Trial of Judge Chase. (continued 3)

Mr. Harper here interrupted Mr. Hay, and said, The witness may refer to any thing done by himself at the time the occurrences happened which he relates. But I submit it to the Court how correct it is to refer to what was not done by him, or done at the time.

The President asked Mr. Hay whether the notes were taken by him.

Mr. Hay. The statement was made by different persons. Some parts were made by myself, perhaps the greater part; the rest by Mr. Nicholas and Mr. Wirt. I believe I shall be able to state from it every material occurrence which took place at the time.

President. Have you the parts made by yourself separate?

Mr. Hay said he had not.

The President then put the question, whether the witness should be permitted to use the paper? and, the question being taken by yeas and nays, passed in the negative—yeas 16, nays 18.

Mr. Randolph asked the witness to state to the Court the circumstances which took place during the trial of James T. Callender, and particularly what respected the excuse and testimony of John Basset.

Mr. Hay. I will state as well as I can what fell from the judge, and which appeared to me to be material. After some previous observations, the counsel for the traverser claimed for their client his constitutional right to be tried by an impartial jury. I cannot pretend to relate precisely either the course of proceeding or the exact words which were used, since I am deprived of the aid of those notes which I know to be correct. I shall not, therefore, recite the precise words, but I shall give the substance of them, and the words themselves as nearly as possible. According to my best recollection, Judge Chase’s declaration on that point was, that he would see justice done to the prisoner in that respect. In order to obtain the object which the counsel for Callender had in view, we pursued this course. Believing that a majority of the petit jury, if not all of them, were men decidedly opposed to J. T. Callender, in political sentiments, and thinking it probable, from the state of parties at that time, that they had made up their minds, we wished to ask every juror, before he was sworn, whether he had ever formed an opinion with respect to the book called “The Prospect before Us.” According to my best recollection, Judge Chase interfered, and told us it was not the proper question. He said he would tell us what the proper question was. He then went on to state that the proper question was this: “Have you ever formed and delivered an opinion concerning the charges in this indictment?” Though I have but little dependence on my memory, in general, yet in this I am certain, that I not only give the substance, but the identical words used. To this question an answer was necessarily given in the negative.

When Mr. Basset was called by the marshal, he manifested some repugnance to serving on the jury. He said, according to my best recollection, that he was unwilling to serve, because he had made up his mind as to that book. I do not pretend to say that the words used were precisely those I state. He may have expressed himself in the words ascribed to him by the stenographical statement given of the trial. The objection, thus made by Mr. Basset, was overruled by Judge Chase, who asked him whether he had ever formed and delivered an opinion concerning the charges in the indictment. He was sworn to answer this question. Like the other jurors, he answered in the negative, and the judge ordered him, like the other jurors, to be sworn on the jury. He was sworn, and did serve.

Mr. Harper. Was the word used by the judge, and or or?

Mr. Hay. I am perfectly clear it was and, and not or.

In the state of things at that time, and seeing the temper that was manifested on the trial, I would not, and did not, ask the juror a single question without submitting it to the Court, and soliciting their permission to ask it. I solicited the leave of the Court to ask a question. The reply of the judge was this—the difficulty I experience at this moment in stating the precise words, furnishes the reason I had for wishing to have recourse to the statement I had in my hand; since I am denied that indulgence, I will not pretend to state literally what was said, but I will state the substance. I told the judge I wished to ask a question. “What,” said the judge, “is the question you want to put?—state it. If I think it a proper question, or if I choose it, you may put it. Come, what is your question?” Notwithstanding the humiliation I felt at being addressed in such a way before a crowded audience, I asked, “Have you formed (leaving out, “and delivered”) an opinion concerning the book from which the charges in the indictment are taken?” The reply of Judge Chase was, “no, sir, No, you shall ask no such question.” And the question was not asked. This is all I recollect at this moment respecting Mr. Basset, and the occurrences connected with that part of the trial.

It was stated by Callender, in his affidavit, that Colonel Taylor, of Caroline, was a material witness; but of this I am not certain, because I have not read the affidavit since the trial. In the interval that elapsed between the day on which the first motion was made, and that on which the trial took place, Tuesday, Colonel Taylor was summoned. When he came to town, I know not. I have no recollection of having seen him until he came into court. I had, therefore, no opportunity of ascertaining whether it would be in his power to furnish the accused with the evidence he expected to derive from him. After the witnesses on the part of the United States had been adduced to prove the fact of publication, and after the attorney of the United States had opened the case, and stated the law arising upon the evidence, Colonel Taylor was offered to the Court as a witness. He was sworn; and, immediately after, or probably while he was swearing, Mr. Chase asked the counsel of Callender what they expected to prove by him. If I recollect rightly, Mr. Nicholas, one of my associates, observed that we did not know distinctly what could be proved by Colonel Taylor; but that we expected to prove what would amount to a justification of one of the counts in the indictment; that we expected to prove that Mr. Adams, the then President of the United States, had avowed, in conversation with Colonel Taylor, sentiments hostile to a republican Government; and that he had voted in the Senate of the United States against the law for sequestering British property in this country, and against the law for suspending commercial intercourse between the United States and the Kingdom of Great Britain. I do not recollect precisely the words which were used by Mr. Nicholas, in making the observations that accompanied this statement; but I think he said he hoped that it would be understood that he was not tied down to these particular points, saying that probably the answers given by Colonel Taylor might suggest other questions proper to be put. Nor do I use the precise words in which Judge Chase made an objection; but I do remember that the objection was made. The principle upon which he founded his objection was this, that Colonel Taylor’s evidence did not go to a justification of any one entire charge; and he declared Colonel Taylor’s evidence to be inadmissible on that ground. The judge was then asked by Mr. Nicholas whether we might not prove part of a charge by one witness, and the other part by another. The judge answered him, that he desired him to understand the law as he had propounded it; and the law was this: that this could not be done; that Colonel Taylor’s evidence related to only one part of a charge, and that he could not prove one part by one evidence, and one part by another. I then observed to the judge that I thought Colonel Taylor’s evidence admissible even on the principle laid down by the Court; that I thought his testimony would go to prove both members of the sentence. The one asserted that Mr. Adams was an aristocrat, the other, that he had proved faithful and serviceable to the British interest; and that he could prove that he had heard Mr. Adams make the remarks already stated; and that he had proved serviceable to Great Britain in the way mentioned by the author, that is, in giving the two votes in the Senate, alluded to in the work. The judge did not say in express terms that the position taken at the bar was wrong, but he said that the evidence of Colonel Taylor was inadmissible, and that the counsel knew it to be so; and I believe it was at the same moment of time he said that our object was to deceive and mislead the populace. I remember these expressions as well as if I had heard them yesterday. Finding that the attempt I had made to render a service, not to the man, but to the cause, instead of affording service to the cause, only brought on me the obloquy of the Court, I felt myself disgusted, and said no more on the subject.

I recollect that we were requested by the judge to reduce to writing the questions that we wished to propound to Colonel Taylor. I thought the measure so novel and unprecedented that I was not disposed to comply with this desire. The questions were, however, stated in writing by Mr. Nicholas, who observed that he hoped we would not be confined in the examination of the witness to the questions thus stated in writing. If I mistake not, before the questions were reduced to writing, Mr. Nicholas made some observations about the mode pursued by the Court in reference to the attorney for the United States, and that exercised towards the counsel for the prisoner; that the attorney for the United States had not been required to state in writing the questions he wished to ask. When this remark was made to the judge, he said that the attorney for the United States had stated in the opening of the case all that he expected to prove; “but though this were done, we were not bound to do it.” My impression is that that word escaped the judge several times.

Mr. Nicholson. What word?

Mr. Hay. The word “we.”

Mr. Nicholson. Did it refer to the Court as well as the attorney?

Mr. Hay. So, sir, I understood it.

The fourth article relates to the refusal of the judge to postpone the trial on the affidavit of Callender; on which I can only say that the affidavit was filed, but whether regularly drawn or not I do not know. This affidavit, according to my best recollection, stated the absence of material witnesses.

The next article relates to a subject that it is very unpleasant to me to make any remarks upon, because I feel myself to be a party concerned. The judge is charged with—

[Mr. Hay here read the third, fourth, and fifth clauses of the fourth article.]

There were many expressions used by Judge Chase during the trial which were uncommon, and which I thought, and still think to be so. With respect to the asperity with which he censured me, I shall not—

Mr. Harper interrupted the witness, and desired him to state the expressions, and let the Court judge for themselves.

Mr. Hay. The first expression which made a very strong impression on my mind, was this: In the course of the argument, urged by me in support of the motion for a continuance to the next term, I assumed it as a clear position, that the law of the State of Virginia, which directs that the jury shall assess the fine, would govern in this case. As soon as I got to that part of the argument the judge interrupted me, and gave me to understand that I was mistaken in the law, and added, the assessment of the fine by the jury may be conformable to your local and State laws, but when applied to the federal courts, it is a “wild notion.” In the case of Colonel Taylor’s evidence, which I have already stated, the judge said that we knew the evidence to be inadmissible, though we pressed it upon the Court, and then the expression followed which has been already mentioned, that we were endeavoring to mislead and deceive the populace. At another time he was pleased to observe, Gentlemen, you have all along been in error in this cause, and you persist in pressing your mistakes on the Court. On more occasions than one he charged the counsel with advancing doctrines they knew to be wrong. I endeavored in one part of the cause to satisfy the Court that the book called the “Prospect before Us,” could not be given in evidence in support of the indictment, because the title of the book was not mentioned in the indictment. In support of my argument, I observed to the Court that if the indictment mentioned the book from which the charges were formed, and any subsequent prosecution should afterwards be instituted, the traverser would have nothing more to do than to produce a copy of the record, and plead in bar of a subsequent prosecution; but that according to the opinion of the Court, the situation of the traverser would be more precarious than according to the doctrines for which I contended; for that the traverser, if he should plead a former prosecution in bar, would not be able to prove the fact by comparing the record with the indictment; but must resort to extraneous evidence to prove that the subsequent prosecution was founded on the same publication that gave rise to the first. The judge was pleased to observe, without seeming to understand the distinction that I endeavored to draw, that I knew the present prosecution could be pleaded in bar. I certainly did know it, and was endeavoring at that very time to show by my argument that the better mode of proving the truth of the plea would be by a copy of the record, rather than by an appeal to parol testimony. Judge Chase again interrupted me, and said, I knew that this prosecution might be pleaded in bar.

In the course of the same argument, which I addressed to the judge, for the purpose of showing the truth of the positions we had stated, I observed that according to the established doctrine, the words “tenor and effect,” in an indictment for a libel, bound the party to the literal recital of the parts charged as libellous. In support of that opinion I quoted several authorities that satisfied my mind. The judge was pleased to tell me, I was mistaken in my application of them; but I do not remember his precise words. He said the words “tenor and effect” did not oblige the prosecutor to give more than the substance of the paper meant to be recited. It is contended, said he, that the book ought to be copied verbatim et literatim; I wonder, he continued, they do not contend for punctuatim too.

Mr. Nicholson. Was this observation addressed to the bar?

Mr. Hay. It appeared to me to be intended for the people; for he looked round the room when he said, with a sarcastic smile, I wonder they do not contend for punctuatim too. I recollect also, that when Mr. Wirt, who was associated with me as counsel for the traverser, was addressing the Court, he was ordered by Judge Chase to sit down—in this precise language, sit down. The judge also declared that the counsel on the part of Callender should not address any observations to the jury concerning the unconstitutionality of the second section of the sedition law, in respect to prosecutions for libellous publications.

When Mr. Wirt was arguing from a proposition he had laid down, he said the conclusion which followed was perfectly syllogistical. The judge bowed to him in a manner I cannot describe, and said, “A non sequitur, sir.” I do not remember any other expression used by the judge calculated to deter the counsel from proceeding in the defence of J. T. Callender. But I do remember that I was more frequently interrupted by Judge Chase on that trial, than I have ever been interrupted during the sixteen years I have practised at the bar. I do not state how often I was interrupted, because I do not recollect; but I know the interruptions were frequent, and I believed them to be very unnecessary, not only as they regarded myself, but the counsel who were associated with me in the defence.

Tuesday, February 12.

The Court met at 12 o’clock.

John Taylor, sworn.

Mr. Randolph. The witness will please to state the circumstances that passed in the rejection of his testimony, and other circumstances which have any relation to the conduct of Judge Chase on the trial of Callender?

Mr. Taylor. I was summoned as a witness on that trial on the part of Callender. I attended and was sworn. On being sworn, Judge Chase inquired what it was intended to prove by my testimony? I do not recollect the expressions of Judge Chase, nor do I recollect precisely the answer made to this inquiry; but Judge Chase desired the counsel for the accused to reduce their questions to writing. They did so.

I had come into court very near the hour when the Court met, nor had I previously given any intimation of the testimony I could give either to Callender or his counsel. I should have added that, after, I think, the judge had declared the witness could not be examined, he applied to the district judge for his opinion; who replied in so low a voice that I could not well tell what he said. But this was after he had given his own opinion that my testimony could not be received.

Mr. Randolph. Did you observe anything unusual in conducting the trial?

Mr. Taylor. One or more motions were made by the counsel for Callender, who was interrupted by Judge Chase repeatedly. The words in which these interruptions were couched, I cannot recollect, though I formed an opinion of the style and manner of them; the effect of which was to produce laughter in the audience at the expense of the counsel. If I am required to declare the character in which I conceived them to be made, I am ready to do so.

There was here a short pause, when Judge Chase rose and said, he had no objection to the opinion of the witness being delivered.

Mr. Taylor. I thought the interruptions were in a very high degree imperative, satirical, and witty.

Mr. Randolph. Did there appear to you any thing unusual in the manner of the counsel for the accused towards the Court?

Mr. Taylor. I neither discovered the least degree of provocation given by the counsel, nor perceived any anger expressed by the Court. Judge Griffin was silent, nor were Judge Chase’s interruptions accompanied by the indication of any anger, as far as I could perceive.

To an interrogatory made, Mr. Taylor said, the interruptions of the Court were extremely well calculated to abash and disconcert counsel.

Mr. Harper. You have said you considered the interruptions of the Court as highly calculated to abash the counsel; did you mean thereby to give your opinion that they were so intended, or that such was their tendency?

Mr. Taylor. I thought they were so intended, and they had their full effect. They were followed by a great deal of mirth in the audience. The audience laughed, but the counsel never laughed at all.

Philip N. Nicholas, sworn.

In the year 1800, in the month of May, the circuit court of the United States sat at Richmond. Of this court, Mr. Chase and Mr. Griffin were the judges. I believe Mr. Chase sat alone for some time—for how long I do not recollect. Mr. Griffin did not, I believe, take his seat until the motion to continue the cause was renewed. On the first day of the court Judge Chase delivered a charge to the grand jury, and called their attention, in a particular manner, to infractions of the sedition law. The grand jury returned with a presentment against James Thompson Callender, for a libel against the President, by the publication of a work, entitled “The Prospect before Us.” On this presentment, the attorney for the district filed an indictment, which the grand jury found a true bill.

Process was immediately issued on the indictment. My impression at the time, and until very lately, was, that the process issued was a bench warrant. I have lately heard that it was a capias. For several days it was believed that Callender, who resided at Petersburg, could not be found; but the marshal at length arrested him, and brought him into court. Mr. Hay and myself undertook his defence. My motive was, that I believed the sedition law unconstitutional, and of course oppressive to any person prosecuted under it.

Mr. Hay and myself had an interview with Callender, in order to ascertain the grounds on which he expected to make his defence. Callender informed us that his witnesses were considerably dispersed, and that there were many documents which it would be necessary for him to obtain, before he could be prepared for his trial. An affidavit was drawn, stating the absence of Callender’s witnesses, the want of the documents, and that the counsel could not be prepared during that term. On this affidavit was founded the motion to continue the cause. This motion was urged with great earnestness and zeal, as we were convinced that justice could not be done if the case was tried during that term. The arguments principally urged by us were, that the defendant had a constitutional right to compulsory process for his witnesses, and to counsel, but that these privileges would be nugatory if the Court would not allow time to summon the witnesses, and for counsel to prepare for the defence.

The motion to continue the case was overruled, and Judge Chase directed the jury to be called. When the jury came to the book, I stated to the Court that I believed there was ground of challenge to the panel in consequence of one of the jurors, who was returned, having expressed opinions very hostile to the traverser. Mr. Chase, after looking into an authority which I quoted, and also into Coke Littleton, said the law was clear, that our objection did not apply to the panel, but to the individual juror. He further said, that we must proceed regularly; that we might either introduce testimony to prove that a particular juror had expressed an opinion on the case, or we might examine the jurors as they came to the book. We preferred the latter mode, and Mr. Hay asked if he might ask a question of the first juror who was sworn. Mr. Chase said that Mr. Hay must submit the question to his previous inspection, and that, if he thought it a proper question, it might be asked. Mr. Hay stated that the question which he wished to ask, was, Have you ever formed an opinion on the work, entitled “The Prospect before Us,” from which the charges in the indictment were extracted? Judge Chase said that the counsel should not ask that question; that the only proper question was, Have you ever formed and delivered an opinion on the charge in the indictment? I say, (continued the judge,) formed and delivered; for it is not only necessary that he should have formed, but also delivered an opinion, to exclude the juror. The judge propounded the last-mentioned question to the first juror, and he replied that he had never seen the indictment, or heard it read. The judge said he was a good juror, and desired he might be sworn. Mr. Hay requested that the indictment be read to the juror, that he might be thereby enabled to say whether he had formed and delivered an opinion on the indictment. The judge replied, that he had already indulged the counsel as much as he could, and they ought to be satisfied; he refused to let the indictment be read to the juror. The clerk then called the jury and swore them, till he came to John Basset, who in reply to the previous question said, he never had seen the indictment or heard it read. But Mr. Basset seemed to have considerable scruples at serving, and said he had formed and delivered an opinion that the book called “The Prospect before Us,” came within the sedition law. Judge Chase, however, said he was a good juror, and he was sworn and served as such. The witnesses on the part of the prosecution were called and sworn, and, among others, Mr. Rind was examined to prove the publication of “The Prospect before Us.” Mr. Hay observed, that no witness who was in any way concerned in the printing of the “Prospect,” was bound to criminate himself. Mr. Chase admitted this to be correct, but declared that the witnesses might rest assured that no person would be prosecuted in consequence of any evidence given in the case then before the court. Under these circumstances, Mr. Rind proved that he had printed part of the “Prospect” for Callender, and took out of his pocket some of the original sheets from which he had printed parts of the work. Judge Chase himself compared these sheets with the work as published, and they were found to correspond. After the testimony on the part of the prosecution was finished, Col. Taylor of Caroline was called on the part of the traverser, and, after he was sworn, Judge Chase asked with apparent haste and earnestness of manner, what we expected to prove by that witness. We said we expected to prove that Mr. Adams had avowed in the presence of the witness sentiments favorable to monarchy or aristocracy, and that he had voted in the Senate against the sequestration of British debts, and the suspension of commercial intercourse with Great Britain. Judge Chase then said that we must reduce the questions to writing. This I objected to, and stated that it was a thing very unusual in our courts; that it had not been required by the Court of the district attorney, when he examined witnesses against Callender; that it involved a dangerous principle, and was calculated to subject every question of fact to the control of the Court; besides, I added, that I did not know the extent to which Col. Taylor’s evidence would go; that I wished him to state all he knew, and that very probably the examination would point out new questions proper to be asked. I then stated that if the Court insisted on the questions being reduced to writing, I would comply with their direction, but that I hoped it would not be considered as precluding us from asking any additional questions. The questions were then reduced to writing, and are as follows, viz:

1. Did you ever hear Mr. Adams express any sentiments favorable to monarchy or aristocracy, and what were they?

2. Did you ever hear Mr. Adams, while Vice President, express his disapprobation of the funding system?

3. Do you know whether Mr. Adams did not, in the year 1794, vote against the sequestration of British debts, and the suspension of intercourse with Great Britain?

Judge Chase, after examining the questions, declared Col. Taylor’s evidence inadmissible. No evidence can be received, said the judge, which does not go to justify the whole charge; the charge is, that the President is a professed aristocrat, and has proved faithful and serviceable to the British interest. Now, you must prove both these points, or you prove nothing, and as your evidence relates to one only, it cannot be received; you must prove all or none. These, I believe, were the precise words of the judge. I think it right here to state that after Mr. Chase had declared Colonel Taylor’s evidence inadmissible, he said to the district attorney, that although the questions were improper, he wished the attorney would consent to let them be asked of the witness. The attorney said he could not consent. The evidence of Colonel Taylor being excluded, the attorney for the United States addressed the jury, and commented at considerable length on the indictment. After that, Mr. Wirt addressed the jury for the defendant. He premised that the counsel for the traverser were placed in a very embarrassed situation; that the prisoner during the same term was presented, indicted, arrested, arraigned, tried; and that this precipitation precluded the possibility of obtaining witnesses or making the necessary preparations for arguing a cause of so much magnitude. Here Judge Chase interrupted Mr. Wirt, and told him, that he would not suffer any thing to be said which reflected on the Court. Mr. Wirt said he did not mean to reflect on the Court; his object was only to apologize to the jury for the lameness of the defence. Mr. Chase replied that his apology contained the very reflection he disclaimed, and desired him to go on with the cause. Mr. Wirt then said, that an act of Assembly had adopted the common law of England as a part of the laws of Virginia; that an act of Congress had directed the United States courts sitting in Virginia to conform to the laws of the State in which such court might happen to sit; that by the common law the jury had a right to decide on the law as well as the fact. He then said, that if the jury upon inquiry should find the sedition law unconstitutional, they would not consider it as law, and if they did, they would violate their oaths. Here Mr. Chase said to Mr. Wirt, Sit down, sir. Mr. Wirt endeavored to explain, and said, I am going on, sir, to——No, sir, said Mr. Chase, you are not going on; I am going on. Judge Chase then read from a paper, which he held in his hand, an instruction to the counsel that they should not address the jury on the constitutionality of the act of Congress, but that arguments might be addressed to the Court to prove the right of the jury to consider the constitutionality. Mr. Wirt then addressed the Court. He said he had not considered the case elaborately; that it appeared to him so clearly that the jury had the right contended for, that he did not imagine it required any great research to prove it. He then proceeded to state that it was certainly the right of the jury to consider of and determine both law and fact. Mr. Chase here remarked that Mr. Wirt need not give himself trouble on that point; we all know, said he, that the jury have a right to decide the law. Mr. Wirt then said, that he supposed it equally clear that the constitution is the law. Yes, sir, said Mr. Chase, the supreme law. If, then, said Mr. Wirt, the jury have a right to decide on the law, and if the constitution is law, it follows syllogistically that they have a right to decide on the constitutionality of the law in question. A non sequitur, sir, said Judge Chase. Here Mr. Wirt sat down.

John Thompson Mason, sworn.

Mr. Randolph. It has been contended on the part of the respondent, that the quo animo determines the guilt or innocence of an action; now, if the quo animo with which he went down to Richmond to execute the sedition law, can be shown, it will have an important bearing on his conduct. I wish, therefore, to ask the witness this question: Did you ever hear Judge Chase, previous to the trial of Callender, utter any expression, and, if any, what was it, on the subject of Callender’s prosecution, or respecting the book called “The Prospect before Us;” did he say that the counsel of the Virginia bar were afraid to press the execution of any law, and particularly the sedition law; did he say that he had a copy of that book, or what did he say? State the circumstances particularly.

Mr. Mason. The question refers to circumstances of which I have but an indistinct recollection, and which happened in a way which renders it extremely unpleasant on my part to relate them. Judge Chase presided in the circuit court held at Annapolis in the spring of the year 1800; during the term a man by the name of Saunders was tried for larceny, and found guilty. After sentence was passed upon him, he was taken out of court to receive it. The press of the people being very great, the judges and myself were detained within the room. Judge Winchester, Judge Chase, and myself had a conversation, altogether of a jocular complexion. I think it was just after he delivered his valedictory, but how to connect the circumstances at this time, I do not know. I remember, however, that he asked me my opinion of the book called “The Prospect before Us;” I told him I had not seen it, and from the character I had heard of it, I never wished to see it. He told me, in reply, that Mr. Luther Martin had sent a copy to him, and had scored the parts that were libellous, and that he would carry it to Richmond as a proper subject for prosecution. There was a good deal of conversation besides, but I do not recollect it. There was one expression, however, that he used, which just occurs to my memory, and which I will repeat, that before he left Richmond, he would teach the people to distinguish between the liberty and the licentiousness of the press. He said that he was as sincere a friend to the liberty, as he was an enemy to the licentiousness of the press. There was a sentiment he expressed, which I cannot undertake to give in his precise words, that if the Commonwealth or its inhabitants were not too depraved to furnish a jury of good and respectable men, he would certainly punish Calender. I do not precisely recollect the words: I never repeated this conversation before, and seldom or ever, after it occurred, thought of it.

John Heath, sworn.

During the trial of J. T. Callender, I attended at the court in Richmond as one of the bar. I had occasion to apply to the Court for an injunction. The motion not having been decided upon, I went round to Crouch’s, where Judge Chase lodged, and found him in his chamber alone, in which I thought myself very fortunate. We then talked over the application I had made the day before for an injunction; while talking on it, Mr. David M. Randolph, the then marshal, stepped in with a paper in his hand. The judge accosted him, and asked him what he had in his hand? He said that he had the panel of the petit jury summoned for the trial of Callender. This was after the indictment was found by the grand jury. After Mr. Randolph had mentioned that it was the panel of the petit jury that he had in his hand, Judge Chase immediately replied, Have you any of those creatures called Democrats on the panel? Mr. Randolph hesitated a moment, and then said that he had not made any discrimination in summoning the petit jury. Judge Chase said, Look it over, sir, and if there are any of that description, strike them off. This is all I know of this affair.

The Court rose at 4 o’clock.

Wednesday, February 13.

The Court was opened at half past 2 o’clock.

James Triplett, sworn.

Mr. Randolph. I wish to know whether you ever heard previous to, or during the trial of Callender, any expressions used by the respondent, Judge Chase, manifesting a hostility toward J. T. Callender, and what were those expressions?

Mr. Triplett. I recollect to have had a conversation with Judge Chase on our passage in the stage down to Richmond. A book was handed to me by him, and I was asked if I had read it? I was asked whether I had seen him, (Callender?) I told him I had never seen him. There was a story recited about the arrest of Callender by a warrant of a magistrate, under the vagrant act of Virginia; I recollect that the judge’s reply was, “It is a pity you have not hanged the rascal.”

Mr. Randolph. Were there any other expressions of this nature used, after you got to Richmond?

Mr. Triplett. I did not hear any thing particular; but I think the judge did say something about the Government of the United States showing too much lenity towards such renegadoes. I do not recollect any other conversation passing between us at that time, until after the Court was sitting, when Judge Chase was the first who informed me of the presentment being made by the grand jury against Callender. At the same time, he informed me that he expected I would have the pleasure of seeing Callender next day before sundown, that the marshal had that day started after him for Petersburg.

Mr. Randolph. We wish you, as well as your memory serves, to state not only the substance, but the exact expressions used by the judge.

Mr. Triplett. I will state them as well as my memory serves me. Some time after this conversation, I met the judge at the place where he boarded; he said that the marshal had returned without Callender, and used this expression, “I am afraid we shall not be able to get the damned rascal at this court.”

John Basset, sworn for the defence.

At the request of Mr. Harper, and with the consent of the Managers, John Basset, a witness on the part of Judge Chase, was sworn and examined, in consequence of the peculiar situation of his family requiring his immediate return home.

Mr. Harper. Relate the circumstances that took place relative to your being sworn on the jury, on the trial of Callender, and what the application to the Court was on your behalf?

Mr. Basset. The circuit court of the United States at which James T. Callender was presented and indicted for a libel, was held on Monday the second or third of June. I left home in the morning and arrived in Richmond as early as might be expected. On my arrival I saw David M. Randolph, who was standing at a corner of a street; perceiving me, he came towards me; before I alighted from my horse, he informed me that I had been summoned as a grand juror, and that for not appearing had been crossed, that it was my duty to go to the court and justify myself for my absence; that he summoned me on the petit jury for the trial of Callender, and that my serving in that capacity would be an apology for my previous absence. I presented myself to the Court, but the trial did not come on that day. The second day I attended also. I knew very well that the law under which the traverser was to be tried, was odious to my fellow-citizens; I knew it was conceived to be a great oppression to the liberty of the subject, and I believed that great umbrage would be given to the mass of the people by those who should undertake to execute that law. I was weak or wicked enough to be among that class of people called federalists, and I did believe that the law [sedition law] was constitutional. I felt myself bound, when called on to be a juryman, to make a declaration of my political sentiments. I made this declaration to relieve the impression on my own mind, and not in order that it should be considered that I declined, in consequence of my political opinions, to serve on Callender’s trial, or in any other case. I thought it possible that I might be excused; but if I were found by the Court to stand in a proper relation between my country and the traverser, I would cheerfully serve. My object was to justify my own conduct to myself and to the whole world. I made use of these expressions, and I believe I repeat the very words, but I am well assured that I shall express the force and efficacy of what I said. I declared to the judge that my politics were federal; that I had never seen the book called “The Prospect before Us,” but I had seen in a newspaper some extracts from it; that if the extracts were correctly taken from the book, and if the traverser was the author or publisher of that work, it appeared to me that it was a seditious act; that I had formed and expressed an unequivocal opinion, that the book was a seditious act; that I had never formed an opinion in respect to the indictment, for I had neither seen it nor heard it read. The Court considered me a good juror, and I was sworn accordingly.

Mr. Bayard. What was the general deportment of the judge to the counsel, and of the counsel to the Court?

Mr. Basset. The different coloring through which the same things are seen make some men see things differently from others. My own opinion is, that the judge conducted himself with decision unmixed with severity, and that he was witty without being sarcastic. It was my impression that the judge wished the prisoner to have a full hearing, that he might be acquitted, if innocent, and found guilty, if really guilty. It appeared to me that the sole point on which the counsel hoped to save their client was by proving the unconstitutionality of the sedition law, and it appeared to me that they could not form a reasonable expectation of acquitting him on any other ground. I believe his counsel believed the law unconstitutional, and thought they had eloquence and argument enough to convince the jury of it. I believe they thought the judge deprived them of their right to address the jury on that point; and that having the cause very much at heart, they were vastly mortified that the Court did not permit them to take the course they wished. They appeared to consider themselves as advocating the cause of an oppressed citizen, and they felt hurt at not being allowed the mode of defence which in their opinion the law authorized. In all their arguments they travelled but a little way before they came to the point that went to prove the law unconstitutional, and the judge declared, at every such time, that they had no right to address the jury on that point; that the constitution had made the Court the sole judges of the law as far as it respected its constitutionality. From these circumstances, it is my impression that the altercation between the bar and the Court arose solely from the sensibility of the counsel to this particular subject, and from being deprived, as they supposed, of their rights.

The President. What were the particular causes of irritation between the judge and the counsel?

Mr. Basset. I have stated what I considered the causes. They arose from the counsel adverting to that particular point, and their so frequently doing it occasioned the judge to elevate his voice, and to pronounce over and over again what he conceived to be the law.

The Court rose at 4 o’clock.

Thursday, February 14.

The Court was opened at 12 o’clock.

George Read, sworn.

Mr. Randolph. The witness will please to state what he knows in relation to certain proceedings at a circuit court of the United States, held at Newcastle, in the State of Delaware, in the month of June, 1800.

Mr. Read. It is incumbent on me to state that several years have elapsed since the transactions which I am now about to relate occurred; of course I cannot pretend to say that the language I shall use to convey the sentiments delivered by Mr. Chase is precisely according to what occurred at the time; but the substance of what I relate will be correct. The transactions to which I presume I am called to testify took place at a session of the circuit court, held at Newcastle, for Delaware district, in June, 1800. The Court sat two days, viz: on the 27th and 28th days of the month. At that court, Samuel Chase, one of the associate justices, presided, and Gunning Bedford, district judge, was associated with him. Judge Chase, as usual, delivered a charge to the grand jury, on the first day of the term. The grand jury, after hearing the charge, retired to their chamber; after remaining there for some time, they returned into court, and on being asked whether they had found any bills, or had any presentments to make, they answered they had found no bills of indictment, and had no presentments to make. After receiving this answer, Judge Chase proceeded to observe, as nearly as I can recollect, addressing himself to the grand jury, that he had been informed, or heard, that a highly seditious temper had manifested itself in the State of Delaware among a certain class of people, especially in Newcastle County, and more especially in the town of Wilmington, where lived a most seditious printer, unrestrained by any principle of virtue, and regardless of social order; that the name of this printer was ——; the judge here paused, and said, perhaps it might be assuming, or taking upon himself too much to mention the name of this person; but, gentlemen, it becomes your special duty, and you must inquire diligently into this matter. Several of the jurors, I believe, made a request to the Court to dismiss them, and assigned as the reasons for their request, that some of them were farmers, and, as it was about the time of harvest, they were anxious to be on their farms. The judge observed that the business to which he had called their attention was of a very urgent and pressing nature, and must be attended to; that he could not, therefore, discharge them before the next day, when further information should be communicated to them on the subject he had referred to. The judge then addressing himself to me as the district attorney, asked me, as I believe is usual on such occasions, whether I had any criminal charges to submit to the grand jury? I said that none such had yet occurred, and I believed none were likely to occur during that term. Judge Chase, continuing his address to me, observed, You might, by prosecuting proper researches, make some discoveries. Have you not heard of some persons in this State who have been guilty of libelling the Government, or the administration of the Government of the United States? I am told, and the general circulation of the report induces me to believe it, that there is a certain printer in the town of Wilmington who publishes a most scandalous newspaper; but it will not do to mention names. Have you not two printers in that town? I answered that I believed there were. Judge Chase observed, that one of them was a seditious printer, adding, he shall be taken notice of, and it is your duty, Mr. Attorney, to examine unremittingly and minutely into affairs of that nature; times like these require that this seditious temper or spirit, which pervades too many of our presses, should be discouraged or repressed. Can you not find a file of these newspapers between this time and to-morrow morning, and examine them, and discover whether this printer is not guilty of libelling the Government of the United States? This, I say, sir, must be done; I think it is your duty. I observed, as this subject was pressed by the honorable judge, I believed I was acquainted with the duties of my office, and was willing to discharge them. I mentioned that I had not in my possession the papers alluded to by the judge, nor had read them; but that if a file of them were procured and handed to me, I had no objection to examine them, and communicate with the grand jury on the subject. The judge then said he was satisfied, and, turning to the jury, observed, that he could not discharge them, however inconvenient their stay; they must attend the ensuing day, at the usual hour. The judge then directed that a file of the papers should be procured for me. I understood him to mean the paper called the Mirror of the Times and General Advertiser, though I do not recollect to have heard the title of the paper mentioned during the proceedings. A file of those papers was brought to me in the afternoon, after the adjournment of the Court; by whom they were brought I do not recollect. I examined them, but in a very cursory manner, as I was very much interrupted by persons calling upon me. I did not discover during the course of this examination, any libellous matter coming within the provisions of the sedition act.

According to what I understood to be the wish of the judge, I sent this file of papers to the grand jury. Soon after the meeting of the Court on the second day, and at the request of the grand jury, I attended them in their room. On entering, the foreman of the jury addressed me, and directed my attention to a paragraph in a publication contained in the Mirror of the 21st June, 1800, republished from the Aurora, reflecting, perhaps in strong and pointed language, on the former conduct of Judge Chase. He observed that there was a difference of opinion among the jurors as to the nature of the paragraph—some doubted whether it was a libel or not, and, if libellous, whether they had a right to present it to the circuit court. I observed that it was not necessary for me to be very particular in my opinion of the publication, as I did not consider it as coming under the sedition law, though it might be considered as an offence at common law, because Judge Chase had decided that the circuit court could not take cognizance of cases arising at common law. I returned into court. After some time, the file was placed before the judge. Judge Chase asked me what had been done, and whether the grand jury had made any discoveries of libellous matter? I answered none, unless it were the paragraph which related to Judge Chase, which I showed him, observing that it did not appear to me to come under the sedition law. Judge Chase acquiesced, and the business passed over on his part in a very polite and affable manner. I do not recollect any thing further to have passed. I have, however, an indistinct recollection of a conversation between Judge Chase and myself, in the room of a tavern, before we went into court, in which I understood him to have made a general declaration of hostility against seditious printers.

James Lea, affirmed.

Mr. Rodney. Please relate to the Court the occurrences which took place at a circuit court of the United States at Newcastle, and whether you were summoned as a grand juror at that court.

Mr. Lea. I was summoned by the marshal of the district of Delaware as a grand juror at the circuit court held in the month of June, 1800. I attended agreeably to that summons, and was qualified as a juror. After receiving a charge from Judge Chase, we retired into our room, and remained there for some time. There appearing to be no business for us, we returned into our box. The usual question was put to us, whether we had found any bills? We said that we had not. After some time, Judge Chase addressed the grand jury, and observed that a very seditious disposition had manifested itself in the State of Delaware, in the county of Newcastle, and particularly in the town of Wilmington; that a seditious printer lived in that place, who edited a paper called the Mirror of the Times and the General Advertiser, who was in the habit of libelling the Government of the United States, and that his name was ——, he said he would not mention his name, but that it was our duty to inquire if any seditious publications had been made; that he would not discharge us that day, nor until we had made the inquiry. Several of the jurors addressed the judge for leave to return home, stating that they were farmers, and were extremely anxious to be on their farms, as it was harvest time. Some conversation passed between Judge Chase and the attorney for the district, after which he said he would not discharge us until the next day. We returned the next day into court, and after sitting some time in our box, we retired to the jury room. A file of newspapers was produced by some persons, and we examined them. We found nothing in them of a libellous nature, in our opinion, excepting something relative to Judge Chase, which some of the jury thought came under the sedition law. We sent for the attorney of the district to inform us as to the nature of the paragraph. He told us it did not come under the sedition law. We went into the jury box, when a conversation of some length took place between Judge Chase and the attorney of the district, after which we were discharged.

John Montgomery, sworn.

Mr. Randolph. The subject on which it is understood you are capable of giving some information to the Court is the conduct of Judge Chase, at a circuit court of the United States, held for the district of Maryland at Baltimore, in May, 1803, or about that time.

Mr. Montgomery. The point, I presume, on which I am called to give testimony, relates to a charge to a grand jury delivered by Judge Chase, at a circuit court where he presided, and Judge Winchester was associated with him. It will not, from the nature of the subject, be expected that I shall be able to detail, in the precise language of the judge, the whole of the charge which was delivered in 1803 at the May term. Though not one of the bar, I was present at the court, and took a chair among the gentlemen of the bar. After the grand jury were impanelled, Judge Chase addressed them. He appeared to address them from a written paper that lay before him. He proceeded in the usual manner to charge the jury as to the duties expected to be performed by them. After he had thus far proceeded in his charge, he mentioned, that before the jury retired to their chamber, he would make some observations, and that they would be considered as flowing from a wish for the happiness or welfare of the community. He stated that it was important that the people should be fully informed, particularly at such a crisis; that falsehood was more easily disseminated than truth; and that the latter was reluctantly attended to, when opposed to popular prejudice. I cannot pretend to state the sentiments delivered by the judge, in the order in which they were delivered. I can undertake to state, from my recollection, the substance of those he delivered. To the best of my recollection, the judge stated that the Administration was weak, relaxed, and inadequate to the duties devolved on it; and that its acts proceeded not from a view to promote the general happiness, but from a desire for the continuance of unfairly-acquired power. The language unfairly-acquired power made a strong impression on my mind at the time; and when the judge called the attention of the jury to the observations he was about to make, I was prepared to expect something extraordinary from him, as I was at Annapolis when he pronounced the valedictory address which Mr. Mason, in his testimony, took occasion to mention. The judge stated the violation of the constitution that had taken place by the act of Congress repealing the judiciary act of 1800, and the consequent removal of sixteen judges; that it had made a violent attack on the independence of the Judiciary. He also found fault with a law passed by the Legislature of Maryland in 1800, the effect of which was the removal of all the judges on the county-court establishment. He stated that those acts were a severe blow against the independence of the Judiciary. He stated, that since the year 1776, he had been an advocate for a representative or republican form of government; that it was his wish that freemen should be governed by representatives chosen by that class of citizens who had a property in, a common interest with, and an attachment to, the community. The language might have been in the words of our constitution. He found fault with the law passed by the Legislature of Maryland, which he styled “The Universal-suffrage Law.” He stated that that also affected the independence of the Judiciary, and to the best of my recollection, he explained his ideas in this manner: that every free, white male citizen, in the language of the constitution, having the qualification of age and residence, though he had not a property in, an interest with, and an attachment to, the community, being suffered to choose those who constituted the Legislature, and the Judiciary being dependent on the Legislature for their support and continuance in office, few characters of integrity and ability, who are competent to discharge the duties of judges, would be found to accept appointments held by such a tenure. He stated that these measures were destructive of the happiness and welfare of the community; that they would have a tendency to sink our Republican Government into what he called a Mobocracy—the worst of all possible governments. At the close of the judge’s charge, he, in an impressive manner, called on the jury to pause, to reflect, and when they returned to their homes, to use their endeavors to prevent these impending evils, and save their country. He said that the people had been misled by misrepresentation, falsehood, art, and cunning; that, by correcting these errors, the threatened evils might be prevented—or words to that effect.

Samuel H. Smith, sworn.

Mr. Nicholson. Please to state what you know of the charge delivered by Judge Chase at Baltimore.

Mr. Smith. The charge of Judge Chase having been published, I did not expect to be called upon to state in detail its general contents; supposing that the only inquiry made would be on the correspondence of my recollection with the contents of the published charge. I do not know that I should be able, under these circumstances, to give a particular statement, from memory, of its contents. On the evening subsequent to the delivery of the charge, I committed to paper the most important features of it, which were published in the National Intelligencer, and which form part of the printed testimony received by the committee of inquiry. If I could be indulged with access to it, I should be enabled to state more correctly my knowledge of the charge.

[Mr. Smith here, with permission, read the following, extracted from the National Intelligencer of May 20, 1803:—

“After a definition of the offences cognizable by the grand jury, Judge Chase said he hoped he should be pardoned for making a few additional observations. He had, he remarked, been uniformly attached to a free republican government, and had actively participated in our revolutionary struggle to obtain it. He still remained warmly attached to the principles of government then established. Since that period, however, certain opinions had sprung up which threatened with ruin the fair fabric then raised. It had been contended that all men had equal rights derived from nature, of which society could not rightfully deprive them. This he denied. He could conceive of no rights in a state of nature, which was in fact entirely a creature of the imagination, as there was no condition of man in which he was not, under some modification, subject to a particular leader or particular species of government. True liberty did not, in his opinion, consist in the possession of equal rights, but in the protection by the law of the person and property of every member of society, however various the grade in society he filled. Nor did it consist in the form of government in any country. A monarchy might be free, and a republic in slavery. Wherever the laws protected the person and property of every man, there liberty existed, whatever the government was. Such, said he, is our present situation. But much I fear that soon, very soon our situation will be changed. The great bulwark of an independent judiciary has been broken down by the Legislature of the United States, and a wound inflicted upon the liberties of the people which nothing but their good sense can cure. Judge Chase here went into an assertion of the right of the judiciary to decide on the constitutionality of laws. He then adverted to the proceedings of the Legislature of Maryland. He commented on the wisdom and patriotism of those who had framed the constitution of that State. That wisdom and patriotism had never conceived liberty to consist in every man possessing equal political rights. To secure property, the right of suffrage had been limited. The convention had not imagined, according to the new doctrine, that property would be best protected by those who had themselves no property. The great rampart established in the limitation of suffrage was now demolished by the principle of universal suffrage ingrafted in the constitution. In addition to this, a proposition was now submitted, whose ratification depended upon the next Legislature and which, if ratified, would destroy the independence and respectability of the judiciary, and make the administration of justice dependent upon legislative discretion. If this shall, in addition to that which establishes universal suffrage, become part of the constitution, nothing will remain that will be worth protecting. Instead of being ruled by a regular and respectable government, we shall be governed by an ignorant mobocracy. When he reflected on the ruinous effects of these measures, he could not but blush at the degeneracy of sons, who destroyed the fair fabric raised by the patriotism of their fathers.”]

President. Did you hear any reflections cast on the Administration?

Mr. Smith. I do not recollect any other beside those contained in the statement I have read.

John Stephen, sworn.

I was at Baltimore when the charge was delivered by Judge Chase. My recollection of its contents is extremely vague. But, with regard to some of it, it coincides with that of Mr. Montgomery, Mr. Mason, and Mr. Smith. He spoke of the repeal of the judiciary law, and said that it was injurious to the independence of the judges. He also mentioned the general suffrage law as injurious; and said no man ought to be permitted to vote unless he had a property in, a common interest with, and an attachment to, the community; that the act violated this principle, and would be attended with very injurious consequences; he denied the doctrine of natural rights; and said that they were altogether derived from convention; and at the end of the charge he exhorted the jury to use their efforts to prevent the injury likely to result from the temper of the times. I cannot say whether Judge Chase confined himself to a written paper or not. He declared that the independence of the judiciary of the United States had been injured by the repeal of the judiciary system; and that the bill then pending before the Legislature of Maryland, if adopted, would have the same effect upon the judiciary of that State.

Mr. Nicholson stated, that all the witnesses present on the part of the prosecution had been examined; the managers would therefore proceed to offer certain records; but, as several material witnesses were absent, he hoped they would not be precluded from calling them, should they attend, at a future stage of the trial.

Mr. Randolph offered in evidence a copy of the record in the case of J. T. Callender; also in the case of Fries.

Mr. Randolph then stated that the Managers had submitted all the evidence they were prepared to adduce. Whereupon the Court rose.

Friday, February 15.

The Court was opened at 10 A. M.

Present: The Managers, accompanied by the House of Representatives in Committee of the Whole: and Judge Chase attended by his counsel.

The evidence being closed on the part of the prosecution,

Mr Harper, of counsel for the respondent, addressed the Court to this effect:

Mr. President: We feel so strong a reliance on the justice, impartiality, and discernment of this honorable Court, that nothing but an anxious regard for the character and feelings of the honorable gentleman who is the object of this prosecution, and a solicitude to remove even the slightest imputation of impropriety or incorrectness that may rest on his conduct, could induce us to occupy any portion of that time which we know to be so precious, by the introduction of testimony on his part. We believe the charges to be utterly unsupported by the testimony adduced on the part of the prosecution; and had we no other object than a mere legal acquittal, we should cheerfully rest the case on that testimony. But we are aware that some part of the honorable judge’s conduct, though not criminal nor punishable by impeachment, may, if left without explanation, appear in an unfavorable light. We are prepared with testimony to give this explanation; to show that, through all the transactions which form the matter of this prosecution, he has been governed by the purest motives, and that whatever errors he may have committed, are trivial in themselves, are imputable to human infirmity alone, and were instantly corrected by himself. This testimony we request the permission of this honorable Court to produce. But a consciousness of the strong ground on which we stand, and a recollection of the very important public business which now presses on the attention of this honorable Court, in its legislative capacity, have determined us to waive our right to a general opening of our case; and to confine ourselves, in this stage of the cause, to a brief statement of the points to which our testimony will be directed.

On the first article, which relates to the conduct of Judge Chase in the trial of John Fries for treason, we shall produce testimony to show, that the opinion contained in the paper which the judge delivered to the prisoner’s counsel was not only legal, but had been twice expressly decided, and once admitted in the same court, and had before that trial been laid down as a general principle of law, in a charge delivered to a grand jury in the same court, by one of Judge Chase’s predecessors.

We shall show, said he, by the most indisputable testimony, that the point of law respecting treason in levying war against the United States, which was stated in the paper delivered to the counsel of Fries, had been once informally decided by the same court, in a prior case, and twice after solemn argument and full discussion, and that one of those discussions was made in the case of John Fries himself, on an indictment for the same offence. We shall show that Judge Chase’s predecessor had, before counsel was heard and before an indictment was found, delivered the same opinion in a charge to the grand jury. We shall proceed to prove in a more particular manner the contents of the paper thus delivered to the counsel. We shall produce the original paper itself; and shall prove that delivered to the prisoner’s counsel to be a true copy of it; and we shall conclude, by showing that when the counsel of Fries had refused to proceed in his defence, and were informed by the judge that they might go on, and conduct the case as they thought proper, he employed no menacing expression, and uttered no such words as “proceed at the hazard of your characters:” but merely informed them that they should be under no other restriction but that which a regard to their professional character would impose. That, far from threatening, he did all in his power to soothe; and instead of restricting, gave the utmost latitude of indulgence.

Proceeding, then, to the second general head of accusation, the conduct of the respondent relative to the trial of Callender, which furnishes the matter of the second article, and embraces in the whole five articles, we shall show that the copy of the “Prospect before Us,” which the respondent carried with him to Richmond, was marked, not by him, but by another person, without any view to a prosecution of the author, and was given to him by that person without any request, on his part, as a performance which might amuse him on the road.

As to the private conversation at Annapolis, we shall prove that it was a mere jest between the respondent and the gentleman, who, after treasuring it up for five years, has this day brought it forward to support an impeachment; and whose recollection of it we shall show to be far less accurate than ought to be required of a man, who, after so great a lapse of time, adduces a private, confidential, and jocular conversation, to aid a criminal prosecution.

We shall then follow Judge Chase to Richmond, where we shall show that, far from having formed a corrupt determination to oppress Callender, he felt solicitous for the escape of that unfortunate wretch; that, far from entering into a combination with the marshal to pack a jury for the conviction of Callender, Judge Chase expressed a wish that he might be tried by men of that political party whose cause his book was intended to support. We shall prove, by testimony not to be doubted, that no conversation whatever took place between the judge and the marshal, relative to striking any person from the panel, much less such a conversation as has been sworn to by one witness for the prosecution. We shall show that no panel of the jury actually summoned was formed, until the opening of the Court on the day when the trial of Callender was to have commenced; that it was completed in open court, and was never seen by the judge. And we shall prove that the marshal, not by the direction of the judge, from whom he was bound to receive no directions on that subject, but with his entire approbation and according to his advice, took the utmost pains to select a jury of the most impartial, considerate, and respectable men; that, in this selection, no attention was paid to party distinctions; and that if no persons of Callender’s political opinion actually did serve on the jury, it was because, after being summoned, they made excuses, which were admitted by the Court, or refused to attend.

Thus much respecting the conduct of the judge previous to the trial. Proceeding then to the particular matter of the second article, which relates to the supposed rejection of John Basset’s application to serve on the jury, we shall prove, more fully than we have already done, that the nature of this application has been wholly misunderstood by the witnesses on the part of the prosecution; that the juror did not offer an excuse, or apply to be discharged, but merely suggested some scruples of delicacy, and was willing to serve if those scruples were not sufficient to constitute a legal disqualification. We shall fully corroborate the testimony which the juror himself has given on this head, and shall show clearly that his scruples were not of such a nature as to furnish a legal or proper ground of objection to his competence as a juror.

As to the refusal of a continuance, which has been so much relied on as a criminal violation of the law, with intent to oppress the party, we shall prove, that although no legal grounds for a continuance were shown, and it was therefore not in the power of the Court to grant it, Judge Chase did offer to postpone the trial for a month or six weeks, in order to accommodate Callender and his counsel, and to enable them to prepare; an offer which they thought proper to reject. And we shall also show, that when this motion for a continuance was made, the law of Virginia, by which it is now contended that the Court ought to have been governed, was not cited, nor even mentioned.

With respect to the conduct of Judge Chase towards Callender’s counsel, we shall prove that it was free from any appearance of harshness, or desire to intimidate, abash, or oppress; that the irritation which took place proceeded from the counsel themselves, and that the conduct of the Court was far more mild and forbearing than from those irritations could have been expected. That every decision on the law was the joint opinion of Judge Chase and his colleague, delivered after consultation between them. That every interruption of the counsel arose from their pertinacity in pressing points which had been decided, and on which propriety and duty required them to be silent; and that after the respondent had delivered the opinion of the Court on these points of law, he offered to assist the counsel for the traverser in framing a case for the opinion of all the judges of the Supreme Court, and thus to give them an opportunity of correcting any errors which he and his colleague might have committed in those decisions. And finally, we shall produce a witness who, having attended the trial and taken down all the proceedings in short-hand, will lay before this honorable Court an exact detail of all that passed.

Passing then to the matter of the fifth and sixth articles, we shall prove, by a rule solemnly made by the Supreme Court of the United States, that they never considered the State laws as regulating process, by virtue of the act of Congress which is relied on in support of these articles; but merely as governing the decision of rights acquired under them, when such rights come into question in the courts of the United States; that the practice in the courts of Virginia, under the State law in question, has been and is conformable to our construction, and not to that contended for on the other side. And as a proof how little the recollection of men, even the most correct, can be relied on, in cases where their feelings have been strongly excited, we shall produce a record, in which the learned gentleman who, though very young, was Attorney-General of Virginia in 1800, and who has delivered his testimony with the greatest candor and propriety, did himself order a capias, on a presentment in a case not capital. We shall produce evidence to prove that the capias is the proper process, in all cases of presentments, except those of petty offences, which are tried by the court, without an indictment, and are punishable by fine only, but not imprisonment. And to remove every possible doubt on this head of accusation, we shall prove that when the presentment against Callender was made, and it became necessary to issue process against him, Judge Chase applied to the district attorney for information as to what was the proper process, who answered, a capias; and that the capias, which was actually issued, was drawn up by the clerk, inspected and approved by the district attorney, and issued on his suggestion.

Respecting the transactions at Newcastle, in the State of Delaware, which constitute the matter of the seventh article, we shall prove that those offensive and improper expressions, which are attributed to the respondent, relative to a seditious temper, in the State of Delaware, and especially in the county of Newcastle and the town of Wilmington, never were uttered by him; that the witnesses who have deposed to those expressions are under a mistake; and that nothing was said or done by Judge Chase on that occasion, but what he has admitted in his answer; but what propriety justifies, and his duty required. To this end we shall offer the testimony of persons who were in a situation to remark every occurrence, to listen to every expression, and on whom such expressions, had they been uttered, could not have failed to make a strong impression. We shall then proceed to the charge delivered to the grand jury at Baltimore, which furnishes the eighth and last ground of accusation; and then we shall prove that the respondent said nothing of a political nature to the jury, except that which he has stated in his answer, and which he hopes to satisfy this honorable Court he had a right to say, however indiscreet or unnecessary the exercise of that right in this instance may have been. We shall produce a host of witnesses to prove that he never uttered such sentiments as are attributed to him by one witness, relative to the present Administration, its character, views, and manner of obtaining its power; sentiments which he admits would have been in the highest degree reprehensible on such an occasion; that the charge which was delivered was read from a book; and that he spoke nothing extemporary, as other witnesses for the prosecution have supposed. And, finally, we shall produce this book to speak for itself; shall prove it to be the same from which the charge was delivered; and shall conclude with the examination of witnesses who stood round the respondent while he read it, sat by his side, and almost looked over him while he delivered the charge which it contains.

This, Mr. President, will be the general bearing of our testimony; which we shall now, with the permission of this honorable Court, proceed to adduce, in the order in which it has been stated.

Samuel Ewing, sworn.

Mr. Hopkinson. Please to state whether you were in the court the day subsequent to that on which the opinion was delivered by the Court, and what you recollect occurred at that time?

Mr. Ewing. I attended at the court the day succeeding, and I remember that Judges Chase and Peters, addressing Messrs. Lewis and Dallas, said they were not to consider any thing which took place the day before as a restriction on the course they wished to pursue; Judge Peters said that every thing done yesterday was withdrawn. Judge Chase asked them if they would go on in the cause; some conversation ensued, which ended in the determination of Messrs. Lewis and Dallas not to proceed in the defence of Fries. Judge Chase then made this observation: that if, after the Court had expressed their opinion on the law, they persisted in stating to the jury their sentiments on the law, they must do it at the hazard of their legal reputations. I did not understand this as a menace, but as a declaration to the counsel that they must do it on their standing at the bar, and from a regard to their reputations. If I state any thing further, it will only be a recapitulation of the testimony already given.

Edward J. Coale, sworn.

Mr. Hopkinson. Will you examine that paper, and say what you know respecting it?

Mr. Coale. It is a copy of the paper handed down by Judge Chase on the trial of Fries, made at the instance of Judge Chase, from a paper in his handwriting; there were some words in the original which I could not ascertain: I left blanks for them, and they were filled up by Judge Chase; the other parts are written by me. It was made out before the trial of Fries. When in the office of Judge Chase, I was frequently in the habit of transcribing papers from his handwriting. After I left him I went to Philadelphia, and lived there when Fries was tried. The judge occasionally, during my residence there, sent for me to transcribe his opinions; and on that occasion he called on me to transcribe this paper from the original handwriting of himself.

William Meredith, sworn.

Mr. Hopkinson. Were you present at the trial of Fries?

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

Luther Martin, sworn.

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

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

Mr. Nicholson. What do you mean by detest?

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

James Winchester, sworn.

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

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

William Marshall, sworn.

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

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

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

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

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