Trial of Judge Chase. the solemn duties of his office as judge; that circuit court, this respondent, as required by the he faithfully and impartially, and according to duties of his office, delivered a charge to the grand the best of his ability and understanding, dis-jury; in which, according to his constant practice, charged those duties towards the said John Fries; and that he did not in any manner, during the said trial, conduct himself arbitrarily, unjustly, or oppressively, as he is accused by the honorable the House of Representatives. And the said Samuel Chase, for the plea to the said first article of impeachment, saith, that he is not guilty of any high crime or misdemeanor, as in and by the said first article is alleged; and this he prays may be inquired of by this honorable Court, in such manner as law and justice shall seem to them to require. The second article of impeachment charges, that this respondent, at the trial of James Thompson Callender for a libel, in May 1800, did, "with intent to oppress and procure the conviction of the said Callender, overrule the objection of John 'Basset, one of the jury, who wished to be excused from serving on the said trial, because he had made up his mind as to the publication from which the words, charged to be libellous in the indictment, were extracted." and to his duty as a judge, he gave in charge to them several acts of Congress for the punishment of offences, and among them, the above-mentioned act, called the sedition law; and directed the jury to make particular inquiry concerning any breaches of these statutes or any of them, within the district of Virginia. On the 24th day of May, 1800, the said jury found an indictment against one James Thompson Callender, for printing and publishing, against the form of the said act of Congress, a false, scandalous, and malicious libel, called "The Prospect before Us," against John Adams. then President of the United States, in his official conduct as President; as appears by an official copy of the said indictment, marked exhibit No. 4, which this respondent begs leave to make part of this his answer. On Wednesday, the 28th day of the same month, May 1800, Philip Norbonne Nicholas, Esq., now attorney general of the State of Virginia, and George Hay, Esq., now district attorney of the United States, for the district of Virginia, apIn answer to this article, this respondent admits peared in the said circuit court as counsel for the that he did, as one of the associate justices of the said Callender; and on Thursday the 3d of June Supreme Court of the United States, hold the following, his trial commenced, before this recircuit court of the United States, for the district spondent, and the said Cyrus Griffin, who then of Virginia, at Richmond, on Thursday the 22d sat as assistant judge. The petit jurors being day of May, in the year 1800, and from that day, called over, eight of them appeared, namely, Robtil the 30th of the same month; when Cyrus ert Gamble, Bernard Mackham, John Barrell, Griffin, then district judge of the United States William Austin, William Richardson, Thomas for the district of Virginia, took his seat in the Tinsley, Matthew Harvey, and John Basset; who, said court; and that during the residue of that as they came to the book to be sworn, were sevesession of the said court, which continued till the rally asked on oath, by direction of the court, day of June, in the same year, this respon-"whether they had ever formed or delivered any dent and the said Cyrus Griffin held the said court together. But how far any of the other matters charged in this article, are founded in truth or law, appear from the following statement; which he submits to this honorable court, by way of answer to this part of the accusation. 6 By an act of Congress passed on the 4th day of May, A. D. 1798, it is among other things enacted, "That if any person shall write, print, utter or publish, or shall knowingly and wittingly assist and aid in writing, printing, uttering or publishing, any false, scandalous and malicious wri'ting or writing s against the President of the Uni'ted States, with intent to defame or to bring him into contempt or disrepute, such person, being 'thereof convicted, shall be punished by fine, not exceeding two thousand dollars, and by impris onment, not exceeding two years:" and "that if any person shall be prosecuted under this act, it 'shall be lawful for him to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel; and the jury shall 'have a right to determine the law and the fact, under the direction of the court, as in other cases," as in and by the said act, commonly called the sedition law, to which this respondent begs leave to refer this honorable Court, will more fully opinion respecting the subject-matter then to be tried, or concerning the charges contained in the indictment?" They all answered in the negative, and were sworn in chief to try the issue. The counsel for the said Callender declaring that it was unnecessary to put this question to the other four jurymen, William Mayo, James Hayes, Henry S. Shore, and John Prior, they also were immediately sworn in chief. No challenge was made by the said Callender or his counsel, to any of these jurors; but the said counsel declared, that they would rely on the answer that would be given by the said jurors, to the question thus put by order of the court. After the above-mentioned John Basset, whom this respondent supposes and admits to be the person mentioned in the article of impeachment now under consideration, had thus answered in the negative to the question put to him by order of the court, as above-mentioned, which this respondent states to be the legal and proper question to be put to jurors on such occasions, he expressed to the court his wish to be excused from serving on the said trial, because he had made up his mind, or had formed his opinion, "that the publication, called 'The Prospect before Us,' from which the words charged in the indictment as libellous were said to be extracted, but which he had never seen, was, according to the representa Trial of Judge Chase. tion of it, which he had received, within the Sedition law." But the court did not consider this declaration by the said John Basset as a sufficient reason for withdrawing him from the jury, and accordingly directed him to be sworn in chief. In this opinion and decision, as in all the others delivered during the trial in question, this respondent concurred with his colleague, the aforementioned Cyrus Griffin, in whom none of these opinions have been considered as criminal. He contends that the opinion itself was legal and correct; and he denies that he concurred in it, under the influence of any "spirit of persecution and injustice," or with any "intent to oppress and procure the conviction of the prisoner ;" as is most untruly alleged by the second article of impeachment. His reasons were correct and legal. He will submit them with confidence to this honorable Court; which, although it cannot condemn him for an incorrect opinion, proceeding from an honest error in judgment, and ought not to take on itself the power of inquiring into the correctness of his decisions, but merely that of examining the purity of his motives; will, nevertheless, weigh his reasons, for the purpose of judging how far they are of sufficient force, to justify a belief that they might have appeared satisfactory to him. If they might have so appeared, if the opinion which he founded on them be not so palpably and glaringly wrong, as to carry with it internal evidence of corrupt motives, he cannot in delivering it have committed an offence. "that a the party accused, if guilty of the offence charged To the present case this reasoning applies with peculiar force. The " Prospect before Us" is a libel so profligate and atrocious, that it excited disgust and indignation in every breast not wholly depraved. Even those whose interest it was intended to promote, were, as this respondent has understood and believes, either so much ashamed pains were taken by them to withdraw it from public and general circulation. Of such a publi cation, it must have been extremely difficult to find a man of sufficient character and information to serve on a jury, who had not formed an opin ion. either from his own knowledge, or from re port. The juror in the present case had ex pressed no opinion. He had formed no opinion as to the facts. He had never seen the "Pros This honorable Court need not be informed, that it is the duty of courts before which criminal trials take place, to prevent jurors from being excused for light and insufficient causes. If this rule were not observed, it would follow, that as serving on such trials as a juror, is apt to be a very disagreeable business, especially to those best qual-of it, or so apprehensive of its effects, that great ified for it, there would be a great difficulty, and often an impossibility, in finding proper juries. The law has, therefore, established a fixed and general rule on this subject, calculated not to gratify the wishes or the unreasonable scruples of jurors, but to secure to the party accused, as far as in the imperfection of human nature it can be secured, a fair and impartial trial. The criterion established by this rule is, "that the juror stands indifferent between the Government and the per-pect before Us," and, therefore, could have form son accused, as to the matter in issue, on the indictment." This indifference is always, according to a well-known maxim of law, to be presumed, unless the contrary appear; and the contrary may be alleged by way of excuse by the juror himself, or by the prisoner by way of challenge. Even if not alleged, it may be inquired into by the court of its own mere motion, or on the suggestion of the prisoner, and it may be established by the confession of the juror himself, on oath, or by other testimony. But in order to show that a juror does not "stand indifferent between the accuser and the accused, as to the matter in issue," it is not sufficient to prove that he has expressed a general opinion, "that such an offence as that charged by the indictment ought to be punished;" or "that ed no fixed or certain opinion about its nature or contents. They had been reported to him, and he had formed an opinion that if they were such as reported, the book was within the scope and operation of a law for the punishment of "false scandalous and malicious libels, against the Pres ident in his official capacity, written or published with intent to defame him." And who is there that having either seen the book, or heard of it had not necessarily formed the same opinion? But this juror had formed no opinion about the guilt or innocence of the party accused; which depended on four facts wholly distinct from the opinion which he had formed. First, whether the contents of the book were really such as had been represented to him? Secondly, whether they should, on the trial, be proved to be true? 1. Trial of Judge Chase. 6 6 in and by the said second article is alleged against him; and this he prays may be inquired of by this honorable Court, in such manner as law and justice shall seem to them to require. Thirdly, whether the party accused was really the author or publisher of this book? And fourthly, whether he wrote or published it "with intent to defame the President, or to bring him into contempt or disrepute. or to excite against him the The third article of impeachment alleges that hatred of the good people of the United States ?" this respondent "with intent to oppress and proOn all these questions, the mind of the juror was cure the conviction of the prisoner, did not perperfectly at large, notwithstanding the opinion mit the evidence of John Taylor, a material witwhich he had formed. He might, consistentlyness in behalf of the said Callender, to be given with that opinion, determine them all in the neg- in, on pretence that the said witness could not ative; and it was on them that the issue between prove the truth of the whole of one of the charges the United States and James Thompson Callen-contained in the indictment, although the said der depended. Consequently, this juror, notwith-charge embraced more than one fact." standing the opinion which he had thus formed, did stand indifferent as to the matter in issue, in the legal and proper sense, and in the only sense in which such indifference can ever exist; and therefore his having formed that opinion, was not such an excuse as could have justified the court in discharging him from the jury. That this juror did not himself consider this opinion as an opinion respecting the "matter in issue," appears clearly from this circumstance, that when called upon to answer on oath, "whether he had expressed any opinion as to the matter in issue?" he answered that he had not. Which clearly proves that he did not regard the circumstance of his having formed this opinion, as a legal excuse, which ought to exempt him of right from serving on the jury; but merely suggested it as a motive of delicacy, which induced him to wish to be excused. To such motives of delicacy, however commendable in the persons who feel them, it is impossible for courts of justice to yield, without putting it in the power of every man, under pretence of such scruples, to exempt himself from those duties which all the citizens are bound to perform. Courts of justice must regulate themselves by legal principles, which are fixed and universal; not by delicate scruples, which admit of endless variety, according to the varying opinions and feelings of men. Such were the reasons of this respondent, and he presumes of his colleague the said Cyrus Griffin, for refusing to excuse the said John Basset, from serving on the jury above-mentioned. These reasons, and the decisions founded on them, he insists were legal and valid. But if the reasons should be considered as invalid, and the decision as erroneous, can they be considered as so clearly and flagrantly incorrect, as to justify a conclusion that they were adopted by this respondent, through improper motives? Are not these reasons sufficiently strong, or sufficiently plausible, to justify a candid and liberal mind in believing, that a judge might honestly have regarded them as solid? Has it not been conceded, by the omission to prosecute Judge Griffin for this decision, that his error, if he committed one, was an honest error? Whence this distinction between this respondent and his colleague? And why is that opinion imputed to one as a crime, which in the other is considered as innocent? And the said Samuel Chase, for plea to the said second article of impeachment, saith, that he is, not guilty of any high crime or misdemeanor, as In answer to this charge, this respondent begs leave to submit the following facts and observations. The indictment against James Thompson Callender, which has been already mentioned, and of which a copy is exhibited with this answer, consisted of two distinct and separate counts, each of which contained twenty distinct and independent charges, or sets of words. Each of those sets of words was charged as a libel against John Adams, as President of the United States, and the twelfth charge embraced the following words, "He (meaning President Adams) was a professed aristocrat; he proved faithful and serviceable to the British interest." The defence set up was confined to this charge, and was rested upon the truth of the words. To the other nineteen charges no defence of any kind was attempted or spoken of, except such as might arise from the supposed unconstitutionality of the sedition law; which, if solid, applied to the twelfth charge as well as to the other nineteen. It was to prove the truth of these words that John Taylor, the person mentioned in the article of impeachment now under consideration was offered as a witness. It can hardly be necessary to remind this honorable Court, that when an indictment for a libel contains several distinct charges, founded on distinct sets of words, the party accused, who in such cases is called the "traverser," must be convicted, unless he makes a sufficient defence against every charge. His innocence on one, does not prove him innocent on the others. If the sedition law should be considered as unconstitutional, the whole indictment, including this twelfth charge, must fall to the ground, whether the words in question were proved to be true or not. If the law should be considered as constitutional, then the traverser, whether the words in the twelfth charge were proved to be true or not, must be convicted on the other nineteen charges, against which no defence was offered. This conviction on nineteen charges would put the traverser as completely in the power of the court, by which the amount of the fine and the term of the imprisonment were to be fixed, as a conviction upon all the twenty charges. The imprisonment could not exceed two years, nor the fine be more than two thousand dollars. If then this respondent were desirous of procuring the conviction of the traverser, he was sure of his object without rejecting the testimony of John Taylor. If his temper towards the traverser were so vindictive as to make Trial of Judge Chase. him feel anxious to obtain an opportunity and excuse for inflicting on him the whole extent of punishment permitted by the law, still a conviction on nineteen charges afforded this opportunity and excuse as fully as a conviction on twenty charges. One slander more or less, in such a publication as the "Prospect before Us," could surely be of no moment. To attain this object, therefore, it was not necessary to reject the testimony of John Taylor. country which does not necessarily follow, and is not directly alleged in the publication. These two phrases, therefore, taken separately, charge Mr. Adams with no offence of any kind; and, consequently, could not be indictable as libellous: but taken together, they convey the implication that Mr. Adams, being an "aristocrat," that is, an enemy to the republican Government of his own country, had subserved the British interest against the interest of his own country; which would, in his situation, have been an offence both moral and legal; to charge him with it was, therefore, libellous. That the court did not feel this vindictive spirit is clearly evinced by the moderation of the punishment, which actually was inflicted on the traverser, after he was convicted of the whole twenty Admitting, therefore, these two phrases to concharges. Instead of two thousand dollars, he was stitute one distinct charge, and one entire offence, fined only two hundred, and was sentenced to this respondent considers and states it to be law, only nine months' imprisonment, instead of two that no justification which went to part only of years. And this respondent avers that he never the offence, could be received. The plea of justifelt or expressed a wish to go further; but that in fication must always answer the whole charge, or this decision, as well as in every other given in it is bad on the demurrer, for this plain reason, the course of the trial, he fully and freely con- that the object of the plea is to show the party's curred with his colleague, Judge Griffin. innocence; and he cannot be innocent if the accuAs a further proof that his rejection of this tes-sation against him be supported in part. Where timony did not proceed from any improper motive, but from a conviction in his mind that it was legally inadmissible, and that it was therefore his duty to reject it, he begs leave to state that he interfered in order to prevail on the district attorney to withdraw his objection to those questions, and consent to their being put; which that officer refused to do, on the ground "that he did not feel himself at liberty to consent to such a departure from legal principles." the matter of defence may be given in evidence, without being formally pleaded, the same rules prevail. The defence must be of the same nature, and equally complete, in one case as in the other. The only difference is in the manner of bringing it forward. Evidence, therefore, which goes only to justify the charge in part, cannot be received. It is not, indeed, necessary that the whole of this evidence should be given by one witness. The justification may consist of several facts, Hence appears the utter futility of a charge, some of which may be proved by one person, and which attributes to this respondent a purpose as some by another. But proof, in such cases, must absurd as it was wicked; and without the slight-be offered as to the whole, or it cannot be received. est proof, imputes to the worst motives in him the same action, which in his colleague is considered as free from blame. But this respondent will not content himself with showing that his conduct in concurring with his colleague in the rejection of John Taylor's testimony, could not have proceeded from the motives ascribed to him; but he will show that this rejection, if not strictly legal and proper, as he believes and insists that it is, rests on legal reasons of sufficient force to satisfy every mind, that a judge might have sincerely considered it as correct. In the case under consideration, no proof was offered as to the whole matter contained in the twelfth article. No witness except the abovementioned John Taylor was produced or mentioned. When a witness is offered to a court and jury, it is the right and duty of the court to require a statement of the matters intended to be proved by him. This is the invariable practice of all our courts, and was done most properly by this respondent and his colleague, on the occasion in question. From the statement given by the traverser's counsel of what they expected to prove by the said wftness, it appeared that his testimony could have no possible application to any part of the indictment, except the twelfth charge abovementioned, and but a very weak and imperfect application even to that part. The court, therefore, as it was their right and duty, requested that the questions intended to be put to the witness should be reduced to writing, and submitted to their inspection, so as to enable them to judge more accurately, how far those questions were proper and admissible. This being done, the questions were of the following tenor and effect: The words stated as the ground of the twelfth charge above-mentioned, are stated in the indictment as one entire and indivisible paragraph, constituting one entire offence. This respondent considered them at the trial, and still considers them as constituting one entire charge and one entire offence; and that they must be taken together in order to explain and support each other. It is clear that no words are indictable as libellous, except such as expressly, or by plain implication, charge the person against whom they are published with some offence, either legal or moral, To be an "aristocrat," is not in itself an offence. either legal or moral, even if it were a charge susceptible of proof; neither was it an offence, either legal or moral, for Mr. Adams to be "faithful and 2d. "Did you ever hear Mr. Adams, while Vice serviceable to the British interest," unless he there-President, express his disapprobation of the fundby betrayed or endangered the interests of his owning system? 1st. "Did you ever hear Mr. Adams express any sentiments favorable to monarchy, or aristocracy,' and what were they?" Trial of Judge Chase. 3d. "Do you know whether Mr. Adams did not, in the year 1794, vote against the sequestration of British debts, and also against the bill for suspending intercourse with Great Britain ?" proved faithful and serviceable to the British interest," were distinct and divisible, and constituted two distinct charges, which may perhaps be the proper way of considering them, still the above-mentioned questions were improper and inadmissible, in that point of view. The second question, it is manifest, had nothing to do with the charge; for Mr. Adams's approbation or disapprobation of the funding sys- The first charge in that case is, that Mr. Adams tem could not have the most remote tendency to "was an aristocrat." To be an aristocrat, even if prove that he was an aristocrat, or had proved any precise and definite meaning could be affixed faithful and serviceable to the British interest. to the term, is not an offence either legal or In that part of the publication which furnishes moral; consequently, to charge a man with being the matter of the thirteenth charge in the indict- an aristocrat is not a libel; and such a charge in ment, it is indeed stated that Mr. Adams, "when an indictment for a libel, is wholly immaterial. but in a secondary station, censured the funding Nothing is more clear, than that immaterial matsystem," but these words are in themselves whol- ters in legal proceedings ought not to be proved, ly immaterial; and no attempt was made, nor and need not be disproved. In the next place, any evidence offered or spoken of, to prove the the term "aristocrat" is one of those vague intruth of the other matter contained in the thir- definite terms, which admit not of precise meanteenth charge. It was from their connexion with ing, and are not susceptible of proof. What one that other matter that these words could alone de- person might consider as aristocracy, another rive any importance; and consequently their truth would consider as republicanism, and a third as or falsehood was altogether immaterial, while democracy. If indictments could be supported that other matter remained unproved. This ques- on such grounds, the guilt or innocence of the tion, therefore, which went solely to those imina-party accused must be measured not by any fixed terial words, was clearly inadmissible. The third or known rule, but by the opinions which the question was in reality as far as the second from jurors appointed to try him might happen to enany connexion with the matter in issue, although tertain, concerning the nature of aristocracy, deits irrelevancy is not quite so apparent. Mr. mocracy, or republicanism. And, lastly, the quesAdams's having voted against the two measures tion itself was as vague, and as void of precise alluded to in that question, if he did in fact vote meaning, as the charge of which it was intended against them, could by no means prove that he to furnish the proof. The witness was called was "faithful and serviceable to the British inter- upon to declare "whether he had heard Mr. est," in any sense, much less with those improper Adams express any and what opinions, favorand criminal views, with which the publication in able to aristocracy or monarchy?" How was it question certainly meant to charge him. He to be determined, whether an opinion was favormight, in the honest and prudent performance of able to aristocracy or monarchy? One man would his duty towards his Government and his coun- think it favorable and another not so, according try, incidentally promote the interests of another to the opinions which they might respectively country; but it was by no means competent for entertain, on political subjects. The first quesa jury to infer from thence, that he was "faith- tion, therefore, was inconclusive, immateral, and ful" to that other country, or, in other words, that inadmissible. he held the interests of that other country chiefly in view, and was actuated in giving his vote by a desire to promote them, independently of, or without regard to, the interests of his own country. Such an inference could not be made from the fact, admitting it to be true. The fact, if true, was no evidence to support such an inference, therefore the fact was immaterial; and as it is the province and duty of the court, in such circum. stances, to decide on the materiality of facts offered in evidence, it follows clearly that it was the right and duty of the court, in this instance, to reject the third question; an affirmative answer to which could have proved nothing in support of the defence. The first question, therefore, and the only remaining one proposed to be put to this witness, stood alone; and an affirmative answer to it, if it could have proved anything, could have proved only a part of the charge; namely, that Mr. Adams was an aristocrat. But evidence to prove a part only of an entire and indivisible charge was inadmissible for the reasons stated above. If, on the other hand, the phrases in question, "that Mr. Adams was an aristocrat," that "he had The second, as has already been remarked, was wholly and manifestly foreign from the matter in issue. Mr. Adams's dislike of the funding system, if he did in fact dislike it, had nothing to do with his aristocracy or his faithfulness to the British interest. There is no pretence for saying, that such a question ought to have been admitted. As to the third, "whether Mr. Adams had not voted against the sequestration of British property, and the suspension of commercial intercourse with Great Britain," it has already been shown to be altogether improper; on the ground that such votes, if given by Mr. Adams, were no evidence whatever of his having been "faithful and serviceable to the British interest." If he had been so, provided it were, in his opinion, at the same time useful to the interests of his own country, which it well might be, and the contrary of which is not alleged by this part of the publication, taken separately, it was no offence of any kind; and to charge him with it was not a libel. The charge was, therefore, immaterial and futile, and no evidence for or against it could properly be received. And, finally, if the charge had been |