This had no application except to a part of the twelfth charge; which has been already shown to be wholly immaterial if taken separately, and wholly incapable of a separate justification, if considered as part of an entire charge. And, lastly, it was to be proved by General Blackburn, that in his answer to an address, Mr. Adams avowed, “that there was a party in Virginia which deserved to be humbled into dust and ashes, before the indignant frowns of their injured, insulted, and offended country.” There were but two charges in the indictment to which this fact, if true, had the most distant resemblance. These are the fifteenth and sixteenth, the words forming the matter of which, call Mr. Adams “an hoary-headed libeller of the Governor of Virginia, who with all the fury, but without the propriety or sublimity of Homer’s Achilles, bawled out, to arms, then, to arms!” and “who, floating on the bladder of popularity, threatened to make Richmond the centre point of a bonfire.” It would be an abuse of the patience of this honorable Court, to occupy any part of its time in proving that the fact intended to be proved by General Blackburn, could not in the slightest degree support or justify such charges as these.
To the third charge adduced in support of the article now under consideration, the charge of using “unusual, rude, and contemptuous expressions towards the prisoner’s counsel,” and of “falsely insinuating that they wished to excite the public fears and indignation, and to produce that insubordination to law to which the conduct of this respondent did manifestly tend,” he cannot answer otherwise than by a general denial. A charge so vague, admits not of precise or particular refutation. He denies that there was any thing unusual or intentionally rude or contemptuous in his conduct or his expressions towards the prisoner’s counsel; that he made any false insinuation whatever against them, or that his own conduct tended in any manner to produce insubordination to law. On the contrary, it was his wish and intention to treat the counsel with the respect due to their situation and functions, and with the decorum due to his own character. He thought it his duty to restrain such of their attempts as he considered improper, and to overrule motions made by them, which he considered as unfounded in law; but this it was his wish to accomplish in the manner least likely to offend, from which every consideration concurred in dissuading him. He did indeed think at that time, and still remains under the impression, that the conduct of the traverser’s counsel, whether from intention or not he will not undertake tosay, was disrespectful, irritating, and highly incorrect. That conduct which he viewed in this light, might have produced some irritation in a temper naturally quick and warm, and that this irritation might, notwithstanding his endeavors to suppress it, have appeared in his manner and in his expressions, he thinks not improbable; for he has had occasions for feeling and lamenting the want of sufficient caution and self-command, in things of this nature. But he confidently affirms, that his conduct in this particular was free from intentional impropriety; and this respondent denies, that any part of his conduct was such as ought to have induced the traverser’s counsel to “abandon the cause of their client,” nor does he believe that any such cause did induce them to take that step. On the contrary, he believes that it was taken by them under the influence of passion, for some motive into which this respondent forbears at this time to inquire. And this respondent admits that the said traverser was convicted, and condemned to fine and imprisonment, but not by reason of the abandonment of his defence by his counsel; but because the charges against him were clearly proved, and no defence was made or attempted against far the greater number of them.
The fourth charge in support of this article attributes to this respondent “repeated and vexatious interruptions of the said counsel, which at length induced them to abandon the cause of their client, who was therefore convicted, and condemned to fine and imprisonment.” To this charge, also, it is impossible to give any other answer but a general denial. He avers that he never interrupted the traverser’s counsel vexatiously, or except when he considered it his duty to do so.
Lastly, this respondent is charged, under this article, with an “indecent solicitude, manifested by him, for the conviction of the accused, unbecoming even a public prosecutor, but highly disgraceful to the character of a judge, as it was subversive of justice.” This is another charge of which it is impossible to give a precise refutation, and to a general denial of which this respondent must therefore confine himself. He denies that he felt any solicitude whatever for the conviction of the traverser; other than the general wish natural to every friend of truth, decorum, and virtue, that persons guilty of such offences as that of which the traverser stood indicted, should be brought to punishment for the sake of example.
And the said respondent for plea to the said fourth article of impeachment, saith, that he is not guilty of any high crime and misdemeanor, as in and by the said fourth article is alleged against him, and this he prays may be inquired of by this honorable Court, in such manner as law and justice shall seem to require.
The fifth article of impeachment charges this respondent with having awarded “a capias against the body of the said James Thompson Callender, indicted for an offencenot capital, whereupon the said Callender was arrested and committed toclosecustody, contrary to law in that case made and provided.”
This charge is rested, 1st, on the act of Congress of September 24, 1789, entitled “An act to establish the judicial courts of the United States,” by which it is enacted “that for any crime or offence against the United States, the offender may be arrested, imprisoned, or bailed, agreeably to the usual mode of process, in the State where such offender may be found.” And, 2dly, on a law of the State of Virginia, which is said to provide “that uponpresentmentby any grand jury, of an offencenot capital, the Court shall order the clerk to issue asummonsagainst the person or persons so offending, to appear and answer such presentment at thenextcourt.” It is contended, in support of this charge, that the act of Congress above mentioned made the State law the rule of proceeding, and that the State law was violated by issuing a capias against Callender, instead of a summons.
It will also appear, as this respondent believes, by a reference to the laws and practice of Virginia, into which he has made all the inquiries which circumstances and the shortness of time allowed him for preparing his answer would permit, that all the cases in which a summons is considered as the only proper process, are cases of petty offences, which, on the presentment of a grand jury, are to be tried by the court in a summary way, without the intervention of a petit jury. Therefore these provisions had no application to the case of Callender, which could be no otherwise proceeded on than by indictment, and trial on the indictment by a petit jury.
And the said respondent, for plea to the said fifth article of impeachment, saith, that he is not guilty of any high crime and misdemeanor, as in and by the said fifth article is alleged against him; and this he prays may be inquired of by this honorable Court, in such manner as law and justice shall seem to them to require.
The sixth article of impeachment alleges that this respondent, “with intent to oppress and procure the conviction of the said James Thompson Callender, did, at the court aforesaid, rule and adjudge the said Callender to trial during the term at which he, the said Callender, was presented and indicted, contrary to the law in that case made and provided.”
This charge also is founded, 1st, on the act of Congress of September 24, 1789, above mentioned, which enacts, section 34, “that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise provide, shall be regarded as the rules of decision, in trials atcommon law, in the courts of the United States, in cases where they apply;” and, 2dly, on a law of the State of Virginia, which is supposed to provide, “that in cases not capital, the offender shall not be held to answer any presentment of a grand jury, until the court next preceding that during which such presentment shall havebeen made.” This law, it is contended, is made the role of decision by the above-mentioned act of Congress, and was violated by the refusal to continue the case of Callender till the next term.
In answer to this charge this respondent declares, that he was at the time of making the above-mentioned decision wholly ignorant of any such law of Virginia as that in question; that no such law was adduced or mentioned by the counsel of Callender, in support of their motion for a continuance; neither when they first made it, before this respondent sitting alone, nor when they renewed it, after Judge Griffin had taken his seat in court; that no such law was mentioned by Judge Griffin, who concurred in overruling the motion for a continuance and ordering on the trial; which he could not have done had he known that such a law existed, or considered it as applicable to the case; and that this respondent never heard of any such law until the articles of impeachment now under consideration were reported, in the course of the present session of Congress, by a committee of the House of Representatives.
And for plea to the said sixth article of impeachment, the said Samuel Chase saith, that he is not guilty of any high crime or misdemeanor, as in and by the said-article is alleged against him; and this he prays may be inquired of by this honorable Court, in such manner as law and justice shall seem to them to require.
The seventh article of impeachment relates to some conduct of this respondent in his judicial capacity, at a circuit court of the United States held at Newcastle, in the State of Delaware, in June, 1800. The statement of this conduct, made in the article, is altogether erroneous; but if it were true, this respondent denies that it contains any matter for which he is liable to impeachment.
These charges amount in substance to this: that the respondent refused to discharge a grand jury, on their request, which is every day’s practice, and which he was bound to do, if he believed that the due administration of justice required their longer attendance; that he directed the attention of the grand jury to an offence against a statute of the United States, which, he had been informed, was committed in the district; and that he desired the District Attorney to aid the grand jury in their inquiries concerning the existence and nature of this offence. By these three acts, each of which it was his duty to perform, he is alleged “to have degraded his high judicial functions, and tended to impair the public confidence in, and respect for, the tribunals of justice, so essential to the public welfare.”
That this honorable Court may be able to form correctly its judgment concerning the transaction mentioned in this article, this respondent submits the following statement of it, which he avers to be true, and expects to prove:
On the 27th day of June, 1800, this respondent, as one Of the Associate Justices of the Supreme Court of the United States, presided in the circuit court of the United States, then held at Newcastle, in and for the district of Delaware, and was assisted by Gunning Bedford, Esq., then district judge of the United States for that district. At the opening of the court on that day, this respondent, according to his duty and his uniform practice, delivered a charge to the grand jury, in which he gave in charge to them several statutes of the United States, and, among others, an act of Congress, passed July 14th, 1798, entitled “An act in addition to the act for the punishment of certain crimes against the United States,” and commonly called the “sedition law.” He directed them to inquire concerning any breaches of those statutes, and especially of that commonly called the sedition law, within the district of Delaware.
On the same day, before the usual hour of adjournment, the grand jury came into court, and informed the Court that they had found no indictment or presentment, and had no business before them, for which reason they wished to be discharged. This respondent replied, that it was earlier than the usual hour of discharging a grand jury; and that business might occur during the sitting of the court. He also asked them if they had no information of publications within the district, that came under the sedition law, and added, that he had been informed that there was a paper called theMirror, published at Wilmington which contained libellous charges against the Government and President of the United States: that he had not seen that paper, but it was their duty to inquire into the subject; and if they had not turned their attention to it, the attorney for the district would be pleased to examine a file of that paper, and if he found any thing that came within the sedition law, would lay it before them. This is the substance of what the respondent said to the grand jury on that occasion, and, he believes, nearly his words; on the morning of thenext daythey came into court and declared that they had no presentments or indictments to make, on which they were immediately discharged. The whole time, therefore, for which they were detained, was twenty-four hours, far less than is generally required of grand juries.
And for plea to the said seventh article of impeachment, the said Samuel Chase saith, that he is not guilty of any high crime or misdemeanor, as in and by the said seventh article is alleged against him, and this he prays may be inquired of by this honorable Court, in such manner as law and justice shall seem to them to require.
The eighth article of impeachment charges that this respondent, “disregarding the duties and dignity of his official character, did, at a circuit court for the district of Maryland, held at Baltimore, in the month of May, 1803, pervert his official right and duty to address thegrand jury then and there assembled, on the matters coming within the province of the said jury, for the purpose of delivering to the said grand jury an intemperate and inflammatory political harangue, with intent to excite the fears and resentment of the said grand jury, and of the good people of Maryland, against their State government and constitution,” and also that this respondent, “under pretence of exercising his judicial right to address the grand jury as aforesaid, did endeavor to excite the odium of the said grand jury, and of the good people of Maryland, against the Government of the United States, by delivering opinions which were, at that time and as delivered by him, highly indecent, extra-judicial, and tending to prostitute the high judicial character with which he was invested to the low purpose of an electioneering partisan.”
In answer to this charge this respondent admits that he did, as one of the Associate Justices of the Supreme Court of the United States, preside in a circuit court held at Baltimore in and for the district of Maryland, in May, 1803, and did then deliver a charge to the grand jury, and express in the conclusion of it some opinions as to certain public measures, both of the Government of Maryland and of that of the United States. But he denies that, in thus acting, he disregarded the duties and dignity of his judicial character, perverted his official right and duty to address the grand jury, or had any intention to excite the fears or resentment of any person whatever against the Government and Constitution of the United States or of Maryland. He denies that the sentiments which he thus expressed were “intemperate and inflammatory,” either in themselves or in the manner of delivering; that he did endeavor to excite the odium of any person whatever against the Government of the United States, or did deliver any opinions which were in any respect indecent, or which had any tendency to prostitute his judicial character to any low or improper purpose. He denies that he did any thing that was unusual, improper, or unbecoming in a judge, or expressed any opinions, but such as a friend to his country and a firm supporter of the Governments, both of the State of Maryland and of the United States, might entertain. For the truth of what he here says, he appeals confidently to the charge itself: which was read from a written paper now in his possession ready to be produced. A true copy of all such parts of this paper as relate to the subject matter of this article of impeachment, is contained in the exhibit marked No. 8, which he prays leave to make part of this his answer.
Admitting these opinions to have been incorrect and unfounded, this respondent denies that there was any law which forbids him to express them in a charge to a grand jury, and he contends that there can be no offence without the breach of some law. The very essence of despotism consists in punishing acts which, at the time when they were done, were forbidden by no law. Admitting the expression of political opinions by a judge, in his charge to a grand jury, to be improper and dangerous, there are many improper and very dangerous acts, which not being forbidden by law, cannot be punished. Hence the necessity of new penal laws, which are from time to time enacted for the prevention of acts not before forbidden, but found by experience to be of dangerous tendency. It has been the practice in this country, ever since the beginning of the Revolution which separated us from Great Britain, for the judges to express from the bench, by way of charge to the grand jury, and to enforce to the utmost of their ability such political opinions as they thought correct and useful. There have been instances in which the Legislative bodies of this country have recommended this practice to the judges; and it was adopted by the judges of the Supreme Court of the United States as soon as the present Judicial system was established.
Nor can the incorrectness of the political opinions thus expressed have any influence in deciding on the guilt or innocence of a judge’s conduct in expressing them. For if he should be considered as guilty or innocent, according to the supposed correctness or incorrectness of the opinion thus expressed by him, it would follow that error in political opinion, however honestly entertained, might be a crime; and that a party in power might, under this pretext, destroy any judge who might happen, in a charge to a grand jury, to say something capable of being construed by them into a political opinion adverse to their own system.
And the said Samuel Chase, for plea to the said eighth article of impeachment, saith, that he is not guilty of any high crime and misdemeanor, as in and by the said eighth article is alleged against him, and this he prays may be inquired of by this honorable Court, in such manner as law and justice shall seem to them to require.
This respondent has now laid before this honorable Court, as well as the time allowed him would permit, all the circumstances of the case, with an humble trust in Providence, and a consciousness that he has discharged all hisofficialduties with justice and impartiality, to the best of his knowledge and abilities; and that intentionally he hath committed no crime or misdemeanor, or any violation of the constitution or laws of his country. Confiding in the impartiality, independence, and integrity of his judges, and that they will patiently hear, and conscientiously determine this case, without being influenced by the spirit of party, by popular prejudice, or political motives, he cheerfully submits himself to their decision.
He is satisfied that every member of this tribunal will observe the principles of humanity and justice, and will presume him innocent until his guilt shall be established by legal and creditable witnesses, and will be governed in his decision by the moral and Christian rule ofrendering that justice to this respondent which he would wish to receive.
This respondent now stands not merely before an earthly tribunal, but also before that awful Being whose presence fills all space, and whose all-seeing eye more especially surveys the temples of justice and religion. In a little time, his accusers, his judges, and himself, must appear at the bar of Omnipotence, where the secrets of all hearts shall be disclosed, and every human being shall answer for his deeds done in the body, and shall be compelled to give evidence against himself, in the presence of an assembled universe. To his Omnipotent Judge, at that awful hour, he now appeals for the rectitude and purity of his conduct, as to all the matters of which he is this day accused.
Mr.Randolph, on behalf of the Managers, requested time to consult the House of Representatives, and likewise to be furnished with a copy of the answer of Judge Chase, for the purpose of making a replication to it.
ThePresidentsaid the Senate would take the request into consideration, and make known to the House of Representatives such order as should be taken thereon.
Whereupon the Senate, at the suggestion of thePresident, retired to their legislative apartment.
On Wednesday, the 6th instant, the House of Representatives received a copy of the foregoing answer, which was referred to the Managers. On the same day, Mr.Randolphreported a replication to the answer, which was immediately taken into consideration. Several motions were made and rejected, after a short debate, to soften the style; when the replication, as reported, was adopted—yeas 77, nays 34. Whereupon, it was resolved that the Managers be instructed to proceed to maintain the said replication at the bar of the Senate, at such time as shall be appointed by the Senate.
The Court was opened about two o’clock.
Present: The Managers, and Mr.Hopkinson, of the counsel for Mr. Chase.
Mr.Randolph, on behalf of the Managers, read the replication of the House of Representatives, to the answer of Samuel Chase, as follows:
Replication by the House of Representatives of the United States, to the answer of Samuel Chase, one of the Associate Justices of the Supreme Court of the United States, to the Articles of Impeachment exhibited against him by the said House of Representatives.The House of Representatives of the United States have considered the answer of Samuel Chase, one of the Associate Justices of the Supreme Court of the United States, to the Articles of Impeachment against him, by them exhibited, in the name of themselves and of all the people of the United States, and observe,That the said Samuel Chase hath endeavored to cover the high crimes and misdemeanors laid to his charge, by evasive insinuations and misrepresentation of facts; that the said answer does give a gloss and coloring utterly false and untrue, to the various criminal matters contained in the said Articles; that the said Samuel Chase did, in fact, commit the numerous acts of oppression, persecution, and injustice, of which he stands accused; and the House of Representatives, in full confidence of the truth and justice of their accusation, and of the necessity of bringing the said Samuel Chase to a speedy and exemplary punishment, and not doubting that the Senate will use all becoming diligence to do justice to the proceedings of the House of Representatives, and to vindicate the honor of the nation, do aver their charge against the said Samuel Chase to be true, and that the said Samuel Chase is guilty in such manner as he stands impeached; and that the House of Representatives will be ready to prove their charges against him, at such convenient time and place as shall be appointed for that purpose.Signed by order, and in behalf of, the said House.NATH. MACON,Speaker,Attest:JOHN BECKLEY,Clerk.
Replication by the House of Representatives of the United States, to the answer of Samuel Chase, one of the Associate Justices of the Supreme Court of the United States, to the Articles of Impeachment exhibited against him by the said House of Representatives.
The House of Representatives of the United States have considered the answer of Samuel Chase, one of the Associate Justices of the Supreme Court of the United States, to the Articles of Impeachment against him, by them exhibited, in the name of themselves and of all the people of the United States, and observe,
That the said Samuel Chase hath endeavored to cover the high crimes and misdemeanors laid to his charge, by evasive insinuations and misrepresentation of facts; that the said answer does give a gloss and coloring utterly false and untrue, to the various criminal matters contained in the said Articles; that the said Samuel Chase did, in fact, commit the numerous acts of oppression, persecution, and injustice, of which he stands accused; and the House of Representatives, in full confidence of the truth and justice of their accusation, and of the necessity of bringing the said Samuel Chase to a speedy and exemplary punishment, and not doubting that the Senate will use all becoming diligence to do justice to the proceedings of the House of Representatives, and to vindicate the honor of the nation, do aver their charge against the said Samuel Chase to be true, and that the said Samuel Chase is guilty in such manner as he stands impeached; and that the House of Representatives will be ready to prove their charges against him, at such convenient time and place as shall be appointed for that purpose.
Signed by order, and in behalf of, the said House.
NATH. MACON,Speaker,
Attest:
JOHN BECKLEY,Clerk.
Mr.Hopkinsonrequested a copy of the replication, which, thePresidentreplied, would be furnished by the Secretary.
Mr.Breckenridgemoved a resolution to the following effect:
That the Secretary be directed to inform the House of Representatives that the Senate will, to-morrow, at twelve o’clock, proceed with the trial of Samuel Chase; which was agreed to without one dissenting voice, 34 members voting for it.
Whereupon, the Senate withdrew to their legislative apartment.
The Court opened precisely at twelve o’clock.
Present: The Managers, and the House of Representatives, in Committee of the Whole; and Mr. Chase, attended by his counsel, Messrs.Martin,Harper,Hopkinson, andKey.
The crier having, agreeably to a prescribed form, notified all those concerned to come forward and make good the charges exhibited against Samuel Chase,
Mr.Randolph, the leading Manager, requested that the witnesses on the part of the prosecution might be called, to ascertain who were present.
They were accordingly called, to the number of twenty-four.
Present: Alexander James Dallas, William Lewis, William Rawle, William S. Biddle, Edward Tilghman, George Reed, John Montgomery, John Stephen, John Thompson Mason, Samuel H. Smith, John Taylor, George Hay, William Wirt, and John Heath.
Absent: James Lea, John Crow, Risdon Bishop, Aquila Hall, Philip Stewart, Thomas Hall, Philip N. Nicholas, John Harvie, Meriwether Jones, and James Pleasants.
Mr.Randolphobserved that various considerations, which it was unnecessary to detail, induced him, on behalf of the Managers, to move a postponement of the trial till to-morrow, when they hoped to be prepared to proceed with it.
Mr.Harpersaid that, on behalf of Judge Chase, he would not object to the motion.
ThePresidentinformed the Managers that the Senate acceded to their request, and added, that the Senate would attend to-morrow at twelve o’clock, for the purpose of proceeding with the trial.
At the request of Mr.Harper, the witnesses on the part of Judge Chase were called over, to the number of forty.
Present: John A. Chevalier, David M. Randolph, John Marshall, John Basset, Samuel P. Moore, William C. Frazier, David Robertson, Edward Tilghman, Wm. Meredith, Jared Ingersoll, Samuel Ewing, James Winchester, Walter Dorsey, James P. Boyd, Nicholas Brice, John Purviance, William M. Mechin, Thomas Chase, William H. Winder, William Gwynn, William Rawle, William J. Govane, Gunning Bedford, Nicholas Vandyke, John Hall, jun., Archibald Hamilton, and Thomas Carpenter.
Absent: William Marshall, Edmund Randolph, Robert Gamble, Philip Moore, Cornelius Comegys, John Stewart, and Edward J. Coale.
Not found: John Hopkins, Philip Gooch, William Minor, and Samuel Wheeler.
Sick: Cyrus Griffin.Dead: J. C. Barrett.
Whereupon the Court rose.
The Court was opened precisely at 12 o’clock.
Present: The Managers, attended by the House of Representatives in Committee of the Whole; and Judge Chase, attended by his counsel, as mentioned in the proceedings of yesterday.
At a quarter after 12 o’clock, Mr.Randolph, on behalf of the Managers, opened the impeachment, as follows:
Mr. President: It becomes my duty to open this cause on behalf of the prosecution. From this duty, however incompetent I feel myself to its performance at all times, and more especially at this time, as well from the very short period which has been allowed us to consider the long and elaborate plea of the respondent, as from the severe pressure of disease, it does not become me to shrink. The station in which I have been placed calls for the discharge of an important public trust at my hands. It shall be performed to the best of my ability, inadequate as I know that ability to be. When I speak of the short period which has been allowed us, I hope not to be understood as expressing, on our part, any dissatisfaction at the course which has been pursued, or any wish to prolong the time which has been allotted for trial. We are sensible of a disposition in this honorable Court to grant us every indulgence which we ought to ask, and when their attention is called to the precipitate hurry of our preparation, it is only to offer, on behalf of an individual, perhaps a weak apology for the weak defence which he is about to make of the cause confided to his care. A desire for the furtherance of justice and the avoidance of delay, but, above all, an unshaken conviction that we stand on impregnable ground, induce us on this short notice to declare that we are ready to substantiate our accusation, to prove that the respondent is guilty in such manner as he stands impeached.
It is a painful but indispensable task which we are called upon to perform: to establish the guilt of a great officer of Government, of a man, who, if he had made a just use of those faculties which God and nature bestowed upon him, would have been the ornament and benefactor of his country, would have rendered her services as eminent and useful as he has inflicted upon her outrages and wrongs deep and deadly. A character endowed by nature with some of her best attributes, cultivated by education, placed by his country in a conspicuous station, invested with authority whose righteous exercise would have rendered him a terror to the wicked, whilst it endeared him to the wise and good: such a character, presented to the nation in the light in which he now stands, and in which his misdeeds have made it our duty to bring him forward, forms one of the saddest spectacles which can be offered to the public eye. Base is that heart which could triumph over him.
I will now proceed to state the principal points on which we mean to rely, and which we expect to establish by the clearest evidence. In doing this I shall be necessarily led to notice many of the leading statements of the respondent’s answer. We will begin with the first article. [Here Mr. R. read that article.] The answer to the first of these charges is by evasive insinuation and misrepresentation, by an attempt to wrest the accusation from its true bearing, the manner and time of delivering the opinion, and the intent with which it was delivered, to the correctness of the opinion itself, which is not the point in issue. And here permit me to remark, that if the Managers of this impeachment were governed only by their own conviction of the course which they ought, necessarily, to pursue, and not by the high sense of duty which they owe to their eminent employers, they would have felt themselves justified in resting their accusation on the admissions of the respondent himself. It is not for the opinion itself, that the respondent is impeached; it is for a daring inroad upon the criminal jurisprudence of his country, by delivering that opinion at a time and in a manner (in writing) before unknown and unheard of. The criminal intent is to be inferred from the boldness of the innovation itself, as well as from other overt acts charged in this article. The admission of the respondent ought to secure his conviction on this charge. He acknowledges he did deliver an opinion,in writing, on the question of law, (which it was the right and duty of the jury to determine, as well as the fact,)beforecounsel had been heard in defence of John Fries, the prisoner. I must beg the assistance of one ofthe gentlemen with whom I am associated, to read this part of the answer. [Mr. Clark accordingly read the reply of Mr. Chase to this charge.] We charge the respondent with a gross departure from the forms, and a flagrant outrage upon the substance of criminal justice, in delivering a written, prejudicated opinion on the case of Fries, tending to bias the minds of the jury against him before counsel had been heard in his defence. The respondent (page 33, of the answer) admits the fact, for he knew that we are prepared to prove it. But he artfully endeavors to shift the argument from the real point in contest, to the soundness of the opinion itself, which, however questionable, (and of its incorrectness I entertain no doubt,) it is not our object at this time to examine. For the truth of this opinion and, as it would seem, for the propriety of this proceeding, the respondent takes shelter under precedent. He tells you, sir, this doctrine had been repeatedly decided on solemn argument and deliberation, twice in the same court, and once in that very case. What is this, but a confession, that he himself hath been the first man to venture on so daring an innovation on the forms of our criminal jurisprudence? To justify himself for having given a written opinionbeforecounsel had been heard for the prisoner, he resorts to the example set by his predecessors, who had delivered the customary verbal opinion, after solemn arguments and deliberation. And what do these repeated arguments and solemn deliberations prove, but that none of his predecessors ever arrogated to themselves the monstrous privilege of breaking in upon those sacred institutions, which guard the life and liberty of the citizen from the rude inroads of powerful injustice? The learned and eminent judges, to whose example he appeals, for justification, decidedafter, and notbeforea hearing. They exercised the acknowledged privilege of the bench in giving an opinion to the jury on the question of law, after it had been fully argued by counsel on both sides. They never attempted, by previous and written decisions, to wrest from the jury their undeniable right of deciding upon the law as well as the fact, necessarily involved in a general verdict, to usurp the decision to themselves, or to prejudice the minds of the jurors against the defence. I beg this honorable Court never to lose sight of the circumstance, that this was acriminaltrial, for acapitaloffence, and that the offence charged wastreason. The respondent also admits, that the counsel for Fries, not meaning to contest the truth of the facts charged in the indictment, rested their defence altogether upon the law, which he declared to have been settled in the cases of Vigol and Mitchell: a decision which, although it might be binding on the Court, the jury were not obliged to respect, and which the counsel had a right to controvert before them, the sole judges, in a case of that nature, both of thelawandfact. I do not deny the right of the Court to explain their sense of the law to the jury, after counsel have been heard; but I do deny that the jury are bound by such exposition. If they verily believe that the overt acts charged in the indictment did not amount to treason, they could not without a surrender of their consciences into the hands of the Court, without a flagrant violation of all that is dear and sacred to man, bring in a verdict of guilty. I repeat that in such a case the jury are not only the sole judges of the law, but that where their verdict is favorable to the prisoner, they are the judges without appeal. In civil cases, indeed, the verdict may be set aside and a new trial granted; but in a criminal prosecution, the verdict, if not guilty, is final and conclusive. It is only when the finding of the jury is unfavorable to the prisoner, that the humane provisions of our law, always jealous of oppression when the life or liberty of the citizen is at stake, permits the verdict to be set aside, and a new trial granted to the unhappy culprit. When I concede the right of the Court to explain the law to the jury in a criminal, and especially in a capital case, I am penetrated with a conviction that it ought to be done, if at all, with great caution and delicacy. I must beg leave to take, before this honorable Court, what appears, to my unlettered judgment, to be a strong and obvious distinction. There is, in my mind, a material difference between a naked definition of law, the application of which is left to the jury, and the application by the Court of such definition to the particular case upon which the jury are called upon to find a general verdict. Surely, there is a wide and evident distinction between an abstract opinion upon a point of law, and an opinion applied to the facts admitted by the party accused, or proven against him. But it is alleged, on behalf of the respondent, that the law in this case was settled, and upon this he rests his defence. Will it be pretended by any man that the law of treason is better established than the law of murder? What is treason, as defined by the constitution? Levying war against the United States, or adhering to their enemies, giving them aid and comfort. What is murder? Killing with malice aforethought, a definition at least as simple and plain as the other. And because what constitutes murder has been established and settled through a long succession of ages and adjudications, has any judge, for that reason, been ever daring enough to assert that counsel should be precluded from endeavoring to convince the jury that the overt acts, charged in the indictment, did not amount to murder? Is a Court authorized to say, that, because killing with a deliberate malice is murder, therefore the act of killing, admitted by the prisoner’s counsel, or established by evidence, was a killing with malice prepense, and did constitute murder? I venture to say that an instance cannot be adduced, familiar as the definition of murder is even to the most ignorant, numerous as have been the convictions for that atrocious crime, where counsel have been deprived of their unquestionable right to addressthe jury on the law, as well as on the fact. Much less can an instance be produced, in any trial for a capital offence, where they have found themselves anticipated in the question of law by a written opinion, to be taken by the jury out of court, as the landmark by which their verdict is to be directed. I have always understood, that even in a civil case, when the jury carried out with them a written paper, relating to the matter in issue, and which was not offered, or permitted to be given in evidence to them, it was sufficient to vitiate their verdict, and good ground for a new trial. This written opinion of the Court, delivered previous to a hearing of the cause, is a novelty to our laws and usages. It would be reprehensible in any case, but in a criminal prosecution, for a capital offence, and that offence treason, (where, above all, oppression and arbitrary proceedings on the part of courts are most to be dreaded and guarded against,) it cannot be too strongly reprobated or too severely punished.
What would be said of a judge who in a trial for murder, where the facts were admitted (or proved) should declare from the bench, that whatever argument counsel had to offer, in relation to the facts, may be addressed to the jury, but that they should not attempt to convince the jury that such facts came not within the law, did not amount to murder, but that every thing which they had to say upon the question of law, should be addressed to the Court, and to the Court only. Can you figure to yourselves a spectacle more horrible?
We are prepared to prove, what the respondent has in part admitted, that he “restricted the counsel of Fries from citing such English authorities as they believed apposite, and certain statutes of the United States which they deemed material to their defence:” that the prisoner was debarred by him from his constitutional privilege of addressing the jury, through his counsel, on the law, as well as the fact involved in the verdict which they were required to give, and that he attempted to wrest from the jury their undeniable right to hear argument, and, consequently, to determine upon the question of law which in a criminal case it was their sole and unquestionable province to decide. These last charges (except as far as relates to the laws of the United States) are impliedly admitted by the respondent. He confesses that he would not admit the prisoner’s counsel to cite certain cases, “because they could not inform but might deceive and mislead the jury.” Mr. President, it is the noblest trait in this inestimable trial, that in criminal prosecutions, where the verdict is general, the jury are the sole judges, and, where they acquit the prisoner, the judges, without appeal, both of law and fact. And what is the declaration of the respondent but an admission that he wished to take from the jury their indisputable privilege to hear argument and determine upon the law, and to usurp to himself that power which belongs to them, and to them only? It is one of the most glorious attributes of jury trial, that in criminal cases (particularly such as are capital) the prisoner’s counsel may (and they often do) attempt “to deceive and mislead the jury.” It is essential to the fairness of the trial, that it should be conducted with perfect freedom. It is congenial to the generous spirit of our institutions to lean to the side of an unhappy fellow-creature, put in jeopardy of limb, or life, or liberty. The free principles of our Governments, individual and federal, teach us to make every humane allowance in his favor, to grant him, with a liberality unknown to the narrow and tyrannous maxims of most nations, every indulgence not inconsistent with the due administration of justice. Hence, a greater latitude is permitted to the prosecutor. The jury, upon whose verdict the event is staked, are presumed to be men capable of understanding what they are called upon to decide, and the Attorney for the State a gentleman learned in his profession, capable of detecting and exposing the attempts of the opposite counsel to mislead and deceive. There is, moreover, the Court, to which, in cases of difficulty, recourse might be had. But what, indeed, is the difficulty arising from the law in criminal cases, for the most part? What is to hinder an honest jury from deciding, especially after the aid of an able discussion, whether such an act was killing with malice prepense, or such other overt acts set forth in an indictment, constituted a levying war against the United States; and to what purpose has treason been defined by the constitution itself, if overbearing, arbitrary judges are permitted to establish among us the odious and dangerous doctrine of constructive treason? The acts of Congress which had been referred to on the former trial, but which the respondent said he would not suffer to be cited again, tended to show that the offence committed by Fries did not amount to treason; that it was a misdemeanor only, already provided for by law, and punishable with fine and imprisonment. The respondent indeed denies this part of the charge, but he justifies it even (as he says) if it be proved upon him. And are the laws of our own country (as well as foreign authorities) not to be suffered to be read in our courts, in justification of a man whose life is put in jeopardy?
I now proceed to the second article—the case of Basset, whose objection to serve on Callender’s jury was overruled by the judge who stands arraigned before this honorable Court. In the 30th page of the respondent’s answer it is stated, that a new trial was granted to Fries, “upon the ground (as this respondent understood and believes) that one of the jurors, after he was summoned, but before he was sworn, had made some declaration unfavorable to the prisoner.” It will be remembered that both the trials of Fries preceded that of Callender. Upon what principle, then, could the respondent declare Basset a good juryman, when he was apprised of the previous decision in the case of Fries, by his brother judge, whom heprofesses to hold in such high reverence, and by whose decision, on his own principles, he must have held himself bound. For surely the same exception to a juryman which would furnish ground for a new trial, ought to be a cause of setting aside such juror, if it be taken previous to his being sworn.
From the respondent’s own showing it appears, that the question put to the jurymen generally, and to Basset among others, was, whether they “had formedanddelivered any opinion upon the subject-matter then to be tried, or concerning the charges contained in the indictment.” And here let me refer the Court to the question which the respondent put to the jurors in the case of Fries. It was, “whether they had ever formedordelivered any opinion as to his guilt, or innocence, or that he ought to be punished?” How is this departure from the respondent’s own practice, this inconsistency with himself, to be reconciled? In the one case the question is put in the disjunctive; “have you formedordelivered?” In the other, it is in the conjunctive, “formedanddelivered;” besides other material difference in the terms and import of the two questions. Wherefore, I repeat, this contradiction of himself? But, Mr. President, we shall be prepared to prove that the words “subject-matter then to be tried,” were not comprised in the question propounded to Basset, or to any of the other jurors. The question was, as will be shown in evidence, “have you ever formedanddelivered any opinionconcerning the charges contained in the indictment?” And it is remarkable that the whole argument of the respondent upon this point goes to justify the question which wasactuallyput, and which he probably expected we should prove that he did put, rather than that which he himself declares to have been propounded by him. Such a question must necessarily have been answered in the negative. Basset could never have seen the indictment: and although his mind might have been made up on thebook, whatever opinion he might have formed and delivered as to the guilt of Callender, or however desirous he might have been of procuring his conviction and punishment, still, not having seen the indictment, he could not divine what passages of the book were made the subject of charges, and, by the criterion established by the judge, he was a good juror. But if the juror’s mind was thus prejudiced against the book and the writer, was he, merely because he had not seen the indictment, competent to pass between him and his country on the charges contained in it, and extracted out of the book? And even if the question had been such as the respondent states, yet being put in the conjunctive, the most inveterate foe of the traverser who was artful, or cautious enough to forbear the expression of his enmity, would thereby have been admitted as competent to pass between the traverser and his country in a criminal prosecution.
The third article relates to the rejection of John Taylor’s testimony. This fact also is admitted, and an attempt is made to justify it, on the ground of its “irrelevancy” on the pretext that the witness could not prove the whole of a particular charge. By recurring to “The Prospect before Us,” a book, which, with all its celebrity, I never saw till yesterday, I find this charge consists of two distinct sentences. Taken separately the respondent asserts that they mean nothing; taken together, a great deal. And because the respondent undertook to determine (without any authority as far as I can learn) that Colonel Taylor could not prove the whole, that is both sentences, he rejected his evidence entirely, for “irrelevancy.” Might not his testimony have been relevant to that of some other witness, on the same, or on another charge? I appeal to the learning and good sense of this honorable Court, whether it is not an unheard of practice (until the present instance) in a criminal prosecution, to declare testimony inadmissible because it is not expected to go to the entire exculpation of the prisoner? Does it not daily occur in our courts, that a party accused, making out a part of his defence by one witness and establishing other facts by the evidence of other persons; does it not daily occur that the testimony of various witnesses sometimes to the same, and sometimes to different facts, does sorelieveand support the whole case, as to leave no doubt of the innocence or guilt of the accused, in the minds of the jury, who, it must never be forgotten, are, in such cases, the sole judges both of the law and the fact? Suppose, for instance, that the testimony of two witnesses would establish all the facts, but that each of those facts are not known by either of them. According to this doctrine the evidence of both might be declared inadmissible, and a man whose innocence, if the testimony in his favor were not rejected, might be clearly proved to the satisfaction of the jury, may thus be subjected by the verdict of that very jury to an ignominious death. Shall principles so palpably cruel and unjust be tolerated in this free country? I am free to declare that the decision of Mr. Chase, in rejecting Colonel Taylor’s testimony, was contrary to the known and established rules of evidence, and this I trust will be shown by my learned associates, to the full satisfaction of this honorable Court, if indeed they can require further satisfaction on a point so clear and indisputable. But this honorable Court will be astonished when they are told (and the declaration will be supported by undeniable proof) that at this very time neither the traverser, his counsel, nor the Court, knew the extent to which Colonel Taylor’s evidence would go. They were apprised, indeed, that he would show that Mr. Adams was an aristocrat, and that he had proved serviceable to the British interest, in the sense conveyed by the book; but they little dreamed that his evidence, if permitted to have been given in, would have thrown great light upon manyother of the charges. There is one ground of defence taken by the respondent, which, I did suppose, a gentleman of his discernment would have sedulously avoided: that although the traverser had justified nineteen out of twenty of the charges contained in the indictment, if he could not prove the truth of the twentieth, it was of little moment, as he was, “thereby, put into the power of the Court.” Gracious God! sir, what inference is to be drawn from this horrible insinuation?
In justification of the charges contained in the fourth article, the respondent, unable to deny the fact, confesses that he did require “the questions intended to be put to the witness to be reduced to writing, and submitted to the Court,” in the first instance, as we shall prove, and before they had been verbally propounded. And this requisition, he contends, it was “the right and duty of the Court” to make. It would not become me, elsewhere, or on any other occasion, to dispute the authority of the respondent, on legal questions, but I do aver that such isnotthelaw, at least in the State in which that trial was held, nor do I believe that it is law any where. I speak of the United States. Sir, in the famous case of Logwood, whereat the Chief Justice of the United States presided, I was present, being one of the grand jury who found a true bill against him. It must be conceded that the Government was as deeply interested in arresting the career of this dangerous and atrocious criminal, who had aimed his blow against the property of every man in society, as it could be in bringing to punishment a weak and worthless scribbler. And yet, although much testimony was offered by the prisoner, which did by no means go to his entire exculpation; although much of that testimony was of a very questionable nature, none of it was declaredinadmissible; it was suffered to go to the jury, who were left to judge of its weight and credibility; nor were any interrogatories to the witnesses required to be reduced to writing. And I will go farther, and say that it never has been done before or since Callender’s trial, in any court of Virginia, and I believe I might add in the United States, whether State or Federal. No, sir, the enlightened man who presided in Logwood’s case knew that, although the basest and vilest of criminals, he was entitled tojustice, equally with the most honorable member of society. He did not avail himself of the previous and great discoveries, in criminal law, of this respondent; he admitted the prisoner’s testimony to go to the jury; he never thought ithis rightorhis dutyto require questions to be reduced to writing; he gave the accused afair trial, according to law and usage, without any innovation or departure from the established rules of criminal jurisprudence in this country.
The respondent also acknowledges his refusal to postpone the trial of Callender, although an affidavit was regularly filed, stating the absence of material witnesses on his behalf; and here again the ground of his defence is, in my estimation, good cause for his conviction. The dispersed situation of the witnesses, which he alleges to have been the motive of his refusal, is, to my mind, one of the most unanswerable reasons for granting a postponement. The other three charges contained in this article will be supported by unquestionable evidence: the rude and contemptuous expressions of the judge to the prisoner’s counsel; his repeated and vexatious interruptions of them; his indecent solicitude and predetermined resolution to effect the conviction of the accused. This predetermination we shall prove to have been expressed by him long before, as well as on his journey to Richmond, and whilst the prosecution was pending; besides the proofs which the trial itself afforded.
The fifth article is for the respondent’s having “awarded a capias against the body of James Thompson Callender, indicted for an offence not capital, whereupon the said Callender was arrested and committed to close custody, contrary to law in such case made and provided:” that is, contrary to the act of Assembly of Virginia, recognized (by the act of Congress passed in 1789, for the establishment of the judicial courts of the United States) as the rule of decision in the federal courts, to be held in that State, until other provision be made. The defence of the respondent embraces several points: That the act of Virginia was passed posterior to the act of Congress, viz: in 1792, and could not be intended by the latter to be a rule of decision. Fortunately, there is no necessity to question, which we might well do, the truth of his position. It may be necessary to inform some of the members of this honorable Court, that, about twelve or thirteen years ago, the laws of Virginia underwent a revision; all those relating to a particular subject being condensed into one, and the whole code thereby rendered less cumbrous and perplexed. Hence, many of our laws, to a casual and superficial observer, would appear to take their date so late as the year 1792, although their provisions were, long before, in force. The twenty-eighth section of this very act, on which we rely, the Court will perceive to have been enacted in 1788, one yearprecedingthe act of Congress. (Virg. laws, chap. 74, sec. 28, page 106, note b. Pleasants’ edition.) [Here Mr. Randolph read the act referred to.] “Upon presentment made by a grand jury of an offence not capital, the Court shall order the clerk to issue a summons, or other proper process, against the person so presented, to appear and answer such presentment at the next court,” &c. But the respondent, aware, no doubt, of this fact, asserts that the act not being adduced, he was not bound to know of its existence, and that he ought not to be censured for the omissions of the traverser’s counsel, whose duty it was to have cited it on behalf of their client; and this objection, with the preceding ones, which I have endeavoredto answer, will equally apply to the sixth article. Sir, when the counsel for the traverser were told by the judge at the outset, when they referred to a provision of this very law, “that such may be your local State laws here in Virginia, but that to suppose them as applying to the courts of the United States, is awild notion,” would it not, indeed, have been awild experimentin them to cite the same law with a view of influencing the opinion of a man, who had scornfully scouted the idea that he was to be governed by it?
Unwilling, however, to rest himself now on the ground which he then took, the respondent justifies himself by declaring that he complied, although ignorantly, with this law, by issuing thatother proper process, of which it speaks, that is, a capias. But that other process must be of the nature of a summons, notifying the party to appear at thenext term; and will any man pretend to say, that a capias taking him into close custody and obliging him to appear, not at the next, but at the existing term, is such process as that law describes? Sir, not only the law, but the uniform practice under it, as we are prepared to show by evidence, declares the capias not to be the proper process. But it is said that this would be nothing more than notice to the party accused to abscond, and thereforeought notto be law. Sir, we are not talking about what ought to have been the law; that is no concern of ours; the question is, whatwasthe law? But the impolicy of this mode of proceeding is far from being ascertained. It is a relief to the innocent who may be in a state of accusation. It saves the expense of imprisoning the guilty, and if they should prefer voluntary exile to standing a trial, is it so very clear that the State is thereby more injured than by holding them to punishment, after which they would remain in her bosom to perpetrate new offences? Remember, this proceeding is against petty offenders, not felons. It does not apply to capital cases; to felonies, then capital, for which our law has since commuted the punishment of death, into that of imprisonment at hard labor.
For further defence against the sixth article, the respondent takes shelter under this position: That the provision of the law of the United States establishing the judicial courts relates only to rights acquired underStatelaws, which come into question on the trial, and not to forms of processbeforethe trial, and can have no application to offences created by statute, which cannot, with propriety, be termed trials at “common law.” We are prepared to show that the words “trials at common law,” are used in that statute, not in their most restricted sense, but to contradistinguish a certain description of cases from those arising in equity, or under maritime or civil law.
I will pass over the seventh article of impeachment, as well because I am nearly exhausted, as being content to leave it on the ground where the respondent himself has placed it. It would be impossible for us to put it in a stronger light than has been thrown upon it by his own admission.
The eighth and last article remains to be considered—[article read.] I ask this honorable Court whether the prostitution of the bench of justice, to the purposes of an hustings, is to be tolerated? We have nothing to do with the politics of theman. Let him speak, and write, and publish, as he pleases. This is his right in common with his fellow-citizens. The press is free. If he must electioneer and abuse the government under which he lives, I know no law to prevent or punish him, provided he seeks the wonted theatres for his exhibition. But shall a judge declaim on these topics from his seat of office? Shall he not put off the political partisan when he ascends the tribune? or shall we have the pure stream of public justice polluted with the venom of party virulence? In short, does it follow that a judge carries all the rights of a private citizen with him upon the bench, and that he may there do every act which, as a freeman, he may do elsewhere, without being questioned for his conduct?
But, sir, we are told that this high Court is not a court of errors and appeals, but a court of impeachment, and that however incorrectly the respondent may have conducted himself, proof must be adduced of criminal intent, of wilful error, to constitute guilt. Thequo animois to be inferred from the facts themselves; there is no other mode by which, in any case, it can be determined, and even the respondent admits that there are acts of a nature so flagrant that guilt must be inferred from them, if the party be of sound mind. But this concession is qualified by the monstrous pretension that an act to be impeachable must be indictable. Where? In the federal courts? There, not even robbery and murder are indictable, except in a few places under our exclusive jurisdiction. It is not an indictable offence under the laws of the United States for a judge to go on the bench in a state of intoxication—it may not be in all the State courts; and it is indictable nowhere for him to omit to do his duty, to refuse to hold a court. But who can doubt that both are impeachable offences, and ought to subject the offender to removal from office? But in this long and disgusting catalogue of crimes and misdemeanors, (which he has in a great measure confessed,) the respondent tells you he had accomplices, and that what was guilt in him could not be innocence in them. I must beg the Court to consider the facts alleged against the respondent in all their accumulated atrocity; not to take them, each in an insulated point of view, but as a chain of evidence indissolubly linked together, and establishing the indisputable proof of his guilt. Call to mind his high standing and character, and his superior age and rank, and then ask yourselves whether he stands justified in a long course of oppression and injustice, because men of weak intellect and yet feebler temper—menof far inferior standing to the respondent, have tamely acquiesced in such acts of violence and outrage? He is charged with various acts of injustice, with a series of misconduct so connected in time, and place, and circumstance, as to leave no doubt, on my mind at least, of intentional ill. Can this be justified, because his several associates have at several times and occasions barely yielded a faint compliance, which perhaps they dared not withhold? Can they be considered as equally culpable with him whose accumulated crimes are to be divided amongst them, who had given at best but a negative sanction to them? But, sir, would the establishment of their guilt prove his innocence? At most, it would only prove that they too ought to be punished. Wherever we behold the respondent sitting in judgment, there do we behold violence and injustice. Beforehimthe counsel are always contumacious. The most accomplished advocates of the different States, whose demeanor to his brethren is uniformly conciliating and temperate, are tohim, and him only, obstinate, perverse, rude, and irritating. Contumacy has been found to exist only where he presided.
I have endeavored, Mr. President, in a manner, I am sensible, very lame and inadequate, to discharge the duty incumbent on me; to enumerate the principal points upon which we shall rely, and to repel some of the prominent objections advanced by the respondent. Whilst we confidently expect his conviction, it is from the strength of our cause, and not from any art or skill in conducting it. It requires so little support that (thank Heaven) it cannot be injured by any weakness of mine. We shall bring forward, in proof, such a specimen of judicial tyranny, as, I trust in God, will never be again exhibited in our country.
The respondent hath closed his defence by an appeal to the great Searcher of Hearts for the purity of his motives. For his sake, I rejoice that, by the timely exercise of that mercy which, for wise purposes, has been reposed in the Executive, this appeal is not drowned by the blood of an innocent man crying aloud for vengeance; that the mute agony of widowed despair, and the wailing voice of the orphan, do not plead to Heaven for justice on the oppressor’s head. But for that intervention, self-accusation before that dread tribunal would have been needless. On that awful day the blood of a poor, ignorant, friendless, unlettered German, murdered under the semblance and color of law, sent without pity to the scaffold, would have risen in judgment at the Throne of Grace, against the unhappy man arraigned at your bar. But the President of the United States by a well-timed act, at once of justice and mercy, (and mercy, like charity, covereth a multitude of sins,) wrested the victim from his grasp, and saved him from the countless horrors of remorse, by not suffering the pure ermine of justice to be dyed in the innocent blood of John Fries.
The Managers proceeded to the examination of witnesses in support of the prosecution.
Mr. Dallas, Mr. W. Ewing, and I were counsel for John Fries, at his request, and I believe by the assignment of the Court, on his trial in the year 1799. It was conducted, I believe, in the usual manner, and we were certainly allowed all the privileges that were customary on such occasions. The trial was had before Judges Iredell and Peters. He was convicted, and a new trial was ordered, because one of the jurors had manifested a prejudice against the people in general concerned in the insurrection, and against Fries in particular. This trial took place partly in April and partly in May, 1799. At October session following, Mr. Dallas and I attended at Norristown, expecting the trial would again take place; but it did not. The proceedings on the first indictment were quashed by the District Attorney, and a new bill was found at April term, 1800, at which Judges Chase and Peters presided. Mr. Dallas and I appeared again as the counsel of Fries, at his request, and I believe we were assigned by the Court, but of this I am not certain. On the morning of a certain day, which I do not now recollect, I entered the court room when the judges were on the bench, and, if I recollect rightly, the prisoner was in the bar; but if he was not then there, I feel very sure that he soon was. The list of petit jurors was called over, and many of them answered.
Almost immediately after the jurors were called over, Judge Chase began to speak. At this time Mr. Dallas had not come into court. Judge Chase said, he understood, or had been informed, that on the former trial or trials, for it was impossible for me to know whether he alluded to the case of Fries only, or of him and others, there had been a great waste of time in making long speeches on topics which had nothing to do with the business, and in reading common law cases on treason, as well as on treason under the statute of Edward the Third, and also certain statutes of the United States, respecting the resisting of process, and other offences less than treason. He also said, that to prevent this in future, he or they, I do not precisely recollect which, had considered the law, had made up their minds, and had reduced their opinion to writing on the subject, and would not suffer these cases to be read again; and in order that the counsel (but whether for the prisoner, or the counsel on both sides, I cannot say) might govern themselves conformably, he had ordered three copies of that opinion to be made out, one to be delivered to the prisoner’s counsel, one to the counsel in support of the prosecution, and the other, as soon as the case was fully opened, or gone through, I cannot say which, to be delivered by the clerk of the court to the jury. I rather think that the expression was, fully gone through.
Judge Chase said, I think on the first day, that they were judges of the law, and if they didnot understand it they were unworthy of their seats, or unfit to sit there, and that if the prisoner’s counsel had any thing to say, to show that they had mistaken the law, or that they were wrong, the counsel must address themselves to the Court for that purpose, and not to the jury. I made some observations in answer, which it is impossible for me in all respects particularly to recollect, as having passed at this time, since some parts of it may perhaps have taken place in other stages of the business. At this time Mr. Dallas was not in court. I was struck with what appeared to me to be a great novelty in the proceedings; and as I was extremely anxious to be of service to Fries, I was desirous that Mr. Dallas might be present. I think I went out of the bar to get somebody to go for him, and while I was out of the bar, he entered the room. I briefly stated to him what had taken place, or some parts of it; but I believe, not the whole. We came forward, and we made some remarks, which I am unable to repeat. I was early struck with the idea, that as the Court had made up their minds, and decided the question of law, before the jury was sworn, or the witnesses or counsel heard, it was not likely we should alter that opinion by any thing we might say, and that we should probably render Fries more service by withdrawing from his defence, than by engaging in it. We told him so, and earnestly recommended to him to pursue that course. He appeared greatly alarmed and extremely agitated, and much at a loss what determination to come to. We, however, told him that, if he insisted on it, we would proceed in his defence at every hazard, and contend for what we deemed our constitutional rights as his counsel, until stopped by the Court; or we used expressions to this effect. His state of alarm and apprehension scarcely left him the power to decide for himself. After some time he acquiesced in our advice; said he had nobody to depend on but us; that he was sure we would do our best for him, and he would leave us to do for him as we pleased. Being very anxious for him, we told him we would call upon him at the jail, and satisfy his mind as to the course which we wished him to pursue. He finally agreed to our proposal to withdraw; but as we were apprehensive that the Court might assign him other counsel in our place, and that our views might be defeated by such an arrangement, we advised him against accepting any, and I understood that he afterwards did refuse to accept of any other counsel. I will not assign my reasons for giving this advice, as it might, perhaps, be improper, unless I am directed by the Court.
Mr. Martin asked what those reasons were?
The President desired the examination to proceed on the part of the House of Representatives, and said when that was closed, the witness might be examined by the counsel for Judge Chase.
Mr. Lewis. It being thus determined that we should withdraw, and that Fries should not accept any counsel that might be assigned him, I left the court, expecting to have little or nothing more to say, as we were no longer counsel for the prisoner. The next morning, soon after the court was opened, and, I believe, when the prisoner was in the bar, Judge Chase addressed Mr. Dallas and myself, and probably Mr. Rawle, and asked us if we were ready to proceed? I answered that I was not, or that we were not any longer counsel for the prisoner. He asked our reasons for this; and I began to answer by mentioning what had taken place the day before; on which he and Judge Peters certainly manifested a strong disposition that we should proceed in the prisoner’s defence, and that they would remove every restriction which had been previously imposed. I was stopped in what I was about to say by Judge Chase telling us to go on in our own way, and address the jury on the law as well as the facts, as we thought proper; but, at the same time, he said it would be under the direction of the Court; and at our own peril, or the risk of our characters, if we conducted ourselves with impropriety. This had rather a contrary effect on my mind than that of inducing me to proceed, as I did not know that there had been any thing in my conduct so indecorous as to make it necessary to remind me that, if I proceeded, it should be at my own peril and risk of character; and this expression, therefore, rather strengthened than lessened the determination which I had taken.
Finding that Mr. Dallas and I were determined not to proceed in the prisoner’s defence, Judge Chase said, if we intended to embarrass the Court we should find ourselves mistaken, as they would proceed without us, and, by the blessing of God, render the prisoner as much justice as if he had the aid of our counsel or assistance. Both the judges, therefore, on the second day, even took pains to induce us to proceed in the defence, with liberty to go through the whole question as well in relation to the law as the facts; but we absolutely refused, believing it not likely that any arguments we could urge would change the opinion of the Court already formed, or destroy its effects, and also believing that, after what had taken place, the life of Fries, even if he should be convicted, would be exposed to less jeopardy without our aid than it would be if we should engage in his defence.
Mr. Dallas. I will endeavor to be correct in the statement which it is my duty to give; and I am sure that I shall be substantially so, though I cannot promise to place the facts precisely in the order of time in which they occurred; nor to recite the very words that were used by the several parties in the course of the transaction.
When the northern rioters were brought to Philadelphia, in the spring of 1799, some of their friends applied to Mr. Ingersoll and to me to undertake their defence. Mr. Ingersoll was then Attorney-General of Pennsylvania; and on consideration, I believe, declined the task. Mr. Lewis, either before or after this application,was also requested to act as counsel for the prisoners; and upon his acquiescence, we repaired to the prison to make the necessary arrangements preparatory to a trial. Mr. William Ewing had been engaged by several of the rioters, and we agreed to unite in the defence, as the same general facts in law applied to all the cases.
In April term, 1799, the first trial of Fries took place. It was conducted with great propriety throughout, by the Court, and by the prosecuting officer; and the counsel of the prisoner were permitted to address the jury at large, on the law and the facts, as well as to cite every authority which they thought proper. Fries was convicted; but on a motion made by Mr. Lewis and me, the verdict was set aside, and a new trial awarded.
The second trial of Fries, upon a new indictment (the first having been discontinued by Mr. Rawle) occurred in May, 1800. Mr. Lewis and I had again, at his request, been assigned by the Court to defend him. On the morning fixed for the trial, I entered the court room some time after the court had been opened. Fries was standing in the prisoner’s box, the jurors of the general panel appeared to be in the jury boxes, and the hall was crowded with citizens. On my entrance, I perceived Mr. Lewis and Mr. E. Tilghman engaged eagerly in conversation, and the gentlemen of the bar, generally, seemed to be much agitated. As soon as Mr. Lewis saw me, he hastened towards me on the outside of the bar, and told me, in effect, that a “very extraordinary incident had occurred; that Mr. Chase, after speaking in terms of great disapprobation of the defence at the former trial, declared that the Court, on mature deliberation, had formed and reduced to writing, an opinion on the law of treason involved in the case; and that he should direct one copy to be delivered to the attorney of the district, another to the prisoner’s counsel, and a third (after the opening for the prosecution) to the jury, to take out with them.”