The Court was opened precisely at 12 o’clock.
Present: The Managers, attended by the House of Representatives in Committee of the Whole; and Judge Chase, attended by his counsel, as mentioned in the proceedings of yesterday.
At a quarter after 12 o’clock, Mr. Randolph, on behalf of the Managers, opened the impeachment, as follows:
Mr. President: It becomes my duty to open this cause on behalf of the prosecution. From this duty, however incompetent I feel myself to its performance at all times, and more especially at this time, as well from the very short period which has been allowed us to consider the long and elaborate plea of the respondent, as from the severe pressure of disease, it does not become me to shrink. The station in which I have been placed calls for the discharge of an important public trust at my hands. It shall be performed to the best of my ability, inadequate as I know that ability to be. When I speak of the short period which has been allowed us, I hope not to be understood as expressing, on our part, any dissatisfaction at the course which has been pursued, or any wish to prolong the time which has been allotted for trial. We are sensible of a disposition in this honorable Court to grant us every indulgence which we ought to ask, and when their attention is called to the precipitate hurry of our preparation, it is only to offer, on behalf of an individual, perhaps a weak apology for the weak defence which he is about to make of the cause confided to his care. A desire for the furtherance of justice and the avoidance of delay, but, above all, an unshaken conviction that we stand on impregnable ground, induce us on this short notice to declare that we are ready to substantiate our accusation, to prove that the respondent is guilty in such manner as he stands impeached.
It is a painful but indispensable task which we are called upon to perform: to establish the guilt of a great officer of Government, of a man, who, if he had made a just use of those faculties which God and nature bestowed upon him, would have been the ornament and benefactor of his country, would have rendered her services as eminent and useful as he has inflicted upon her outrages and wrongs deep and deadly. A character endowed by nature with some of her best attributes, cultivated by education, placed by his country in a conspicuous station, invested with authority whose righteous exercise would have rendered him a terror to the wicked, whilst it endeared him to the wise and good: such a character, presented to the nation in the light in which he now stands, and in which his misdeeds have made it our duty to bring him forward, forms one of the saddest spectacles which can be offered to the public eye. Base is that heart which could triumph over him.
I will now proceed to state the principal points on which we mean to rely, and which we expect to establish by the clearest evidence. In doing this I shall be necessarily led to notice many of the leading statements of the respondent’s answer. We will begin with the first article. [Here Mr. R. read that article.] The answer to the first of these charges is by evasive insinuation and misrepresentation, by an attempt to wrest the accusation from its true bearing, the manner and time of delivering the opinion, and the intent with which it was delivered, to the correctness of the opinion itself, which is not the point in issue. And here permit me to remark, that if the Managers of this impeachment were governed only by their own conviction of the course which they ought, necessarily, to pursue, and not by the high sense of duty which they owe to their eminent employers, they would have felt themselves justified in resting their accusation on the admissions of the respondent himself. It is not for the opinion itself, that the respondent is impeached; it is for a daring inroad upon the criminal jurisprudence of his country, by delivering that opinion at a time and in a manner (in writing) before unknown and unheard of. The criminal intent is to be inferred from the boldness of the innovation itself, as well as from other overt acts charged in this article. The admission of the respondent ought to secure his conviction on this charge. He acknowledges he did deliver an opinion, in writing, on the question of law, (which it was the right and duty of the jury to determine, as well as the fact,) before counsel had been heard in defence of John Fries, the prisoner. I must beg the assistance of one of the gentlemen with whom I am associated, to read this part of the answer. [Mr. Clark accordingly read the reply of Mr. Chase to this charge.] We charge the respondent with a gross departure from the forms, and a flagrant outrage upon the substance of criminal justice, in delivering a written, prejudicated opinion on the case of Fries, tending to bias the minds of the jury against him before counsel had been heard in his defence. The respondent (page 33, of the answer) admits the fact, for he knew that we are prepared to prove it. But he artfully endeavors to shift the argument from the real point in contest, to the soundness of the opinion itself, which, however questionable, (and of its incorrectness I entertain no doubt,) it is not our object at this time to examine. For the truth of this opinion and, as it would seem, for the propriety of this proceeding, the respondent takes shelter under precedent. He tells you, sir, this doctrine had been repeatedly decided on solemn argument and deliberation, twice in the same court, and once in that very case. What is this, but a confession, that he himself hath been the first man to venture on so daring an innovation on the forms of our criminal jurisprudence? To justify himself for having given a written opinion before counsel had been heard for the prisoner, he resorts to the example set by his predecessors, who had delivered the customary verbal opinion, after solemn arguments and deliberation. And what do these repeated arguments and solemn deliberations prove, but that none of his predecessors ever arrogated to themselves the monstrous privilege of breaking in upon those sacred institutions, which guard the life and liberty of the citizen from the rude inroads of powerful injustice? The learned and eminent judges, to whose example he appeals, for justification, decided after, and not before a hearing. They exercised the acknowledged privilege of the bench in giving an opinion to the jury on the question of law, after it had been fully argued by counsel on both sides. They never attempted, by previous and written decisions, to wrest from the jury their undeniable right of deciding upon the law as well as the fact, necessarily involved in a general verdict, to usurp the decision to themselves, or to prejudice the minds of the jurors against the defence. I beg this honorable Court never to lose sight of the circumstance, that this was a criminal trial, for a capital offence, and that the offence charged was treason. The respondent also admits, that the counsel for Fries, not meaning to contest the truth of the facts charged in the indictment, rested their defence altogether upon the law, which he declared to have been settled in the cases of Vigol and Mitchell: a decision which, although it might be binding on the Court, the jury were not obliged to respect, and which the counsel had a right to controvert before them, the sole judges, in a case of that nature, both of the law and fact. I do not deny the right of the Court to explain their sense of the law to the jury, after counsel have been heard; but I do deny that the jury are bound by such exposition. If they verily believe that the overt acts charged in the indictment did not amount to treason, they could not without a surrender of their consciences into the hands of the Court, without a flagrant violation of all that is dear and sacred to man, bring in a verdict of guilty. I repeat that in such a case the jury are not only the sole judges of the law, but that where their verdict is favorable to the prisoner, they are the judges without appeal. In civil cases, indeed, the verdict may be set aside and a new trial granted; but in a criminal prosecution, the verdict, if not guilty, is final and conclusive. It is only when the finding of the jury is unfavorable to the prisoner, that the humane provisions of our law, always jealous of oppression when the life or liberty of the citizen is at stake, permits the verdict to be set aside, and a new trial granted to the unhappy culprit. When I concede the right of the Court to explain the law to the jury in a criminal, and especially in a capital case, I am penetrated with a conviction that it ought to be done, if at all, with great caution and delicacy. I must beg leave to take, before this honorable Court, what appears, to my unlettered judgment, to be a strong and obvious distinction. There is, in my mind, a material difference between a naked definition of law, the application of which is left to the jury, and the application by the Court of such definition to the particular case upon which the jury are called upon to find a general verdict. Surely, there is a wide and evident distinction between an abstract opinion upon a point of law, and an opinion applied to the facts admitted by the party accused, or proven against him. But it is alleged, on behalf of the respondent, that the law in this case was settled, and upon this he rests his defence. Will it be pretended by any man that the law of treason is better established than the law of murder? What is treason, as defined by the constitution? Levying war against the United States, or adhering to their enemies, giving them aid and comfort. What is murder? Killing with malice aforethought, a definition at least as simple and plain as the other. And because what constitutes murder has been established and settled through a long succession of ages and adjudications, has any judge, for that reason, been ever daring enough to assert that counsel should be precluded from endeavoring to convince the jury that the overt acts, charged in the indictment, did not amount to murder? Is a Court authorized to say, that, because killing with a deliberate malice is murder, therefore the act of killing, admitted by the prisoner’s counsel, or established by evidence, was a killing with malice prepense, and did constitute murder? I venture to say that an instance cannot be adduced, familiar as the definition of murder is even to the most ignorant, numerous as have been the convictions for that atrocious crime, where counsel have been deprived of their unquestionable right to address the jury on the law, as well as on the fact. Much less can an instance be produced, in any trial for a capital offence, where they have found themselves anticipated in the question of law by a written opinion, to be taken by the jury out of court, as the landmark by which their verdict is to be directed. I have always understood, that even in a civil case, when the jury carried out with them a written paper, relating to the matter in issue, and which was not offered, or permitted to be given in evidence to them, it was sufficient to vitiate their verdict, and good ground for a new trial. This written opinion of the Court, delivered previous to a hearing of the cause, is a novelty to our laws and usages. It would be reprehensible in any case, but in a criminal prosecution, for a capital offence, and that offence treason, (where, above all, oppression and arbitrary proceedings on the part of courts are most to be dreaded and guarded against,) it cannot be too strongly reprobated or too severely punished.
What would be said of a judge who in a trial for murder, where the facts were admitted (or proved) should declare from the bench, that whatever argument counsel had to offer, in relation to the facts, may be addressed to the jury, but that they should not attempt to convince the jury that such facts came not within the law, did not amount to murder, but that every thing which they had to say upon the question of law, should be addressed to the Court, and to the Court only. Can you figure to yourselves a spectacle more horrible?
We are prepared to prove, what the respondent has in part admitted, that he “restricted the counsel of Fries from citing such English authorities as they believed apposite, and certain statutes of the United States which they deemed material to their defence:” that the prisoner was debarred by him from his constitutional privilege of addressing the jury, through his counsel, on the law, as well as the fact involved in the verdict which they were required to give, and that he attempted to wrest from the jury their undeniable right to hear argument, and, consequently, to determine upon the question of law which in a criminal case it was their sole and unquestionable province to decide. These last charges (except as far as relates to the laws of the United States) are impliedly admitted by the respondent. He confesses that he would not admit the prisoner’s counsel to cite certain cases, “because they could not inform but might deceive and mislead the jury.” Mr. President, it is the noblest trait in this inestimable trial, that in criminal prosecutions, where the verdict is general, the jury are the sole judges, and, where they acquit the prisoner, the judges, without appeal, both of law and fact. And what is the declaration of the respondent but an admission that he wished to take from the jury their indisputable privilege to hear argument and determine upon the law, and to usurp to himself that power which belongs to them, and to them only? It is one of the most glorious attributes of jury trial, that in criminal cases (particularly such as are capital) the prisoner’s counsel may (and they often do) attempt “to deceive and mislead the jury.” It is essential to the fairness of the trial, that it should be conducted with perfect freedom. It is congenial to the generous spirit of our institutions to lean to the side of an unhappy fellow-creature, put in jeopardy of limb, or life, or liberty. The free principles of our Governments, individual and federal, teach us to make every humane allowance in his favor, to grant him, with a liberality unknown to the narrow and tyrannous maxims of most nations, every indulgence not inconsistent with the due administration of justice. Hence, a greater latitude is permitted to the prosecutor. The jury, upon whose verdict the event is staked, are presumed to be men capable of understanding what they are called upon to decide, and the Attorney for the State a gentleman learned in his profession, capable of detecting and exposing the attempts of the opposite counsel to mislead and deceive. There is, moreover, the Court, to which, in cases of difficulty, recourse might be had. But what, indeed, is the difficulty arising from the law in criminal cases, for the most part? What is to hinder an honest jury from deciding, especially after the aid of an able discussion, whether such an act was killing with malice prepense, or such other overt acts set forth in an indictment, constituted a levying war against the United States; and to what purpose has treason been defined by the constitution itself, if overbearing, arbitrary judges are permitted to establish among us the odious and dangerous doctrine of constructive treason? The acts of Congress which had been referred to on the former trial, but which the respondent said he would not suffer to be cited again, tended to show that the offence committed by Fries did not amount to treason; that it was a misdemeanor only, already provided for by law, and punishable with fine and imprisonment. The respondent indeed denies this part of the charge, but he justifies it even (as he says) if it be proved upon him. And are the laws of our own country (as well as foreign authorities) not to be suffered to be read in our courts, in justification of a man whose life is put in jeopardy?
I now proceed to the second article—the case of Basset, whose objection to serve on Callender’s jury was overruled by the judge who stands arraigned before this honorable Court. In the 30th page of the respondent’s answer it is stated, that a new trial was granted to Fries, “upon the ground (as this respondent understood and believes) that one of the jurors, after he was summoned, but before he was sworn, had made some declaration unfavorable to the prisoner.” It will be remembered that both the trials of Fries preceded that of Callender. Upon what principle, then, could the respondent declare Basset a good juryman, when he was apprised of the previous decision in the case of Fries, by his brother judge, whom he professes to hold in such high reverence, and by whose decision, on his own principles, he must have held himself bound. For surely the same exception to a juryman which would furnish ground for a new trial, ought to be a cause of setting aside such juror, if it be taken previous to his being sworn.
From the respondent’s own showing it appears, that the question put to the jurymen generally, and to Basset among others, was, whether they “had formed and delivered any opinion upon the subject-matter then to be tried, or concerning the charges contained in the indictment.” And here let me refer the Court to the question which the respondent put to the jurors in the case of Fries. It was, “whether they had ever formed or delivered any opinion as to his guilt, or innocence, or that he ought to be punished?” How is this departure from the respondent’s own practice, this inconsistency with himself, to be reconciled? In the one case the question is put in the disjunctive; “have you formed or delivered?” In the other, it is in the conjunctive, “formed and delivered;” besides other material difference in the terms and import of the two questions. Wherefore, I repeat, this contradiction of himself? But, Mr. President, we shall be prepared to prove that the words “subject-matter then to be tried,” were not comprised in the question propounded to Basset, or to any of the other jurors. The question was, as will be shown in evidence, “have you ever formed and delivered any opinion concerning the charges contained in the indictment?” And it is remarkable that the whole argument of the respondent upon this point goes to justify the question which was actually put, and which he probably expected we should prove that he did put, rather than that which he himself declares to have been propounded by him. Such a question must necessarily have been answered in the negative. Basset could never have seen the indictment: and although his mind might have been made up on the book, whatever opinion he might have formed and delivered as to the guilt of Callender, or however desirous he might have been of procuring his conviction and punishment, still, not having seen the indictment, he could not divine what passages of the book were made the subject of charges, and, by the criterion established by the judge, he was a good juror. But if the juror’s mind was thus prejudiced against the book and the writer, was he, merely because he had not seen the indictment, competent to pass between him and his country on the charges contained in it, and extracted out of the book? And even if the question had been such as the respondent states, yet being put in the conjunctive, the most inveterate foe of the traverser who was artful, or cautious enough to forbear the expression of his enmity, would thereby have been admitted as competent to pass between the traverser and his country in a criminal prosecution.