Thursday, February 14.
The Court was opened at 12 o’clock.
George Read, sworn.
Mr. Randolph. The witness will please to state what he knows in relation to certain proceedings at a circuit court of the United States, held at Newcastle, in the State of Delaware, in the month of June, 1800.
Mr. Read. It is incumbent on me to state that several years have elapsed since the transactions which I am now about to relate occurred; of course I cannot pretend to say that the language I shall use to convey the sentiments delivered by Mr. Chase is precisely according to what occurred at the time; but the substance of what I relate will be correct. The transactions to which I presume I am called to testify took place at a session of the circuit court, held at Newcastle, for Delaware district, in June, 1800. The Court sat two days, viz: on the 27th and 28th days of the month. At that court, Samuel Chase, one of the associate justices, presided, and Gunning Bedford, district judge, was associated with him. Judge Chase, as usual, delivered a charge to the grand jury, on the first day of the term. The grand jury, after hearing the charge, retired to their chamber; after remaining there for some time, they returned into court, and on being asked whether they had found any bills, or had any presentments to make, they answered they had found no bills of indictment, and had no presentments to make. After receiving this answer, Judge Chase proceeded to observe, as nearly as I can recollect, addressing himself to the grand jury, that he had been informed, or heard, that a highly seditious temper had manifested itself in the State of Delaware among a certain class of people, especially in Newcastle County, and more especially in the town of Wilmington, where lived a most seditious printer, unrestrained by any principle of virtue, and regardless of social order; that the name of this printer was ——; the judge here paused, and said, perhaps it might be assuming, or taking upon himself too much to mention the name of this person; but, gentlemen, it becomes your special duty, and you must inquire diligently into this matter. Several of the jurors, I believe, made a request to the Court to dismiss them, and assigned as the reasons for their request, that some of them were farmers, and, as it was about the time of harvest, they were anxious to be on their farms. The judge observed that the business to which he had called their attention was of a very urgent and pressing nature, and must be attended to; that he could not, therefore, discharge them before the next day, when further information should be communicated to them on the subject he had referred to. The judge then addressing himself to me as the district attorney, asked me, as I believe is usual on such occasions, whether I had any criminal charges to submit to the grand jury? I said that none such had yet occurred, and I believed none were likely to occur during that term. Judge Chase, continuing his address to me, observed, You might, by prosecuting proper researches, make some discoveries. Have you not heard of some persons in this State who have been guilty of libelling the Government, or the administration of the Government of the United States? I am told, and the general circulation of the report induces me to believe it, that there is a certain printer in the town of Wilmington who publishes a most scandalous newspaper; but it will not do to mention names. Have you not two printers in that town? I answered that I believed there were. Judge Chase observed, that one of them was a seditious printer, adding, he shall be taken notice of, and it is your duty, Mr. Attorney, to examine unremittingly and minutely into affairs of that nature; times like these require that this seditious temper or spirit, which pervades too many of our presses, should be discouraged or repressed. Can you not find a file of these newspapers between this time and to-morrow morning, and examine them, and discover whether this printer is not guilty of libelling the Government of the United States? This, I say, sir, must be done; I think it is your duty. I observed, as this subject was pressed by the honorable judge, I believed I was acquainted with the duties of my office, and was willing to discharge them. I mentioned that I had not in my possession the papers alluded to by the judge, nor had read them; but that if a file of them were procured and handed to me, I had no objection to examine them, and communicate with the grand jury on the subject. The judge then said he was satisfied, and, turning to the jury, observed, that he could not discharge them, however inconvenient their stay; they must attend the ensuing day, at the usual hour. The judge then directed that a file of the papers should be procured for me. I understood him to mean the paper called the Mirror of the Times and General Advertiser, though I do not recollect to have heard the title of the paper mentioned during the proceedings. A file of those papers was brought to me in the afternoon, after the adjournment of the Court; by whom they were brought I do not recollect. I examined them, but in a very cursory manner, as I was very much interrupted by persons calling upon me. I did not discover during the course of this examination, any libellous matter coming within the provisions of the sedition act.
According to what I understood to be the wish of the judge, I sent this file of papers to the grand jury. Soon after the meeting of the Court on the second day, and at the request of the grand jury, I attended them in their room. On entering, the foreman of the jury addressed me, and directed my attention to a paragraph in a publication contained in the Mirror of the 21st June, 1800, republished from the Aurora, reflecting, perhaps in strong and pointed language, on the former conduct of Judge Chase. He observed that there was a difference of opinion among the jurors as to the nature of the paragraph—some doubted whether it was a libel or not, and, if libellous, whether they had a right to present it to the circuit court. I observed that it was not necessary for me to be very particular in my opinion of the publication, as I did not consider it as coming under the sedition law, though it might be considered as an offence at common law, because Judge Chase had decided that the circuit court could not take cognizance of cases arising at common law. I returned into court. After some time, the file was placed before the judge. Judge Chase asked me what had been done, and whether the grand jury had made any discoveries of libellous matter? I answered none, unless it were the paragraph which related to Judge Chase, which I showed him, observing that it did not appear to me to come under the sedition law. Judge Chase acquiesced, and the business passed over on his part in a very polite and affable manner. I do not recollect any thing further to have passed. I have, however, an indistinct recollection of a conversation between Judge Chase and myself, in the room of a tavern, before we went into court, in which I understood him to have made a general declaration of hostility against seditious printers.
James Lea, affirmed.
Mr. Rodney. Please relate to the Court the occurrences which took place at a circuit court of the United States at Newcastle, and whether you were summoned as a grand juror at that court.
Mr. Lea. I was summoned by the marshal of the district of Delaware as a grand juror at the circuit court held in the month of June, 1800. I attended agreeably to that summons, and was qualified as a juror. After receiving a charge from Judge Chase, we retired into our room, and remained there for some time. There appearing to be no business for us, we returned into our box. The usual question was put to us, whether we had found any bills? We said that we had not. After some time, Judge Chase addressed the grand jury, and observed that a very seditious disposition had manifested itself in the State of Delaware, in the county of Newcastle, and particularly in the town of Wilmington; that a seditious printer lived in that place, who edited a paper called the Mirror of the Times and the General Advertiser, who was in the habit of libelling the Government of the United States, and that his name was ——, he said he would not mention his name, but that it was our duty to inquire if any seditious publications had been made; that he would not discharge us that day, nor until we had made the inquiry. Several of the jurors addressed the judge for leave to return home, stating that they were farmers, and were extremely anxious to be on their farms, as it was harvest time. Some conversation passed between Judge Chase and the attorney for the district, after which he said he would not discharge us until the next day. We returned the next day into court, and after sitting some time in our box, we retired to the jury room. A file of newspapers was produced by some persons, and we examined them. We found nothing in them of a libellous nature, in our opinion, excepting something relative to Judge Chase, which some of the jury thought came under the sedition law. We sent for the attorney of the district to inform us as to the nature of the paragraph. He told us it did not come under the sedition law. We went into the jury box, when a conversation of some length took place between Judge Chase and the attorney of the district, after which we were discharged.
John Montgomery, sworn.
Mr. Randolph. The subject on which it is understood you are capable of giving some information to the Court is the conduct of Judge Chase, at a circuit court of the United States, held for the district of Maryland at Baltimore, in May, 1803, or about that time.
Mr. Montgomery. The point, I presume, on which I am called to give testimony, relates to a charge to a grand jury delivered by Judge Chase, at a circuit court where he presided, and Judge Winchester was associated with him. It will not, from the nature of the subject, be expected that I shall be able to detail, in the precise language of the judge, the whole of the charge which was delivered in 1803 at the May term. Though not one of the bar, I was present at the court, and took a chair among the gentlemen of the bar. After the grand jury were impanelled, Judge Chase addressed them. He appeared to address them from a written paper that lay before him. He proceeded in the usual manner to charge the jury as to the duties expected to be performed by them. After he had thus far proceeded in his charge, he mentioned, that before the jury retired to their chamber, he would make some observations, and that they would be considered as flowing from a wish for the happiness or welfare of the community. He stated that it was important that the people should be fully informed, particularly at such a crisis; that falsehood was more easily disseminated than truth; and that the latter was reluctantly attended to, when opposed to popular prejudice. I cannot pretend to state the sentiments delivered by the judge, in the order in which they were delivered. I can undertake to state, from my recollection, the substance of those he delivered. To the best of my recollection, the judge stated that the Administration was weak, relaxed, and inadequate to the duties devolved on it; and that its acts proceeded not from a view to promote the general happiness, but from a desire for the continuance of unfairly-acquired power. The language unfairly-acquired power made a strong impression on my mind at the time; and when the judge called the attention of the jury to the observations he was about to make, I was prepared to expect something extraordinary from him, as I was at Annapolis when he pronounced the valedictory address which Mr. Mason, in his testimony, took occasion to mention. The judge stated the violation of the constitution that had taken place by the act of Congress repealing the judiciary act of 1800, and the consequent removal of sixteen judges; that it had made a violent attack on the independence of the Judiciary. He also found fault with a law passed by the Legislature of Maryland in 1800, the effect of which was the removal of all the judges on the county-court establishment. He stated that those acts were a severe blow against the independence of the Judiciary. He stated, that since the year 1776, he had been an advocate for a representative or republican form of government; that it was his wish that freemen should be governed by representatives chosen by that class of citizens who had a property in, a common interest with, and an attachment to, the community. The language might have been in the words of our constitution. He found fault with the law passed by the Legislature of Maryland, which he styled “The Universal-suffrage Law.” He stated that that also affected the independence of the Judiciary, and to the best of my recollection, he explained his ideas in this manner: that every free, white male citizen, in the language of the constitution, having the qualification of age and residence, though he had not a property in, an interest with, and an attachment to, the community, being suffered to choose those who constituted the Legislature, and the Judiciary being dependent on the Legislature for their support and continuance in office, few characters of integrity and ability, who are competent to discharge the duties of judges, would be found to accept appointments held by such a tenure. He stated that these measures were destructive of the happiness and welfare of the community; that they would have a tendency to sink our Republican Government into what he called a Mobocracy—the worst of all possible governments. At the close of the judge’s charge, he, in an impressive manner, called on the jury to pause, to reflect, and when they returned to their homes, to use their endeavors to prevent these impending evils, and save their country. He said that the people had been misled by misrepresentation, falsehood, art, and cunning; that, by correcting these errors, the threatened evils might be prevented—or words to that effect.
Samuel H. Smith, sworn.
Mr. Nicholson. Please to state what you know of the charge delivered by Judge Chase at Baltimore.
Mr. Smith. The charge of Judge Chase having been published, I did not expect to be called upon to state in detail its general contents; supposing that the only inquiry made would be on the correspondence of my recollection with the contents of the published charge. I do not know that I should be able, under these circumstances, to give a particular statement, from memory, of its contents. On the evening subsequent to the delivery of the charge, I committed to paper the most important features of it, which were published in the National Intelligencer, and which form part of the printed testimony received by the committee of inquiry. If I could be indulged with access to it, I should be enabled to state more correctly my knowledge of the charge.
[Mr. Smith here, with permission, read the following, extracted from the National Intelligencer of May 20, 1803:—
“After a definition of the offences cognizable by the grand jury, Judge Chase said he hoped he should be pardoned for making a few additional observations. He had, he remarked, been uniformly attached to a free republican government, and had actively participated in our revolutionary struggle to obtain it. He still remained warmly attached to the principles of government then established. Since that period, however, certain opinions had sprung up which threatened with ruin the fair fabric then raised. It had been contended that all men had equal rights derived from nature, of which society could not rightfully deprive them. This he denied. He could conceive of no rights in a state of nature, which was in fact entirely a creature of the imagination, as there was no condition of man in which he was not, under some modification, subject to a particular leader or particular species of government. True liberty did not, in his opinion, consist in the possession of equal rights, but in the protection by the law of the person and property of every member of society, however various the grade in society he filled. Nor did it consist in the form of government in any country. A monarchy might be free, and a republic in slavery. Wherever the laws protected the person and property of every man, there liberty existed, whatever the government was. Such, said he, is our present situation. But much I fear that soon, very soon our situation will be changed. The great bulwark of an independent judiciary has been broken down by the Legislature of the United States, and a wound inflicted upon the liberties of the people which nothing but their good sense can cure. Judge Chase here went into an assertion of the right of the judiciary to decide on the constitutionality of laws. He then adverted to the proceedings of the Legislature of Maryland. He commented on the wisdom and patriotism of those who had framed the constitution of that State. That wisdom and patriotism had never conceived liberty to consist in every man possessing equal political rights. To secure property, the right of suffrage had been limited. The convention had not imagined, according to the new doctrine, that property would be best protected by those who had themselves no property. The great rampart established in the limitation of suffrage was now demolished by the principle of universal suffrage ingrafted in the constitution. In addition to this, a proposition was now submitted, whose ratification depended upon the next Legislature and which, if ratified, would destroy the independence and respectability of the judiciary, and make the administration of justice dependent upon legislative discretion. If this shall, in addition to that which establishes universal suffrage, become part of the constitution, nothing will remain that will be worth protecting. Instead of being ruled by a regular and respectable government, we shall be governed by an ignorant mobocracy. When he reflected on the ruinous effects of these measures, he could not but blush at the degeneracy of sons, who destroyed the fair fabric raised by the patriotism of their fathers.”]
President. Did you hear any reflections cast on the Administration?
Mr. Smith. I do not recollect any other beside those contained in the statement I have read.
John Stephen, sworn.
I was at Baltimore when the charge was delivered by Judge Chase. My recollection of its contents is extremely vague. But, with regard to some of it, it coincides with that of Mr. Montgomery, Mr. Mason, and Mr. Smith. He spoke of the repeal of the judiciary law, and said that it was injurious to the independence of the judges. He also mentioned the general suffrage law as injurious; and said no man ought to be permitted to vote unless he had a property in, a common interest with, and an attachment to, the community; that the act violated this principle, and would be attended with very injurious consequences; he denied the doctrine of natural rights; and said that they were altogether derived from convention; and at the end of the charge he exhorted the jury to use their efforts to prevent the injury likely to result from the temper of the times. I cannot say whether Judge Chase confined himself to a written paper or not. He declared that the independence of the judiciary of the United States had been injured by the repeal of the judiciary system; and that the bill then pending before the Legislature of Maryland, if adopted, would have the same effect upon the judiciary of that State.
Mr. Nicholson stated, that all the witnesses present on the part of the prosecution had been examined; the managers would therefore proceed to offer certain records; but, as several material witnesses were absent, he hoped they would not be precluded from calling them, should they attend, at a future stage of the trial.
Mr. Randolph offered in evidence a copy of the record in the case of J. T. Callender; also in the case of Fries.
Mr. Randolph then stated that the Managers had submitted all the evidence they were prepared to adduce. Whereupon the Court rose.