United States. Congress.

Abridgment of the Debates of Congress, from 1789 to 1856 : from Gales and Seaton's Annals of Congress, from their Register of debates, and from the official reported debates by John C. Rives online

. (page 65 of 184)
Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856 : from Gales and Seaton's Annals of Congress, from their Register of debates, and from the official reported debates by John C. Rives → online text (page 65 of 184)
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OQght to be expounded upon its own principles,
nd that foreign aid ought never to be called
in. Opr constitution was fashioned after none
ether in the known world, and if we under-
itand the language in which it is written, we re-
^pire no assistance in giving it a true exposi-
^ As we fipeak the English language, we
juy, indeed, refer to English authorities for de*
outicms, as we should refer to English diction-
*Hea for the meaning of English words ; but
^ this, as upon all occasiona, where the prin-
ttpks of our Government are to be developed, I
tnut that the Constitution of the United btatea
l^n stand upon its own foundation, unsupport-
^ by foreign aid, and that the construction

S^«n to it will be, not an English conatruction,
*on© purely and entirdy American,
uie constitution dedarea, that '* tihe judges
^ of the supreme and inferior courts shall
1^ their commissions during good behavior."
Jbe plain and, correct inference to be drawn
vom this Lmgnage is, thata judge is to hold his

office so long as he demeans himself well in it ;
and whenever he shall not demean himself well,
he shall be removed. I therefore contend that
a judge would be liable to impeachment under
the constitution, even without the insertion dT
that clause which declares, that " all civil offi-
cers of the United States shall be removed for
the commission of treason, bribery, and other
high orimes and misdemeanors." The nature
of the tenure by which a judge holds his office
is such that, for any act of misbehavior in office,
4ke is liable to removal. These acts of misbe-
havior may be of various kinds, some of which
may, indeed, be punishable under our laws by
indictment ; but there may be others whid^
the law-makers may not have pointed out, in-
volving such a flagrant breach of duty in a
judge, either in doing that which he ought not
to have done, or in omitting to do that whidi
he ought to have done, that no man of common
understanding would hesitate to say he ou^t to
be impeached for it

The words " good behavior " are borrowed
from the English laws, and if I were inclined to
rest this case on English authorities, I could
easily show that, in England, these words
have been construed to mean much more than
we contend for. The expression durante m
hene gssserit, I believe, first occurs in a statute
of Henry YIII. providing for the appointment
of a etutaa rotuhrum^ and derk of the peace for
the several counties in England. The statute
recites, that ignorant and unlearned persons
had, by unfair means, procured themselves to
be appointed to these offices, to the great in-
jury of the community, and provides that the
evst4>B shall hold his office until removed, and
the clerk of the peace shall hold his office dti^
ranU w hene geaserit The reason for making
the tenure to be during good behavior, was, that
the office had been held by incapable persons,
who were too ignorant to discharge the duties ;
and it was certainly the intention of the Legis-
lature that such persons should be removed
whenever their incapacity was discovered. Un-
der this statute, therefore. I think it clear that
the officer holding his offioe during good beha-
vior, might be removed for uny improper exer-
cise of his powers, whether arising from igno-
rance, corruption, passion, or any other causa.
To this extent, however, we do not wish to go.
We do not charge the judge with incapacity.
Bia learning and his ability are acknowledged
on all hands ; but we charge him with gross
impropriety of conduct in we dischai^ of his
official duties, and as he cannot pretend igno-
rance, we insist that his malcondnct arose from
a worse cause.

It has been alleged by the counsel for the ac-
cused, that my honorable colleagues have argued
this case upon the articles and not upon the
evidence ; and this allegation contains an ad-
mission, that if the articles are proved, the guilt
of the partv is established. It shall be my en-
deavor to show that there is no material vari-
ance between the charges as laid in the artldei^

Digitized by




Triaiqf Judge Chate.

and the evidenoe bronglitto snpport them ; bat
that they are amply and fiiUy proved by the
yery best testimony which coidd oe addoc^d.

One of the learned oonnsel in commenting
upon the first article, declared that he discovr
ered bat a single trn[ih in it^ which was, that
the Judge had formed and redaoed to writing an
opinion npon the law ; and that gentleman, as
well as the Attorney-General of Maryland, la-
bored with great zeal and with much diiq)lay of
talent, to oonvinoe the Senate that there conld
be nothing wrong in this. Unfortunately for
these learned gentiemen, even that tmth is not
to be foand in it, for by recmring to the article
it will be fomid that the judge is not charged for
having formed an opinion, or for having redn-
eed that opinion to writing, but for *^ having de-
livered an opinion in writing on the question of
law, on the construction of which the defence
of the accused materially depended, tending to
prejudice the minds of the jury against the pris-
oner before counsel had been heard in his de-

In this we find no charge against him for hav-
ing formed an opinion, or fbr having reduced it
to writing, and certamly the learned counsel
might have spared themselves the trouble of
proving what I am sure every member cdT the
Court was fully convinced of before, that there
was no impropriety in a judge's forming an
opinion on any subject whatever, whether legal
or philosophical. It is not, however, usual for
skiifnl advocates to attempt to draw the atten-
tion firom the material points in dispute, for the
purpose of fixing it on others of little or no im-
portance. Such has been the course pursued
by our adversaries. But, Mr. President, the
real charge is, that Samuel Chase did, upon
the trial of John Fries for treason, endeavor to
prejudice the minds of the jury against him, by
delivering an opinion to them upon the law be-
fore his counsel were heard ; and this too in a
case of life and death, where the jury had an
ample, uncontrollable right, to decide as well the
law as the fbct. It is the right and duty of
Judges to inform their minds upon all questions
of Law whatsoever, but it is an unwarrantable
proceeding, it is an unauthorized assumption of
power in them, to deliver that opinion to the
Jury in a criminal cause befbre the Jury is sworn,
and before the counsel of the prisoner have been
heard in his defence.

Much has been said with a view to convin6e
the Court that the opinion thus delivered was a
correct one, and it has therefore been argued
that his conduct was perfectly justifiable. For
my own part, I consider it totally immaterial in
the present case whether the doctrine of trea-
son, as laid down by the judge, was correct or
not ; for even if it were correct, the time and
manner of delivering it, and the persons to
whom it was delivered, form the substance of
the charge against him. It is a misdemeanor, a
high misdemeanor in a judge, wantonly to give
an opinion upon any case which is to come be-
fore him, previously to the swearing of the jury,

and the offence is made much greater by fin;
opinion being publicly declared in the preMOM
01 the jury, who ought to come to the trial d
every cause with minds wholly free from pre-
possession against either party.

Although the judge has said in Ms answer,
that no gentieman of established reputatioo for
legal knowledge would deliberately give a cob-
trary opinion, yet I have not the sli^test ap-
prehension that any littie reputadcHi which I
may possess, can in any manner be affected hy
my expressing, as I now do, my entire conWo-
tion that the doctrine of treason, as laid dom
in Fries*s case, is wholly repugnant to the apirit
and meaning of the constitution. It is not my
intention at this time to enter into an argumeBt
to prove this, for I have before said that I
consider it quite immaterial in ti^e present dis-
cussion ; but I will offer some few obserratioBa,
to demonstrate to tiie Senate that there w»
nothing very unreasonable in the wish expressed
by Mr. Lewis and Mr. Dallas, to show that theoon-
stitution was susceptible of another consdndioiL

The constitution declares that *^ treason againsk
the United States shall conast only in leTying
war against them, or in adhering to their eoa*
mies, saving them aid and comfort." John Fries
was indict^ for lecying war against the United
States, and the fa^Ss I believe were, that he^
with some others, did, in a forcible maniier,
rescue some prisoners from the marshal d
Pennsylvania. This was called a resistance to
a law of the United States, and, by consfcno-
tion, was determined at the form^ trial to be
the treason of levying war. It was in opposi-
tion to this construction of the constitution that
Mr. Lewis and Mr. Dallas wished to be heari
It was certainly not a very extravagant wish on
their part, for it ought to be recollected that va
are a young nation, and it is deeply interesdM
to us all that the Constitution of the United
States should not receive a construction mllra^
ranted by its letter. After the decisions bad
taken place in the courts upon the Western hi*
surreotion, (I mean in the cases of Vigol a&d
Mitchell,) Congress had passed an act dedariag
that to resist a law of the United States shoold
be deemed a high misdemeanor, punishable bj
fine and imprisonment; and they had before
provided, by the act of 1789, that to reseae
prisoners from the custody of the marshal should
also be punishable by fine and imprisonment
Mr. Lewis and Mr. Dallas were desirous of show*
ing that Fries^ case came within the promon
of these laws, and that his offence was not cf
such a nature as to forfeit his life. They alao
wished to have an opportunity of proviD^ that
the terms levying war ought not to receive the
same construction here as in England. To oop-
vince the Senate that they were not singolar in
their ideas, and that the construction given by
the Court has not been unanimously assented to,
I shall take the liberty of referring to an author
of merited reputation, to whom I believe onr
adversaries w^ not r^ftase their respect Jud«
Tucker of Virginia, in his valuable edition «

Digitized by



TVui/ of Judffe Ckai€,

Bbekstone^s Oommentaries, in the appendix to
the foorth volnme, nnder the title of treaaon^
after reciting that part of the eonstiitatiion re-
kting to the SDbJeot, obeerves :

[Here fhe ojdmoiis of Judge Tucker were read.]

8adi we find are the opinions of Jadge Tocker,
an able and upright lawyer, who thinks that the
eoDstitation onght to be construed agreeably to
the plain import of its language, and ong^t not
to be involTed in technical abstmseness. In
that aeries of pnblications entitled the Federal-
ist, written at the oommenoement of the pres-
ent GoTenunent, by some of the ablest men in
this nation, for the purpose of defending the
eoDstitntion, it is matter of boast, that treason
was fhlly defined, and not left to wild and arbi-
traiy construction. But what avails the deflni-
laoD, if the oonstructive treasons o( England are
to be drawn in as nreoedents for us ?

I before stated that I did not mean to enter
into an argnment against the correctness of the
Ooort^ opinion; nor have I done so, but have
offered these remarks to show that it was not
mreaeonable in Mr. Lewis and Mr. Dallas to
wiih that another construction of the constitu-
tion might be received. The counsel for Judge
Chase seem to think it monstrous tiiat they
flhoold have wished to arsue the point after the
law had been settled by three former decisions,
which had taken place in the course of four
yearn Lei it be remembered that Sir Matthew
Hale doubted, after the lapse of one hundred
ai^ 9fty jean ttom the first of these ccmstruc-
tiYe treasons, and after, for aught I know, one
handred and fifty cases had been decided. Mr.
President, fiu: fh>m thinking their conduct on
that occasion extiaordinary, I, as a free man of
America, most cheerftJly accord them my thanks
for the stand they made ; and I do hope and
IniBt, that if ever a similar case should occur, in
which the same doctrine of constructive trea-
sons shall be ivsed to a lury, men like Mr.
Lewis and Mr. Dallas wiU be found, men of
exalted talents and extensive learning, who will
be bold enough to assert the rights of the citi-
aen, and save the constitution of their country
from desLruction.

Another Jnstaficalion of a peculiar nature is
•et np in d^ence of Judge Chase, by a state-
ment made in Keelyng^s Reports. It is there
srid that " afi»r the hawpy restoration of King
Chariee the Second. Sir Orlando Bridgman,
ehief loatice of the King^s Bench, and some six
or elgnt others, Judges, prosecutors, and King's
solicitors, assembled for the purpose of deter-
mining in what manner the regieidei should be
tried, and they settled many points which it
was soppoeed would occur npon the triala.*'
Thfa, ar, is an unfortunate period to refer to
for Justification of the conduct of Judges in our
day. Never was there a moment of such Own-
ing servility; never was there a period of such
tnSKNmded licentiousness. The hope of reward
or the fear of punishment brought almost every
laan crouching at the footstool ci the throne,

and all united in einging hosannas to the King,
and crying aloud for the crucifixion of the mi»-
erable regicides. This conspiracy (which has
been quoted) against the wretched victims
whose sacrifice was resolved on, was headed by
that most servile of all servile tools. Sir Orlando
Bridgman. His character and those of his bro-
ther judges who conspired with him, may be
recollected from the charge which he gave to
the grand Jury on that occasion. It will bo
found in the fourth volume of State Trials, and
it will there be seen how fiamiogly he talked of
tiie dwine right qf Kinga^ whom he otdled Ood^a
vieegerents on earth ; their persons he said were
too aaerad for their conduct to be inquired into :
thay held their power from QodL, and were ao-
countable to him alons : it toae treaaon in their
mbjecta to inquire into the propriety of iehat
thiy did; with much more of the same cast.
These are the times, these the men, and this is
the conduct now introduced for the justification
of Judge Ohase. K they will afford him a justifi-
cation ne is welcome to it for me. They were
woful times indeed; one would have thought
the Parliament which the King found in session
upon his return, was submissive enough ; but
he was not satisfied, and finding the whole na-
tion ready to bow at his nod, he ordered a new
one elected, and they proved so compliant to aO
his wishes, that he continued them for eighteen
years. This sufficiently proves the servile spirit
of those whom the King thought proper to em-
ploy on this noted occasion, and it is not much
to Mr. Keelyng's honor that he was one of them.
The points wMch they did settie were of an ex-
traordinary nature, and one of them was read a
few days since by one of the counsel (Mr. Key)
to show that Basset was a good Juror in (M-
lender's trial.

I^ however, this fiunous precedent had been
made in the best of times, it does not apply to
the present case. For these judges, bad as thev
were, yet had modesty enough to keep thehr
opinions to themselves, till alter the trials had
oonunenced, and did not deliver them until the
occasions arose which called for them. Judge
Ghase^ we have fhlly proved, delivered his
opinion beforehand, pubUcly, and in the hear-
ing of the iury, so that the authority of Mr.
Justice Keelyng and Sir Orlando Bridgman
does not Ju^ify him. He outstripped even

Having thus, as I conceive, fully established
the first specification contained in this article,
and having answered the only colorable excuses
advanced m fiivor of the judge, I shall proceed
to the second specification. This is a charge
against him for '^ restricting Fries's counsel from
recurring to such English authorities as they
believed apposite, and from citing certain stat-
utes of the United States, which they deemed
illustrative of the positions upon which they in-
tended to rest the defence of their client."

I must therefore be permitted to insist that
Fries's counsel were prohibited from recurring ,
to English authorities, and from citing certain

Digitized by



IHtU <if Judfft Chase.

Statutes of the UDited States. It is fully
proved by Mr. Lewis, and corroborated by Mr.
Dallas. The latter was not in Oonrt when the
conversation took place ; but coming in imme-
diately after, he was informed of it by Mr.
I,ewis, and then stated to the Oonrt what Mr.
Lewis had told him. The Court did not deny
it, and certainly it is to be presumed, if Mr.
Lewis had made an erroneous statement of
facts to Mr. Dallas, and they had been repeat-
ed by Mr. Dallas, the Oonrt would have con-
tradicted them. This was not done, and both
these gentlemen now swear that they were pro-

An attempt, however, is made to shelter the
judge from this part of the accusation, by say-
mg that he declared counsel would be heard al-
though this opinion was given. 8ir, this is an-
other evasion. The opinion itself carries with
it internal, uncontrovertible evidence of the de-
termination of the Oonrt that the counsel should
not address the jury. What is the principal
ground of the defence? what is the leading rea-
son urged for giving this extraordinary opinion
before the juir was sworn? It was, as the
judge says, and as his counsel have argued, to
save time. They state that there were more
than one hundred civil causes then depending,
that the delay of business in Pennsylvania h^
been long a subject of complaint, and the judge
was anxious to make Priests trial a short one, in
order that they might have time to proceed
with the other4)U8ines8. Now suffer me to in-
quire how time was to be saved ; how the trial
of Fries was to be shortened, if his counsel were
to be allowed to address the jury on the law
which the Court had already decided? Was
not the opinion of the Court given for the ex-
press purpose of preventing them from address-
ing the jury ; or, if not for this, let me ask for
what purpose it was given? Was it to preju-
dice the minds of the jury; to close their ears
and their understandings against any arguments
which might be offered them ? Gentlemen say
no. Was it to save time ? This was impossible,
because the time was still to be occupied by the
counsel being permitted to address the jury.
Why then, let me ask, was the opinion given?
The answer is ready. It was intended to pro-
duce both these effects. The minds of the jury
were to be preoccupied by the imposing author-
ity of the Court, and in this manner it was ex-
pected to deter the counsel from addressing
them on the law. Nothing, therefore, can be
clearer, than that the counsel were prevented
from addressing the jury, and that the judge
^^ endeavored (\n the language of the article) to
wrest from tne jury tJieir right to hear argu-
ment, and determme upon the question of law.**
But it is said that the right of the jury to decide
the law does not ^ve th^n a dispensing power
over the law, and that therefore they are bound
by the opinion of the Court. Nor does the right
of the Gawrt to decide the law give them a ais-
pensing power over the law. The jury have a
right to deeide the law, and are not bound by

the opinion of the Court. In order to enable
them to decide correctly they have a right to
hear argument, and any attempt to preveot
this, is an attempt to wrest from them their
right to decide the law, and is a high misde-

- We are told, however, that if any tiling wrong
was done on the first day, ample atonement wv
made on the second. It is true that the judge
exhibited some appearance of a wish that the
counsel would proceed on the second day, but
Mr. Lewis well remarked, that although the
papers were withdrawn, the impression which
had been made on the minds of the jurors codd
not be removed. What sort of an atonement
too, was this? It carried insult with it; and
the language in which it was made had a still
greater tendency to strengthen the impreeaon
made the day before. The counsel were pub-
licly informed they might proceed as they
pleased, }mt it must he at the haaoflrd of their
eharact&re^ under the direction of the Court Is
there a man of reputation on earth, possessed
of the smallest spark of feeling, that would ooDr
sent to disgrace himself by addressing a jary
under such circumstances ? This alone, if nollh
ing else had taken place, was sufficient to drive
them from the defence of their client ; and if
they thought that their abandoning him misrht
eventually save his life, they were fully justified
in doing so.

The learned advocates for the judge have
talked highly of the independence of the Judi-
ciary, and have asked what inducements any
Judge could have to act as we have charged
Judge Chase with acting. Are there tlien no
inducements for a judge to swerve from his do*
ty ? Has he no feelings to gratify, and is it im-
possible for him to become a partisan ? Does
his character as a judge divest him of his am-
bition as a man? Is he so incorruptible that
temptation cannot assail him? Look through
the annals of other nations — ^read the history of
England for the last forty years. Judicial in-
dependence has been for a long time as well se-
cured there as here ; and yet how many instan*
ces shall we find in that country of prosecutioDB
in which the feelings of the Ministry had been
engaged, and in which their influence over the

fudges has been too flagrant to be mistaken!
n Ireland, miserable Ireland, a still more
gloomy prospect presents itself T^ey, too^
have boasted an independent judiciary; bat an
overruling influence has crumbled it into rains.
The demon of destruction has entered their
courts of justice, and spread desolation over the
land. Execution has followed execution, until
the oppressed, degraded, and insulted nation has
been made to tremble through every nerve, and
to bleed at every pore. Let us then be warned
by the fate of I?eUind. In State prosecations
her judges look to the Oasde; although they
cannot be put down, they may be elevated.
Some of our judges have been elevated to places
of high politiciu importance ; splendid embas^
sies have been given to them. I will not saj

Digitized by




Trial of Jvdffe Chtue.

tbt they were given or accepted with impro-
per yiews; but they have been given, and sure-
if they holdout inoacement enongh lor a jadge
to bend toihe ruling party. It is our dnty to
preTcot party spirit from entering into onr
eoQrts of jnstioe. Let ns nip the evil in the
Indf or it may grow to an enormous tree, bear-
iog destruction upon every branch. Ton have
Mfr in opportunity of doing it, and I trust you
Tin not suffer it to escape yon« I therefore
kope that you will not only remove Judse
(lue from the high office which he now fllB,
hit that by your judgment yon wUl for ever
hereafter ^fisqualify him from holding any office
of profit or trust under the Government of the
United States.

Mr. BoDHKT. — Mr, President, and Gentlemen
of the Senate : The present tried exhibits a spec-
tide truly solemn and impressive. A man who
h(dd8 one of the highest judicial offices under
the Government, who, from the period of the
Berohtion, has filled many of the most impor-
tant pnbtio situations, and whose hairs have
lieen bleached in the service of his country, is
charged before this dignified tribunal, by the
Representatives of the American people, with
Ae commission of acts in violation of his duty
M I jndge, and of the laws and oonstitution of
the hud.

On one hand, the character of an aged and
Kspectable individual, which may be dearer to
him than the small remnant of his life, is in-
TolTed in your decision ; on the other, the most
pncioDi rights of free citizens, and the dearest
i&terestB of society.

The miod which could contemplate, un-
^'o^ SQch a scene, cannot feel for tne welfare
rf the people, or the honor of the nation, and
Bost be equally insensible to the finer sympa-
thui of life, and the practice of its charities and

^ The pubhc anxiety manifested by this deeply
interesting trial must be evident to all— a trial
of the firrt importance, because of the first im-
pfwaon— a tnal not confined to a single act in

Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856 : from Gales and Seaton's Annals of Congress, from their Register of debates, and from the official reported debates by John C. Rives → online text (page 65 of 184)