Saturday, February 16.
The Court was opened at 10 o’clock A. M.
David M. Randolph, sworn.
Mr. Harper. Were you marshal of the United States for the district of Virginia in 1800?
Answer. I was, sir.
Mr. Harper. Did you attend the circuit court held in May of that year, as marshal?
A. I did, sir.
Mr. Harper. Did you summon the panel of the jury that served on the trial of Callender?
A. I did.
Mr. Harper. Had you any conversation with Judge Chase on the forming that panel?
A. I had no conversation with him on that subject. There was a conversation offered to me by Judge Chase.
Mr. Harper. What was it?
A. The judge recommended to me that I should get persons generally from the country; represented that they should be twenty-five years of age, of fair characters, untainted by party prejudices.
Mr. Harper. Did any gentlemen summoned apply to you to be discharged?
A. Several. At the moment I received orders to have two juries ready by Monday, I called on my two deputies, and desired them to take down, on distinct papers, the names I mentioned to them. I observed that I chose to take the responsibility on myself. While they were taking down the names, I summoned several persons whose names were not put down till Monday. On Monday, finding my two deputies had not summoned a sufficient number, I went in quest of them. I found them at the end of the town, in the act of executing my orders. Mr. Moseby, one of my deputies, was standing with Colonel Vanderval, I think in conversation with him. I called him across the street, and asked him how they succeeded. At this time I saw my other deputy. They told me they wanted but one or two jurors. I told them they must make haste. About this time I saw Mr. Basset entering town on horseback. I told him that he had been crossed as a grand juror for non-attendance; that he must serve as a petit juror, which would give him an opportunity of offering his apology. I took out my watch, and told him that I allowed him five minutes. We arrived at the capitol, and my deputies there gave me their memorandums, from which, and my own, I made up the list of the jury. Two gentlemen, Mr. Lewis and Mr. Blakely, offered something like excuses. I looked at Mr. Blakely, and said there was only one excuse that I would admit, to wit: his being under twenty-five years of age. He said he was under that age, and I dismissed him. Mr. Lewis said he might make the same excuse. I said I doubted it, but I let him off. As I went into the passage, I met Mr. Samuel Myers, who also desired to be let off. I told him I could not and would not. He said I would excuse him for a reason which he could assign. He whispered, and said that he was prejudiced against Callender. I permitted him to go, but begged him to keep that reason to himself. Another juror summoned, was very warm and importunate to be excused. I told him there was only one ground on which I would excuse him. He asked me what it was. I answered that if it applied to him he already knew it. I begged him to go to the court, and he would learn what it was. He did so. Colonel Harvie stopped me in the passage in a hasty manner, and with great warmth and friendliness urged me to let him off. He said he was sheriff of Henrico County. I said I knew it, but that I also knew that his duties were generally performed by deputies. I did not let him off. He applied to the Court, and was excused.
John Marshall, sworn.
Mr. Harper. Please to inform this honorable Court whether you did, or did not, on the part of Colonel Harvie, make an application for his discharge from the jury, and on what ground that application was made?
Mr. Marshall. I was at the bar when Colonel Harvie, with whom I was intimately acquainted, informed me that he was summoned on the jury. Some conversation passed, in which he expressed his unwillingness to serve, and stated that he was an unfit person; for that his mind was completely made up, that he thought the (sedition) law unconstitutional, and that, whatever the evidence might be, he should find the traverser not guilty; and requested me, on that ground, to apply to the marshal for his discharge. I told the marshal that Colonel Harvie was extremely desirous of being discharged, and, on his discovering great repugnance to his discharge, I informed him that he was predetermined, and that no testimony could alter his opinion. The marshal said that Colonel Harvie might make his excuse to the Court; he observed that he was watched, and to prevent any charge of improper conduct from being brought against him, he should not interfere in discharging any of the jurors who had been summoned. I informed Colonel Harvie of this conversation, and it was then agreed that I should apply to the Court for his discharge, upon the ground of his being sheriff of Henrico County; that his attendance was necessary, as that Court was then in session. I moved the discharge of the juror on that ground, and he was discharged by the Court.
Mr. Randolph. Were you in court during a part of the trial, or during the whole of the trial?
Mr. Marshall. I think I was there only during a part of the time.
Mr. Randolph. Did you observe any thing unusual in the conduct on the part of the counsel towards the Court, or the Court towards the counsel, and what?
Mr. Marshall. There were several circumstances that took place on that trial, on the part both of the bar and the bench, which do not always occur in trials. I would probably be better able to answer the question, if it were made more determinate.
Mr. Randolph. Then I will make the question more particular by asking whether the interruptions of counsel were much more frequent than usual?
Mr. Marshall. The counsel appeared to me to wish to bring before the jury arguments to prove that the sedition law was unconstitutional, and Mr. Chase said that that was not a proper question to go to the jury; and whenever any attempt was made to bring that point before the jury, the counsel for the traverser were stopped. After this there was an argument commenced (I think) by Mr. Hay, but I do not recollect positively, to prove to the judge that the opinion which he had given was not correct in point of law, and that the constitutionality of the law ought to go before the jury; whatever the argument was which Mr. Hay advanced, there was something in it which Judge Chase did not believe to be law, and he stopped him on that point. Mr. Hay still went on, and made some political observations; Judge Chase stopped him again, and the collision ended, by Mr. Hay sitting down, and folding up his papers as if he intended to retire.
Mr. Randolph. There were many preliminary questions, such as, with respect to the continuance of the cause, the admissibility of testimony, &c. Did the interruptions take place on the part of the Court only when the counsel pressed the point of the unconstitutionality of the sedition law?
Mr. Marshall. I believe that it was only at those times, but I do not recollect precisely. I do not remember correctly what passed between the bench and the bar; but it appeared to me that whenever Judge Chase thought the counsel incorrect in their points, he immediately told them so, and stopped them short; but what were the particular expressions that he used, my recollection is too indistinct to enable me to state precisely; what I do state is merely from a general impression which remains on my mind.
Mr. Randolph. Was there any misunderstanding between the counsel and the Court, and what was the cause of that misunderstanding, or what was your opinion as to the cause, or did you form one?
Mr. Marshall. It is impossible for me to assign the particular cause. It began early in the proceedings and increased as the trial progressed. On the part of the judge it seemed to be a disgust with regard to the mode adopted by the traverser’s counsel, at least I speak as to the part which Mr. Hay took on the trial, and it seemed to increase also with him as he went on.
Mr. Randolph. When the Court decided the point that the jury had not a right to decide upon the constitutionality of a law, did the counsel for the traverser begin an argument to convince Judge Chase that the opinion which he had delivered on that point was not well founded? Is it the practice in courts when counsel object to the legality of an opinion given by the Court, to hear the arguments of counsel against such opinion?
Mr. Marshall. If the counsel have not been already heard, it is usual to hear them, in order that they may change or confirm the opinion of the Court, when there is any doubt entertained. There is, however, no positive rule on this subject, and the course pursued by the Court will depend upon circumstances; where a judge believes that the point is perfectly clear and settled, he will scarcely permit the question to be agitated. However, it is considered as decorous on the part of the judge to listen while the counsel abstain from urging unimportant arguments.
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.
[Some inquiry was here made relative to the above question put by Mr. Randolph, and objected to by Mr. Cocke, which Mr. R. answered by observing that he withdrew it.]
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?
Mr. Gooch. It appeared to me as if it was intended to excite merriment; and if it was so intended, it certainly had that effect, and the same appeared to me to be the motive of the judge in adding the word punctuatim after the words verbatim et literatim. I thought these circumstances were calculated to display his wit.
Mr. Harper. When the judge told Mr. Wirt to sit down, did you conceive the conduct of the court to be rude and peremptory, or was there any thing like it in his application of the term “young gentlemen?”
Mr. Gooch. I did not perceive any thing rude or intemperate in his conduct, unless it can be inferred from the words themselves, when he said, You show yourselves clever young gentlemen, but the law is, nevertheless, not as you have stated it.