United States. Congress.

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

. (page 60 of 183)
Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 60 of 183)
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of this transaction. His notes are copious, con-
nected, and satisfactory, and although he has
no notes of the first day's proceeding, yet he
seems to have given an uncommon and cautious
attention to every circumstance to which he has
testified. This gentleman negatives every idea
of any restriction upon the arguments of coun-
sel, and is supported by every witness but Mr.
Lewis.

But, sir, there is one circumstance in this
second day's proceeding, which has been intro-



duced to show, that the respondent continued
the same tyrannical spu-it with which he is
charged on the first day, and which it may be
incumbent on him to remove. I mean the
" unkind menace," as it has been termed by
one of the witnesses, used to the counsel of
Fries, when the judge told them they would
proceed in the defence at the hazard or on the
responsibility of their character. To ascer-
tain the true nature of the expression, whatever
it was, which fell from the Court in this respect,
I will refer to the sa^e guide I have endeavored
to foUow throughout my argument, I mean the
evidence. The aspect of this pretended menace
will then be changed into a complimentary con-
fidence in the discretion of the counsel, or at
least into no more than such a menace as every
gentleman of the bar acts under in every case;
that is, to manage every cause before a jury
with a due regard to their own reputation ; to
urge nothing as law to the jury, which they are
conscious is not law, and to introduce no matter
which they know to be either improper or irrel-
evant. This, in its worst character, will be
found to be the whole amount of this terrible
menace. What account does Mr. Lewis give
of this occurrence? After stating that the
Court manifested a strong desire that he >ud
his colleague should proceed in the defence of
their client; that every restriction, if any. had
been imposed, was now removed, and that they
were at fall liberty to address the jury on the law
and the fact as they thought proper ; the judge
said that this would be done " under the direc-
tion of the Court, and at the peril of their own
character, if we conduct ourselves with impro-
priety.'''' And was it not so ? And where is
the criminality of saying so? Mr. Lewis did
not consider this as a menace intended to re-
strict him in the exercise of the rights just be-
fore conceded him by the Court, but rather as
an unwarranted suspicion of his sense of pro-
priety ; for, says he, " I did not know of any
conduct of mine to make this caution neces-
sary."

A very strange and unexpected effort has
been made, sii', to raise a prejudice against the
respondent on this occasion, by exciting or
rather forcing a sympathy for.John Fries. We
have heard him most pathetically described as
the ignorant, the friendless,, the, innocent John
Fries. The ignorant John Fries ! Is this the
man who undertook to decide that a law which
had passed the wisdom of the Congress of the
United States, was impolitic and unconstitu-
tional, and who stood so confident of this opin-
ion as to maintain it at the point of the bayonet ?
He wiU not thank the gentleman for this com-
pliment, or accept the plea of ignorance as an
apology for his crimes. The friendless John
Fi-ies ! Is this the man who was able to draw
round himself a band of bold and determined ad-
herents resolved to defend him and his vile doc-
trines at the risk of their own hves, and of the
lives of all who should dare to oppose ? Is this
the John Fries who had power and friends



244



ABEIDGMENT OF THE



Trial of Judge Chase.



enough actually to suspend, for a considerable
time, the authority of the United States over a
large district of country, to prevent the execu-
tion of the laws, and to command and compel
the officers appointed to execute the law to
abandon the duties of their appointment, and
lay the authority of the Government at the
feet of this friendless 'usurper f The innocent
John Fries 1 Is this the man against whom a
most respectable grand jury of Pennsylvania,
in 1799, found a bill of indictment for high trea-
son ; and who was afterwards convicted by
another jury, equally impartial and respectable,
with the approbation and under the direction
of a judge, whose humanity and conduct, on
that very occasion, have received the most un-
qualified praise of the honorable Manager who
tiius sympathizes with Fries ? Is this the John
Fries, against whom a second grand juiy, in
1800, found another bill for the same offence,
founded on the same facts, and who was again
convicted by a just and conscientious petit
jury 9 Is this innocent German the man who,
in pursuance of a wicked opposition to the
power and laws of the United States, and a
mad confidence in his ability to maintain that
opposition, rescued the prisoners duly arrested
by the officers of the Government, and placed
those very officers under duress ; who, with
arms in his hands and menace on his tongue,
arrayed himself in military order and strength,
put to hazard the safety and peace of the coun-
try, and threatened us with all the desolation,
bloodshed, and horror of a civil war; who, at
the moment of his desperate attack, cried out
to his infatuated followers, " Gome on I I shall
probably fall on the first fire, then strike, stab,
and Mil all you can ?" In the tervid imagina-
tion of the honorable Manager, the widow and
orphans of this man, even before he is dead, are
made in hypothesis to cry at the judgment seat
of God against the respondent ; and his blood,
though not a drop of it has been spilt, is seen
to stain the pure ermine of justice. I confess,
sir, as a Pennsylvanian, whose native State has
been disgraced with two rebellions in the short
period of four years, my ear was strangely
struck to hear the leader of one of them ad-
dressed with such friendly tenderness, and
honored with such flattering sympathy by the
honorable Manager.

It is not unusual, sir, in public prosecutions
for the accused to appeal to his general life and
conduct in refutation of the charges. How
proudly may the respondent make this appeal 1
He is charged with a violent attempt to violate
the laws and constitution of his country, and
to destroy the best liberty of his fellow-citizens.
Look, sir, to his past life, to the constant course
of his opinions and conduct, and the improba-
bility of the charge is manifest. Look to the
days of doubt and danger ; look to that glorious
struggle so long and so doubtfully maintained
for that independence we now enjoy ; for those
rights of self-government you now exercise, and
do you not see the respondent among the bold-



est of the bold, never sinking in hope or in
exertion, aiding by his talents and encouraging
by his spirit ; in short, putting his property and
his life in issue on the contest, and making the
loss of both certain by the active part he as-
sumed, should his country fail of success ! And
does this man, who thus gave all his posses-
sions, all his energies, all his hopes to his coun-
try and to the liberties of the American people,
now employ the small and feeble remnant of
his days, without interest or object, to pull down
and destroy that very fabric of freedom, that
very Government, and those very rights he so
labored to establish ? It is not credible ; it
cannot be credited, but on proof infinitely
stronger than any thing that has been offered
to this honorable Court on this occasion. In-
discretions may have been hunted out by the
perseverance of persecution ; but I trust most
confidently that the just, impartial, and digni-
fied sentence of this Court, will completely
establish to our country and to the world, that
the respondent has fully and honorably justified
himself against the charges now exhibited
against him ; and has discharged his official
duties, not only with the talents that are con-
ceded to him, but with an integrity infinitely
more dear to him.



FEroAT, February 22.

Mr. Key. — Mr. President, I rise to make
some observations on the second, third, and
fourth articles of the impeachment. I shall
not apologize for the manner in which I shall
discharge a duty which I have voluntarily un-
dertaken, but merely regret that indisposition
has prevented my giving the subject that atten-
tion which it merits. It will be at once per-
ceived that these articles relate to the trial of
Callender. Before, however, I go into an exam-
ination of the second article, it may be proper
to notice the situation in which the judge found
himself and the state of the public mind at the
time. The sedition law was passed in the year

1799. It immediately arrested the public atten-
tion, and strongly agitated the public feelings.
In the State of Virginia it was peculiarly ob-
noxious; many of the most respectable char-
acters considered it as unconstitutional, and as
a violation of the liberty of the press ; most
deemed it impolitic ; while some viewed it as a
salutary restraint on the licentiousness of the
press, more calcvilated to preserve than to
destroy it. In this state of the pubho mind
it became the duty of the respondent, in the
ordinary assignment of judicial "districts, to go
into the district of Virginia, where he was
entirely a stranger, to carry the laws into exe-
cution. It is scarcely necessary to observe
that when laws are considered obnoxious, much
of the odium attending them inevitably falls on
those who carry them into effect. In May,

1800, Judge Chase went to Richmond to hold
a court ; and soon after it was in session, the
grand jury found a presentment and afterwards



DEBATES OF CONGKESS.



245



Trial of Judge Chase.



a bill against James T. OaUender for an infrac-
tion of this law, in publishing the book entitled
" The Prospect before Us," which brought into
issue its constitutionality. Professional men
of talents, carried along by the tide of public
opinion, volunteered their services in defence
of the accused ; and every effort was exhausted
to wrest tlie decision from the respondent.
Exceptions were accordingly taken at every
stage of the case ; and when the jurors were
brought to the book, a question arose which
forms the foundation of the charge contained in
the second article.

If we extract from this article the epithets
it contains nothing will remain, and epithets
fortunately do not constitute crimes. The
offence and fact charged is, the permitting Mr.
Basset to be sworn on the jury with an inten-
tion to oppress the traverser, which is not in
the least supported by the testimony. The
article alleges that Mr. Basset wished to be
excused. I appeal to the testimony, whether
he did wish or desire to be excused. The obser-
vations he made arose entirely from a scruple in
his own mind, and not from any objection to
serving. Instead of his wishing to be excused,
the real fact is that which he said flowed from
the peculiar situation in which he stood ; and
he says that he declared himself willing to serve,
provided in law he was competent. The fact,
therefore, on which this article rests, is not sup-
ported by the testimony, and not being support-
ed, I might here dismiss this branch of the sub-
ject without further animadversion.

Suppose we are mistaken in the fact, which
we say is proved, that Mr. Basset did not desire
to be excused ; admit that he did pray to be
excused ; still, so far as he has himself, on oath,
explained the situation of his mind, there was
no cause for challenge.

Admit, also, that we are mistaken in the law
we have laid down, does it follow as a necessary
consequence that the directing Basset to be
sworn on the jury, was done with an intent to
oppress the traverser ? We call for the facts
that impeach the motives of Judge Chase. In
the opening of this case we were told that the
respondent was highly gifted with rich attain-
ments of mind. It was correctly said ; and it
might have been added that Ms integrity was
equal to his talents. But the observation was
made to raise his head at the expense of his
heart. I will examine this argument.

The truth is that no judge is liable for an
error of judgment. I apprehend this is conced-
ed by the article itself, which states a criminal
intent. Now for the evidence. What criminal
intention do the honorable Managers draw from
it? It is said that the respondent is highly
gifted with intellectual powers, and must have
known in this instance the law. Timeo Danaos
et dona fir entea. I dislike the compliment ; the
best-gifted mortals are frail, and a single erro-
neous decision may be made by any man.

I will now proceed to the third article, which,
when correctly understood, will be found as



destitute of impeachable matter as either of the
other articles. It is as follows: "That, with
intent to oppress and procure the conviction of
the prisoner, the evidence of John Taylor, a
material witness on behalf of the aforesaid
Oallender, was not permitted by the said Samuel
Chase to be given in, on pretence that the said
witness could not prove the truth of the whole
of one of the charges contained in the indict-
ment, although the said charge embraced more
than one fact."

In opening the oase one of the honorable
Managers inquired what human subtUity or
ingenuity could devise to extenuate this act of
the respondent. Our reply is that it requires no
subtUty or ingenuity ; that it was correct in
point of law, and that the case is so clear, that
he who runs may read. The Court must permit
me to observe that the article presents an ab-
stract case, not growing out otj or connected
with the evidence. This Court, I apprehend, is
not sitting here to decide this abstract point,
whether in any case it is admissible to prove
one fact contained in a particular charge by one
witness, and one by another ; but to determine
whether in this case, where one witness was
offered to prove part of one charge, and no
other witness offered to the same charge, it was
proper to receive testimony offered. I contend
that the decision was correct on the case before
the Court.

Mr. Eobertson says, " The attorney for the
United States having concluded, the counsel for
the traverser introduced Colonel Taylor as a
witness, and he was sworn ; but at the mi iment
the oath was administered, the judge called on
them, and desired to know what they intended
to prove by the witness. They answered, that
they intended to examine Colonel Taylor, to
prove that Mr. Adams had avowed principles
in his presence which justified Mr. CaUender in
saying that the President was an aristocrat —
that he had voted against the sequestration law,
and the resolutions concerning the suspension
of commercial intercourse with Great Britain."
This was then the object and view with which
Colonel Taylor was called on. What is the
charge in the articles of impeachment ? That
the testimony of Colonel Taylor was rejected
" on pretence that the said witness could not
prove the truth of the whole of one of the
charges, contained in the indictment, although
the said charge embraced more than one fact."
The charge in the indictment is that the Presi-
dent "was a professed aristocrat; that he
proved faithful and serviceable to the British
interest:" and Colonel Taylor was called to
prove that Mr. Adams had voted against the
sequestration law, and the resolutions concern-
ing the suspension of commercial intercourse
with Great Britain. Was it competent to
Colonel Taylor to give evidence on this point ?
The best evidence the nature of the case will
admit must be adduced. Colonel Taylor then
was clearly an incompetent witness on this
point ; as there was better evidence, the jour-



246



ABKIDGMENT OF THE



Trial of Judge Chase.



nals of this honorable body, within the reach of
the traverser. It only then remained for Colonel
Taylor to prove that the President had avowed
principles which showed him to be an aristocrat ;
which, if proved, would have been altogether
immaterial. To prove no other facts was he
called upon. Are then counsel to be indulged in
consuming the time of courts in the examina-
tion of witnesses, who have nothing relevant to
offer?

I will now proceed to the fourth article, which
contains five distinct specifications of facts
charging misconduct on the respondent at
Eichmond.

This conduct is said to have been evinced, in
the first place, " In compelling the prisoner's
counsel to reduce to writing, and submit to the
inspection of the Court, for their admission or
rejection, all questions which the said counsel
meant to propound to the above-named John
Taylor, the witness."

If this was incorrect, I cannot perceive its in-
justice to Callender, nor its partiality or intem-
perance. But did the conduct of the Court in
this instance coiTespond with the law and the
practice? I apprehend that it did. I under-
stand it to be a clear and admitted principle of
law, that the Court is the only competent tri-
bunal to determine the competency, the admis-
sibility, and the relevancy of evidence ; when
admitted, its credibility is the exclusive province
of the jury. I have before stated the reasons
which rendered it necessary in this case to
know what Colonel Taylor could prove. To
understand the object for which he was produ-
ced with greater certainty and precision, the
judge ordered the questions proposed to be put
to be previously reduced to writing. I am not
suflSoiently acquainted with the practice in the
courts of Virginia to say this was not novel,
but I may surely venture to afiirm that there
was nothing criminal in it. I know well that
in different States there are different forms of
practice. I can only say, that Judge Chase, go-
ing from Maryland, where the practice does
prevail, would naturally carry to Virginia the
knowledge of the practice of the State from
which he went.

The iecoTtd specification is in the following
words :

" In refusing to postpone the trial, although
an affidavit was regularly filed, stating the ab-
sence of material witnesses on behalf of the ac-
cused ; and altliough it was manifest that, with
the utmost diligence, the attendance of such
witnesses could not have been procured at that
term."

This charge is grounded on the fact of a refu-
sal to postpone the trial on an affidavit. That
the Court acted correctly in this instance will
appear from this consideration. Nothing is
more clear than that, under the common law,
all applications for a continuance, on affidavit,
are founded on the discretion of the Court. Is
it not wonderfully singular that there should
have been an application founded on an affida-



vit, if the law of Virginia, as stated in the 6th
article, applied to the case? One thing is clear :
either that the Attorney-General and Mr. Hay
lost all recollection of the existence of this law
of Virginia respecting continuances, or that
they considered it inapplicable ; for they would
not otherwise have founded the application on
an affidavit. They would have produced the
law and have demanded a continuance. Did
they do so ? No. If, then, the law officer of
the State and Mr. Hay both forgot that it exist-
ed, is it surprising that it should be unknown
to Mr. Chase ? If those gentlemen did recollect
the existence of the law, they must surely have
been of opinion that it did not apply to the case
of Callender, or they would have saved them-
selves the trouble of filing an affidavit. It will
however he shown that it did not apply, and
hence their application founded on affidavit.

On the third specification, which charges the
respondent with "the use of unusual, rude, and
contemptuous expressions towards the prisoner's
counsel ; and in falsely insinuating that they
wished to excite the public fears and indigna-
tion, and to produce that insubordination to
law, to which the conduct of the" judge did, at
the same time, manifestly tend;" I have but a
few observations to make. I should indeed
have spared many of the remarks I have made,
were it not for an ignorance of the pecuUar
ground on which the honorable Managers mean
to rely in their reply, and were it not for the fear
that an omission to notice any of the charges
preferred, might be considered as an abandon-
ment of our defence as far as related to them.

I have nowhere discovered in the evidence
any thing that supports in point of fact the
charge against Judge Chase, of falsely in-
sinuating that the prisoner's counsel wished to
excite the public fears and indignation to pro-
duce iQsubordination to law. The judge did say
that the counsel used a popular argument, cal-
culated to mislead and deceive the populace ;
and this is the extent and head of his offending;
but there is a wide difference between this and
the charge laid to his door. He told the coun-
sel, and told them truly, that they were availing
themselves of a popular argument, calculated
to mislead and deceive the people. Attend, I
pray you, to the testimony of Mr. Hay. Did
not the counsel for the prisoner say they had
no hope of exculpating him on the facts ? Did
they not say they did not argue for Callender?
That it was the cause, and not the man, they
defended ? That they did not expect to con-
vince Judge Chase, or any other federal judge,
of the unconstitutionality of the sedition act ?
Were they not then laboring with their whole
talents to catch the popular ear ? Did they not ex-
pressly declare that they had little liopes of the
jury, and that their object was to make an im-
pression on the public mind ? And when the
judge declared that the constitutionality of the
act could not be discussed before the jury, did
they not, failing in their object, abandon the
defence? The ground which they meant to



DEBATES OF CONGKESS.



247



Trial of Judge Chme.



have taken was witlidrawn, and they withdrew
with it.

As to the use of unusual, rude, and contemp-
tuous expressions towards the prisoner's coun-
sel, no particular facts appear to be relied on.
The term captious may be unusual ; the phrase
young gentlemen, which in the opening the hon-
orable Manager metamorphosed into hoys, but
which last word does not by the testimony ap-
peal- to have been used, may have been obnox-
ious to the ears of those to whom it was applied.
There may not have been manifested in this
language the most refined decorum ; but let us
recollect that our honorable client is not now
on his trial for a violation of the decorums of
society. Possessed of great ardor of mind and
quickness of feeling, he conceives with rapidity,
and expresses with energy his ideas. This may
be a weakness ; but it is a weakness of nature.
Had he a colder heart, and weaker head, he
might not be exposed to these little indiscre-
tions. But where is the vade mecum from which
a judge is to derive precedents for his behavior ?
Courts are instituted, not to polish and refine,
but to administer justice between man and man,
One judge may possess a more pleasing urbanity
of manners than another ; but are we to infer
that because a man is warm in the expression
of his sentiments, he is, therefore, angry ? It
will not be contended that when the counsel for
the tijaverser spoke of the necessity of the in-
dictment being verbatim et literatim, in the
witty reply of the judge that they might as well
insist that it should be punetuatim, there was
any violation of decorum manifested. The reply
grew out of the occasion, and never was a re-
mark better applied.

I know of no other unusual language, except
the expression of non aeguitur ; and surely there
was nothing improper in that. We have been
told that it is the usual habit of Judge Chase to
interrupt counsel when they attempt to lay
down as law that which is not law. In this
case, he certainly did so ; but it does not appear
that he departed from his ordinary course ; and
if he had, where is the rule which, on such oc-
casions, is to govern a judge? Such conduct,
as I have before observed on another point, vio-
lates no moral obligation, infringes no statutory
provision. The judge may not have displayed
the urbanity, the suavity, and the patience,
which so happily characterize some high char-
acters ; but where or when has the absence of
these minor qualities been considered as crimi-
nal ? Some of the witnesses, and among them
Colonel Taylor, have described the conduct of
the judge as imperious, sarcastic, and witty ;
but no witness has pronounced it tyrannical or
oppressive.

With regard to the fburth specification, which
relates to the interruption of counsel, I shall say
but little. A judge has a right at.aU times to
interrupt counsel whenever they act improper-



Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856. From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives → online text (page 60 of 183)