Part 75

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 writing or writings against the President of the United 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 imprisonment, 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 appear.

At the meeting of the last above-mentioned circuit court, this respondent, as required by the duties of his office, delivered a charge to the grand jury, in which, according to his constant practice, 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, appeared in the said circuit court as counsel for the said Callender; and on Thursday the 3d of June following, his trial commenced, before this respondent, and the said Cyrus Griffin, who then sat as assistant judge. The petit jurors being called over, eight of them appeared, namely, Robert Gamble, Bernard Mackham, John Barrell, William Austin, William Richardson, Thomas Tinsley, Matthew Harvey, and John Basset, who, as they came to the book to be sworn, were severally asked on oath, by direction of the Court, “whether they had ever formed or delivered any 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 representation 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 afore-mentioned 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.

The juror in the present case had expressed no opinion. He had formed no opinion as to the facts. He had never seen the “Prospect before Us,” and, therefore, could have 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 President 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? 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 hatred of the good people of the United States?” On all these questions, the mind of the juror was perfectly at large, notwithstanding the opinion which he had formed. He might, consistently with that opinion, determine them all in the negative; and it was on them that the issue between the United States and James Thompson Callender depended. Consequently, this juror, notwithstanding 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.

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 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.

The third article of impeachment alleges that this respondent “with intent to oppress and procure the conviction of the prisoner, did not permit the evidence of John Taylor, a material witness in behalf of the said Callender, to be given in, on pretence that the said witness could not prove the truth of the whole of one of the charges contained in the indictment, although the said charge embraced more than one fact.”

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 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.

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 charges. Instead of two thousand dollars, he was fined only two hundred, and was sentenced to only nine months’ imprisonment, instead of two years. And this respondent avers that he never felt or expressed a wish to go further; but that in this decision, as well as in every other given in the course of the trial, he fully and freely concurred with his colleague, Judge Griffin.

In the case under consideration, no proof was offered as to the whole matter contained in the twelfth article. No witness except the above-mentioned 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 witness, it appeared that his testimony could have no possible application to any part of the indictment, except the twelfth charge above mentioned, 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:

1st. “Did you ever hear Mr. Adams express any sentiments favorable to monarchy, or ‘aristocracy,’ and what were they?”

2d. “Did you ever hear Mr. Adams, while Vice President, express his disapprobation of the funding system?”

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?”

The second question, it is manifest, had nothing to do with the charge; for Mr. Adams’ approbation or disapprobation of the funding system could not have the most remote tendency to prove that he was an aristocrat, or had proved faithful and serviceable to the British interest. The third question was in reality as far as the second from any connection with the matter in issue, although its irrelevancy is not quite so apparent. Mr. Adams’s having voted against the two measures alluded to in that question, if he did in fact vote against them, could by no means prove that he was “faithful and serviceable to the British interest,” in any sense, much less with those improper and criminal views, with which the publication in question certainly meant to charge him. 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 circumstances, 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.

For these reasons this respondent did concur with his colleague, the said Cyrus Griffin, in rejecting the three above-mentioned questions; but not any other testimony that the said John Taylor might have been able to give.

And for plea to the said third article of impeachment, the said Samuel Chase saith, that he is not guilty of any high crime or misdemeanor, as in and by the said third article is alleged against him: 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 fourth article of impeachment alleges, that during the whole course of the trial of James Thompson Callender, above mentioned, the conduct of this respondent was marked by “manifest injustice, partiality, and intemperance;” and five particular instances of the “injustice, partiality, and intemperance,” are adduced.

The first consists, “in compelling the prisoner’s counsel to reduce to writing and submit to the inspection of the Court, for their admission or rejection, all questions which the said counsel meant to propound to the above-mentioned John Taylor, the witness.”

This respondent, in answer to this part of the article now under consideration, admits that the Court, consisting of himself and the above-mentioned Cyrus Griffin, did require the counsel for the traverser, on the trial of James Thompson Callender, above mentioned, to reduce to writing the questions which they intended to put to the said witness. But he denies that it is more his act than the act of his colleague, who fully concurred in this measure. The measure, as he apprehends and insists, was legal and proper; his reasons for adopting it, and he presumes those of his colleague, he will submit to this honorable Court, in order to show that if he, in common with his colleague, committed an error, it was an error into which the best and wisest men might have honestly fallen.

The next circumstance stated by the article now under consideration, as an instance and proof of “manifest injustice, partiality, and intemperance” in this respondent, is his refusal to postpone the trial of the said James Thompson Callender, “although an affidavit was regularly filed, stating the absence of material witnesses on behalf of the accused, and although it was manifest that, with the utmost diligence, the attendance of such witnesses could not have been procured at that term.”

This respondent, in answer to this part of the charge, admits that, in the above-mentioned trial, the traverser’s counsel did move the court, while this respondent sat in it alone, for a continuance of the trial until the next term; not merely a postponement of the trial, as the expressions used in this part of the article would seem to import; and did file, as the groundwork of their motion, an affidavit of the traverser, a true and official copy of which (marked exhibit No. 5) this respondent herewith exhibits, and begs leave to make part of this answer; but he denies that any sufficient ground for a continuance until the next term was disclosed by this affidavit, as he trusts will clearly appear from the following facts and observations:

The trial of an indictment at the term when it is found by the grand jury, is a matter of course, which the prosecutor can claim as a right, unless legal cause can be shown for a continuance. The prosecutor may consent to a continuance, but if he withholds his consent, the Court cannot grant a continuance without legal cause. Of the sufficiency and legality of this cause, as of every other question of law, the Court must judge; but it must decide on this, as on every other point, according to the fixed and known rules of law.

One of the legal grounds, and the principal one on which such a continuance may be granted, is the absence of competent and material witnesses, whom the party cannot produce at the present term, but has a reasonable ground for expecting to be able to produce at the next term. Analogous to this, is the inability to procure, at the present term, legal and material written testimony, which the party has a reasonable expectation of being able to procure at the next term.

Public justice will not permit the trial of offenders to be delayed, on light or unfounded pretences. To wait for testimony which the party really wished for, but did not expect to be able to produce within some definite period, would certainly be a very light pretence; and to make him the judge, how far there was reasonable expectation of obtaining the testimony within the proper time, would put it in his power to delay the trial on the most unfounded pretences. Hence the rule, that there must be reasonable ground of expectation, in the judgment of the Court, that the testimony may be obtained within the proper time.

It is therefore a settled and most necessary rule, that every application for a continuance, on the ground of obtaining testimony, must be supported by an affidavit, disclosing sufficient matter to satisfy the Court, that the testimony wanted “is competent and material,” and that there is “reasonable expectation of procuring it within the time prescribed.” From a comparison of the affidavit in question with the indictment, it will soon appear how far the traverser in this case brought himself within this rule.