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term, John Fries was indicted for trial, be made known to the jury, high treason, and the opinion, and the respondent was therefore which is the subject of the charge, further influenced to make this was communicated to the counsel communication, from the hope of for the prisoner, after he was guarding them against any erro. brought into court, but before the neous impression of the law, since petit jury was impannelled to try it was their right in this, as in all him. This was the second trial criminal cases, to render a general of Fries for the same offence. At verdict of acquittal, which could the first trial, the facts were fully not be set aside, although it should proved, and his counsel rested their be contrary to law. defence on the question of law. The respondent admits, that, at The opinion, which the respondent the trial, he expressed the opinions, delivered, was on this question ; that English decisions in cases of viz. whether resisting and prevent treason, at common law, against ing by armed force the execution the person of the king, ought nat of a particular law of the United to be read to the jury, on trials for States, be a levying of war against treason under the constitution and the United States, according to statutes of the United States ; that the true meaning of the constitu- English decisions on this subject, tion. In two solemn decisions, by prior to the revolution in 1688, Judges Paterson and Peters, in the ought to have very little influence cases of Vigoll and Mitchell, and in our courts; that decisions since by Judges Iredell and Peters, in that period, shewing what acts the case of Fries, the prisoner, in have been considered as a.construc 1799, on arguments at great length, tive levying of war against the king and on mature deliberation of the in his legal capacity, were admiscourt, this point had been adjudg. sible, but not those against his per. ed, and had thereby become a pre- son. Those opinions however cedent for all courts of equal or in- were not of binding authority in feriour jurisdiction. With the this country, but claimed respect correctness of this opinion, the res- from their intrinsick excellence, pondent was, on full consideration, and from the exalted legal estima. satisfied, and, in his own words, tion of their authors. " by the authority of it he should The respondent insists, that it is have felt himself bound, even had the right and duty of the court, he regarded the question as doubt- « to decide and direct what evi. ful in itself."

dence, whether by record or by The reasons stated for commu. precedents of decisions in courts nicating this opinion, in the man- of justice, is proper to be admitted ner and at the time mentioned, for the establishment of any mat were, that the respondent felt him- ter of law or fact. He insists al. sex bound by the authority of for- so, that he can be called in quesmer decisions, and considered it tion only for the correctness of his his duty, to prevent an unnecessa- motives, but he admits, that cases ry consumption of time, which was may be supposed, where a judge rendered precious by the pen- may have delivered “ an opinion dency of more than one hundred so palpably erroneous, unjust, and civil actions, many of which had oppressive, as to preclude the pose already been subjected to great de- sibility of its having proceeded lay. It was necessary that this on from ignorance or mistake.” pinion should, at some stage of the II. In reply to the charge on

tained in the second article, rela- mony of Col. Taylor was rejected tive to his having over-ruled the on the ground, that his evidence objection of one of the jury to did not go to the whole matter serve on the trial, the respondent contained in this article. Each observes, that the juror wished to count in the indictment contained be excused, “ because he had form- twenty independent charges, or ed an opinion, that the publication, sets of words. Though one slandcalled “ The Prospect before us,” er more or less in such a publicafrom which the words charged in tion as “ The Prospect before us," the indictment as libellous, were could be of no moment; yet as, on said to have been extracted, but legal principles, a plea of justificawhich publication he had never tion must always answer the whole seen, was, according to the rep- charge, or it is bad on demurrer, resentation of it, which he had re- and as the same rule is applicable ceived, within the sedition law.” to evidence, when the matter may The reason, for which a juror be given in evidence, without a should not be permitted to serve formal plea ; evidence, which went on a trial, is, “ that he does not to prove only a part of an entire Mtand indifferent between the par- and indivisible charge, was inadties.” The juror in the present missible, and therefore the testiinstance had neither expressed normony of Col. Taylor was rejected. formed an opinion as to the facts. - IV. Posterity will be astonishAs he did not know, whether the ed, that it was made an article in contents of the book were really an impeachment against a judge, such as had been represented to that he required the counsel to rehim; whether they would on trial duce their interrogatories to writbe proved to be true; whether ing, in a case of some difficulty, Callender was really the author of and for a more accurate observation the book; or whether he wrote it of them. No lawyer could ever with that evil intent, which was al. doubt the right of a judge to make leged in the indictment, he stood such an order, if he deemed it indifferent as to the matter in issue necessary. That it should excite in the legal and proper sense. murmurs, much more that it

III. The evidence of John should be the ground of a serious Taylor was rejected on the follow- charge against the respondent, for ing ground. The twelfth charge misconduct in his official character, in the indictment contained these betrays in the counsel a childish words. “ He (meaning President impatience of restraint, 'and must Adams) was a professed aristocrat; forever be recorded, as a monument he proved faithful and serviceable of the condescension of the illusto the British interest." Taken trious majority in the house of separately, they chargedir. Adams representatives, for the year 1804. with no offence, and consequently If the court is the proper tribunal could not be indictable as libellous : to decide all questions of evidence, but taken together, they intend, it is certainly the duty of the judg. that Mr. Adams, being an enemy es, to use great deliberation, whento the republican government of ever the correct decision of these his country, had subserved the questions requires the application British interest against the interest of exquisite legal principles, and of his own country ; an offence great subtlety of reasoning both moral and legal. The testi- It is one of the specifications in

this article against Judge Chase, whole conduct in that trial, was regulatthat he refused to postpone the

ed by a strict regard to the principles of trial of Callender. The continu

law, and by an honest desire to do justice

between the United States and the party ance of a cause does not depend on

accused. He felt a fincere wish, on the the arbitrary will of the court, but one hand, that the traverser might estabon fixed principles. Every ap lith his innocence, by those fair and plication for a continuance must

sufficient means which the law allows : come within those rules, or the

and a determination on the other, that

he Mould not, by subterfuges and frivotrial must proceed. The true and

lous pretences, sport with the justice of only reason for granting a contin- the country, and evade that punishment uance is, that the party accused of which, if guilty, he was so proper an may have the best opportunity, object. These intentions, he is confident. which the law can afford him, of wer

dhime were legal and laudable ; and if, in any

part of his conduct, he swerved from making his defence. Where the

this line, it was an error of his judgment ground of a continuance is the ab- and not of his heart., sence of witnesses, it is a settled rule, and made necessary to the V. In replying to the fifth artiexpeditious and happy administra- cle of the impeachment,the respone tion of justice, that the application dent shews, that the managers, should be supported by an affidav- who fabricated the article, were it, that the testimony wanted is guilty of a material oversight in " competent and material,” and citing the law of Virginia, on which that there is a reasonable expecta- it is founded. The charge is, for tion of procuring it within the tiine awarding an erroneous process a. prescribed." The affidavit of Cal- gainst Callender. But by the statlender did not state, that he ex- ute, it is left in the discretion of the pected to procure, at the next term, court to award the proper process, such evidence as he wanted, or that provided it will bring the offender he should obtain the attendance of to answer to the presentment. The the absent witnesses,who were scat- Judge then proves incontroverti. tered over the union. The afliday- bly, that in issuing a capias, his it was clearly defective, and it be conduct was perfectly correct. came the duty of the court to re- VI. The sixth article charges ject the application.

the respondent with an intent to opAfter perusing the trial of Cal. press Callender, in adjudging him lender, it is apparent from the con- to trial, during the term at which duct of his counsel, that they were he was presented and indicted. But unwilling to be tied down to an ob- the respondent denies, that the law servance of the rules of law. It of Virginia, to which this article would have been vastly agreeable refers, warrants the inference to them, and very much for the in- drawn from it ; “because it speaks terest of their client, could the of presentments, and not of indict. cause have been tried by a mob, ments, which are very different instead of being heard before a tri. things ; and is, as he is informed, bunal, whose judges well knew the contirmed, by practice and conrules of law, and had the virtue to struction in the state of Virginia, accomplish the duties of their of- 'to cases of small offences, which trial station.

are to be tried by the court itself In concluding his defence against those

upon the presentment, without an charges, contained in the fourth article indictment, or the intervention of ef impeachment, he declares, that his a jury.” W :. .:


In passing a judgment on the leged, “ to have degraded his high character of the majority in the judicial functions, and tended to house of representatives, who vot- impair the publick confidence in, ed in favour of the impeachment, and respect for, the tribunals of posterity will inquire, wherefore justice, so essential to the general Judge Chase was selected, as the welfare." sole object of this impeachment. VIII. In replying to the eighth He was but one of the judges, who article, the respondent avows the constituted the courts, in which the political opinions, which he is facts took place. . In the opinions charged with uttering. He then expressed, and in the judgments adds : rendered, the associates of Judge Chase concurred in sentiment. It has been the practice in this counThe turpitude, if any, attached to try, ever fince the beginning of the reboth. Why were actions regard- volution, which separated us from Great ed in one as venial, while they were

Britain, for the judges to express from made the subject of a criminal

the bench, by way of charge to the charge against the other? Was it

grand jury, and to enforce to the utmost

of their ability, such political opinions, because Judge Chase would be a as they thought correct and useful. more splendid victim on the altar There have been instances in which the of political intolerance ? Or was it legislative bodies of this country, have to sooth the wounded feelings of

noe of recommended this practice of the judges ;

and it was adopted by the judges of the the principal prosecutor ? In the eye of impartial minds, remote foon as the present judicial system was from the scene of action, and free ekablished. If the legislature of the from those impediments, which United States considered this practice as obscure the clearness of its vision,

they might have forbidden it by law : this selection remains a record of to the penalties of which, such judges partiality.

as might afterwards transgress it, would VII. It is sufficient to shew the be justly subjected. By not forbiding it, futility of the charges, contained the legillature has given to it an implied Go the seventh article to observe sanction; and for that legislature to pun.

ish it now by way of impeachment, that they do in substance amount

would be to convert into a crime, by to this ; “ that the respondent re- an ex post facto proceeding, an act which fused to discharge a grand jury when it was done and at all times before, on their request, which is every they had themselves virtually declared day's practice, and which he was to be innocent. Such conduct would

be utterly subversive of the fundamenbound to do, if he believed that the

tal principles on which free government due administration of justice re- rests; and would form a precedent for quired their longer attendance ; the most fanguinary and arbitrary per: that he directed the attention of secutions, under the forms of law. the grand jury to an offence against a statute of the United States, He then with brevity examines the which he had been informed was political opinions, which were in: committed in the district ; and corporated in his address to the that he desired the district attor- grand jury, and in a satisfactory ney to aid the grand jury, in their manner defends them. inquiries concerning the existence The close of the respondent's and nature of this offence. By plea is inexpressibly solemn and these three acts, each of which it dignified. We insert it as a spe: was his duty to perform, he is al cimen of genuine eloquence.

This refpondent has now laid before bled universe. To his Omniscient Judge this honourable court, as well as the at that awful hour, be now appeals for time allowed him would permit, all the the rectitude and purity of his conduct, circumstances of this case. With an as to all the matters of which he is this humble trust in Providence and a con- day accused. fciousness that he hath discharged all his He hath now only to adjure each oficial duties with justice and impartial. member of this honourable court, by ky, to the best of his knowledge and a- the living GOD, and in his holy name, Lilities ; and that intentionally he hath to render impartial justice to him, accommitted no crime or misdemeanour, cording to the constitution and laws of or any violation of the constitution or the United States. He makes this follaws of his country-Confiding in the emn demand of each member, by all his japartiality, independence, and integrity hopes of happiness in the world to come, of his judges, and that they will patients which he will have voluntarily renouncly hear and conscientiously determine ed by the oath he has taken ; if he shall this case, without being influenced by wilfully do this refpondent injustice, or the spirit of party, by popular prejudice, disregard the constitution or laws of the er political motives, he cheerfully sub. United States, which he has solemnly mits himself to their decision.

sworn to make the rule and itandard of If it shall appear to this honourable his judgment and decifion. court from the evidence produced, that be hath acted in his judicial character with wilful injustice or partiality, he The object of the review of a doth not with any favour, but expects book is to communicate to the pubthat the whole extent of the punishment lick information of its contents, permitted in the constitution will be in

and to pourtray its excellencies ficted upon him.

If any part of his official conduct thall and defects. Milton observes. appear to this honourable court, Arieti « that it is of greatest concernment pis, to have been illegal, or to have pro- in the church and commonwealth, ceeded from ignorance or error in judge to have a vigilant eye how books neat ; or if any part of his conduct

demeane themselves, as well as hull appear, although illegal, to have ben irregular or improper, but not to

men.” From regard to publick bare flowed from a depravity of heart, considerations, we always look on or any unworthy motives, he feels con a new publication with jealousy, Aders that this court will make allow well assured, that if it is written Dee for the imperfections and frailties

ilties for immortality, no wound, which

for immortality ncideot to man. He is fatisfied that

it can receive from the severity of every member of this tribunal will observe the principles of humanity and criticism, will be fatal to its existjubice, will presume him innocent, until ence. But if books inculcate evil his guilt thall be established by legal and and pernicious principles, either in credible witnesses ; and will be govern- taste or morals, 06 since they doe ed in his decifion, by the moral and christian rale, of rendering that justice

contain a potencie of life in them to this repondent, which he would wish to be as active as that soule whose to receive.

progeny they are," they must, at This refpondent now stands not mere- the tribunal of criticism, be duly ly before an earthly tribunal, but also be informed against, and prosecuted fore that awful Being, whose presence

to conviction and punishment, as flis all space, and whose all feeing eye sore especially surveys the temples of

offenders against the peace and dig chice and religion. In a little time, nity of the commonwealth. is accufers, his judges, and himself must This trial, the course of the proOpear at the Bar of Omnipotence,

ceedings, the examination of the where the secrets of all hearts shall be

witnesses, and the arguments for &clored, and every human being shall wíwer for his deeds done in the body,

and against the prosecution, are ad shall be compelled to give evidence

worthy the attention of all the citat hanself in the presence of a few izens, but more particularly of the

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