And the said Samuel Chase, for the plea to the said first article of impeachment, saith, that he is not guilty of any high crime or misdemeanor, as in and by the said first article is alleged; and this he prays may be inquired of by this honorable Court, in such manner as law and justice shall seem to them to require.
The second article of impeachment charges, that this respondent, at the trial of James Thompson Callender for a libel, in May 1800, did, “with intent to oppress and procure the conviction of the said Callender, overrule the objection of John Basset, one of the jury, who wished to be excused from serving on the said trial, because he had made up his mind as to the publication from which the words, charged to be libellous in the indictment, were extracted.”
In answer to this article, this respondent admits that he did, as one of the Associate Justices of the Supreme Court of the United States, hold the circuit court of the United States, for the district of Virginia, at Richmond, on Thursday, the 22d day of May, in the year 1800, and from that day, till the 30th of the same month; when Cyrus Griffin, then district judge of the United States for the district of Virginia, took his seat in the said court; and that during the residue of that session of the said court, which continued till the —— day of June, in the same year, this respondent and the said Cyrus Griffin held the said court together. But how far any of the other matters charged in this article, are founded in truth or law, appear from the following statement, which he submits to this honorable Court, by way of answer to this part of the accusation.
By an act of Congress passed on the 4th day of May, A. D. 1798, it is among other things enacted, “That if any person shall write, print, utter, or publish, or shall knowingly and wittingly assist and aid in writing, printing, uttering, or publishing, any false, scandalous, and malicious writing or writings against the President of the United States, with intent to defame or to bring him into contempt or disrepute, such person, being thereof convicted, shall be punished by fine, not exceeding two thousand dollars, and by imprisonment, not exceeding two years;” and “that if any person shall be prosecuted under this act, it shall be lawful for him to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel; and the jury shall have a right to determine the law and the fact, under the direction of the Court, as in other cases,” as in and by the said act, commonly called the sedition law, to which this respondent begs leave to refer this honorable Court, will more fully appear.
At the meeting of the last above-mentioned circuit court, this respondent, as required by the duties of his office, delivered a charge to the grand jury, in which, according to his constant practice, and to his duty as a judge, he gave in charge to them several acts of Congress for the punishment of offences, and among them, the above-mentioned act, called the sedition law; and directed the jury to make particular inquiry concerning any breaches of these statutes or any of them, within the district of Virginia. On the 24th day of May, 1800, the said jury found an indictment against one James Thompson Callender, for printing and publishing, against the form of the said act of Congress, a false, scandalous, and malicious libel, called “The Prospect before Us,” against John Adams, then President of the United States, in his official conduct as President; as appears by an official copy of the said indictment, marked exhibit No. 4, which this respondent begs leave to make part of this his answer.
On Wednesday, the 28th day of the same month, May 1800, Philip Norbonne Nicholas, Esq., now attorney-general of the State of Virginia, and George Hay, Esq., now district attorney of the United States, for the district of Virginia, appeared in the said circuit court as counsel for the said Callender; and on Thursday the 3d of June following, his trial commenced, before this respondent, and the said Cyrus Griffin, who then sat as assistant judge. The petit jurors being called over, eight of them appeared, namely, Robert Gamble, Bernard Mackham, John Barrell, William Austin, William Richardson, Thomas Tinsley, Matthew Harvey, and John Basset, who, as they came to the book to be sworn, were severally asked on oath, by direction of the Court, “whether they had ever formed or delivered any opinion respecting the subject-matter then to be tried, or concerning the charges contained in the indictment?” They all answered in the negative, and were sworn in chief to try the issue. The counsel for the said Callender declaring that it was unnecessary to put this question to the other four jurymen, William Mayo, James Hayes, Henry S. Shore, and John Prior, they also were immediately sworn in chief. No challenge was made by the said Callender or his counsel, to any of these jurors; but the said counsel declared, that they would rely on the answer that would be given by the said jurors to the question thus put by order of the Court.
After the above-mentioned John Basset, whom this respondent supposes and admits to be the person mentioned in the article of impeachment now under consideration, had thus answered in the negative to the question put to him by order of the Court, as above mentioned, which this respondent states to be the legal and proper question to be put to jurors on such occasions, he expressed to the Court his wish to be excused from serving on the said trial, because he had made up his mind, or had formed his opinion, “that the publication, called ‘The Prospect before Us,’ from which the words charged in the indictment as libellous were said to be extracted, but which he had never seen, was, according to the representation of it, which he had received, within the Sedition law.” But the Court did not consider this declaration by the said John Basset as a sufficient reason for withdrawing him from the jury, and accordingly directed him to be sworn in chief.
In this opinion and decision, as in all the others delivered during the trial in question, this respondent concurred with his colleague, the afore-mentioned Cyrus Griffin, in whom none of these opinions have been considered as criminal. He contends that the opinion itself was legal and correct; and he denies that he concurred in it, under the influence of any “spirit of persecution and injustice,” or with any “intent to oppress and procure the conviction of the prisoner,” as is most untruly alleged by the second article of impeachment. His reasons were correct and legal. He will submit them with confidence to this honorable Court; which, although it cannot condemn him for an incorrect opinion, proceeding from an honest error in judgment, and ought not to take on itself the power of inquiring into the correctness of his decisions, but merely that of examining the purity of his motives; will, nevertheless, weigh his reasons, for the purpose of judging how far they are of sufficient force to justify a belief that they might have appeared satisfactory to him. If they might have so appeared, if the opinion which he founded on them be not so palpably and glaringly wrong, as to carry with it internal evidence of corrupt motives, he cannot in delivering it have committed an offence.
The juror in the present case had expressed no opinion. He had formed no opinion as to the facts. He had never seen the “Prospect before Us,” and, therefore, could have no fixed or certain opinion about its nature or contents. They had been reported to him, and he had formed an opinion that if they were such as reported, the book was within the scope and operation of a law for the punishment of “false, scandalous and malicious libels, against the President in his official capacity, written or published with intent to defame him.” And who is there, that having either seen the book or heard of it, had not necessarily formed the same opinion?
But this juror had formed no opinion about the guilt or innocence of the party accused; which depended on four facts wholly distinct from the opinion which he had formed. First, whether the contents of the book were really such as had been represented to him? Secondly, whether they should, on the trial, be proved to be true? Thirdly, whether the party accused was really the author or publisher of this book? And fourthly, whether he wrote or published it “with intent to defame the President, or to bring him into contempt or disrepute, or to excite against him the hatred of the good people of the United States?” On all these questions, the mind of the juror was perfectly at large, notwithstanding the opinion which he had formed. He might, consistently with that opinion, determine them all in the negative; and it was on them that the issue between the United States and James Thompson Callender depended. Consequently, this juror, notwithstanding the opinion which he had thus formed, did stand indifferent as to the matter in issue, in the legal and proper sense, and in the only sense in which such indifference can ever exist; and therefore his having formed that opinion, was not such an excuse as could have justified the Court in discharging him from the jury.