Part 82

In the year 1800, in the month of May, the circuit court of the United States sat at Richmond. Of this court, Mr. Chase and Mr. Griffin were the judges. I believe Mr. Chase sat alone for some time--for how long I do not recollect. Mr. Griffin did not, I believe, take his seat until the motion to continue the cause was renewed. On the first day of the court Judge Chase delivered a charge to the grand jury, and called their attention, in a particular manner, to infractions of the sedition law. The grand jury returned with a presentment against James Thompson Callender, for a libel against the President, by the publication of a work, entitled “The Prospect before Us.” On this presentment, the attorney for the district filed an indictment, which the grand jury found a true bill.

Process was immediately issued on the indictment. My impression at the time, and until very lately, was, that the process issued was a bench warrant. I have lately heard that it was a capias. For several days it was believed that Callender, who resided at Petersburg, could not be found; but the marshal at length arrested him, and brought him into court. Mr. Hay and myself undertook his defence. My motive was, that I believed the sedition law unconstitutional, and of course oppressive to any person prosecuted under it.

Mr. Hay and myself had an interview with Callender, in order to ascertain the grounds on which he expected to make his defence. Callender informed us that his witnesses were considerably dispersed, and that there were many documents which it would be necessary for him to obtain, before he could be prepared for his trial. An affidavit was drawn, stating the absence of Callender’s witnesses, the want of the documents, and that the counsel could not be prepared during that term. On this affidavit was founded the motion to continue the cause. This motion was urged with great earnestness and zeal, as we were convinced that justice could not be done if the case was tried during that term. The arguments principally urged by us were, that the defendant had a constitutional right to compulsory process for his witnesses, and to counsel, but that these privileges would be nugatory if the Court would not allow time to summon the witnesses, and for counsel to prepare for the defence.

The motion to continue the case was overruled, and Judge Chase directed the jury to be called. When the jury came to the book, I stated to the Court that I believed there was ground of challenge to the panel in consequence of one of the jurors, who was returned, having expressed opinions very hostile to the traverser. Mr. Chase, after looking into an authority which I quoted, and also into Coke Littleton, said the law was clear, that our objection did not apply to the panel, but to the individual juror. He further said, that we must proceed regularly; that we might either introduce testimony to prove that a particular juror had expressed an opinion on the case, or we might examine the jurors as they came to the book. We preferred the latter mode, and Mr. Hay asked if he might ask a question of the first juror who was sworn. Mr. Chase said that Mr. Hay must submit the question to his previous inspection, and that, if he thought it a proper question, it might be asked. Mr. Hay stated that the question which he wished to ask, was, Have you ever formed an opinion on the work, entitled “The Prospect before Us,” from which the charges in the indictment were extracted? Judge Chase said that the counsel should not ask that question; that the only proper question was, Have you ever formed and delivered an opinion on the charge in the indictment? I say, (continued the judge,) formed and delivered; for it is not only necessary that he should have formed, but also delivered an opinion, to exclude the juror. The judge propounded the last-mentioned question to the first juror, and he replied that he had never seen the indictment, or heard it read. The judge said he was a good juror, and desired he might be sworn. Mr. Hay requested that the indictment be read to the juror, that he might be thereby enabled to say whether he had formed and delivered an opinion on the indictment. The judge replied, that he had already indulged the counsel as much as he could, and they ought to be satisfied; he refused to let the indictment be read to the juror. The clerk then called the jury and swore them, till he came to John Basset, who in reply to the previous question said, he never had seen the indictment or heard it read. But Mr. Basset seemed to have considerable scruples at serving, and said he had formed and delivered an opinion that the book called “The Prospect before Us,” came within the sedition law. Judge Chase, however, said he was a good juror, and he was sworn and served as such. The witnesses on the part of the prosecution were called and sworn, and, among others, Mr. Rind was examined to prove the publication of “The Prospect before Us.” Mr. Hay observed, that no witness who was in any way concerned in the printing of the “Prospect,” was bound to criminate himself. Mr. Chase admitted this to be correct, but declared that the witnesses might rest assured that no person would be prosecuted in consequence of any evidence given in the case then before the court. Under these circumstances, Mr. Rind proved that he had printed part of the “Prospect” for Callender, and took out of his pocket some of the original sheets from which he had printed parts of the work. Judge Chase himself compared these sheets with the work as published, and they were found to correspond. After the testimony on the part of the prosecution was finished, Col. Taylor of Caroline was called on the part of the traverser, and, after he was sworn, Judge Chase asked with apparent haste and earnestness of manner, what we expected to prove by that witness. We said we expected to prove that Mr. Adams had avowed in the presence of the witness sentiments favorable to monarchy or aristocracy, and that he had voted in the Senate against the sequestration of British debts, and the suspension of commercial intercourse with Great Britain. Judge Chase then said that we must reduce the questions to writing. This I objected to, and stated that it was a thing very unusual in our courts; that it had not been required by the Court of the district attorney, when he examined witnesses against Callender; that it involved a dangerous principle, and was calculated to subject every question of fact to the control of the Court; besides, I added, that I did not know the extent to which Col. Taylor’s evidence would go; that I wished him to state all he knew, and that very probably the examination would point out new questions proper to be asked. I then stated that if the Court insisted on the questions being reduced to writing, I would comply with their direction, but that I hoped it would not be considered as precluding us from asking any additional questions. The questions were then reduced to writing, and are as follows, viz:

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

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

3. Do you know whether Mr. Adams did not, in the year 1794, vote against the sequestration of British debts, and the suspension of intercourse with Great Britain?

Judge Chase, after examining the questions, declared Col. Taylor’s evidence inadmissible. No evidence can be received, said the judge, which does not go to justify the whole charge; the charge is, that the President is a professed aristocrat, and has proved faithful and serviceable to the British interest. Now, you must prove both these points, or you prove nothing, and as your evidence relates to one only, it cannot be received; you must prove all or none. These, I believe, were the precise words of the judge. I think it right here to state that after Mr. Chase had declared Colonel Taylor’s evidence inadmissible, he said to the district attorney, that although the questions were improper, he wished the attorney would consent to let them be asked of the witness. The attorney said he could not consent. The evidence of Colonel Taylor being excluded, the attorney for the United States addressed the jury, and commented at considerable length on the indictment. After that, Mr. Wirt addressed the jury for the defendant. He premised that the counsel for the traverser were placed in a very embarrassed situation; that the prisoner during the same term was presented, indicted, arrested, arraigned, tried; and that this precipitation precluded the possibility of obtaining witnesses or making the necessary preparations for arguing a cause of so much magnitude. Here Judge Chase interrupted Mr. Wirt, and told him, that he would not suffer any thing to be said which reflected on the Court. Mr. Wirt said he did not mean to reflect on the Court; his object was only to apologize to the jury for the lameness of the defence. Mr. Chase replied that his apology contained the very reflection he disclaimed, and desired him to go on with the cause. Mr. Wirt then said, that an act of Assembly had adopted the common law of England as a part of the laws of Virginia; that an act of Congress had directed the United States courts sitting in Virginia to conform to the laws of the State in which such court might happen to sit; that by the common law the jury had a right to decide on the law as well as the fact. He then said, that if the jury upon inquiry should find the sedition law unconstitutional, they would not consider it as law, and if they did, they would violate their oaths. Here Mr. Chase said to Mr. Wirt, Sit down, sir. Mr. Wirt endeavored to explain, and said, I am going on, sir, to----No, sir, said Mr. Chase, you are not going on; I am going on. Judge Chase then read from a paper, which he held in his hand, an instruction to the counsel that they should not address the jury on the constitutionality of the act of Congress, but that arguments might be addressed to the Court to prove the right of the jury to consider the constitutionality. Mr. Wirt then addressed the Court. He said he had not considered the case elaborately; that it appeared to him so clearly that the jury had the right contended for, that he did not imagine it required any great research to prove it. He then proceeded to state that it was certainly the right of the jury to consider of and determine both law and fact. Mr. Chase here remarked that Mr. Wirt need not give himself trouble on that point; we all know, said he, that the jury have a right to decide the law. Mr. Wirt then said, that he supposed it equally clear that the constitution is the law. Yes, sir, said Mr. Chase, the supreme law. If, then, said Mr. Wirt, the jury have a right to decide on the law, and if the constitution is law, it follows syllogistically that they have a right to decide on the constitutionality of the law in question. A non sequitur, sir, said Judge Chase. Here Mr. Wirt sat down.

John Thompson Mason, sworn.

Mr. Randolph. It has been contended on the part of the respondent, that the quo animo determines the guilt or innocence of an action; now, if the quo animo with which he went down to Richmond to execute the sedition law, can be shown, it will have an important bearing on his conduct. I wish, therefore, to ask the witness this question: Did you ever hear Judge Chase, previous to the trial of Callender, utter any expression, and, if any, what was it, on the subject of Callender’s prosecution, or respecting the book called “The Prospect before Us;” did he say that the counsel of the Virginia bar were afraid to press the execution of any law, and particularly the sedition law; did he say that he had a copy of that book, or what did he say? State the circumstances particularly.

Mr. Mason. The question refers to circumstances of which I have but an indistinct recollection, and which happened in a way which renders it extremely unpleasant on my part to relate them. Judge Chase presided in the circuit court held at Annapolis in the spring of the year 1800; during the term a man by the name of Saunders was tried for larceny, and found guilty. After sentence was passed upon him, he was taken out of court to receive it. The press of the people being very great, the judges and myself were detained within the room. Judge Winchester, Judge Chase, and myself had a conversation, altogether of a jocular complexion. I think it was just after he delivered his valedictory, but how to connect the circumstances at this time, I do not know. I remember, however, that he asked me my opinion of the book called “The Prospect before Us;” I told him I had not seen it, and from the character I had heard of it, I never wished to see it. He told me, in reply, that Mr. Luther Martin had sent a copy to him, and had scored the parts that were libellous, and that he would carry it to Richmond as a proper subject for prosecution. There was a good deal of conversation besides, but I do not recollect it. There was one expression, however, that he used, which just occurs to my memory, and which I will repeat, that before he left Richmond, he would teach the people to distinguish between the liberty and the licentiousness of the press. He said that he was as sincere a friend to the liberty, as he was an enemy to the licentiousness of the press. There was a sentiment he expressed, which I cannot undertake to give in his precise words, that if the Commonwealth or its inhabitants were not too depraved to furnish a jury of good and respectable men, he would certainly punish Calender. I do not precisely recollect the words: I never repeated this conversation before, and seldom or ever, after it occurred, thought of it.

John Heath, sworn.

During the trial of J. T. Callender, I attended at the court in Richmond as one of the bar. I had occasion to apply to the Court for an injunction. The motion not having been decided upon, I went round to Crouch’s, where Judge Chase lodged, and found him in his chamber alone, in which I thought myself very fortunate. We then talked over the application I had made the day before for an injunction; while talking on it, Mr. David M. Randolph, the then marshal, stepped in with a paper in his hand. The judge accosted him, and asked him what he had in his hand? He said that he had the panel of the petit jury summoned for the trial of Callender. This was after the indictment was found by the grand jury. After Mr. Randolph had mentioned that it was the panel of the petit jury that he had in his hand, Judge Chase immediately replied, Have you any of those creatures called Democrats on the panel? Mr. Randolph hesitated a moment, and then said that he had not made any discrimination in summoning the petit jury. Judge Chase said, Look it over, sir, and if there are any of that description, strike them off. This is all I know of this affair.

The Court rose at 4 o’clock.

WEDNESDAY, February 13.

The Court was opened at half past 2 o’clock.

James Triplett, sworn.

Mr. Randolph. I wish to know whether you ever heard previous to, or during the trial of Callender, any expressions used by the respondent, Judge Chase, manifesting a hostility toward J. T. Callender, and what were those expressions?

Mr. Triplett. I recollect to have had a conversation with Judge Chase on our passage in the stage down to Richmond. A book was handed to me by him, and I was asked if I had read it? I was asked whether I had seen him, (Callender?) I told him I had never seen him. There was a story recited about the arrest of Callender by a warrant of a magistrate, under the vagrant act of Virginia; I recollect that the judge’s reply was, “It is a pity you have not hanged the rascal.”

Mr. Randolph. Were there any other expressions of this nature used, after you got to Richmond?

Mr. Triplett. I did not hear any thing particular; but I think the judge did say something about the Government of the United States showing too much lenity towards such renegadoes. I do not recollect any other conversation passing between us at that time, until after the Court was sitting, when Judge Chase was the first who informed me of the presentment being made by the grand jury against Callender. At the same time, he informed me that he expected I would have the pleasure of seeing Callender next day before sundown, that the marshal had that day started after him for Petersburg.

Mr. Randolph. We wish you, as well as your memory serves, to state not only the substance, but the exact expressions used by the judge.

Mr. Triplett. I will state them as well as my memory serves me. Some time after this conversation, I met the judge at the place where he boarded; he said that the marshal had returned without Callender, and used this expression, “I am afraid we shall not be able to get the damned rascal at this court.”

John Basset, sworn for the defence.

At the request of Mr. Harper, and with the consent of the Managers, John Basset, a witness on the part of Judge Chase, was sworn and examined, in consequence of the peculiar situation of his family requiring his immediate return home.

Mr. Harper. Relate the circumstances that took place relative to your being sworn on the jury, on the trial of Callender, and what the application to the Court was on your behalf?

Mr. Basset. The circuit court of the United States at which James T. Callender was presented and indicted for a libel, was held on Monday the second or third of June. I left home in the morning and arrived in Richmond as early as might be expected. On my arrival I saw David M. Randolph, who was standing at a corner of a street; perceiving me, he came towards me; before I alighted from my horse, he informed me that I had been summoned as a grand juror, and that for not appearing had been crossed, that it was my duty to go to the court and justify myself for my absence; that he summoned me on the petit jury for the trial of Callender, and that my serving in that capacity would be an apology for my previous absence. I presented myself to the Court, but the trial did not come on that day. The second day I attended also. I knew very well that the law under which the traverser was to be tried, was odious to my fellow-citizens; I knew it was conceived to be a great oppression to the liberty of the subject, and I believed that great umbrage would be given to the mass of the people by those who should undertake to execute that law. I was weak or wicked enough to be among that class of people called federalists, and I did believe that the law [sedition law] was constitutional. I felt myself bound, when called on to be a juryman, to make a declaration of my political sentiments. I made this declaration to relieve the impression on my own mind, and not in order that it should be considered that I declined, in consequence of my political opinions, to serve on Callender’s trial, or in any other case. I thought it possible that I might be excused; but if I were found by the Court to stand in a proper relation between my country and the traverser, I would cheerfully serve. My object was to justify my own conduct to myself and to the whole world. I made use of these expressions, and I believe I repeat the very words, but I am well assured that I shall express the force and efficacy of what I said. I declared to the judge that my politics were federal; that I had never seen the book called “The Prospect before Us,” but I had seen in a newspaper some extracts from it; that if the extracts were correctly taken from the book, and if the traverser was the author or publisher of that work, it appeared to me that it was a seditious act; that I had formed and expressed an unequivocal opinion, that the book was a seditious act; that I had never formed an opinion in respect to the indictment, for I had neither seen it nor heard it read. The Court considered me a good juror, and I was sworn accordingly.

Mr. Bayard. What was the general deportment of the judge to the counsel, and of the counsel to the Court?