OF THE

HON. SAMUEL CHASE,

Continued.

Monday, Feb. 4, 1805. THE Senate, by their secretary, made a communication to the house of representatives, that they were ready to proceed upon the trial in the senate chamber: and thereupon proceeded to their stations, preceded by their sergeant at arms-and the president (Mr. Burr) being seated. The members of the house of representatives, preceded by their speaker and the managers, having entered the court and taken their stations on the front seat Mr. Rodney, Mr. Nicholson, Mr. Clark and Mr. Randolph; on the second row, Mr. Campbell, Mr. Boyle, and Mr. Early. Chairs were provided on the left of the managers, for the speaker and clerk of the house of representatives.

The President then directed the crier to open the court-which was done in the old Norman style ;OYEZ!-OYEZ!-OYEZ! all man ner of persons, &c.

The President then directed Samuel Chase to be called-which was done and he appeared.

On Judge Chase's advancing to the bar, followed by his counsel, the president addressed him, informing him that the time which the senate had granted to prepare for his defence was now expired, and he desired to know if he was prepared to answer to the charges preferred against him by the house of representatives.

and counsel. The judge named them, Messrs. Luther Martin and

R. G. Harper of Baltimore, and Joseph Hopkinson; and then seated himself. His seat was separated by the bar, from Mr. Rodney, who sat on the other side-on the judge's right were in succession, Mr. Martin, Mr. Hopkinson, and Mr. Harper.

Judge Chase then observed that the time allowed him for putting in his answer was not as much as he wished, and that his answer was not so complete as he had desired-he then produced his pleas, and, having read the caption and introductory part, he then handed it to Mr. Harper, who continued to read 'till two o'clock; when Mr. Hopkinson continued the reading to four o'clock; then Mr. Harper continued for about half an hour; the Judge read the closing part, which was a solemn religious appeal.

After a few errors made in transcribing were corrected.

Mr Randolph (chairman of the managers) said am I to consider this plea and answer of the respondent as final, or does he mean to go further?

The President. I understood that this answer, now given in, is that by which he means to abide.

Mr. Randolph. That escaped my hearing before. I now, on behalf of the managers, require of the senate time to prepare a replication to this plea, and a copy thereof.

The President-Upon this request the senate will deliberate, and duly advise the house of representatives. See end of the Volume,

The President then informed him, that seats were provided for himself

SATURDAY, February 9.

The Court being called, the Managers attended.

Judge Chase with his counsel, Messrs. Martin, Harper, Hopkinson and Key, ap. peared and took their seats.

The President then informed the Managers that the court were ready to hear them on the part of the prosecution-Mr. RANDOLPH rose and spoke as follows:

MR. PRESIDENT,

It becomes my duty to open the case on the part of the prosecution. From this duty, however inadequate I might be at any time to discharge it, and especially at the present, both on account of the shortness of time which we have had to

answer the lengthy reply of the respondent, and of personal indisposition, I shall not shrink. When I speak of the shortness of the time allowed us to reply to the answer of the respondent, I hope I shall not be understood as casting any imputation upon this honorable court, for expressing a wish that the trial may be postponed. Sensible I am, that this court would allow us longer time, but a desire for the furtherance of justice, added to the impregnable ground on which the managers stand, induce them to be ready on the part of the prosecution.

The managers are in this instance to establish the guilt of one of the judges of the supreme court-Of a man capable of being one of the ornaments of his country-and who if he had made a proper use of his talents would have done as much good for his country, as he has inflicted wounds upon it by his misconduct. The arraignment of a man of such talents before this tribunal, is one of the saddest spectacles ever presented to the view of any people.-Base indeed must be his heart who could triumph over such

a scene.

The first charge with which the respondent is impeached, is relative to his conduct upon the trial of John Fries for

treason.

[Here Mr. Randolph read the first article of impeachment.]

The answer of the respondent to this charge is by evasive insinuations and misrepresentations of facts. He attempts

to shew that the opinion which he delivered in the case of Fries, upon the law, was the law laid down by his predecessors, in the same court, and once upon the same case. This is an attempt to wrest the charge from the true point on which it stands, and to place it upon another. It is not on account of the illegality of the opinion which the respondent gave that he is impeached, but for the time when he delivered it, and the mo-" tives by which he was governed. The charge against him is, that he delivered an opinion in writing, tending to prejudice the minds of the jury against John Fries the prisoner, before the case had been argued by the counsel. If the managers were to be governed by their own sense of propriety, and not by their duty to those by whom they are employed, they might with safety, in my opinion, rest the case upon the concessions of the respondent himself. The respondent acknowledges in his answer, that he did deliver an opinion on the law, tending to prejudice the minds of the jury against John Fries the prisoner, before the coun

B

sel had been heard in his defence. This may be seen by a reference to the answer of the respondent, a Part of which I must beg the favor of one of those associated with me to read.

Mr. Clark here read a passage of the

answer.

Our object is to prove that the opinion was delivered with an intention to prejudice the minds of the jury against the prisoner-and that the respondent did restrict the counsel in their attempt to cite English authorities which they considered apposite, and also the statutes of the United States and did debar them of their constitutional privilege to address the jury upon the law as well as the fact. These are facts which we are able to prove by the most respectable evidence. But the respondent assigns as a reason for his delivering his opinion on the law at the time he did, that the law had been settled by his predecessors. What does this prove? That the respondent endeavored to wrest from the counsel privileg-es which none of his predecessors conceived themselves authorised to do, to wit, that of addressing the jury on the law as well as the fact, If as the respondent states, the law was settled twice, after solemn argument, it is an evidence

that his predecessors never attempted to debar the counsel from arguing before the jury as to the law. The learned judges who decide the law in those cases, and to whom the respondent has appealed as authority, delivered their opinions posterior to the argument by the counsel and not anterior like the respondent. I repeat again, that it is not for the giving the opinion, that the respondent is charged, but for the manner of giving it. It is for having a copy of a written opinion made out for the jury, previous to their hearing argument, and thereby prejudicing their minds against the prisoner. The respondent has also admitted that the counsel for Fries had rested their case altogether upon the law, conscious that the facts could be proven. For this reason they ought not to have been controlled in their defence. If they believed that the law was in favor of the prisoner, they had a right to address the jury upon that as well as upon the facts, and in debarring them from it, the respondent wrested from the prisoner a constitutional right, that of being heard by counsel. I must be allowed to take what I conceive to be a strong distinction-that there is a material difference between a judges' giving a naked definition of the crime of high treason, and an opinion upon certain overt acts charged in an indictment and applied to the particular case before him. The managers do not deny-the counsel for Fries did not deny the right of the respondent to deliver his opinion to the jury upon the law respecting high treason, but the difference which I have taken appears evident, and the respondent had no right to deliver a written opinion to the jury concerning the particular case, and before solemn argument by counsel. To illustrate this point permit me to state a similar case. It will not be pretended that the crime of high treason is better defined, than the crime of murder. The latter is defined to be a killing with malice prepense. But although the definition is so well known was there ever a judge before the respondent daring enough to tell the jury that the overt acts charged in the indictment, if proved amounted to murder and that they must find the prisoner guilty; I believe not. There is a very wide distinction between the conduct of a

judge who delivers an opinion to the ju-
ry upon the law, after solemn argument,
and that of the respondent who prejudged
the case. I believe there never has been
an instance where counsel have been
stopped by the court, when they attempt-
cd to prove to the jury that the facts
which a prisoner had committed did not
amount to murder. The conduct of the
respondent in preventing the counsel
from addressing the jury upon the law,
and delivering a written opinion, be-
fore argument, was entirely novel to the
usages of our country. The respondent
aware that the managers were prepared
to prove what is charged against him,
has in his answer admitted a part of the
charge, but a part of it he has denied.
This we are prepared to prove by the
most respectable testimony.
We are
prepared to prove that the respondent
debarred the prisoner of his constitution-
al right of adddressing the jury by his
counsel upon the law. This the res-
pondent has in a manner admitted in his
answer, for he says that he informed the
counsel for Fries that if they conceived
that the court were wrong in their opini-
on as to the law they might address them-
selves to the court. What would be
said if a judge in a case where a person
was tried for murder, if he were to in-
form the counsel for the prisoner that
they should not address the jury upon
the law; that they should not attempt to
prove to the jury that the facts commit-
ted, did not amount to murder; but that
on that subject, they must address them-
selves to the court! He would be de-
servedly censured by every man, and
would be considered as unworthy of sit-
ting on the bench of justice-and yet the
conduct of the respondent was not dissi-
milar to this. The jury has a right in
all criminal cases to find a general ver-
dict, and to judge of the law, and of
course had a right to hear argument on
it. The acts of Congress which the
counsel for Fries, intended to have read
to the jury, went in their opinion, to shew
that the crime which Fries had commit-
ted, was less than treason, and made
punishable by fine and imprisonment-
and yet the same judge which delivered
a prejudicated opinion, prevented these
status, which were the law of the land,
from being read. Not only were the
counsel debarred from citing common

authorities, and the decisions of courts of justice in another country, but even from the laws of the land: although they considered that they were material to the defence of the prisoner.

I must be again permitted to repeat, that it is not for the incorrectness of the opinion delivered by the respondent in the case of Fries, that he stands charged, but for the time when he delivered it, and his motives for doing it. The Managers will not undertake to examine the soundness of the opinion,-they have nothing to do with that—but the manner of delivering it, was a departure from all precedents, and what I believe, is novel in all our courts of justice.

nion, as to the guilt of the defendant, was, because the only question which was suffered to be put to him, was one, that he was obliged to answer in the negative, to wit, whether he had formed and delivered an opinion upon an indictment which he could not have seen. The respondent, has attempted to justify his conduct in this case, well knowing that the facts can all be proved, and contends that a juror's opinion must be formed and delivered upon the indictment, and not on the subject matter to be tried, to disqualify him from serving. In the case of Callender the subject matter to be tried, was, whether "The Prospect Before Us," was a libel. If the Juror had formed an opinion upon the book which was the matter in issue, that it was libellous, and also opinions hostile to the author, he was not a proper person to pass judgment between the defendant and his country. If Mr. Basset had formed an opinion that the "Prospect Before Us" was a false, scandalous, and malicious libel, and came under the provisions of the act called the sedition act, he was not a person to serve upon the jury. Upon the ground taken by the respondent a personal enemy of any defendant might be taken upon a jury, and the defendant could not object to him, because he could not have formed and delivered an opinion upon an indict ment which he had never seen. The 3. third article of impeachment, is for rejecting the testimony of John Taylor, whom Callender believed to be a material witness, upon the ground, that, he could not prove all the charges in the indictment. Had this been the case, and John Taylor could only have proved a part of the charges, yet the conThe duct of the respondent must appear novel and unprecedented to every person. But at the time when the evidence of John Taylor was rejected, the respondent as well as the counsel for the traverser, were ignorant of what he could prove. But it was rejected upon the ground that he was unable to prove all the charges in the indictment to be true. The charge extracted from "The Prospect Before Us!" a book, which with all its celebrity, I never saw until yesterday, was in these words (speaking of Mr. Adams) "He is a professed aristocrat; and has proved faithful and ser

2. I will now proceed to the second article of impeachment. It is, that the respondent overruled the objection of John Basset, who wished to be excused from serving as a juror on the trial of Callender, upon the ground that the opinion of the juror must have been delivered as well as formed and that upon the words charged in the indictment. In the ninth page of the answer of the respondent, it will be seen, that a new trial was granted to Fries, upon the ground that one of the jurors after he had been summoned, but before he was sworn, had used expressions hostile to the prisoner. By recurring to the answer of the respondent, it will be found that the opinion which he gave in the trial of Fries, was dissimilar to the one held to be correct in the case of Callender. In the case of Fries the jury before they were sworn, were asked whether they had formed or delivered any opinion, hostile to the prisoner, or that he ought to be punished. question was in the disjunctive, not whether he had formed and delivered an opinion, but whether he had formed or delivered an opinion. But in the case of Callender a different conduct was pursued, and a juror was not to be excused from serving unless he had delivered as well as formed an opinion; Basset could never have seen the indictment, and therefore according to the opinion given by the respondent, could not be set aside, Even although he had a personal and avowed enemity to the defendant. It was perfectly immaterial what Basset's opi