The national intelligencer and Washington advertiser. [volume], August 26, 1805, Image 2

About The national intelligencer and Washington advertiser. [volume] (Washington City [D.C.]) 1800-1810

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'. it muft be that the mifconduct
for v,hie h a judge or any other officer
may be impeached, is either made pu-1
jiifhable by, or is a violation of an aeSt
■ot Congiefi, for we are not to be re
gulnted either by the common law or a
ftate law- Wh.it then would be the re
fislt ? I have pointed out feveral inftan
ces of grofs mifconduct, in violation of
'T-o ait of Congrefs, and yet under this
doctrine, he is to be permitted to purfiie
h's wicked t ourfes until every poffible
offence is defined by ftatute. This
too would teach us that we have done
wrong heretofore ; for at the laft fef
fion a jud.ge was impeached and remov
ed from office for 3ruirc£nneft aild pro
fane fwearing on the bench, although
there h no law of the United States
forbidding them. Indeed Ido not
know that trine is any law ptmifh'uig
either, in New-Hampttiirs, where the of
fence was committed. It was faid by
one of the counfel that thefe were in
dictable off nces. I however do 'not
know where—certainly not in England.
Drunkcnnefs is puni friable there by the
vcclcfiaftical authority, but the tempo
ral magiftrate never had any power over
it, Until it was given by a llatute of
Taipes J. anel even then the power was
i:yt to be exercifed by tbe courts,
bat. only by a juftice ofthe peace, as is
now the cafe in Maryland, where a -final!
line may be impofed.
But the attorney general of Maryland,
(Mr. Mai tin) admits that offences may
be of fo heinous a nature that their pu
niftiment carries infamy with them, and
Hhat though no committed in the dis
charge of official duty, yet if againft a
ftate law, the party may be impeached
and removed from office. This though
not very material to the prei'ent quefrion,
may fcrve us in ihe wing how inapplica
ble the doctrine is, that the offence muft
be againft a ftate law or the common
law. I will fuppofe that in New-Hamp
jlure there is no law punifbing pro
fane fwearing—ln Maryland a magif
trate is authoriled to impofe a fine of
thirty-three cents, and it thi?. is not paid
inftantly, the offender may be put in
, the pillory and receive thirty-nine lahVs
The punifhment is infamous, and if in
flicted on a judge, ace. rding to the
idea of this gent'eman, he is to be im
peached and removed from office. If
the fame offence is committed in New-
Hampfhire ; the judge is not to be re
moved, not becufiVt he has been guilty
of a lighter offence, but becaufe there
is no (late law puuiflii ig it. If then the
ftate law is to be made the criterion, a
judge in Maryland is to be removed
tVym office for that which he might
eJc with impunity in another ftate.
i carry this Llca a little further—
Tht*re was once in the ftate of Con
necticut, and may be yet for ought I
know, a celebrated code called the Blue
Laws. Under the provifions of this code,
1 believe it is a fact, that a captain of
a fhip was tied up and publicly whipped,
becaufe, on returning from a long voy
age, he met his wife on a Sunday at the
frontdoor and kitted her. This was
deemed a high offence, and was igno
minioufly punifhed. Now if we arc to
be governed by the ftate laws, I truft
the blue laws of Connecticut will be re
jected, and that our grave judges may
be allowed to kifs whetn and where they
p.'eafe, as to their wifUoin fhall feem
meet, without incurring the pains and
penalties of an impeachment. This, fir,
may be fomewlm ludicrous, but I hope
it is not therefore tiie lefs illuftrative of
the abfurdity ol the docttine contended
for. It has been faid that the offences
for which a judge or o'her officer is to
.ipcai heel, ought to be defined by act
of Congrefs. This is impomblc. Such
is the multiplicity of paffions that fway
tl.c human heart ; fuch is the variety of
human action, that a cede of laws ne
ver did mid never can exift, in which
all human offences' are defined. The
..(♦nftitution is fufficiently definite,when
it declares that a judge (hall hold his
office, during good behavior, and that all
civil officers ihall be removed for high
crimes and mifdemcanors. Ihe law of j
ftood behavior is the law of truth and j
juftice. It is confined to no foil and j
to no climate. It is written on the |
heart of man in Indelible characters, by j
the hand of his Creator, and is known j
felt by every human being. He |
violates it, violates the firft prin- j
.ef all law. He abandons the path j
Ot r***. '■ itiuie, and by not lilleniug tothe j
warning voice of his confidence, he for
beft and l'ureft guiile oft !
earth. The beft and ableft judge :
often err in mere matters of law, j
stn principles of duty, in difcharg- '
. juftice to his I'ffl
]< v, men, lie can never err fo long as
Hows cor.fcience ;i3 his guide, and
lid'--s juftice to be the oniy object
which i,e l/*s in view.
w far judge Chafe has governed
elf by this great, unerring rule of ,
an action, it is your province tode- I
t'.rn'ie •_ how far he has excufed
hfmfelf by his anfwer and the arguments j
of ins counftl, I fhall now beg leave to ,
examine* premifing at the fame time, !
that it is my intention to conune my- j
1 If to the firft article.
It ba<- been alledged by the counfel for
the accufed, that my honorable col»
lies have argued \Ur* caf« agon the. i
I srticles a»id not upon the evidence ;
and this allegation contains an admif
fion, that if the articles are proved, the
I guilt of the party is efiablifhed. It j
fhall be my endeavor to fhew that there
is no material variance between the
charges as laid in the articles, and the
evidence brought to fupport them ;
but that they are amply and fully prov- .
ed by the very beft teftimony which
could be adduced.
One of the learned counfel in com
menting upon the firft article declared
fliat he difcovercd but a fingle truth in
it, which was, that the judge had form
ed and reduced to wriuing an opinion
upon the law ; and that gentleman as
-veil as ihe attorney general ot Mary
land labored with great zeal, and with
muchdifplay ot talent, to convince the j
Senate that there could be nothing
wrong in this. Unfortunately for thefe ,
learned gentlemen, even that truth is
not to be found in it ; for by recurring j
tothe article it will be found that the.
judge is not charged for having formed i
an eipinion, or for having reduced that j
opinion to writing, but for " having de- i
livered an opinion in writing on the j
queftion of law, on the conftruiftion of j
which the defence of the accufed mate
rially depended, tending to prejudice ,
the minds of the jury againft the pri
foner, before counfel had been heard I
in his defence."
In this we find no charge againft
him for having formed an opinion, or for
having reduced it to writing, and cer
tainly the learned counfel might have
(pared themfelves the trouble of proving
what I am fure every member of the
court was fully convinced of before,
that there was no impropriety in a ,
judge's forming an opinion on any fub
ject whatever, whether legal or philoso
phical. It is not however unufual for
fkilful advocates to attempt to draw the
attention from the materia! points in dif
pute, for the purpofe of fixing it on
others of little or no importance. Such
has been the courfe purfued by our ad
verfaTies, But, Mr. Prefident, the
real charge is, that Samuel Chafe did,
upon the trial of John Fries for treafon,
endeavor to prejudice the minds of the
jury againft him, by delivering an
opinion to them upon the law, before
his counfel were heard ; and this too "in a
cale of life and death, where the jury
had an ample, tincontrolable right to
decide as well the law as the fact. It is
the right and duty of judges to inform
their minds upon all queftions of law
whatfoevcr, but it is an unwarrantable
proceeding, it is an unauthorifed af
fumption of power in them, to deliver
that opinion to the jury in a criminal
caufe, before the jury is fworn, and be
fore the counfel of the piifoner have
been heard in his defence.
I did not expect to hear the farft de
nied by the counfel, but I did expect
to hear it would be admitted, and at
tempted to be juftified. This, howe
ver, has not been doile ; anel they have
pretended to deny the fact by infifting
on ap impoflibility I had almoft faid an
abfurdity. They have declared that
judge Chafe did not make the opinion
known, but that it became public by
what they call the warm and improper
conduct of Mr. Lewis. Sir, it is im
pofihle. What are the facts, as proved
even by their own witneffes ? That
judge Chafe handed the- written
opinion down to the bar. That it was
put into the hands of Mr. Lewis, who
without reading it, immediately anddif.
dainlully threw it from him declaring
that his hand fhould never be tainted by
receiving a prejudged opinion in any
cafe. How then I aflc was it made
known by Mr. Lewis ? He refufed to
read it, and threw it from him with the
correrft feeling and indignation natural
ly srifing from a high fenfe of the inju
ry done to his client. No, fir, it was
made public by judge Chafe, "as 1 will
prefently prove beyond the poffibility of
doubt, in the hearing ofthe whole pan
nel of jurors. But permit me here to
meet one of the honorable counfel ( « ~.r.
Harper) upon that ground, to which he
j defied my friend who firft opened this
j caufe, (Mr. Randolph.) The learned
j counfel avails himfelf, he fays, of the
j difference between a general opinion and
j a dire<£t application of the law to a par
ticular cafe, and infifts that judge Chafe's
j was nothing more than an opinion up
|on the law generally. Here I meet
j him, and if I do not prove that the judge
j delivered the opinion, that he applied it
' in the'moft direct terms to Fries'scafc ;
■ that he knew there was no controversy
about the facta, and of courfe that the
! defence muft reft upon the confirmation
whh h the jury would five to the con
ftittitional definition of treafon ; that
he publicly pronounced ths opinion fo
as to make an impreffion not only upon
the jury, but upon the by-ftanders ;
,if I do not prove all this, then I will
agr<*e to furrender this article, and in
deed the whole impeachment.
| In order to prove this, I might reft
fatisfied with referring the Senate to
j the clear and pointed teftimony of
Mr. Lewis, Mr. Dallas and Mr. Tilgh
' man. But as Mr. Rawle and Mr. Me
j redith do not recollect fo much as thefe *
j otVvr gentlemen, and it has therefore
been argued that the former mud. be
niiftakeri, becaufe it is faid that their
warmth. 4t the. asoKcat £ 4Tft » colwr
1
mg not warranted by the facts, I fliall
not rely folely on the information deriv
ed from them. But I mean to fhew, :
that Mr. Lewis and Mr. Dallas are j
fupportcd in their ftatement by the :
judge himfelf, while Mr. Rawle and
Mr. Meredith are pointedly contradict. I
ed by lrm. In truth, fir, it would feem !
as if the counfel for the accufed had
entirely forgotten that he had ever filed ,
an anfwer, or they had never read
it. We alledge that the judge deliv
ered the opinion, and that he applied it I
directly to Fries's cafe in the hearing
of the jury ; they deny this. We have
proved it by Mr. Lewis and Mr. Dal
las, they rely on Mr. Rawle and Mr. j
Meredith who do not recollect it. Let ,
;U3 hear ,the judge himfelf.
j In the 14th page of the anfwer the ;
judge fays* 1 it was for thefe reafons
that on the 22d of April, 1800, (ac- j
knowledged by all to be the firft day of {
this memoraole tranfaction,) when the
. faid John Fries was brought into court,
I and placed in the prifoner's box for |
i trial, buc before the jury was impan
i neled to try him, this refpondent inform
;ed the above mentioned William Lewis,
j one of his counfel, the aforefaid Alex
ander James Dallas not being then in
I court, that the court had deliberately
j confidered the indictment againft John
I Fries for treafon, and the three overt
| acts of treafon ftated therein : that the
j crime of treafon was defined by the con
j ftitution ot the United States: that
as the federal legiflature had the power
ito make, alter or repeal laws, fo the
i judiciary only had the power to de
clare, expound and interpret the confti
tution and Ihws of the United States."
Here then we find the attention of
the counfel and of every body elfe, cal
led in open court to the cafe of John
Fries,and all the witiieffes agree,'that the
jury though not then fworn, were in the
box for that purpofe, as might naturally
be fuppofed when the prifoner was
brought in for trial. We find too that
the court had deliberately confidered
the indictment and the three overt acts
of treafon charged in it—.Now let us
fee what the refult of that confidera
tion was : in the 15th page of the an
fwer the judge proceeds with the ftate
ment then made hy him from the bench,
in which he declared, " that the quef
tion, what acts amounted to treafon,
was a queftion of law, and had been
decided by judges Paterson, and Peters
in the eases of Vigol and Mhche 1 , and
by judges Ireddl and Peters in the case
°f * John Fries, the then prisoner at
the bar, in April 1799. That judge
Peters remained of the fame opinion
which he had twice before delivered,
and he, this respondent, on long and
great consideration, concurred in the
opinion of judges Pater son, Iredell and
Peters. "
What opinion was it that judges Ire
dell and Peters had before given, and in
which judge Chafe then publicly declar
ed that he concurred ? Why, that
the overt acts charged in the indict
ment againft Fries did amount to trea
fon, for upon thofe very overt acts, the
judge himfelf admits Fries had before
been tried in April 1799, when thefe
fame acts were decided by judges Ire
dell and Peters to amount to treafon,
and in this opinion judge Chafe then de
clared that he himfelf concurred. Here
then was a full expreffion of the opi
nion. Here it was publicly pronounc
ed in the hearing ofthe jury, in the face
of the prifoner, before his counfel were
heard in his defence, and fo eager was
the judge to make it known that he
could not even wait until the jury was
fworn. Here too was a direct applica
tion of the law to the cafe of John
Fries, then about to be tried for treafon,
by which application of the law, the
fate of the prifoner was fixed, and all
hopes of life entirely cut off.
But gentlemen say that no opinion was
fjivenastofacts. True, sir, for he perfect
y knew that there was no controversy
about the facts ; these were all admitted.
And because he knew this, his offence
was the greater ; for when he was con
vinced the facts were undisputed, he
placed the whole case beycjnd the reach
of hope, by pronouncing the law, before
the jury was sworn. That he did know
there was no dispute about the facts is
proved in the 12th page of his answer,
in which he says, "it was not suggested
or understood that any new evidence was
to be offered," and one of his counsel,
the attorney general of Maryland, has
said, that the judge had the use of Mr.
Rawle's and Mr. Pctcrs's notes of the
former trial. From these notes, and
from his couversation with these gentle
men, he became perfectly acejuainted
with the facts in the case. Knowing
them to be undisputed, he resolved to
seal the doom ofthe wretched prisoner,
by publicly pronouncing his opinion be
fore the trial commenced, in the; pre
sence of the jury, thereby attempting
to prejudice their minds against any
thing which might afterwards be urged
in his favor.
The learned counsel for the judge
having denied that the opinion was pub
licly elelivered, they endeavor to give a
coloring to the transaction, by alledging
that it was delivered to Mr.Lcwisonly,as
* Fries had been tried in April, 1799,
for the same offences, cmd had, under
the direction of the court, been convict
ed of treason ; but this last was a new
trial, granted in consequence of suppos
ed prejudice in %ome ofthe jurors who
no* in the former trial.
t
counsel for the prisoner ; and this they, f
as well their client pretend was in
tended for the benefit eif Fries, in
I order that himself and his friends
, might see the necessity of procuring new '
testimony. This is the excuse offered
by the ju 'ge in the 12th page of his an
' swer, and it has been reiterated over
anel over again, by his counsel at the
bar. Let us examine it, and determine
for ourselves, whether this could be the :
motive. In the 10th page ofthe answer,
lit is stated, that the indictment against
Fries was found by the grandjury, on the
I 16th day of April, 1800, and "
trial was appointed to be had on the 22d
day ofthe same month." Thus six days
; intervened between that on which the
I indictment was found, and that fixed for
: the trial, agreeably to the judge's own j
t statement. The court was in session !
' every day, and we may fairly presume .
j that Mr. Lewis and Mr. Dallas, both j
being extensively engaged in business,!
| attended constantly. If this great favor
ito Fries was intended, and there was a !
wish to apprise his counsel of the opinion ;
of the court, in order that new testimo
jny might be procured, one would natu
rally suppose, that some Opportunity of
conversing with the counsel privately,
might have been embraced, and this
special favor might have been thus con
ferred. But what is the fact? This in- j
formation was never given until the day
arrived, which was fixed for the trial, '
nor until after the prisoner was brought '
to the bar. Was this a time to procure j
new testimony ? Diel it afford any op
portunity to send fifty or sixty miles into
Northampton county, for the purpose of
bringing other witnesses ? Could this
possibly be the motive which actuated
the judge? Surely not—or why defer it
to the very latest moment preceding the
trial ? Why deliver the opinion publicly,
not only in the hearing of the counsel,
but of the jury, and every other person
present ? Sir, I am persuaded the court
will agree with me, that the reason as
signed is, as it has been stated in the
replication, an unworthy evasion.
The counsel (Mr. Hopkinson) who
first addressed the court in favor of the
accused, viewed this part ofthe suVject
in a different light. He very ingenious
ly offered another excuse. He consi
dered it a great favor done to the prison
er, not because it was intended to give
him an opportunity of introducing
new testimony, but he says the judge
declared tne opinion of the court, for
the purpose of drawing the attention of
the counsel to those particular points,
which it woulel be necessary for them to
argue, in order that the error of the
i court might be corrected if it was an
error. This he called a very great ad
vantage, and supposed that counsel al
ways ought to be thankful for it. Such a
course may sometimes give advantages,
but in my judgment the disadvantages
generally are much greater. On that oc
casion, however, it gave no advantage,
and could not be intended to give any.
The court knew precisely what ground
the counsel meant to take. One of them
had been present at Fries's former trial,
and we are told that judge Chase had
the benefit of his notes, as well as those
ot the district attorney. He knew there
fore perfectly well, that the points in
tended to be relied on, were precisely
those which he had peremptorily decided
against them. He knew that there
could be no neccssty for drawing the at
tention of counsel to them, for they had
been relied on at the former trial. This
therefore could not be the motive, and is,
like the other nothing more than an eva
sion.
Let us see too, how this reason or ex
cuse will correspond with the principal
ground of defence set up by the judge,
and very much dwelt on by his advocates.
In the 12th and 13th pages ofthe answer,
the judge states that there were more
than one hundred civil causes then de
pending in the court, and he conceived
that an early communication of the
court's opinion would tend tothe saving
of time. Now permit me to ask if any
time whatever could be saved, if as the
gentleman Supposes it was the iatention
of the court to draw the minds ofthe
counsel to the particular points stated in
the judge's opinion ? For it must be con
ceded, that if the counsel were to at.
tempt to convince the court that their
opinion was erroneous, no time whate
ver could be saved, as the very attempt
itself would tend to the consumption of
that time which the judge deemed so
precious.
1 have therefore proved that the opi
nion was publicly delivered ; that it was
applied by the judge in direct terms to
the case of Fries, in the presence and
hearing of the jury, who were to decide
upon his life and eleath, thus tending to
Frejudice their minds against him ; and
flatter myself I have also proved the
entire futility of those excuses which
have been seen up for him, as well by
himself as by his counsel.
Much has been said with a view to
convince the court that the opinion thus
delivered was a correct one, and it has
therefore been argued that his conduct
was perfectly justifiable. For my own
part I consider it totally immaterial in
the present case, whether the doctrine
of treason as laid down by the judge
was correct or not ; for even if it were I
correct, the time and manner of ilcli- j
vering it, and the persons to whom it '
was delivered, formed the substance of j
the charge against him. It is a misde- j
meanor, a high misdemeanor in a judge, |
wantonly to give an opinion upon any \
case which is to come before him, pre-- 1
viously tothe swearing of the jury ; and
the offence is made much greater by '
the opinion being publicly declared in j
the presence of the jury, who ought to >
come to the trial of every cause with j
minds wholly free from prepossession
against either party.
Although the judge has'said in his an
swer, that no gentleman of established
reputation for legal knowledge would
deliberately give a contrary opinio**,
1 I J
1 yet I have not the slightest npprehensi
on'that any little reputation that I may
possess, can be in any manner affected
by my expressing, as I now do, my en
' tire conviction that the doctrine of trea
son, as laid down in Fries's case, is
: wholly repugnant to the spirit and
] meaning of the constitution. It is
not my intention at this time to enter
into an argument to prove this, for I
j have before said, that I consider it
quite immaterial in the present discus
sion ; but I will offer some few observa
tions, to demonstrate to the Senate that
there was nothing very unreasonable in
the wish expressed by Mr. Lewis and
Mr. Dallas, to shew that the Constitu
tion was su:i Ce pr.jb,i e of another con
struction i
The constitution declares, that " trea-
I son against the United States shall con
sist only in levying war against them,
| or in adhering to their enemies, giving:
( them aid k comfort." John Fries was in
dicted for levying war against the Uni
, ted States, and the facts 1 believe were,
! that he, with some others, did in a for
cible manner, rescue some prisoners
from the marshal of Pennsylvania.
This was .called a resistance to a.
law of the United States, and by
j construction was determined at the
• former trial to be the treason of levying
j war. It was in opposition to this con
struction of the constitution that Mr.
j Lewis and Mr; Dallas wished to be
heard. It. was certainly not a very cx
i travagant wish on their part, for it
i ought to be recollected that we are st
I young nation, and it is deeply interest
j ing to us all, that the constitution of the
i United States should not receive a con-
I struction unwarranted by its letter. Af
i ter the decisions had taken place in the
courts, upon the western insurrection,
(I mean in the cases of Yigol and Mit
chel) Congress had passed an act de
claring that to resist a law of the Uni
ted States should be deemed a high mis
demeanor, punishable by fine and im
prisonment ; and they had before pro
vided by the act of 1789, that to rescue
prisoners from the custody of the mar
shal, should also be punishable by fine
and imprisonment. Mr. LewisandMr.
Dallas were desirous of shewing, that
Fries's case came within the provisions
of these laws, and that his offence was
not of such a nature as to forfeit his
life. They also wished to have an op
portunity of proving, that the terms le
vying war ought not to receive the same
construction here as in England. To
convince the Senate that they were not
singular in their ideas, and that the
construction given by the court has not
been unanimously assented to, 1 shall
take the liberty of referring to an author
of merited reputation, to whom I be
lieve our adversaries will not refuse
their respect. Judge Tucker of Virgi
nia, in his valuable edition of Black
stone's commentaries, in the appendix;
to the4th vol. under the title Treason,
after reciting that part of the constitu- '
tion relating to the subject, observes, '
" It is probable that no part of the
constitution of the U. S. was supposed
to be less susceptible of various inter
pretations than that which defines and
limits the offene;e of treason against the
U. S. the text is short, and until com
ments upon it appeared, might have
been deemed explicit ; it is as follows v
" Treason against the. U. S. shall
consist ONLY in levying war .against
them, or in adhering to their ene
mies, giving them aid and comfort *."
" From this declaration contained in
the constitution of the L T . S. the supreme
law of the land, anel the fountain both
of the authority of the government and
of the crime against it, a plain man
might draw conclusions very different
from the artificial reasoning and subtle
refinement of technical men ; and see
ing that that instrument is to be regard
ed as the act of the people of the v. S.
both collectively and individually, it
might seem reasonable that the inter
pretation of nine hundred and ninety
nine plain men, who were parties to it,
ought to serve as a guide to the thou
sandth man, who may happen to be
called upon to expound it. But as tech
nical men are not very apt to respect
the opinions of such as have not been e
ducated in the same habits with them
selves, the probability is, that the opi
nions of one man in a thousand or ra
ther in a hundred thousand, will over
balance that of the rest of the commu
nity, unless the latter should deem it an
object worthy of their attention to ex
press their opinion, in some way that
may be regarded as obligatory upon the
few who dissent from them.
" As new tangled and artificial trea
sons have been the great engines by
which violent factions in free states have
usually wreaked their alternate malig
nity on each other, the convention have,
with great judgment, opposed a barrier
to this peculiar danger, by inserting a
constitutional definition of the crime f .'*
" Judge Wilson, in the first charge
which he delivered in the federal cir
cuit court of Pennsylvania, expressed
himself thus on the subject. "It well
deserves to be rcmaiked, that with re
gard to treason a new and great im
provement has been introduced into the
government of the U. S.: Under that
' government the citizens have not only a
I legal but a constitutional security against
i the extension of that crime or the im
, putation of treason. Treasons caprici-
I ous, arbitrary and constructive have
i often been the most tremendous engines
i of despotic or legislative | j raiury \."
" Judge Iredell, on a similar occasion
in South-Carolina, observes— Trc;
consist in two articles ouly ; levying war
i against the U. S. or adhering'to"their
; enemies giving them aid and comfort.
i The plain definition of this crime was
justly deemed of such moment to the
i r ■„
* 3.
f2 Federalist, No. 4.?.
t Carey's American Museum, vol. f,
] page 40,