, particularly in Newcastle County, and more especially in the town of Wilmington, where lived a most seditious printer, unrestrained by any principle of virtue, and regardless of social order; that the name of this printer was’—but checking himself, as if sensible of the indecorum which he was committing, added, ‘that it might be assuming too much to mention the name of this person, but it becomes your duty, gentlemen, to inquire diligently into this matter,’ or words to that effect; and that with intention to procure the prosecution of the printer in question, the said Samuel Chase did, moreover, authoritatively enjoin on the District Attorney of the United States, the necessity of procuring a file of the papers to which he alluded, (and which were understood to be those published under the title of ‘Mirror of the Times and General Advertiser,’) and, by a strict examination of them, to find some passage which might furnish the groundwork of a prosecution against the printer of the said paper; thereby degrading his high judicial functions, and tending to impair the public confidence in, and respect for, the tribunals of justice, so essential to the general welfare.”
The respondent stands here charged with a conduct, than which, in my opinion, nothing could be more at war with his official duty—nothing more tarnish his official character. The constitution and laws of this country certainly intended in erecting high judicial tribunals, that those who might be appointed to minister therein, should be impartial dispensers of justice between such as might resort thither for an adjustment of their differences. In public prosecutions more especially was it intended that such dispensation should be made without respect to persons. In these, above all other cases, ought a judge to stand aloof from influence, free from predilection towards one, or prejudice against the other. Most peculiarly here is it his duty to stand firm at his post, resisting the overbearing influence of a powerful public, and protecting the rights of the accused in so unequal a contest. But Judge Chase, disregarding these principles, always held sacred in a land of laws, converts himself into a hunter after accusations. He who, in the humane language of the laws, should be counsel for the accused, becomes himself an accuser. He, whose duty it is impartially to decide between the prosecutor and prosecuted, becomes himself the procurer of prosecutions.
The eighth article charges the respondent with prostituting the judicial character by making a political speech to the grand jury at Baltimore, in the State of Maryland, against the Government of the United States and the Government of Maryland.
The eighth article charges the respondent with prostituting the judicial character by making a political speech to the grand jury at Baltimore, in the State of Maryland, against the Government of the United States and the Government of Maryland.
There are features in that part of the judge’s official conduct, charged in this article, which place him in a point of view awfully grand. We have heretofore been viewing him as bringing his talents to bear upon individuals. Here we see his genius rising, in the majesty of its strength, to far higher objects. Here we see him consigning over whole governments to the scourge of his own avenging wrath. Whithersoever he turned his eyes, whether to the State constitution and laws, or to the laws and constitution of the whole Union, they were equally exposed to the whip and the rack.
M.Campbellthen rose and spoke as follows.
Mr. President and Gentlemen of the Senate: The scene, presented to the nation by this trial, is more than usually interesting and important. One of the highest officers of the government, called upon by the voice of the people, through their representatives, before the highest tribunal known to our constitution—that sametribunal that sanctioned his elevation—to answer for the abuse of the power with which he had been intrusted! It is a melancholy truth, that derogates much from the dignity of human nature, but it is a truth that has been for ages established by experience, that high and important powers have a tendency to corrupt those on whom they are conferred. Few minds are possessed of sufficient integrity and independence, when elevated above the ordinary level of the great mass of their fellow-citizens, to resist the impulse their high station gives them, to grasp at still greater powers, and prostitute those which they already possess.
Hence it has been the great exertion of all governments, who regard the rights and liberties of the people, and still must continue to be so, to watch over the conduct of the high and confidential officers of State, and guard against their abusing the powers reposed in them. For this purpose the mode of trial by impeachment was resorted to in very early times in that country from which we have derived most of our laws and usages. Near five hundred years ago, the representatives of the people in that nation felt themselves clothed with sufficient authority to check the abuses of power, in the highest officers under the Crown, by calling upon them by impeachment to answer before the House of Lords for their conduct, and punishing them for such acts as were unauthorized, illegal, or oppressive.
It was a wise and politic measure to have charges of this nature tried by the highest tribunal in the nation, that would not beawedby the great powers and elevated standing of the accused, nor influenced by the popular voice of the accusers, further than a strict regard to impartial justice would require. As I conceive, therefore, that pure and unstained impartiality ought to be the characteristic feature in the trial by impeachment, I shall for myself, and I conceive I may in the name of the representatives of the people, utterly disclaim any design or wish that party considerations, or difference in political sentiments, should, in the remotest degree, enter into the investigation, or affect the decision of this question. Yet, in order to ascertain the motives that actuated the respondent, it may become necessary to notice the difference of political sentiments, so far as regarded the accused, and those who are stated to have been injured by his conduct, at the time those transactions took place, that gave origin to this prosecution.
In the view which I propose taking on this subject, I shall in the first place notice the provisions in the constitution relative to impeachment, and endeavor to ascertain the precise object and extent of such provision, so far as the same may relate to the present case.
The first provision in the constitution on this subject, (art. 1st, sec. 3,) declares, that the Senate shall have the sole power to try all impeachments. Here we discover the great wisdom of the framers of the constitution. The highest and most enlightened tribunal in the nation is charged with the protection of the rights and liberties of the citizens against oppression from the officers of Government under the sanction of law; unawed by the power which the officer may possess, or the dignified station he may fill, complete justice may be expected at their hands. The accused is called upon before the same tribunal, and in many instances, before the same men, who sanctioned his official elevation, to answer for abusing the powers with which he had been intrusted. Men who are presumed to have had a favorable opinion of him once, are to be his judges; no inferior or co-ordinate tribunal is to decide on his case, which might from motives of jealousy or interest be prejudiced against him and wish his removal. No, sir, his judges, without the shadow of temptation to influence their conduct, are placed beyond the reach of suspicion.
The next provision in the constitution declares that judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.
Here the constitution seems to make an evident distinction between such misdemeanors as would authorize a removal from office, and disqualification to hold any office, and such as are criminal, in the ordinary sense of the word, in courts of common law, and punishable by indictment. So far as the offence committed is injurious to society, only in consequence of the power reposed in the officer being abused in the exercise of his official functions, it is inquirable into only by impeachment, and punishable only by removal from office, and disqualification to hold any office; but so far as the offence is criminal, independent of the office, it is to be tried by indictment, and is made punishable according to the known rules of law in courts of ordinary jurisdiction. As, if an officer take a bribe to do an act not connected with his office, for this he is indictable in a court of justice only. Impeachment, therefore, according to the meaning of the constitution, may fairly be considered a kind of inquest into the conduct of an officer, merely as it regards his office; the manner in which he performs the duties thereof; and the effects that his conduct therein may have on society. It is more in the nature of a civil investigation, than of a criminal prosecution. And though impeachable offences are termed in the constitution high crimes and misdemeanors, they must be such only so far as regards the official conduct of the officer; and even treason and bribery can only be inquired into by impeachment, so far as the same may be considered as a violation of the duties of the officer, and of the oath the officer takes to support the constitution and laws of the United States, and of his oath of office; and not as to the criminality of those offences independent of the office. This must be inquired into and punished by indictment.
Mr.Campbell,in continuation.
I will now proceed, as well as my indisposition will permit, to examine in a brief manner the second part of the subject, containing the several charges founded on the trial of Callender, at Richmond, as stated in the second, third, and fourth articles of the impeachment. I will consider these several articles in the order in which the transactions on which they are founded took place in court. In order to ascertain the motives that actuated the judge in this whole transaction, it will only be necessary to view his conduct as proved, so far as the same relates to this subject, previous to the trial. The first account we have of the intended prosecution, or I might say persecution, of Callender, is at Annapolis. Here the judge received the famous book called the “Prospect before Us,” and upon which the prosecution was founded, and here the determination was formed to convict and punish Callender. The respondent said he would take the book with him to Richmond; that the libellous parts had been marked by Mr. Martin, and that before he returned he would teach the lawyers of Virginia to know the difference between the liberty and licentiousness of the press; and that, if the Commonwealth of Virginia was not totally depraved, if there was a jury of honest men to be found in the State, he would punish Callender before he returned from Richmond. This is the evidence of Mr. Mason, nearly in his own words, and no person will pretend to doubt its correctness. What language could be used that would more clearly show the partiality and predetermination of the judge to punish Callender, and the spirit of persecution by which he was actuated? Again: on his way to Richmond, according to the evidence of Mr. Triplett, the judge reviles the object of his intended vengeance; states his surprise and regret that he had not been hanged in Virginia; remarks that the United States had shown too much lenity to such renegadoes; and after arriving at Richmond, informs the deponent he was afraid they would not be able to get the damned rascal at that court. Thus evincing in every stage of this business that intolerant spirit of oppression and vengeance that seems to have given spring to all his actions. After the indictment is found against Callender, the panel of the petit jury is presented to the judge; he inquires if he had any of the creatures called Democrats on that panel, directs the marshal to examine it, and if there were any such on it, to strike them off. This is the evidence of Mr. Heath, whose character and standing in society are known to many of the members of this honorable Court. And, though his evidence is opposed to the negative declarations of Mr. Randolph, who affirms that he did not present the panel of the jury to the judge, or receive such directions, yet I conceive the Court will give more weight to the affirmative declarations of Mr. Heath, with regard to these facts, than to the negative assertions of Mr. Randolph, who may have forgotten the transaction. This point rests upon the integrity and veracity of Mr. Heath. He could not receive the impression of these facts, unless the transaction had taken place; he could not reasonably be mistaken; the affair was new and extraordinary, and must have arrested his attention; and in this case there is no ground to make allowance for a treacherous memory, for it is not pretended that the witness, Mr. Heath, has forgot the facts, but that they never existed. If you do not, therefore, believe the statement he makes, it must follow that you admit the witness has wilfully and corruptly stated a falsehood. This, I presume, will not be admitted. But, on the other hand, Mr. Randolph may have forgotten the transaction in the bustle of business, and this will account for the difference in the evidence of the witnesses without impeaching the veracity of either. This mode of reconciling the evidence is agreeable to the rules of law. I take the facts, therefore, as stated by Mr. Heath, to be correct, and they afford an instance of judicial depravity hitherto unequalled and unknown in our country—a direct attempt to pack a jury of the same political sentiments with the judge to try the defendant. This is a faint representation of the previous conduct of the judge relative to this subject, before whom the defendant was about to be tried, or rather before whom he was to be called for certain conviction and punishment, for it ought not to be dignified with the name of a trial. With this view, therefore, of the temper and disposition of the judge, and of his previous conduct on this occasion, we will examine the first important step taken in the trial, in which the designs of the judge begin more clearly to unfold themselves, viz: his refusal to postpone or continue the trial until the next term, on an affidavit regularly filed, stating the absence of material witnesses and the places of their residence, being the second charge in the fourth article.
The next charge which I propose to examine is contained in the second article of the impeachment, and consists in the judge’s overruling the objection of John Basset, one of the jury, who wished to be excused from serving on the trial of Callender, because he had made up his mind as to the book from which the words charged to be libellous in the indictment had been drawn. The constitution secures to defendants charged with crimes, the right of a trial by an impartial jury; any thing, therefore, that goes to show that a man has made up an opinion with regard to the guilt or innocence of the accused, or with regard to the matter in question, or decided it in his own mind, proves him to be disqualified to serve as a juror, because it proves he is not impartial, has a bias upon his mind, and cannot be said to be indifferent. The same doctrine is supported by the laws of England. In order to show this, I will refer the Court to 3 Bac. Ab. (new ed.) 756, andalso Co. Litt. 158; where it is stated, if a juror has declared his opinion, touching the matter in question, &c., or has done any thing by which it appears that he cannot be indifferent or impartial, &c., these are principal causes of challenge; and therefore such juror would be disqualified. Here it is manifest, that though declaring an opinion is good cause of challenge to a juror, if it is not necessary he should declare such opinion in order to disqualify him; it is sufficient that he has done something, whether making up an opinion, or doing any act whatever, by which it appears he is not indifferent, is not perfectly impartial.
The next charge to be inquired into, is that stated in the third article, in rejecting the evidence of Colonel Taylor, a material witness in favor of the defendant, on the pretence that he could not prove the truth of the whole of one charge. In this instance the judge acted contrary to all former precedents in courts of justice, and without the shadow of law or reason to justify his conduct. Not a solitary case could be stated by any of the witnesses of a similar conduct in a judge. The rule here adopted, with regard to the admissibility of evidence, would deprive the jury of their undoubted right to decide on the credibility and weight of evidence, as well as on the extent to which it proved the matter in question; would transfer in substance this right to the Court, and thereby shake to its very centre the fabric so justly admired, and held so sacred,of trial by jury. It would make it necessary for the party to present to the Court all the evidence relied upon to make out his case. This evidence, the Court or judge would first deliberately examine, compare it with the charges or case to be supported, and if it did not, in his opinion, prove the whole of one charge, or go the whole extent of the case to be established by it, he would reject it, and not permit the jury to hear it. This would strip the jury of the very prerogative that renders this kind of trial so much superior to all others, that of deciding on the weight and credit of evidence.
But it is stated that Judge Griffin concurred with him in opinion, and this is insisted upon by the accused in different parts of his answer, as an excuse for the errors he committed, if, as he states, they were errors. This seems to be a kind of forlorn hope resorted to, when all other expedients fail. To this argument of the judge I would in this place answer, once for all, that it can be no excuse for him, nor any justification of his offences, that another has been equally guilty with himself; and it must strongly prove the weakness of his defence to rely upon this ground. Though Judge Griffin has not yet been called to an account for his conduct on this occasion, that is no reason why he should not hereafter be made to answer for it. The nation has not said he was innocent, or that he will not be proceeded against for this conduct; and there is no limitation of time that would screen him from the effects of charges of this kind, if they should be brought forward and supported against him hereafter. No ground of excuse therefore can arise from the circumstance of Judge Griffin not having been called upon to answer for his conduct in this respect.
I will now proceed to notice very briefly the conduct of the judge in the subsequent part of this trial. Compelling the defendant’s counsel to reduce to writing all questions to be asked the witness, was a direct innovation on the practice in our courts of justice, and tended to embarrass the management of and weaken the defence. It is proved by the testimony of all the witnesses, that no such practice ever prevailed in our courts of justice, for such a purpose as that avowed in this instance; the only cases in which it is required to reduce to writing questions to be asked a witness, and the only cases in which it can be proper or consistent with reason and justice to do so, are those in which an objection is made to a question proposed to be asked, on the ground of its being improper and contrary to the rules of evidence; and in order to ascertain the precise meaning and effect of the question, so as to decide on the objection made to it, it may be proper to require it to be reduced to writing, but it never was before done, so far as we can discover, for the purpose of ascertaining how far the witness could prove the matter in question, and whether he could prove the whole of one charge or not, and thereby decide whether the witness should or should not be examined. According to this rule the judge would first try the cause himself upon the evidence offered, by the questions thus reduced to writing, and if he did not consider such evidence fully sufficient to support the whole of the charge or case to which it was offered, he would reject it, and not permit the jury to hear a word of it, lest they might consider it stronger than he did, and give it sufficient weight to support the case to which it was offered. This mode of proceeding was left to be discovered and adopted by Judge Chase.
Barely to notice the conduct of the respondent, at Newcastle in Delaware, as charged in the seventh article, is sufficient to show that he was there actuated by the same spirit of persecution and oppression that has, as already stated, marked the whole of his conduct during the course of these transactions. That he should descend from the elevated and dignified station in which he was placed as a judge, to hunt for crimes as a common informer against his fellow-citizens; urge the jury to take notice of, and present certain persons sufficiently designated though not named; and press the attorney for the district to search for evidence among the files of newspapers to support a prosecution, was degrading to the sacred character of a judge, and was perverting the judicial authority to a mere engine of persecution to answer party purposes. Of the same complexion with this is the conduct of the respondent in delivering an inflammatory and disorganizing charge to the grand jury at Baltimore, as stated in the eightharticle of the impeachment. This proceeding evinced a mind inflamed by party spirit and political intolerance; it was calculated to disturb the peace of the community, and alarm the people at the measures of Government: to force them by the terror of judicial denunciation to relinquish their own political sentiments and adopt those of the judge. This was the favorite object of this whole proceeding, and to obtain it no means were left untried. It was attempted to excite the fears of the public mind, to destroy the confidence of the people in the administration of their Government. The judicial authority was prostituted to party purposes, and the fountains of justice were corrupted by this poisonous spirit of persecution, that seemed determined to bear down all opposition in order to succeed in a favorite object. Citizens of all descriptions felt alarmed at this new and unusual conduct. All the counsel at the bar, wherever the respondent went, though consisting of the ablest and most enlightened in the nation, were agitated into a general ferment, and the whole community seemed shocked at such outrages upon common sense; for to go to trial was to go to certain conviction. Is this, Mr. President, the character that ought to distinguish the Judiciary of the United States? No, sir. The streams of justice that flow from the American bench ought to be as pure as the sunbeams that light up the morning. The accused should come before the Court, with a well-founded confidence that the law will be administered to him with justice, impartiality, and in mercy. When this is the case, he submits without a murmur to his fate, and hears the sentence of condemnation pronounced against him, with a mind that must approve the justice of the law and the impartiality of those who administer it.
The decision of this cause may form an important era in the annals of our country. Future generations are interested in the event. It may determine a question all-important to the American people; whether the laws of our country are to govern, or the arbitrary will of those who are intrusted with their administration. Mr. President, we, on this important occasion, behold the rights and liberties of the American people hover round this honorable tribunal, about to be established on a firm basis by the decision you will make, or sent afloat on the ocean of uncertainty, to be tossed to and fro by the capricious breath of usurped power and innovation.
Mr.Clarkaddressed the Chair as follows—Mr. President: I rise only to make a few remarks on two of the articles, the fifth and sixth, that the counsel for the respondent may be possessed of all the points we mean to make. I will endeavor, in a few words, to state the practice which we think ought to have been pursued in the case of Callender. The practice in the federal courts is regulated by that in each State. If this position be correct, we contend, that the proper process in the case of Callender was a summons. An act of Virginia, passed in the year 1792, provides that the grand jury “shall present all treasons, murders, felonies,or other misdemeanors whatsoever, which shall have been committed or done within the district for which they are impanelled.”
By another act of Virginia, passed in the same year, it is enacted that, “upon presentment made by the grand jury of an offence not capital, the Court shall order the clerk to issue a summons or other proper process against the person or persons so presented, to appear and answer such presentmentat the next Court, and thereupon hear and determine the same according to law.”
In this last provision, the words, “or other proper process,” have a direct application to the previous provision, which enacts that the grand jury shall present all treasons, murders, felonies, “or other misdemeanors.” For treasons, murders, and felonies, we admit that a capias is the proper process; and when the law directsother proper process, it had reference to a class of crimes where a capias was required. It is in vain alleged, that the counsel for Callender made no objection to the process issued. They were not at that time to be considered as his counsel; it was only after he was brought into court that their duty commenced.
Further, whether the proper process was a capias or summons, the law of Virginia requires that it shall be returnable to the next Court; and I contend that this point is established by the English practice. To show which I refer to Hawkins’s Pleas of the Crown, where it is stated that avenire facias, which is in the nature of a summons, is the proper process, and that it is returnable to the next Court.
It was surely, then, the duty of the judge to be acquainted with the laws of England, however unacquainted he may have been with the laws of Virginia. He cannot, therefore, on this ground, attempt a justification from ignorance. In his answer he informs us that ignorance of the law is no excuse. If it is no excuse in an unlettered individual, shall it constitute the apology of him who was expressly appointed to expound the law and administer justice? And if, on this occasion, he was not acquainted with the law, did it, therefore, become him to proceed with such fatal precipitancy? No sooner was the presentment made than the marshal, before any indictment was brought in, was despatched after Callender. We can only account for this by supposing that it was the intention of the judge to act in conformity to his previous declaration, however jocularly it may have seemed to have been made; and that this was one of the means he had determined to pursue in order to convict Callender, regardless of the dignity of his station or the innocence of the man. Having offered these remarks, I am instructed to say that the case is fully opened on the part of the prosecution.
Mr.Hopkinson.—Mr. President: We cannotremind you, and this honorable Court, as our opponents have so frequently done, that we address you in behalf of the majesty of the people. We appear for an ancient and infirm man, whose better days have been worn out in the service of that country which now degrades him; and who has nothing to promise you for an honorable acquittal but the approbation of your own consciences. We are happy, however, to concur with the honorable Managers in one point; I mean the importance they are disposed to give to this cause. In every relation and respect in which it can be viewed, it is, indeed, of infinite importance. It is important to the respondent to the full amount of his good name and reputation, and of that little portion of that happiness the small residue of his life may afford. It is important to you, Senators and judges, inasmuch as you value the judgment which posterity shall pass upon the proceedings of this day. It is important to our country, as she estimates her character for sound, dignified, and impartial justice, in the eyes of a judging world. The little, busy vortex that plays immediately round the scene of action, considers this proceeding merely as the trial of Judge Chase, and gazes upon him as the only person interested in the result. This is a false and imperfect view of the case. It is not the trial of Judge Chase alone. It is a trial between him and his country, and that country is as dearly interested as the judge can be, in a fair and impartial investigation of the case, and in a just and honest decision of it. There is yet another dread tribunal to which we should not be inattentive. We should look to it with solemn impressions of respect. It is posterity; the race of men that will come after us. When all the false glare and false importance of the times shall pass away; when things shall settle down into a state of placid tranquillity, and lose that bustling motion that deceives with false appearances; when you, most honorable Senators, who sit here to judge, as well as the respondent who sits here to be judged, shall alike rest in the silence of the tomb, then comes the faithful, the scrutinizing historian, who, without fear or favor, will record this transaction; then comes a just and impartial posterity, who, without regard to persons or to dignities, will decide upon your decision. Then, I trust, the high honor and integrity of this Court will stand recorded in the pure language of deserved praise, and this day will be remembered in the annals of our land, as honorable to the respondent, to his judges, and to the justice of our country.
We have heard, sir, from the honorable Managers who have addressed you, many harsh expressions. I hope, sir, they will do no harm. We have been told of the respondent’s unholy sins, which even the heavenly expectation of sincere repentance cannot wash away; we have been told of his volumes of guilt, every page of which calls loudly for punishment. This sort of language but pursues the same spirit of asperity and reproach which was begun in the replication to our answer. But we come here, sir, not to complain of any thing; we come expecting to bear and to forbear much. It does, indeed, seem to me, that the replication filed by the honorable Managers on behalf of the House of Representatives and of all the people, carries with it more acrimony than either the occasion or their dignity demanded. It may be said that they have resorted for it to English precedent, and framed it from the replication filed in the celebrated case of Warren Hastings. There is, however, no similarity between that case and ours. Precedents might have been found more mild in their character, and more adapted to the circumstances of our case. The impeachment of Hastings was not instituted on a petty catalogue of frivolous occurrences, more calculated to excite ridicule than apprehension, but for the alleged murder of princes and plunder of empires. If, however, the choice of this case as a precedent for our pleadings, has exposed us to some unpleasant expressions, it also furnishes to us abundance of consolation and hope. There, the most splendid talents that ever adorned the British nation, were strained to their utmost exertion to crush the devoted victim of malignant persecution. But in vain; the stern integrity, the enlightened perception, the immovable justice of his judges, stood as a barrier between him and destruction, and safely protected him from the fury of the storm. So, I trust in God, it will be with us.
In England, the impeachment of a judge is a rare occurrence. I recollect but two in half a century. But, in our country, boasting of its superior purity and virtue, and declaiming ever against the vice, venality, and corruption of the Old World, seven judges have been prosecuted criminally in about two years. A melancholy proof either of extreme and unequalled corruption in our Judiciary, or of strange and persecuting times amongst us.
The first proper object of our inquiries in this case is, to ascertain with proper precision what acts or offences of a public officer are the objects of impeachment. This question meets us at the very threshold of the case. If it shall appear that the charges exhibited in these articles of impeachment are not, even if true, the constitutional subjects of impeachment; if it shall turn out on the investigation that the judge has really fallen into error, mistake, or indiscretion, yet if he stands acquitted in proof of any such acts as by the law of the land are impeachable offences, he stands entitled to discharge on his trial. This proceeding by impeachment is a mode of trial created and defined by the constitution of our country; and by this the Court is exclusively bound. To the constitution, then, we must exclusively look to discover what is or is not impeachable. We shall there find the whole proceeding distinctly marked out; and every thing designated and properly distributed necessary in the construction of a court of criminal jurisdiction. We shall find, 1. Who shall originate or present an impeachment. 2. Whoshall try it. 3. For what offences it may be used. 4. What is the punishment on conviction. The first of these points is provided for in the second section of the first article of the constitution, where it is declared that “the House of Representatives shall have the sole power of impeachment.” This power corresponds with that of a grand jury to find a presentment or indictment. In the third section of the same article, the Court is provided before whom the impeachment thus originated shall be tried: “The Senate shall have the sole power to try all impeachments.” And the fourth section of the second article points out and describes the offences intended to be impeachable, and the punishment which is to follow conviction; subject to a limitation in the third section of the first article.