Part 87

Mr. Randolph. In the circuit courts of the United States, after a court is opened for any district, is it the practice of such courts to adjourn over from time to time, in order to hold a court in another district in the intermediate time, and then to return back; or is not the uniform practice to postpone causes when they cannot be conveniently tried, to the next term?

Mr. Marshall. I can only speak of courts where I have attended, in which the practice is, that the business of one term shall be gone through as far as possible, before any other court is held.

Mr. Randolph. Was it ever the practice of any court, in which you have practised or presided, to compel counsel to reduce to writing the questions which they meant to propound to their witnesses?

Mr. Marshall. It has not been usual; but in cases of the kind, the conduct of the Court will depend upon circumstances. If a question relates to a point of the law, and is understood to be an important question, it might be proper to require that it be reduced to writing. Unless there is some special reason which appears to the Court, or on the request of the adverse counsel, questions are not commonly reduced to writing, but when there is a special reason in the mind of the Court, or it is required by the opposite counsel, questions may be directed to be committed to writing.

Mr. Randolph. When these questions are reduced to writing, is it for a special reason, after the Court have heard the question, and not before they have been propounded?

Mr. Marshall. I never knew it requested that a question should be reduced to writing in the first instance in the whole course of my practice.

Mr. Randolph. Did you ever, sir, in a criminal prosecution, know a witness deemed inadmissible, because he could not go a particular length in his testimony--because he could not narrate all the circumstances of the crime charged in an indictment, or in the case of a libel; and could only prove a part of a particular charge, and not the whole of it?

Mr. Marshall. I never did hear that objection made by the Court except in this particular case.

Mr. Harper. Please to inform this honorable Court, sir, whether you recollect that Judge Chase during any part of the proceedings made an offer to postpone the trial of Callender, and if you do, to what time?

Mr. Marshall. I recollect at the time a motion was made for the continuance till the next term, that Judge Chase declared, as his opinion, that it ought to be tried at the present term. A good deal of conversation took place on the subject. The counsel for the traverser stated several circumstances in favor of their client, particularly relative to the absence of his witnesses; but the whole terminated at that time by a postponement for a few days; so many days as, I thought at the time, were sufficient for obtaining the witnesses residing in Virginia. I do not now recollect what the time was, nor do I say it was sufficient. I simply recollect that I thought it was. When the cause came on again, there was no proposition that I recollect on the part of the traverser’s counsel for a continuance, but a desire was expressed of a postponement for a few hours in order to give their witnesses time to arrive at Richmond, as it was possible they had been impeded by the badness of the roads; a considerable quantity of rain having fallen the preceding day. There was a declaration on the part of the Court that they might take until the next day, and they went on to say they might have a longer time, if they thought it was necessary, but the precise length of time offered I do not recollect; but I do remember that they said the trial must come on before the present term closed.

The President. Do you recollect whether the conduct of the judge on this trial was tyrannical, overbearing, and oppressive?

Mr. Marshall. I will state the facts. The counsel for the traverser persisted in arguing the question of the constitutionality of the sedition law, in which they were constantly repressed by Judge Chase. Judge Chase checked Mr. Hay whenever he came to that point, and after having resisted repeated checks, Mr. Hay appeared to be determined to abandon the cause, when he was desired by the judge to proceed with his argument, and informed that he should not be interrupted thereafter. If this is not considered tyrannical, oppressive, and overbearing, I know nothing else that was so.

Mr. Randolph. Are you acquainted with Mr. Wirt; was he a young man at that time; was he single, married, or a widower?

Mr. Marshall. I am pretty well acquainted with him; he is about thirty years of age, and a widower.

Edmund J. Lee, sworn.

Mr. Harper. Were you at the circuit court in the spring of 1800, held at Richmond, at which Judge Chase presided?

Mr. Lee. I was not in court when Callender was presented by the grand jury; but I was when application was made for a continuance, and I remember that Judge Chase, on an application made for a continuance, on account of the absence of some of the witnesses, informed the counsel that he could not continue the cause, but if they would fix upon any determinate time, within which they could obtain their witnesses, without its going over to the next term, the Court would postpone the trial. Judge Chase also added that he had no objection to postpone it for a fortnight or a month; I am not certain whether he did not say he would postpone it for a longer time, I do not know but he said for six weeks, but he said positively he would not postpone it to the next term. He added, if the counsel conceived they could obtain the evidence within the time mentioned, they might have it.

Robert Gamble, sworn.

Mr. Harper. Were you at the circuit court of the United States for the Virginia district, in the month of May or June, 1800, held at Richmond?

Mr. Gamble. I was one of the jurors, sir, and I was in court when a motion was made for continuing the cause of Callender to the next term.

Mr. Harper. Do you recollect whether an offer was made by the Court to postpone that cause?

Mr. Gamble. Yes, sir; Judge Chase said he would postpone it for a week, a fortnight, a month, or more, and I think he mentioned he would postpone it for six weeks, or as long as the term would admit, without its going over to the next term.

Philip Gooch, sworn.

Mr. Harper. What did you observe relative to the conduct of the Court and counsel on that day? State what happened.

Mr. Gooch. When Mr. Basset suggested to the Court his wish to be informed whether it was their opinion that he was a proper person to serve on the jury, because he had formed and expressed an opinion on the extracts which he had seen, and declared that if correctly copied from the work called “The Prospect before Us,” the author was within the pale of the sedition law; on that suggestion, I recollect, the Court decided, and laid it down as law, that he must not only have formed an opinion, but delivered it also, and the judge gave some reasons why he must not only have formed, but delivered an opinion. I think he said that if a notorious murder was committed in the body of a county, which every man believed ought to be punished with death, and had so formed his opinion, it would in that case be impossible to get a jury to try such an offender, if it was an objection that a man had formed an opinion. I understood that he had consulted Judge Griffin on this point. The court was very crowded, but I had obtained a situation just behind the judges, and had an opportunity of hearing in some degree what passed between them, though not distinctly. Mr. Basset was eventually sworn upon the jury. The cause proceeded.

Mr. Wirt opened the cause on the part of the traverser; he made some allusion to the Court’s prohibiting the mode of defence which the counsel for the traverser had adopted, but he was interrupted by the Court, and was told that the decision of the Court must be binding for the present; that if they objected, they might file their bill of error, and it should be allowed.

Mr. W. proceeded in the cause, and was endeavouring to show that the sedition law was unconstitutional; the Court interrupted him, and told him that what he had to say must be addressed to the Court, but if he was going on that point, he must again be informed that the Court would not suffer it to be urged. Mr. W. appeared to be in some agitation, but continued his argument, and when he came up to that point a second time, he was again interrupted by the Court. Mr. W. resumed his argument, and said he was going on. Judge Chase again interrupted him and said, “No, sir, you are not going on, I am going on; sit down.” I recollect, also, after the judge had made some observations, Mr. W. again proceeded, and having observed that as the jury had a right to consider the law, and as the constitution was law, it followed syllogistically that the jury had a right to decide on the constitutionality of a law. Judge Chase replied to him, A non sequitur, sir, and, at the same time, made him a bow. Whether these circumstances took place exactly in the order in which I have mentioned them, I am not positive, but I believe they did. Mr. W. sat down, and the judge delivered a lengthy opinion. He stated that the counsel must argue the law before the Court, and not before the jury, for it was not competent for the jury to decide that point, or that the jury were competent to decide whether the sedition law embraced this case or not, but that they were not competent to decide whether the sedition law was constitutional or not, and that he would not suffer that point to be argued.

Mr. Harper. What was the effect produced by the reply of Judge Chase to Mr. Wirt’s syllogism, a non sequitur?