Trial of Judge Chase.

secure our property, to protect our liberty, and to guard our lives, if those to whom we appeal, and to whose decrees we are bound to submit, shall prove unfaithful in the discharge of their duty. If our laws are not faithfully administered; if the holy sanctuary of our courts is to be invaded by party feeling; if justice shall suffer her pure garment to be stained by the foul venom of political bigotry, we may indeed boast that we live in a land of freedom, but the boast will be vain and illusory.

princes and the plunder of empires, and yet he was acquitted. But, is there any who hears me, that believes he was innocent? If we read the history of that trial; if we look to the facts charged, and listen to the unexampled eloquence by which they were supported, our only wonder will be, that he was not condemned. Sir, it has been said that those plundered millions were the best witnesses to prove his innocence; and I greatly fear that the day will come when the crying blood of those murdered princes will be the best witnesses to prove his guilt. The most splendid action in Edmund Burke's life was his accusation of Warren Hastings; the foulest stain upon the national justice of England was his acquittal.

In this point of view, therefore, this cause may justly be called an important one. I need not however urge its importance to the Court, for the feelings of every honorable member will speak its importance more forcibly than any thing that I can utter. But I do trust that those We have been charged, sir, by one of the frequent appeals which you have heard, those honorable counsel (Mr. Harper) with having enfrequent instances in which you have been re-deavored to enlist on our side the sympathies of minded that posterity will pass between the the Court. Permit me to ask, what sympathy accused, his accusers, and his judges, will have have we endeavored to excite? What feelings no influence on your minds. A desire to secure have we endeavored to engage? To what passion the approbation of posterity is an honorable have we addressed ourselves? None, sir. We feeling, pervading every human breast, and is came here to demand justice. The constitution most inseparable from our nature: but to secure has placed in your hands the power of punishthe approbation of posterity, we must take care ing guilt; we have proved the guilt of the perto pursue the dictates of our own consciences, son accused, and at your hands we demand his and, by doing justice here, trust to posterity to punishment. To your consciences and your do us justice too. understandings we appeal, and not to your Our country, it is true, are now looking on feelings. These have been assailed by our adwith anxious solicitude for the event of this versaries. They have exhibited their client to cause; but the sentence which they shall pass you, covered, as they say, with the frost of will not depend upon the judgment given here. seventy winters, and have endeavored to hide To the world and to posterity the conviction of the magnitude of his crimes, in the length of the accused, by this Court, will not establish his his years, and the infirmity of his health. In guilt; and I thank God, as the case has been attempting to excite your compassion, they put in issue between us, his acquittal will not have wished to drown the voice of justice, and prove his innocence. The facts in the cause, have addressed you not as judges but as men. sir, those facts which we have proved by the I do trust, however, that if any sympathy is to most undeniable evidence, and upon which your be excited, it will be neither for the accused, nor judgment must be given; those facts will be his accusers. Let your feelings be turned topresented to the eyes of the world and of pos- ward the nation! Let your sympathy be awakterity, and upon those only will they decide. ened for those who are to come after you, for If it should ever be the fortune of my humble by the sentence which you pronounce in this name to descend to posterity, by the vote which case, it must ultimately be determined whether I gave for instituting this impeachment, and by justice shall hereafter be impartially administermy conduct in discharging the great duty nowed, or whether the rights of the citizen are to be committed to me, I cheerfully consent to be prostrated at the feet of overbearing and tyrantried. To this awful tribunal I willingly sub-nical judges. We, who are engaged in this promit. If the judge is guilty, posterity will heap on him all that odium which his guilt deserves; if he is innocent, let that odium be turned upon his accusers.

Because Sidney and Russell bled upon a scaffold, have their names been less the objects of veneration with posterity? and because Scroggs and Jeffries escaped the punishment due to their crimes, have they therefore been less the objects of universal execration? No, sir; and the honorable counsel (Mr. Hopkinson) who first addressed you on behalf of the accused, gave us himself a memorable example of the poor respect which posterity will feel for the decisions of those who have gone before them. That honorable gentleman told you that Warren Hastings was impeached for the murder of

secution, feel that our fathers handed down to us a glorious birthright, and we appear at this bar to demand that it be transmitted to our children unimpaired and unpolluted. Do the nation justice, and you will do justice to us, to yourselves, and to posterity. We were also told by the honorable counsel for the accused, that when we found the accusation shrunk from the testimony, and that the case could no longer be supported, we resorted to the forlorn hope of contending that an impeachment was not a criminal prosecution, but a mere inquest of office. For myself I am free to declare, that I heard no such position taken. If declarations of this kind have been made, in the name of the Managers, I here disclaim them. We do contend that this is a criminal prosecution, for

Trial of Judge Chase.

offences committed in the discharge of high of- | office so long as he demeans himself well in it; ficial duties, and we now support it, not merely and whenever he shall not demean himself well, for the purpose of removing an individual from he shall be removed. I therefore contend that office, but in order that the punishment inflict- a judge would be liable to impeachment under ed on him may deter others from pursuing the the constitution, even without the insertion of baneful example which has been set them. that clause which declares, that "all civil officers of the United States shall be removed for the commission of treason, bribery, and other high crimes and misdemeanors." The nature of the tenure by which a judge holds his office is such that, for any act of misbehavior in office, he is liable to removal. These acts of misbehavior may be of various kinds, some of which may, indeed, be punishable under our laws by indictment; but there may be others which the law-makers may not have pointed out, involving such a flagrant breach of duty in a judge, either in doing that which he ought not to have done, or in omitting to do that which he ought to have done, that no man of common understanding would hesitate to say he ought to be impeached for it.

Nor do we mean to take another ground which the counsel for the accused have thought proper to assign us, for we never entertained the most distant idea that any citizen might be impeached. It was with no little surprise that I heard such doctrines ascribed to us, and I was astonished to hear the Attorney-General of Maryland combating positions which we had not laid down, and searching for argument to prove that which we should not have hesitated to admit.

But, sir, there is one principle upon which all the counsel for the accused have relied, upon which they have all dwelt with great force, and to the maintenance of which they have directed all their powers, that we cannot assent to; we mean to contend against it, because we believe it to be totally untenable, and because it is of the first importance in the decision of the question now under discussion. We do not contend that, to sustain an impeachment, it is not necessary to show that the offences charged are of such a nature as to subject the party to an indictment, for the learned counsel have said that the person now accused is not guilty, because the misdemeanors charged against him are not of a nature for which he might be indicted in a court of law.

The words "good behavior" are borrowed from the English laws, and if I were inclined to rest this case on English authorities, I could easily show that, in England, these words have been construed to mean much more than we contend for. The expression durante se bene gesserit, I believe, first occurs in a statute of Henry VIII. providing for the appointment of a custos rotulorum, and clerk of the peace for the several counties in England. The statute recites, that ignorant and unlearned persons had, by unfair means, procured themselves to be appointed to these offices, to the great injury of the community, and provides that the custos shall hold his office until removed, and the clerk of the peace shall hold his office durante se bene gesserit. The reason for making the tenure to be during good behavior, was, that the office had been held by incapable persons, who were too ignorant to discharge the duties; and it was certainly the intention of the Legislature that such persons should be removed whenever their incapacity was discovered. Under this statute, therefore, I think it clear that the officer holding his office during good behavior, might be removed for any improper exercise of his powers, whether arising from ignorance, corruption, passion, or any other cause. To this extent, however, we do not wish to go. We do not charge the judge with incapacity. His learning and his ability are acknowledged on all hands; but we charge him with gross impropriety of conduct in the discharge of his official duties, and as he cannot pretend ignorance, we insist that his malconduct arose from

To show how entirely groundless this position is. I need only pursue that course which has been pointed out to us by the respondent himself, and his counsel. I might refer to English authorities of the highest respectability, to show that officers of the British Government have been impeached for offences not indictable under any law whatever. But I feel no disposition to resort to foreign precedents. In my judgment, the Constitution of the United States ought to be expounded upon its own principles, and that foreign aid ought never to be called in. Our constitution was fashioned after none other in the known world, and if we understand the language in which it is written, we require no assistance in giving it a true exposition. As we speak the English language, we may, indeed, refer to English authorities for definitions, as we should refer to English dictionaries for the meaning of English words; but upon this, as upon all occasions, where the principles of our Government are to be developed, I trust that the Constitution of the United States will stand upon its own foundation, unsupport-a worse cause. ed by foreign aid, and that the construction given to it will be, not an English construction, but one purely and entirely American.

The constitution declares, that "the judges both of the supreme and inferior courts shall hold their commissions during good behavior." The plain and correct inference to be drawn from this language is, that a judge is to hold his

It has been alleged by the counsel for the accused, that my honorable colleagues have argued this case upon the articles and not upon the evidence; and this allegation contains an admission, that if the articles are proved, the guilt of the party is established. It shall be my endeavor to show that there is no material variance between the charges as laid in the articles,

Trial of Judge Chase.

and the evidence brought to support them; but | and the offence is made much greater by the that they are amply and fully proved by the opinion being publicly declared in the presence very best testimony which could be adduced. of the jury, who ought to come to the trial of One of the learned counsel in commenting every cause with minds wholly free from preupon the first article, declared that he discov-possession against either party. ered but a single truth in it, which was, that the judge had formed and reduced to writing an opinion upon the law; and that gentleman, as well as the Attorney-General of Maryland, labored with great zeal and with much display of talent, to convince the Senate that there could be nothing wrong in this. Unfortunately for these learned gentlemen, even that truth is not to be found in it, for by recurring to the article it will be found that the judge is not charged for having formed an opinion, or for having reduced that opinion to writing, but for "having delivered an opinion in writing on the question of law, on the construction of which the defence of the accused materially depended, tending to prejudice the minds of the jury against the prisoner before counsel had been heard in his defence."

In this we find no charge against him for having formed an opinion, or for having reduced it to writing, and certainly the learned counsel might have spared themselves the trouble of proving what I am sure every member of the Court was fully convinced of before, that there was no impropriety in a judge's forming an opinion on any subject whatever, whether legal or philosophical. It is not, however, usual for skilful advocates to attempt to draw the attention from the material points in dispute, for the purpose of fixing it on others of little or no importance. Such has been the course pursued by our adversaries. But, Mr. President, the real charge is, that Samuel Chase did, upon the trial of John Fries for treason, endeavor to prejudice the minds of the jury against him, by delivering an opinion to them upon the law before his counsel were heard; and this too in a case of life and death, where the jury had an ample, uncontrollable right, to decide as well the law as the fact. It is the right and duty of judges to inform their minds upon all questions of law whatsoever, but it is an unwarrantable proceeding, it is an unauthorized assumption of power in them, to deliver that opinion to the jury in a criminal cause before the jury is sworn, and before the counsel of the prisoner have been heard in his defence.

Much has been said with a view to convince the Court that the opinion thus delivered was a correct one, and it has therefore been argued that his conduct was perfectly justifiable. For my own part, I consider it totally immaterial in the present case whether the doctrine of treason, as laid down by the judge, was correct or not; for even if it were correct, the time and manner of delivering it, and the persons to whom it was delivered, form the substance of the charge against him. It is a misdemeanor, a high misdemeanor in a judge, wantonly to give an opinion upon any case which is to come before him, previously to the swearing of the jury,

Although the judge has said in his answer, that no gentleman of established reputation for legal knowledge would deliberately give a contrary opinion, yet I have not the slightest apprehension that any little reputation which I may possess, can in any manner be affected by my expressing, as I now do, my entire conviction that the doctrine of treason, as laid down in Fries's case, is wholly repugnant to the spirit and meaning of the constitution. It is not my intention at this time to enter into an argument to prove this, for I have before said that I consider it quite immaterial in the present discussion; but I will offer some few observations, to demonstrate to the Senate that there was nothing very unreasonable in the wish expressed by Mr. Lewis and Mr. Dallas, to show that the constitution was susceptible of another construction.

The constitution declares that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." John Fries was indicted for levying war against the United States, and the facts I believe were, that he, with some others, did, in a forcible manner, rescue some prisoners from the marshal of Pennsylvania. This was called a resistance to a law of the United States, and, by construction, was determined at the former trial to be the treason of levying war. It was in opposition to this construction of the constitution that Mr. Lewis and Mr. Dallas wished to be heard. It was certainly not a very extravagant wish on their part, for it ought to be recollected that we are a young nation, and it is deeply interesting to us all that the Constitution of the United States should not receive a construction unwarranted by its letter. After the decisions had taken place in the courts upon the Western insurrection, (I mean in the cases of Vigol and Mitchell,) Congress had passed an act declaring that to resist a law of the United States should be deemed a high misdemeanor, punishable by fine and imprisonment; and they had before provided, by the act of 1789, that to rescue prisoners from the custody of the marshal should also be punishable by fine and imprisonment. Mr. Lewis and Mr. Dallas were desirous of showing that Fries's case came within the provisions of these laws, and that his offence was not of such a nature as to forfeit his life. They also wished to have an opportunity of proving that the terms levying war ought not to receive the same construction here as in England. To convince the Senate that they were not singular in their ideas, and that the construction given by the Court has not been unanimously assented to, I shall take the liberty of referring to an author of merited reputation, to whom I believe our adversaries will not refuse their respect. Judge Tucker of Virginia, in his valuable edition of

Trial of Judge Chase.

[Here the opinions of Judge Tucker were read.] Such we find are the opinions of Judge Tucker, an able and upright lawyer, who thinks that the constitution ought to be construed agreeably to the plain import of its language, and ought not to be involved in technical abstruseness. In that series of publications entitled the Federalist, written at the commencement of the present Government, by some of the ablest men in this nation, for the purpose of defending the constitution, it is matter of boast, that treason was fully defined, and not left to wild and arbi-countable to him alone: it was treason in their trary construction. But what avails the definition, if the constructive treasons of England are to be drawn in as precedents for us?

Trial of Judge Chase.

statutes of the United States. It is fully proved by Mr. Lewis, and corroborated by Mr. Dallas. The latter was not in Court when the conversation took place; but coming in immediately after, he was informed of it by Mr. Lewis, and then stated to the Court what Mr. Lewis had told him. The Court did not deny it, and certainly it is to be presumed, if Mr. Lewis had made an erroneous statement of facts to Mr. Dallas, and they had been repeated by Mr. Dallas, the Court would have contradicted them. This was not done, and both these gentlemen now swear that they were prohibited.

the opinion of the Court. In order to enable them to decide correctly they have a right to hear argument, and any attempt to prevent this, is an attempt to wrest from them their right to decide the law, and is a high misdemeanor.

We are told, however, that if any thing wrong was done on the first day, ample atonement was made on the second. It is true that the judge exhibited some appearance of a wish that the counsel would proceed on the second day, but Mr. Lewis well remarked, that although the papers were withdrawn, the impression which had been made on the minds of the jurors could not be removed. What sort of an atonement, too, was this? It carried insult with it; and the language in which it was made had a still greater tendency to strengthen the impression made the day before. The counsel were publicly informed they might proceed as they pleased, but it must be at the hazard of their characters, under the direction of the Court. Is there a man of reputation on earth, possessed of the smallest spark of feeling, that would consent to disgrace himself by addressing a jury under such circumstances? This alone, if nothing else had taken place, was sufficient to drive them from the defence of their client; and if they thought that their abandoning him might eventually save his life, they were fully justitied in doing so.

An attempt, however, is made to shelter the judge from this part of the accusation, by saying that he declared counsel would be heard although this opinion was given. Sir, this is another evasion. The opinion itself carries with it internal, uncontrovertible evidence of the determination of the Court that the counsel should not address the jury. What is the principal ground of the defence? what is the leading reason urged for giving this extraordinary opinion before the jury was sworn? It was, as the judge says, and as his counsel have argued, to save time. They state that there were more than one hundred civil causes then depending, that the delay of business in Pennsylvania had been long a subject of complaint, and the judge was anxious to make Fries's trial a short one, in order that they might have time to proceed The learned advocates for the judge have with the other business. Now suffer me to in- talked highly of the independence of the judiquire how time was to be saved; how the trial ciary, and have asked what inducements any of Fries was to be shortened, if his counsel were judge could have to act as we have charged to be allowed to address the jury on the law Judge Chase with acting. Are there then no which the Court had already decided? Was inducements for a judge to swerve from his dunot the opinion of the Court given for the ex- ty? Has he no feelings to gratify, and is it impress purpose of preventing them from address- possible for him to become a partisan? Does ing the jury; or, if not for this, let me ask for his character as a judge divest him of his amwhat purpose it was given? Was it to preju- bition as a man? Is he so incorruptible that dice the minds of the jury; to close their ears temptation cannot assail him? Look through and their understandings against any arguments the annals of other nations-read the history of which might be offered them? Gentlemen say England for the last forty years. Judicial inno. Was it to save time? This was impossible, dependence has been for a long time as well sebecause the time was still to be occupied by the cured there as here; and yet how many instancounsel being permitted to address the jury. ces shall we find in that country of prosecutions Why then, let me ask, was the opinion given? in which the feelings of the Ministry had been The answer is ready. It was intended to pro- engaged, and in which their influence over the duce both these effects. The minds of the jury judges has been too flagrant to be mistaken? were to be preoccupied by the imposing author- In Ireland, miserable Ireland, a still more ity of the Court, and in this manner it was ex-gloomy prospect presents itself. They, too, pected to deter the counsel from addressing them on the law. Nothing, therefore, can be clearer, than that the counsel were prevented from addressing the jury, and that the judge "endeavored (in the language of the article) to wrest from the jury their right to hear argument, and determine upon the question of law." But it is said that the right of the jury to decide the law does not give them a dispensing power over the law, and that therefore they are bound by the opinion of the Court. Nor does the right of the Court to decide the law give them a dispensing power over the law. The jury have a right to decide the law, and are not bound by

have boasted an independent judiciary; but an overruling influence has crumbled it into ruins. The demon of destruction has entered their courts of justice, and spread desolation over the land. Execution has followed execution, until the oppressed, degraded, and insulted nation has been made to tremble through every nerve, and to bleed at every pore. Let us then be warned by the fate of Ireland. In State prosecutions her judges look to the Castle; although they cannot be put down, they may be elevated. Some of our judges have been elevated to places of high political importance; splendid embassies have been given to them. I will not say