Trial of Judge Chase. William Cranch, sworn. Mr. Harper. Were you present at the circuit court held at Baltimore in 1803? Mr. Cranch. I was. The Court was held at Evan's tavern, in Baltimore. Judge Chase was seated in an arm-chair, at one end of a long table placed before him. The grand jury were on his right, some sitting on benches placed along the wall and others standing. I stood myself about fifteen feet from the judge, who was sitting during the whole time he was delivering his charge; he generally held the book in his hand. Mr. Harper (showing a book). Is that the book? Mr. Cranch. such a book. He appeared to be reading from Mr. Harper. Did he read the whole, and did he read constantly? Mr. Cranch. He appeared to me to read the whole charge, but I did not keep my eyes so constantly fixed upon him as to declare positively that he did. Mr. Harper. Were there variations in his manner of delivering the charge, as if he was at one time reading and at another speaking ex tempore? Mr. Cranch. He delivered some parts with more emphasis than others. He often raised his eyes from the book, but I did not observe that he repeated more than one sentence without recurring to the book; he repeated no more than a man might repeat after running his eyes hastily over a passage. Mr. Harper. Did he raise his eyes for a longer time than a man might be supposed to do who was reading a composition of his own? Mr. Cranch. I do not think he did. Mr. Harper. Do you recollect the latter part of the charge? Mr. Cranch. I recollect more of the latter part than of the beginning, because I paid more attention to the latter part. WEDNESDAY, February 20. [The testimony on both sides being closed, the argument of the case began, Mr. Early, one of the managers, opening for the prosecution.] Mr EARLY.-The relative rights of judges and juries have at some periods of judicial history been so little understood, and the limits of each so indistinctly marked, that the benefits of the institution of jury trial were left much at the mercy of arbitrary and overbearing judges. But it was reserved for the honor of modern times to dissipate this uncertainty so baneful to justice, and to fix down the establishment upon its only proper foundation; that of the right to determine, without control, both the law and the fact in all criminal cases whatsoever. This right has now been so long practised upon in the United States, and may be considered as so well established, that it is scarcely to be expected we shall witness upon that point any difference of opinion. Still less is it to be expected that we shall witness such difference, when we are discussing principles which apply to cases capital. In such case it is the glory of the laws of this country, that the offence of the accused should be left exclusively to the judg ment of those least liable to be swayed by the weight of accusing influence. It is no part of my intention to deny the right of judges to expound the law in charging juries. But it may be safely affirmed that such right is the most delicate they possess, and the exercise of which should be guarded by the utmost caution and humanity. The accused shall enjoy the right to a "trial by an impartial jury." We charge the respondent with deliberately violating this important provision of the constitution, in arresting from John Fries the privilege of having his case heard and determined by an impartial jury; for that the respondent took upon himself substantially to decide the case by prejudging the law apply thereto, at the same time accompanying the opinion thus formed and thus delivered, by cer Mr. Harper. Do you recollect any sentimentsing expressed relating to the weakness of the present Administration, and that they were not employed in promoting the public good, but in preserving ill-gotten power? Mr. Cranch. No, sir, there was no such expression, as I recollect. Mr. Harper. Was there any expression at all relative to the present Administration? Mr. Cranch. Not as an Administration, nor any thing alluding to the Administration separate from the Government of the United States. tain observations and declarations calculated necessarily to create a prepossession against the case of Fries in the minds of those who had been summoned to serve upon the jury, thereby making them the reverse of impartial. These were the acts of a man, who, from his own declarations, appears to have well understood upon what points the defence would turn. It was the act of a man, who, it appears, had been well informed of all that passed at the previous trial of Fries; who knew that there was no dispute as to facts, and that the whole of the defence depended upon the discussion and deMr. Cranch. By alluding to the repeal of termination of those very principles of law the act of February, 1801, for the establishment which he had thus prejudged, and upon the apof the circuit judges. I recollect no other meas-plication of those authorities which he had thus ure of the General Government which was alluded to, or any allusion to the present Execu Mr. Harper. In what way was the Government alluded to? tive. excluded in the hearing and very presence of those who were to pass upon the life and death of the accused. No argument had been heard from counsel; no opportunity had been afforded to prove that the offence committed did not Trial of Judge Chase. amount to the crime charged; no defending | predicated upon the idea that something had voice had been raised in behalf of the accused; been said on the preceding day, restrictive of but, without being heard, and without having their privileges. These observations, although had any opportunity to be heard, his case was addressed to the Court, and carrying this feature adjudged against him. I say, adjudged against prominent in their face, were neither contrahim without the chance of being heard. For dicted nor corrected by the Court. This was a surely the case was adjudged against him, when strong tacit admission of the correctness of the the only point upon which it was defensible idea upon which they were bottomed. But, sir, was determined against him, and that determi- we have not only this tacit admission, but we nation publicly announced from the bench. have in testimony, this strong and impressive That this was done before the accused could declaration from Judge Chase, that "the counpossibly have had a chance of being heard, is sel might be heard in opposition to the opinion placed beyond contradiction by all the testi- of the Court at the hazard of their characters." mony. And that the judge knew the point But, Mr. President, we have the positive adwhich he thus prejudged, to be the only ground mission of the respondent, in page 18 of his anupon which the defence rested, is perfectly clear. swer, that certain observations were made by For, from his own declarations at the time of him condemning the use of common law authorannouncing the opinion, it appears that he was ities upon the doctrine of treason, and also conwell acquainted with all that had passed at the demning authorities under the statute of treaprevious trial of Fries. sons, but prior to the English Revolution. [Here the passage was read.] By a recurrence to page 22 of the answer, it will be found that the respondent admits that these observations of his were made on the first day; yet, sir, nothing of all this is remembered by Messrs. Rawle, Tilghman, or Meredith. How light, then, how extremely light, must their bare want of recollection weigh against the positive affirmative testimony of Messrs. Lewis and Dallas! But, sir, we must look further into the progress of this transaction. It was not enough that the poor trembling victim of judicial oppression should thus have his dearest privileges snatched from him, by a prejudication of his case; it was not enough that the impartiality of those who were to compose his jury should be converted into a prepossession against him, by the imposing authority of solemn declarations from the bench; but the small remaining, darling hope of life, was to be smothered by a pre- Considering my position as uncontrovertibly clusion of his counsel from arguing the law to established, I will proceed to observe that the the jury. This fact, though sternly denied in offence with which Fries stood charged, was the the answer of the respondent, has, nevertheless, highest possible offence which can be committed been established in a manner which must irre- in a state of society. The punishment annexed sistibly force conviction upon the mind. Mr. to its commission, was the highest possible punLewis affirms it positively. Mr. Dallas confirms ishment known to our laws. The accused was, it in a manner peculiarly strong. Not being therefore, entitled to every possible indulgence. himself present when the opinion was delivered In favor of life, not only every possible ground to the bar, he received from Mr. Lewis a state- should be occupied by counsel to the jury, but ment of what had passed, and, in an address to every possible argument listened to and weighed the Court afterwards, repeated distinctly this with patience and forbearance; and it should statement, and particularly that part which at- never be forgotten that Judge Chase had such tributed to the judge a declaration, that, if the a conduct set as an example before him in a counsel had any thing to say upon the law, they previous trial of the same case. Yes, sir, a must address themselves to the Court, and not brother judge of his, who has since gone to the to the jury. To this statement no reply was world of spirits, had set him an example conmade by the Court, either correcting or denying spicuous for the purity of its excellence, and it. Thus stands the evidence in the affirmative. which should have arrested his career in the Opposed to this we have the negative testimony commission of this cruel outrage upon all hu of Messrs. Rawle, Tilghman, and Meredith, who manity. But Judge Chase predetermines the have no recollection of any such declaration. I law, then prohibits the counsel from proving to address myself to those who well know the dif- the jury that the law was not as laid down. ference between affirmative and negative testi- This was, in effect, an extinguishment at once mony. I address myself to those who well of the whole right of jury trial. All the privi know the established rule in the law of evidence, leges and all the benefits of that institution were that the testimony of one affirmative witness swept at once from an American court of juscountervails that of many negative ones; and I tice, and scarcely the external form preserved. am sure that I address myself to those who The law was predetermined by the judge, and must feel the complete coincidence of this rule the accused was debarred from pleading it to the with the dictates of common sense. Upon this jury. Of what avail is it, sir, that the jury ground alone we might safely rest our proposi- should be made judges of law and of fact, when tion; but, sir, we will not rest it here. It ap- the law is not permitted to be expounded to pears from the testimony of the witnesses on them? Of what avail is it that the accused both sides, that almost every observation from should have a trial by jury, when he is preventthe council to the Court, on the second day, wased from stating and explaining to the jury the Trial of Judge Chase. only grounds upon which his case is defensible? | seen it nor heard it read,) that therefore they The right to hear and determine facts is not could not have formed and delivered an opinion more the right of a jury, than the right to hear upon the subject? And why else did the judge, and determine the law. To deprive them, then, when this monstrous logic was contradicted by of the privilege of hearing and determining the the fact of one of the jurors delivering in open law, is as much a violation of their rights, as to court an opinion upon the whole subject of those deprive them of the privilege of hearing and charges, without having seen or heard the indictdetermining facts. The right of the accused to ment read; why else did the judge, in the teeth be heard upon the facts to the jury, is not more of this damning fact, order the jurors sworn? his right, than the right of being heard upon the law to the jury. To deprive him, then, of the privilege of being heard upon the law to the jury, is as much a violation of his rights, as to deprive him of the privilege of being heard upon the facts to the jury. Every juror sworn might, like Mr. Basset, have formed and delivered an opinion which concluded the conviction of the accused, and yet because they did not know that the subjectmatter of such opinion constituted the charges in the indictment, having neither seen it nor heard it read, the expression of such opinion created no disqualification. Unworthy evasion! An evasion which prevents the doctrine of disqual operation. An evasion which effectually puts at naught that principle of the constitution so often adverted to in a former part of the argument, that "the accused shall enjoy the right of a trial by an impartial jury." Upon this point I beg leave to read two authorities. [Mr. Early here cited 3 Bac. Abr. 176, and Co. L. 157.] The second, third, and fourth articles, exhibited by the House of Representatives, charge the defendant with a course of conduct upon a particular trial which affords many grounds of ac-ification in a juror from receiving any practical cusation. In this case it is true no unfortunate individual was charged with an offence which demanded his life as an expiation; yet, sir, there were other rights involved equally sacred in the laws of a free country. The liberty and the property of the accused were the price of a conviction. In casting our eyes over the ground upon which the different scenes of the transaction now about to be examined are spread, we are struck with a feature not usual in the history of human concerns. It would seem that even the restraint of appearances was no longer felt. We find the respondent setting out with a conduct, which seemed to prove that the fate of the accused was fixed. We find him pursuing a system of conduct throughout, which wrested from the accused some of his established and most valuable privileges. We find him endeavoring to heap shame and odium on those who occupied the station of advocates, because they would not tamely yield to his unwarrantable invasion of long-established rights. But, sir, the scene rises upon us. We have now to examine a part of the transaction for which, I had supposed, human invention might be tortured for a palliation in vain. I allude to the rejection of Mr. Taylor's testimony. The reason assigned for that rejection was, that the witness could not prove the truth of the whole of any one charge. Let us, for a moment, examine the consequences of this doctrine. According to the judge's own decisions then, as well as his doctrine now, each charge laid in the indictment must have constituted a separate offence. For it is explicitly declared both by Mr. Hay and Mr. Nicholas, that when an application was made to continue the case, because Mr. President, notwithstanding the labored of the absence of some material witnesses, the attempts made by the defendant in his answer application was rejected, upon the ground that to exculpate himself from imputation in com- it did not appear from the affidavit filed that pelling Mr. Basset to serve upon the jury, in the the witnesses, so absent, could prove the truth trial of Callender; yet, sir, I must be permitted of all the charges. That proof of the truth of to say that those attempts appear to me to be a part only, would be of no avail, and that the only the exertions of a mind conscious of im- whole must be proved to entitle the traverser to propriety, and seeking to impose upon the unan acquittal. Each charge in the indictment, derstanding of others. The test adopted, by then, must have constituted a separate offence; which to try the impartiality of the jurors, in for the charges cannot be made to help each that case may possibly by some be held a cor- other dut. One charge, however, it seems rect one; but the manner of applying that test might consist of different facts. This was the as then practised upon, is what I believe can be case with several in that indictment. It was accounted for upon no other supposition than particularly the case with the very charge, the that of a determination on the part of the judge truth of which Mr. Taylor was called to prove. to procure the conviction of the accused. Upon "The President was a professed aristocrat. He what other principle can it be accounted for, had proved faithful and serviceable to the Britthat the jurors should be asked whether they ish interest." Here was a charge made up of had formed and delivered an opinion upon the two distinct facts; so distinct in their nature, charges laid in the indictment, when they knew that the knowledge of their truth might not not and were not suffered to know what those only rest with different persons, but was excharges were? Why else could it be laid down tremely likely not to rest with any one witness. by the judge, that because the individuals called Put the case of a man charged with any offence to serve upon the jury did not know what-murder, theft, or any other crime you please. charges were in the indictment, (having never There may be a string of facts upon the proof Trial of Judge Chase. of which the defence may depend; some within | of the papers to which he alluded, (and which the knowledge of one man, some within that were understood to be those published under of another. Was it ever heard of before, that, the title of Mirror of the Times and General because one witness could not prove the exist- Advertiser,') and, by a strict examination of ence of all those facts, that, therefore, such them, to find some passage which might furnish witness should not be examined as to what he the groundwork of a prosecution against the did know? Or, if some of the facts depended printer of the said paper; thereby degrading his upon written testimony, was it ever heard of high judicial functions, and tending to impair the before, that, therefore, a witness should not be public confidence in, and respect for, the tribunals examined as to those resting on oral testimony? of justice, so essential to the general welfare. To these questions no man will answer in the The respondent stands here charged with a affirmative. Why, then, was an unheard-of and conduct, than which, in my opinion, nothing palpably absurd doctrine brought to bear in could be more at war with his official dutyCallender's case? Was the defence of justifica- nothing more tarnish his official character. The tion, under the sedition law of the United constitution and laws of this country certainly States, such an anomaly in its nature, that none intended in erecting high judicial tribunals, that of the established rules of jurisprudence would those who might be appointed to minister thereapply to it? Was it a thing so entire in its na-in, should be impartial dispensers of justice beture, that it could not consist of different parts? tween such as might resort thither for an I have always been taught, and the respondent's adjustment of their differences. In public proanswer confirms the principle, that a defence secutions more especially was it intended that must apply to the whole of a charge. If, then, such dispensation should be made without rea charge consist of different parts, surely, so spect to persons. In these, above all other must the defence. But, according to Judge cases, ought a judge to stand aloof from inChase, be the parts ever so many, they shall not fluence, free from predilection towards one, or be proven, unless the proof can all be made by prejudice against the other. Most peculiarly one witness, or unless it appear that the defend- here is it his duty to stand firm at his post, reant has proof in reserve to establish all. sisting the overbearing influence of a powerful public, and protecting the rights of the accused The fifth and sixth articles rest upon grounds so extremely simple, and so easily comprehend-in ed, that it appears totally unnecessary to fatigue the patience of the honorable Court by dwelling upon them. The seventh article is as follows: so unequal a contest. But Judge Chase, disregarding these principles, always held sacred in a land of laws, converts himself into a hunter after accusations. He who, in the humane language of the laws, should be counsel for the accused, becomes himself an accuser. He, whose duty it is impartially to decide between the prosecutor and prosecuted, becomes himself the procurer of prosecutions. The eighth article charges the respondent with prostituting the judicial character by making a political speech to the grand jury at Baltimore, in the State of Maryland, against the Government of the United States and the Government of Maryland. "That at a circuit court of the United States, for the district of Delaware, held at Newcastle, in the month of June, one thousand eight hundred, whereat the said Samuel Chase presided, the said Samuel Chase, disregarding the duties of his office, did descend from the dignity of a judge, and stoop to the level of an informer, by refusing to discharge the grand jury, although entreated by several of the said jury so to do; and after the said grand jury had regularly declared, through their foreman, that they had found no bills of indictment, nor had any preThere are features in that part of the judge's sentments to make, by observing to the said official conduct, charged in this article, which grand jury that he, the said Samuel Chase, un-place him in a point of view awfully grand. derstood that a highly seditious temper had manifested itself in the State of Delaware, among a certain class of people, particularly in Newcastle County, and more especially in the town of Wilmington, where lived a most seditious printer, unrestrained by any principle of virtue, and regardless of social order; that the name of this printer was'-but checking himself, as if sensible of the indecorum which he was committing, added, that it might be assuming too much to mention the name of this M. CAMPBELL then rose and spoke as follows: person, but it becomes your duty, gentlemen, Mr. President and Gentlemen of the Senate: to inquire diligently into this matter,' or words The scene, presented to the nation by this to that effect; and that with intention to pro- trial, is more than usually interesting and imcure the prosecution of the printer in question, portant. One of the highest officers of the Govthe said Samuel Chase did, moreover, author-ernment, called upon by the voice of the people, itatively enjoin on the District Attorney of the through their representatives, before the highest United States, the necessity of procuring a file tribunal known to our constitution-that same We have heretofore been viewing him as bringing his talents to bear upon individuals. Here we see his genius rising, in the majesty of its strength, to far higher objects. Here we see him consigning over whole governments to the scourge of his own avenging wrath. Whithersoever he turned his eyes, whether to the State constitution and laws, or to the laws and constitution of the whole Union, they were equally exposed to the whip and the rack. Trial of Judge Chase. tribunal that sanctioned his elevation-to answer for the abuse of the power with which he had been intrusted! It is a melancholy truth, that derogates much from the dignity of human nature, but it is a truth that has been for ages established by experience, that high and important powers have a tendency to corrupt those on whom they are conferred. Few minds are possessed of sufficient integrity and independence, when elevated above the ordinary level of the great mass of their fellow-citizens, to resist the impulse their high station gives them, to grasp at still greater powers, and prostitute those which they already possess. Hence it has been the great exertion of all governments, who regard the rights and liberties of the people, and still must continue to be so, to watch over the conduct of the high and confidential officers of State, and guard against their abusing the powers reposed in them. For this purpose the mode of trial by impeachment was resorted to in very early times in that country from which we have derived most of our laws and usages. Near five hundred years ago, the representatives of the people in that nation felt themselves clothed with sufficient authority to check the abuses of power, in the highest officers under the Crown, by calling upon them by impeachment to answer before the House of Lords for their conduct, and ing them for such acts as were unauthorized, illegal, or oppressive. It was a wise and politic measure to have charges of this nature tried by the highest tribunal in the nation, that would not be awed by the great powers and elevated standing of the accused, nor influenced by the popular voice of the accusers, further than a strict regard to impartial justice would require. As I conceive, therefore, that pure and unstained impartiality ought to be the characteristic feature in the trial by impeachment, I shall for myself, and I conceive I may in the name of the representatives of the people, utterly disclaim any design or wish that party considerations, or difference in political sentiments, should, in the remotest degree, enter into the investigation, or affect the decision of this question. Yet, in order to ascertain the motives that actuated the respondent, it may become necessary to notice the difference of political sentiments, so far as regarded the accused, and those who are stated to have been injured by his conduct, at the time those transactions took place, that gave origin to this prosecution. and most enlightened tribunal in the nation is No, The next provision in the constitution declares that judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. Here the constitution seems to make an evident distinction between such misdemeanors as would authorize a removal from office, and dispunish-qualification to hold any office, and such as are criminal, in the ordinary sense of the word, in courts of common law, and punishable by indictment. So far as the offence committed is injurious to society, only in consequence of the power reposed in the officer being abused in the exercise of his official functions, it is inquirable into only by impeachment, and punishable only by removal from office, and disqualification to hold any office; but so far as the offence is criminal, independent of the office, it is to be tried by indictment, and is made punishable according to the known rules of law in courts of ordinary jurisdiction. As, if an officer take a bribe to do an act not connected with his office, for this he is indictable in a court of justice only. Impeachment, therefore, according to the meaning of the constitution, may fairly be considered a kind of inquest into the conduct of an officer, merely as it regards his office; the manner in which he performs the duties thereof; and the effects that his conduct therein may have on society. It is more in the nature of a civil investigation, than of a criminal prosecution. And though impeachable offences are termed in the constitution high crimes and misdemeanors, they must be such only so far as regards the official conduct of the officer; and even treason and bribery can only be inquired into by impeachment, so far as the same may be considered as a violation of the duties of the officer, and of the oath the officer takes to support the constitution and laws of the United States, and of his oath of office; and not as to the criminality of those offences independent of the office. This must be inquired into and punished by indictment. In the view which I propose taking on this subject, I shall in the first place notice the provisions in the constitution relative to impeachment, and endeavor to ascertain the precise object and extent of such provision, so far as the same may relate to the present case. The first provision in the constitution on this subject, (art. 1st, sec. 3,) declares, that the Senste shall have the sole power to try all impeachments. Here we discover the great wisdom of the framers of the constitution. The highest |