Part 76

The absent witnesses, mentioned in the affidavit, are William Gardner, of Portsmouth in New Hampshire; Tench Coxe, of Philadelphia, in Pennsylvania; Judge Bee, of some place in South Carolina; Timothy Pickering, lately of Philadelphia, in Pennsylvania, but of what place at that time the deponent did not know; William B. Giles, of Amelia County, in the State of Virginia; Stevens Thompson Mason, whose place of residence is not mentioned in the affidavit, but was known to be in Loudon County, in the State of Virginia; and General Blackburn, of Bath County, in the said State. The affidavit also states, that the traverser wished to procure, as material to his defence, authentic copies of certain answers made by the President of the United States, Mr. Adams, to addresses from various persons; and also, a book entitled “an Essay on Canon and Feudal Law,” or entitled in words to that purport, which was ascribed to the President, and which the traverser believed to have been written by him; and also, evidence to prove that the President was in fact the author of that book.

It is not stated, that the traverser had any reasonable ground to expect, or did expect, to procure this book or evidence, or these authentic copies, or the attendance of any one of these witnesses, at the next term. Nor does he attempt to show in what manner the book, or the copies of answers to addresses, were material, so as to enable the Court to form a judgment on that point. Here, then, the affidavit was clearly defective. His believing the book and copies to be material, was of no weight, unless he showed to the Court sufficient grounds for entertaining the same opinion. Moreover, he does not state where he supposes that this book, and those authentic copies, may be found; so as to enable the Court to judge, how far a reasonable expectation of obtaining them might be entertained. On the ground of this book and these copies, therefore, there was no pretence for a continuance. As to the witnesses, it is manifest, that from their very distant and dispersed situation, there existed no ground of reasonable expectation that their attendance could be procured at the next term, or at any subsequent time. Indeed, the idea of postponing the trial of an indictment till witnesses could be convened at Richmond, from South Carolina, New Hampshire, and the western extremities of Virginia, is too chimerical to be seriously entertained. Accordingly, the traverser, though in his affidavit he stated them to be material, and declared that he could not procure their attendance at that term, could not venture to declare, on oath, that he expected to procure it at the next, or at any other time; much less that he had any reasonable ground for such an expectation. On this ground, therefore, the affidavit was clearly insufficient; and it was consequently the duty of the Court to reject such application.

But the testimony of these witnesses, as stated in the affidavit, was wholly immaterial; and, therefore, their absence was no ground for a continuance, had there been reasonable ground for expecting their attendance at the next term.

William Gardner and Tench Coxe were to prove that Mr. Adams had turned them out of office, for their political opinions or conduct. This applied to that part of the publication which constituted the matter of the third charge in the indictment, in these words, “the same system of persecution extended all over the continent. Every person holding an office, must either quit it, or think and vote exactly with Mr. Adams.” Judge Bee was to prove, that Mr. Adams had advised and requested him by letter, in the year 1799, to deliver Thomas Nash, otherwise called Jonathan Robbins, to the British Consul, in Charleston. This might have had some application to the matter of the seventh charge; which alleged that “the hands of Mr. Adams were reeking with the blood of the poor, friendless Connecticut sailor.” Timothy Pickering was to prove that Mr. Adams, while President, and Congress was in session, was many weeks in possession of important despatches from the American Minister in France, without communicating them to Congress. This testimony was utterly immaterial; because, admitting the fact to be so, Mr. Adams was not bound, in any respect, to communicate those despatches to Congress, unless, in his discretion, he should think it necessary; and also, because the fact, if true, had no relation to any part of the indictment. There are, indeed, three charges, on which it might at first sight seem to have some slight bearing. These are the eighth, the words furnishing the matter of which are, “every feature in the administration of Mr. Adams forms a distinct and additional evidence that he was determined, at all events, to embroil this country with France;” the fourteenth, the words stated in which allege, that “by sending these Ambassadors to Paris, Mr. Adams and his British faction designed to do nothing but mischief;” and the eighteenth, the matter of which states, “that in the midst of such a scene of profligacy and usury, the President persisted as long as he durst, in making his utmost efforts for provoking a French war.” To no other charge in the indictment had the evidence of Timothy Pickering, as stated in the affidavit, the remotest affinity. And surely, it will not be pretended by any man, who shall compare this evidence with the three charges above mentioned, that the fact intended to be proved by it, furnished any evidence proper to go to a jury, in support of either of those charges; that “every feature of his administration formed a distinct and additional evidence of a determination, at all events, to embroil this country with France,” that “in sending Ambassadors to Paris, he intended nothing but mischief,” that “in the midst of a scene of profligacy and usury, he persisted, as long as he durst, in making his utmost effort for provoking a French war,” are charges, which surely cannot be supported or justified, by the circumstance of his “keeping in his possession, for several weeks, while Congress was in session, despatches from the American Minister in France, without communicating them to Congress,” which he was not bound to do, and which it was his duty not to do, if he supposed that the communication, at an earlier period, would be injurious to the public interest. The testimony of William B. Giles and Stevens Thompson Mason was to prove that Mr. Adams had uttered in their hearing certain sentiments favorable to aristocratic or monarchical principles of Government.

This had no application except to a part of the twelfth charge; which has been already shown to be wholly immaterial if taken separately, and wholly incapable of a separate justification, if considered as part of an entire charge. And, lastly, it was to be proved by General Blackburn, that in his answer to an address, Mr. Adams avowed, “that there was a party in Virginia which deserved to be humbled into dust and ashes, before the indignant frowns of their injured, insulted, and offended country.” There were but two charges in the indictment to which this fact, if true, had the most distant resemblance. These are the fifteenth and sixteenth, the words forming the matter of which, call Mr. Adams “an hoary-headed libeller of the Governor of Virginia, who with all the fury, but without the propriety or sublimity of Homer’s Achilles, bawled out, to arms, then, to arms!” and “who, floating on the bladder of popularity, threatened to make Richmond the centre point of a bonfire.” It would be an abuse of the patience of this honorable Court, to occupy any part of its time in proving that the fact intended to be proved by General Blackburn, could not in the slightest degree support or justify such charges as these.

To the third charge adduced in support of the article now under consideration, the charge of using “unusual, rude, and contemptuous expressions towards the prisoner’s counsel,” and of “falsely insinuating that they wished to excite the public fears and indignation, and to produce that insubordination to law to which the conduct of this respondent did manifestly tend,” he cannot answer otherwise than by a general denial. A charge so vague, admits not of precise or particular refutation. He denies that there was any thing unusual or intentionally rude or contemptuous in his conduct or his expressions towards the prisoner’s counsel; that he made any false insinuation whatever against them, or that his own conduct tended in any manner to produce insubordination to law. On the contrary, it was his wish and intention to treat the counsel with the respect due to their situation and functions, and with the decorum due to his own character. He thought it his duty to restrain such of their attempts as he considered improper, and to overrule motions made by them, which he considered as unfounded in law; but this it was his wish to accomplish in the manner least likely to offend, from which every consideration concurred in dissuading him. He did indeed think at that time, and still remains under the impression, that the conduct of the traverser’s counsel, whether from intention or not he will not undertake to say, was disrespectful, irritating, and highly incorrect. That conduct which he viewed in this light, might have produced some irritation in a temper naturally quick and warm, and that this irritation might, notwithstanding his endeavors to suppress it, have appeared in his manner and in his expressions, he thinks not improbable; for he has had occasions for feeling and lamenting the want of sufficient caution and self-command, in things of this nature. But he confidently affirms, that his conduct in this particular was free from intentional impropriety; and this respondent denies, that any part of his conduct was such as ought to have induced the traverser’s counsel to “abandon the cause of their client,” nor does he believe that any such cause did induce them to take that step. On the contrary, he believes that it was taken by them under the influence of passion, for some motive into which this respondent forbears at this time to inquire. And this respondent admits that the said traverser was convicted, and condemned to fine and imprisonment, but not by reason of the abandonment of his defence by his counsel; but because the charges against him were clearly proved, and no defence was made or attempted against far the greater number of them.

The fourth charge in support of this article attributes to this respondent “repeated and vexatious interruptions of the said counsel, which at length induced them to abandon the cause of their client, who was therefore convicted, and condemned to fine and imprisonment.” To this charge, also, it is impossible to give any other answer but a general denial. He avers that he never interrupted the traverser’s counsel vexatiously, or except when he considered it his duty to do so.

Lastly, this respondent is charged, under this article, with an “indecent solicitude, manifested by him, for the conviction of the accused, unbecoming even a public prosecutor, but highly disgraceful to the character of a judge, as it was subversive of justice.” This is another charge of which it is impossible to give a precise refutation, and to a general denial of which this respondent must therefore confine himself. He denies that he felt any solicitude whatever for the conviction of the traverser; other than the general wish natural to every friend of truth, decorum, and virtue, that persons guilty of such offences as that of which the traverser stood indicted, should be brought to punishment for the sake of example.

And the said respondent for plea to the said fourth article of impeachment, saith, that he is not guilty of any high crime and misdemeanor, as in and by the said fourth 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 require.

The fifth article of impeachment charges this respondent with having awarded “a capias against the body of the said James Thompson Callender, indicted for an offence not capital, whereupon the said Callender was arrested and committed to close custody, contrary to law in that case made and provided.”

This charge is rested, 1st, on the act of Congress of September 24, 1789, entitled “An act to establish the judicial courts of the United States,” by which it is enacted “that for any crime or offence against the United States, the offender may be arrested, imprisoned, or bailed, agreeably to the usual mode of process, in the State where such offender may be found.” And, 2dly, on a law of the State of Virginia, which is said to provide “that upon presentment by any grand jury, of an offence not capital, the Court shall order the clerk to issue a summons against the person or persons so offending, to appear and answer such presentment at the next court.” It is contended, in support of this charge, that the act of Congress above mentioned made the State law the rule of proceeding, and that the State law was violated by issuing a capias against Callender, instead of a summons.

It will also appear, as this respondent believes, by a reference to the laws and practice of Virginia, into which he has made all the inquiries which circumstances and the shortness of time allowed him for preparing his answer would permit, that all the cases in which a summons is considered as the only proper process, are cases of petty offences, which, on the presentment of a grand jury, are to be tried by the court in a summary way, without the intervention of a petit jury. Therefore these provisions had no application to the case of Callender, which could be no otherwise proceeded on than by indictment, and trial on the indictment by a petit jury.

And the said respondent, for plea to the said fifth article of impeachment, saith, that he is not guilty of any high crime and misdemeanor, as in and by the said fifth 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 sixth article of impeachment alleges that this respondent, “with intent to oppress and procure the conviction of the said James Thompson Callender, did, at the court aforesaid, rule and adjudge the said Callender to trial during the term at which he, the said Callender, was presented and indicted, contrary to the law in that case made and provided.”

This charge also is founded, 1st, on the act of Congress of September 24, 1789, above mentioned, which enacts, section 34, “that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise provide, shall be regarded as the rules of decision, in trials at common law, in the courts of the United States, in cases where they apply;” and, 2dly, on a law of the State of Virginia, which is supposed to provide, “that in cases not capital, the offender shall not be held to answer any presentment of a grand jury, until the court next preceding that during which such presentment shall have been made.” This law, it is contended, is made the role of decision by the above-mentioned act of Congress, and was violated by the refusal to continue the case of Callender till the next term.

In answer to this charge this respondent declares, that he was at the time of making the above-mentioned decision wholly ignorant of any such law of Virginia as that in question; that no such law was adduced or mentioned by the counsel of Callender, in support of their motion for a continuance; neither when they first made it, before this respondent sitting alone, nor when they renewed it, after Judge Griffin had taken his seat in court; that no such law was mentioned by Judge Griffin, who concurred in overruling the motion for a continuance and ordering on the trial; which he could not have done had he known that such a law existed, or considered it as applicable to the case; and that this respondent never heard of any such law until the articles of impeachment now under consideration were reported, in the course of the present session of Congress, by a committee of the House of Representatives.

And for plea to the said sixth 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-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 seventh article of impeachment relates to some conduct of this respondent in his judicial capacity, at a circuit court of the United States held at Newcastle, in the State of Delaware, in June, 1800. The statement of this conduct, made in the article, is altogether erroneous; but if it were true, this respondent denies that it contains any matter for which he is liable to impeachment.

These charges amount in substance to this: that the respondent refused to discharge a grand jury, on their request, which is every day’s practice, and which he was bound to do, if he believed that the due administration of justice required their longer attendance; that he directed the attention of the grand jury to an offence against a statute of the United States, which, he had been informed, was committed in the district; and that he desired the District Attorney to aid the grand jury in their inquiries concerning the existence and nature of this offence. By these three acts, each of which it was his duty to perform, he is alleged “to have degraded his high judicial functions, and tended to impair the public confidence in, and respect for, the tribunals of justice, so essential to the public welfare.”

That this honorable Court may be able to form correctly its judgment concerning the transaction mentioned in this article, this respondent submits the following statement of it, which he avers to be true, and expects to prove:

On the 27th day of June, 1800, this respondent, as one Of the Associate Justices of the Supreme Court of the United States, presided in the circuit court of the United States, then held at Newcastle, in and for the district of Delaware, and was assisted by Gunning Bedford, Esq., then district judge of the United States for that district. At the opening of the court on that day, this respondent, according to his duty and his uniform practice, delivered a charge to the grand jury, in which he gave in charge to them several statutes of the United States, and, among others, an act of Congress, passed July 14th, 1798, entitled “An act in addition to the act for the punishment of certain crimes against the United States,” and commonly called the “sedition law.” He directed them to inquire concerning any breaches of those statutes, and especially of that commonly called the sedition law, within the district of Delaware.

On the same day, before the usual hour of adjournment, the grand jury came into court, and informed the Court that they had found no indictment or presentment, and had no business before them, for which reason they wished to be discharged. This respondent replied, that it was earlier than the usual hour of discharging a grand jury; and that business might occur during the sitting of the court. He also asked them if they had no information of publications within the district, that came under the sedition law, and added, that he had been informed that there was a paper called the Mirror, published at Wilmington which contained libellous charges against the Government and President of the United States: that he had not seen that paper, but it was their duty to inquire into the subject; and if they had not turned their attention to it, the attorney for the district would be pleased to examine a file of that paper, and if he found any thing that came within the sedition law, would lay it before them. This is the substance of what the respondent said to the grand jury on that occasion, and, he believes, nearly his words; on the morning of the next day they came into court and declared that they had no presentments or indictments to make, on which they were immediately discharged. The whole time, therefore, for which they were detained, was twenty-four hours, far less than is generally required of grand juries.

And for plea to the said seventh 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 seventh 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 eighth article of impeachment charges that this respondent, “disregarding the duties and dignity of his official character, did, at a circuit court for the district of Maryland, held at Baltimore, in the month of May, 1803, pervert his official right and duty to address the grand jury then and there assembled, on the matters coming within the province of the said jury, for the purpose of delivering to the said grand jury an intemperate and inflammatory political harangue, with intent to excite the fears and resentment of the said grand jury, and of the good people of Maryland, against their State government and constitution,” and also that this respondent, “under pretence of exercising his judicial right to address the grand jury as aforesaid, did endeavor to excite the odium of the said grand jury, and of the good people of Maryland, against the Government of the United States, by delivering opinions which were, at that time and as delivered by him, highly indecent, extra-judicial, and tending to prostitute the high judicial character with which he was invested to the low purpose of an electioneering partisan.”

In answer to this charge this respondent admits that he did, as one of the Associate Justices of the Supreme Court of the United States, preside in a circuit court held at Baltimore in and for the district of Maryland, in May, 1803, and did then deliver a charge to the grand jury, and express in the conclusion of it some opinions as to certain public measures, both of the Government of Maryland and of that of the United States. But he denies that, in thus acting, he disregarded the duties and dignity of his judicial character, perverted his official right and duty to address the grand jury, or had any intention to excite the fears or resentment of any person whatever against the Government and Constitution of the United States or of Maryland. He denies that the sentiments which he thus expressed were “intemperate and inflammatory,” either in themselves or in the manner of delivering; that he did endeavor to excite the odium of any person whatever against the Government of the United States, or did deliver any opinions which were in any respect indecent, or which had any tendency to prostitute his judicial character to any low or improper purpose. He denies that he did any thing that was unusual, improper, or unbecoming in a judge, or expressed any opinions, but such as a friend to his country and a firm supporter of the Governments, both of the State of Maryland and of the United States, might entertain. For the truth of what he here says, he appeals confidently to the charge itself: which was read from a written paper now in his possession ready to be produced. A true copy of all such parts of this paper as relate to the subject matter of this article of impeachment, is contained in the exhibit marked No. 8, which he prays leave to make part of this his answer.

Admitting these opinions to have been incorrect and unfounded, this respondent denies that there was any law which forbids him to express them in a charge to a grand jury, and he contends that there can be no offence without the breach of some law. The very essence of despotism consists in punishing acts which, at the time when they were done, were forbidden by no law. Admitting the expression of political opinions by a judge, in his charge to a grand jury, to be improper and dangerous, there are many improper and very dangerous acts, which not being forbidden by law, cannot be punished. Hence the necessity of new penal laws, which are from time to time enacted for the prevention of acts not before forbidden, but found by experience to be of dangerous tendency. It has been the practice in this country, ever since the beginning of the Revolution which separated us from Great Britain, for the judges to express from the bench, by way of charge to the grand jury, and to enforce to the utmost of their ability such political opinions as they thought correct and useful. There have been instances in which the Legislative bodies of this country have recommended this practice to the judges; and it was adopted by the judges of the Supreme Court of the United States as soon as the present Judicial system was established.

Nor can the incorrectness of the political opinions thus expressed have any influence in deciding on the guilt or innocence of a judge’s conduct in expressing them. For if he should be considered as guilty or innocent, according to the supposed correctness or incorrectness of the opinion thus expressed by him, it would follow that error in political opinion, however honestly entertained, might be a crime; and that a party in power might, under this pretext, destroy any judge who might happen, in a charge to a grand jury, to say something capable of being construed by them into a political opinion adverse to their own system.

And the said Samuel Chase, for plea to the said eighth article of impeachment, saith, that he is not guilty of any high crime and misdemeanor, as in and by the said eighth 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.