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.