JANUARY, 1804.]

Official Conduct of Judge Chase.

[H. OF R.

complain of them." Mr. N. referred to these authorities at that particular stage of the discussion, as he was desirous of giving gentlemen an opportunity of commenting upon them. As he had no wish to prolong the debate, he would not multiply observations upon that point, but could not sit down without noticing what had

Many of the State Legislatures appoint a similar safe ones, as no private man would venture to cominittee annually, and, in the State from which he came, the House of Delegates always appoint a committee of grievances and courts of justice. It was one of their standing committees, and the appointment was as regular and as usual as the appointment of a committee of claims in this House. What then he inquired was the duty, what the authority of this committee? In Eng-fallen from a gentleman from Massachusetts, in land, in Maryland, and in every other State where it exists, it is their duty to inquire into the conduct of every officer of the Government, to call witnesses before them to prove official misconduct, to report offences to the House from which their powers are derived, and recommend the proper measures to be adopted.

which he had again attempted to vindicate the conduct of the judges upon the trial of Fries.

The gentleman had referred to a case in Dallas's Reports, respecting the Western Insurrection, in which he says the point of law determined upon the trial of Fries, had been previously settled by one of the federal courts, and from thence infers that Mr. Chase and Mr. Peters were justified in preventing counsel from arguing it a second time. That such conduct might be perhaps excusable in a civil cause he was not prepared to deny; but, in a case of criminal jurisdiction, involving the guilt or innocence of a man whose life was to be the forfeit, he held it totally unjustifiable.

All men, he said, were acquainted with the circumstances of what was generally called the Western Insurrection. Some of the Western counties of Pennsylvania were opposed to the excise law. A considerable majority of the people had resolved to oppose its execution, and took strong measures to prevent individuals from accepting offices under it, and compelled some of them to resign the places to which they had been appointed. While they professed an attachment to the Government of the Union they resolved to resist the execution of one of its laws. Among these was a man by the name of Mitchell, and he was charged with high treason before the circuit of Pennsylvania in which Judge Paterson then presided. A doubt existed whether the resistance to the execution of a law, even by force of arms, was such a levying of war within the meaning of the constitution, as amounted to treason. What was the conduct of the judge on that occasion? He had no disposition to preclude inquiry. He had no wish to keep the jury in ignorance by forbidding fair and open argument. On the contrary, it appeared from a note on page 348 that he called the attention of the prisoner's counsel to the point, and requested that they would notice it in their observations. This was done before the defence was opened, and he said he should beg leave to read a part of the argument made in favor of the prisoner.

This House, like the Commons of England, and the most numerous branch in the State Legislatures, is the grand inquest of the nation; they are to inquire into crimes and bring offenders to justice. It had not, he said, heretofore been customary for this House to appoint a committee of grievances and courts of justice, but he believed no man would deny the power, and when appointed they would not only have the authority proposed to be in this committee, but one infinitely more extensive. They would have the right to inquire into the conduct of all civil officers, and to report such facts as might come to their knowledge. If, then, we could with propriety, and agreeably to precedent, authorize an inquiry into the conduct of several hundred officers, could it be denied that the same precedent would warrant an inquiry into the conduct of two only? In 5th Comyn's Digest, page 204, it would be found that a committee of grievances and justice was one of their standing committees, and in page 205 it was declared that they might "summon any judges and examine them in person upon complaint of any misdemeanor in office." He presumed it had not been thought necessary heretofore to appoint a general committee of this kind, but at present the necessity was apparent, as a complaint had been made to the House of the official misconduct of two judges. Again, in the same book, page 209, it is said, "The Commons are the general inquisitors of the realm, and therefore if a Lord, spiritual or temporal, commit oppression, bribery, extortion, &c., the Commons shall inquire of it, and if, by the vote of the House, the crime appears to have been committed, they transmit it, with the evidence, to the Lords." This, he said, would clearly show, what indeed he thought common sense would teach every man, that the inquiry should be made before proof was exhibited upon which an impeach"The counsel for the prisoner (E. Tilghman and ment was to be grounded. In the same page it Thomas) premised that they did not conceive it to be would be seen that "common fame is a sufficient their duty to show that the prisoner was guiltless of ground of a proceeding in the House of Com-any description of crime against the United States, or the State of Pennsylvania, but they contended that he mons by inquiry, or by a complaint, if need be, had not committed the crime of high treason, and to the King or Lords." And Rushworth's His-ought, therefore, to be acquitted on the present indicttorical Collection, page 217, is cited, it is said, ment. The adjudications in England upon the various by some of the ablest lawyers of that day that "if common fame were not to be admitted as public accusers, great men would be the only

descriptions of treason, had been worked incautiously, into a system, by the destruction of which the Government itself would be seriously affected; but even

H. OF R.]

Official Conduct of Judge Chase.

[JANUARY, 1804. there, the best judges and the ablest commentators, | punishable by fine and imprisonment. Fries while they acquiesce in the decisions that have already was tried in 1800, two years after the passage taken place, furnish a strong caution against the too of this law. The offence of which he had been easy admission of future cases, which seem to have a guilty was rescuing prisoners from the marshal parity of reason. Constructive and interpretive treasons must be the dread and scourge of any nation by force, thereby, in the language of the act, that allows them-1 Hale, P. C., 132, 259-4 Black."preventing an officer of the United States from Com., 85. Take, then, the distinction of treason by performing and executing his duty," and it was levying war, as laid down by the attorney of the dis- to show that he was punishable under this act trict, and it is a constructive or interpretive weapon by fine and imprisonment only, that his counsel which is calculated to annul all distinctions hereto- were desirous of bringing the law before the fore wisely established in the grades and punishments jury. This, however, the court refused; the of crimes, and by whose magic power a mob may be man was convicted of high treason, and was easily converted into a conspiracy, and a riot aggra- sentenced to a most ignominious death. Let vated into high treason." such conduct be vindicated where and by whom it may, I must declare that it can never meet my approbation.

Such, he said, was the opinion of two gentlemen ranking high in their profession, and who would not be charged with having any feeling toward the offence or the offender inconsistent with the rights or interests of the Government. The whole argument was too lengthy to be read to the House, but he considered it well worth the perusal of every American. Able as it was, however, it had not the wished for weight with the court. Judge Paterson gave the following charge to the jury: "The first question is, what was the general object of the insurrection? If its object was to suppress the excise offices, and to prevent the execution of an act of Congress, by force and intimidation, the offence, in legal estimation, is high treason; it is a usurpation of the authority of Government; it is high treason by levying of war." Sir, said Mr. N., this opinion of the court may have been honest; I mean not to impeach the purity of motive which dictated it, but I mean to show that the offence with which Mitchell was charged, the resistance to the execution of a law, was not considered as treason by the highest existing authority of this country. Mitchell was pardoned by the President of the United States, and Congress, not long after, expressed their opinion on the subject in the most ample manner.

The trial of Mitchell which I have just quoted took place in 1795, and in 1798 the subject was taken up by Congress, who, by the act of the 14th of July, 1798, provided that the resistance to the execution of a law should be considered a high misdemeanor only, punishable by fine and imprisonment. The act is in these words: "If any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the Government of the United States which are, or may be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the Government of the United States, from undertaking, performing, or executing his trust or duty, he or they shall be deemed guilty of a high misdemeanor, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceed ing $5,000 and by imprisonment during a term not less than six months nor exceeding five years." Here, sir, the resistance to the execution of a law is declared to be a high misdemeanor only,

Mr. DANA.-It is to be regretted, Mr. Speaker, that a resolution so novel and of so much importance as that on the table was not postponed, at least for one day after it was presented to the House. Had this been done, gentlemen might have had some opportunity deliberately to examine the subject, before they were required to make a decision. But as the resolution was moved without giving any previous notice, and has been pressed upon us immediately after it was moved, I do not feel myself prepared, as I could have wished to be on such a question, before attempting to deliver my sentiments in this House. Unprepared, however, as I am, I request your indulgence while I offer a few remarks.

I will first attend to some precedents mentioned by the gentleman from Maryland, (Mr. NICHOLSON.) He has stated that it has been usual in the English House of Commons to appoint a committee for courts of justice, with power to inquire into the proceedings of courts, and for this purpose to call persons before them for examination. But, sir, is not such a committee appointed for general purposes, not directed against any individual, and therefore not af fecting the character of any magistrate? Their powers relate to the judicial system generally, and do not implicate any one of the judicial officers. Does the resolution on the table propose a committee of this kind? On the contrary, it is explicitly directed against two of the judges. If gentlemen would justify their proceedings by the practice of the British House of Commons, let the resolution be made to have a general reference to all the courts, instead of being pointed, as it now is, against particular persons. In its present form it departs essentially from the principle of the case mentioned by the gentleman from Maryland, and therefore cannot be warranted by that precedent.

The gentleman has also stated that a committee was appointed by the last Congress to investigate the accounts of the officers of Government, merely upon common report. But it should be remembered that those officers were officers of the Executive Departments. It is the acknowledged duty of such officers-it is made their duty by law to give information to Congress, whenever required, upon any of their public

JANUARY, 1804.]

Official Conduct of Judge Chase.

[H. OF R.

a decent respect to the character which becomes the assembled Representatives of a nation. The person implicated might then be enabled to meet the inquiry and obviate unfounded suspicion. Our power with respect to the judges is the power of impeachment; but we are not, therefore, justified in wantonly assailing their characters and sporting with their sensibility to reputation. The right of inquiry relates to impeachable offences. Shall we, then, inquire where no offence is stated? So far is the resolution from stating what would warrant an impeachment, that it does not mention any offence, or refer to any transaction.

transactions. And it is the peculiar right of the | a decent respect to judicial character. It is but House of Representatives, as guardians of the Treasury, at any time, to inquire into the expenditures of public money. But are the judges of the United States placed in the same situation with the Executive officers? Are they to be under the same control, and equally dependent? You may indeed impeach the judges, if guilty of impeachable offence. But what other power over them is given you by the constitution? It should further be remembered, that the resolution for appointing the investigating committee did not criminate any particular officer. At first it was proposed to examine only the accounts of the former Secretary of State. But upon its being suggested by a gentleman from Massachusetts, (Mr. EUSTIS,) who has been so strenuous an advocate for the present resolution, that it would be improper in that manner to attack the character of a particular officer, the resolution was made general, and extended to the accounts of all the Executive Departments.

Upon the like principle, the resolution now on the table is improper. My objection to it is, that it points out two particular officers as objects of suspicion, and proposes a committee for inquiring into their conduct without assigning any cause, and without specifying any subject of inquiry. Gentlemen have expressed a dissatisfaction that such a committee should be compared to the Star Chamber or the Inquisition. If they do not perfectly resemble the Star Chamber, formerly known in England, or the Inquisition of Spain, the proposed powers of the committee are certainly indefinite and inquisitorial. Perhaps, if a comparison was necessary, they might more properly be compared to the State inquisitors of Venice, who are well known to have formed one of the most detestable tyrannies ever tolerated in a country pretending to freedom.

The gentleman from Virginia, who moved the resolution, (Mr. J. RANDOLPH,) has, indeed, declared his own conviction, that the judicial officer in question had done wrong. Might not other gentlemen also have their opinions and exercise their own judgments in forming them? They ask for the reasons of his conviction before they vote for his resolution. His information, he says, was received in such a manner that he does not choose to disclose it. If any person has communicated any thing to him confidentially, he is not desired to name his informant. The gentleman shall not be desired by me to make any disclosure which would offend against the most delicate sense of honor. But can it be improper for him to state the general nature of the offence which he believes to have been committed? Will this violate any honorary confidence? He is desired to make such a statement that other members of the House may have an opportunity of judging whether the believed offence will warrant a vote of impeachment. In cases of this kind, is any member to be deemed infallible? When a gentleman, in his place, states a fact as of his If charges were specified in the resolution, a own knowledge, his veracity is regarded as unmember of this House on moving it might then questionable; but his infallibility is not suphave a right to demand an inquiry. But are posed to extend to matters of mere opinion. the House bound to investigate the conduct of a Upon the principle of its being possible for the particular officer, without any charge against gentleman from Virginia to err in opinion, and him? Gentlemen have said much about the its being equally the right of the other members general right of this House to inquire into the to judge what conduct amounts to an impeachconduct of public officers, as if this were the able offence, it might have been reasonably point in dispute. But who has denied the right thought that he would at least state to the of inquiry as incident to the power of impeach- House the nature of the facts on which he rement? When any officer is charged with an lies as the basis of his resolution. If he, or any impeachable offence, it is admitted to be, and other member, declaring his conviction that a from the nature of the thing it might be, the judge has misdemeaned himself in office, will right of the House to inquire into the truth of exhibit to the House a statement of any fact, or such charge. I trust no gentleman in opposition series of facts, which would warrant an imto the present resolution can be found so ignor-peachment, I will be ready instantly to vote for ant of the true principle on which it is opposed, an inquiry. But nothing of this kind is exhibas to deny the responsibility of the public officers, or the right of the House to inquire into their conduct. But, the right being admitted, the question is made as to the exercise of that right in the manner now proposed. When this House is called upon to direct the whole force of its influence against a particular judge, is it not reasonable, is it not just, that some charge should first be stated against him? This is but

ited, and therefore the resolution on the table is now opposed. Before you agree to oppress a judge with all that weight of suspicion which may be imposed by a vote of this House, let him be permitted to know what part of his conduct is supposed to be exceptionable, that opportunity may be had in the progress of any inquiry to vindicate himself against unmerited reproaches! Instead of a course of proceeding

H. OF R.]

Official Conduct of Judge Chase.

(JANUARY, 1804. so fair and obviously just, the resolution on the table; for the resolution itself states nothtable marks two of the judges for public suspi-ing, and there is no case before us for examcion, without specifying any supposed miscon-ination. duct. It marks them as public objects of suspicion throughout the whole of their judicial life, and, without naming any thing, invites private enemies to accuse them of every thing.

To support such a resolution, common fame has been mentioned in the course of debate, as a sufficient ground of proceeding; and this idea is supposed to be authorized by English precedent. Whatever may have been done formerly, and in a period of rudeness or violence, the more improved system of modern jurisprudence should discard such a doctrine if it ever prevailed. But even that doctrine, if admitted, would not justify you in adopting the present resolution. You cannot thence infer the propriety of proceeding against a person who is not accused of any thing punishable. Will it be pretended that the common fame, which is to be a ground of proceeding, does not refer to any offence or to any transaction? Common fame, if admitted for proof, must be supposed to apply to some subject of complaint. On the principle even of this very questionable doctrine, a statement of some charge is requisite. What, then, in the present case, is the accusation which could be supported by common fame? If there be any such, let it be stated.

On so grave a subject as the present, when we are called upon to aid in the administration of justice, it was to be desired that the advocates of the resolution should so far regard their own exhortations as to refrain from attempting to enkindle the animosity of party. The gentleman from Pennsylvania (Mr. SMILIE) seems to have thought himself at liberty to pursue a different course. But, considering the nature of the question on which our votes are to be given, I hope to be excused if I deem it not proper in this debate to reply to him on the various topics of party discussion which he has chosen to mention, although the task might be easy indeed to repel his charges against the former Administration. A single observation, however, may be proper on a law to which he has alluded in the language of censure. There was at least one prominent feature which might recommend it to the friends of truth. It expressly declared that the truth might be given in evidence.

Mr. DENNIS observed that in the course of the remarks which he had the honor of making yesterday, he had declared himself in favor of the proposed investigation, provided it were made on proper principles; and, in order the The gentlemen who advocate the resolution more clearly to illustrate his ideas and evince in its present form fail in their efforts to sup- his sincerity, he had read in his place a resoluport it, notwithstanding all the aid which they tion embracing all the facts which had been have sought from "the leading-strings and suggested to the House as the foundation of this crutches of precedents,” (to use the language of proceeding. He had then said he would not the gentleman from Virginia) On general pledge himself to offer a resolution such as he principles, on the broad basis of universal right, then read, but would vote for it if offered by the resolution is condemned; and no precedent others. As the gentleman from Virginia (Mr. is adduced which can justify it. I do not wish RANDOLPH) had not accepted his overtures, and to shield any public officers, whether judges or in the course of his observations had done him others, who may merit impeachment, but I wish the honor of noticing some of his ideas expressthe House, when acting as public accusers, to ed in yesterday's debate, he rose principally for proceed in such a manner as not to do injury to the purpose of offering an amendment, and any individual. Justice is due to the individual partly for the purpose of replying to one or two as well as to the public. No public duty can of the gentleman's remarks. He was not a little require this House to adopt a resolution of gen- surprised at the animated strain in which that eral reproach, yet stating no public offence. gentleman had addressed the House in the And it but illy accords with the principles of course of this morning, nor did any thing appear justice to subject the judicial offcers of the to have fallen from any gentleman, in the course Union to all the inconvenience, vexation, and of the discussion, which appeared to him calcuexpense, of being obliged to vindicate them-lated to produce so much excitement as he had selves against secret accusations, which it may be more difficult to discover than to overthrow.

You will observe, sir, that I do not enter into any particular examination of the case referred to by the gentleman from Pennsylvania, (Mr. SMILIE,) whether there was a controversy as to prerogative and privilege between the court and the bar, in which the pride of professional rank appeared in opposition to judicial authority. Whether the judge very properly refused to yield to the counsel, or whether the court committed an error in pronouncing the law, these are topics which I think it needless to examine in considering the resolution now on the

manifested. But as he did not claim to set up his own feelings or his own conduct as the standard by which the feelings or actions of others ought to be guided, and as the gentleman had applied his observations without implicating motives, he had not at all interrupted the equanimity of his disposition. He had exercised a right which he should always be disposed to accord to that gentleman, and every other member-the right of placing the observations of his opponents in the most ludicrous point of view of which they were susceptible. In this right he would also indulge himself whenever the subject required it.

The gentleman from Virginia, in replying to

JANUARY, 1804.]

Official Conduct of Judge Chase.

[H. OF R.

to reject the direction of the court and decide for themselves.

But the complaint is, that the court denied to the counsel the privilege of arguing the law before the jury. Mr. DENNIS said he believed the court possessed a power of this nature, to be regulated by a sound discretion. If the court should believe that a question had been put at rest by a long train of judicial decisions, such as was the case in this instance, they not only have the right, but it becomes their duty to prevent a useless consumption of time, and to prohibit the counsel from agitating the question. Indeed it is indelicate in the counsel to impress on the jury an opinion of law contrary to the known opinion of the court; nor is there any court who will not take on themselves the right of checking counsel, in an attempt to mislead the jury on a question of law. Such was the practice of the courts in Maryland, and in that country from which we derive all our notions of jurisprudence.

But though he did not conceive that there was any ground for impeachment in the statement of the gentleman from Pennsylvania, yet he knew that this discussion would produce a vague and undefined censure, which he believed the judges in question ought to have an opportunity of repelling. He therefore moved the following amendment, by way of preamble to the resolution:

some of his observations, had said that he had conceived the charge exhibited was of a very serious nature, but did not appear to comprehend in what respect he considered it so, and therefore he wished to explain in what manner he considered it as such. He considered it as serious, inasmuch as it was calculated to excite suspicion and asperse the official conduct of the gentlemen in question; but did not mean to insinuate, but on the contrary repelled the idea of its being serious as regarded its sufficiency, if true, as a foundation of impeachment. In order to show that the conduct of the judges had not been so highly censurable even as the statement of the gentleman from Pennsylvania, (Mr. SMILIE,) or his colleague and the gentleman from Virginia, seemed to suppose, he begged leave to state his ideas as to the rectitude of their conduct. Here he might use the observation of the gentleman from Virginia, applied to one of his own remarks, and say that gentleman had with no great dexterity confounded two principles as distant from each other as the northern and the southern pole. He seemed to assimilate the case in which the court have arbitrarily withdrawn the question of law entirely from the jury, to the conduct of the court in this case, which only went to restrict the counsel from arguing before the jury a case already settled in the minds of the court, by a train of judicial determinations in similar cases, and in which they left both law and fact to the determination of the jury; directing them as to the law upon the subject. He was warranted in his opinion, because the gentleman from Virginia, in illustrating some of his positions, had cited the case of libel as decided by Lord Mansfield, and Mr. Fox's celebrated declaratory bill, which grew out of that decision. What analogy has that case to the case in question? Lord Mansfield decided that in the case of a libel, all the jury had to do was to find the fact of publication or not, and that whether when published it were criminal or not, they had no right to determine, and thus withdrew the question of law altogether from their decision. This was justly regarded as a gross violation of that principle of the criminal law of that country, which invests the jury with the right to decide as well on the law as on the fact. This principle I fully acknowledge, and if the court in the case of Fries had deprived the jury of that right, and withdrawn the question of law from them, there might be some foundation for this resolution. But, according to the statement of the gentleman from Pennsylvania, the question of law and fact were both submitted to the jury, with the instructions of the court on the legal question. He had always been taught to be-ers of this House. lieve that the court were the proper organ This amendment embraces all the facts stated through which the law was to be cominunicated by the gentleman from Pennsylvania, points to the jury, though he did not deny but the jury had the right which they should cautiously exercise, but which they would always exercise, when they discover an inclination in the court to oppress the citizen or exculpate the guilty,

by one of its members, that, in a certain prosecution Whereas information has been given to the House for treason on the part of the United States against a certain John Fries, pending in the circuit court of the United States in the State of Pennsylvania, Samuel Chase, one of the Associate Justices of the Supreme Court of the United States, and Richard Peters, district judge for the district of Pennsylvania, by whom the said circuit court was then holden, did inform the counsel for the prisoner, that as the court had formed their opinion upon the point of law, and would direct the jury thereupon, the counsel for the prisoner must confine their argument before the jury to the question of the fact only; and whereas it is represented, that, in consequence of such determinathe jury on the question of fact, and the said John tion of the court, the counsel did refuse to address Fries was found guilty of treason, and sentenced by the court to the punishment in such case by the laws of the United States provided, and was pardoned by the President of the United States:

Resolved, That a committee be appointed to investigate the truth of the said allegations, and to report a statement of facts in the case aforesaid, with their opinion thereupon, whether the said Samuel Chase and Richard Peters, or either of them, have so conducted themselves on the trial aforesaid as to render necessary the interposition of the constitutional pow

out a specific charge as the foundation of the proceeding, and yet, when attached to the resolution, gives to the committee the power of general inquiry.

We are told that the facts have been stated