I have nowhere discovered in the evidence any thing that supports in point of fact the charge against Judge Chase, of falsely insinuating that the prisoner’s counsel wished to excite the public fears and indignation to produce insubordination to law. The judge did say that the counsel used a popular argument, calculated to mislead and deceive the populace; and this is the extent and head of his offending; but there is a wide difference between this and the charge laid to his door. He told the counsel, and told them truly, that they were availing themselves of a popular argument, calculated to mislead and deceive the people. Attend, I pray you, to the testimony of Mr. Hay. Did not the counsel for the prisoner say they had no hope of exculpating him on the facts? Did they not say they did not argue for Callender? That it was the cause, and not the man, they defended? That they did not expect to convince Judge Chase, or any other federal judge, of the unconstitutionality of the sedition act? Were they not then laboring with their whole talents to catch the popular ear? Did they not expressly declare that they had little hopes of the jury, and that their object was to make an impression on the public mind? And when the judge declared that the constitutionality of the act could not be discussed before the jury, did they not, failing in their object, abandon the defence? The ground which they meant to have taken was withdrawn, and they withdrew with it.
As to the use of unusual, rude, and contemptuous expressions towards the prisoner’s counsel, no particular facts appear to be relied on. The term captious may be unusual; the phrase young gentlemen, which in the opening the honorable Manager metamorphosed into boys, but which last word does not by the testimony appear to have been used, may have been obnoxious to the ears of those to whom it was applied. There may not have been manifested in this language the most refined decorum; but let us recollect that our honorable client is not now on his trial for a violation of the decorums of society. Possessed of great ardor of mind and quickness of feeling, he conceives with rapidity, and expresses with energy his ideas. This may be a weakness; but it is a weakness of nature. Had he a colder heart, and weaker head, he might not be exposed to these little indiscretions. But where is the vade mecum from which a judge is to derive precedents for his behavior? Courts are instituted, not to polish and refine, but to administer justice between man and man. One judge may possess a more pleasing urbanity of manners than another; but are we to infer that because a man is warm in the expression of his sentiments, he is, therefore, angry? It will not be contended that when the counsel for the traverser spoke of the necessity of the indictment being verbatim et literatim, in the witty reply of the judge that they might as well insist that it should be punctuatim, there was any violation of decorum manifested. The reply grew out of the occasion, and never was a remark better applied.
I know of no other unusual language, except the expression of non sequitur; and surely there was nothing improper in that. We have been told that it is the usual habit of Judge Chase to interrupt counsel when they attempt to lay down as law that which is not law. In this case, he certainly did so; but it does not appear that he departed from his ordinary course; and if he had, where is the rule which, on such occasions, is to govern a judge? Such conduct, as I have before observed on another point, violates no moral obligation, infringes no statutory provision. The judge may not have displayed the urbanity, the suavity, and the patience, which so happily characterize some high characters; but where or when has the absence of these minor qualities been considered as criminal? Some of the witnesses, and among them Colonel Taylor, have described the conduct of the judge as imperious, sarcastic, and witty; but no witness has pronounced it tyrannical or oppressive.
With regard to the fourth specification, which relates to the interruption of counsel, I shall say but little. A judge has a right at all times to interrupt counsel whenever they act improperly. It is the inherent right of courts. When that is laid down as law which is not law, it is not only their right, but it is their duty, to stop them. Such interruptions may be considered vexatious by the counsel that are interrupted; but of such matters the Court only can be the judge. One witness, examined on the frequency of the interruptions of counsel on the trial of Callender, has said that more interruptions occurred in a case before Judge Iredell, whose eulogium has been pronounced by an honorable Manager; and another witness has informed us that it is the habit of Judge Chase frequently to interrupt counsel in civil as well as criminal cases; that the habit arises from the vigor of his mind, and the ardor of his feelings; that this is somewhat embarrassing to counsel, but that a little suavity on their part soon restores the judge to good humor. On this point I have no further observations to make. I will leave it to the good sense of this honorable body to determine how far the conduct of the respondent was, on this occasion, indecorous, and how far, on account of this conduct, he is liable to impeachment.
As to the fifth specification, which is in these words: “In an indecent solicitude, manifested by the said Samuel Chase, for the conviction of the accused, unbecoming even a public prosecutor, but highly disgraceful to the character of a judge, as it was subversive of justice.” I have no precise idea of the meaning of the term indecent solicitude—solicitude means mental anxiety. If we are to understand by solicitude that the judge felt anxiety for the furtherance of justice, that is simply an operation of the mind, and to determine whether it is praiseworthy or reprehensible, some overt act must be shown. For is it possible that, in any interesting case, a judge can sit on the bench without feeling some interest in the issue? This is more than falls to the lot of mortal. No, he must have feelings; and all that can be required is, that he restrain them from breaking out into acts subversive of justice. I will endeavor, on this point, to condense the testimony. It is said that the solicitude of the respondent is evinced by his indecent behavior to the counsel, and by his conduct previous to the trial. A jocular conversation is resorted to; and expressions made in the most unguarded moments are drawn forth in judgment against him. After he had delivered a charge at Annapolis, Mr. Mason came up to him, and asked him what kind of charge he had delivered, whether it was to be considered as legal, religious, moral, or political. To which the judge replied that it was a little of all. Some conversation ensued on the licentiousness of the press, and he observed that when he went to Richmond, if a respectable jury could be found, he would have Callender punished. All this is worked up, as it were by magic, to prove a deliberate purpose on his part to institute a prosecution. That a man of the intelligence of Judge Chase, had he conceived such a project, should thus jocosely, as is proved, and in public have divulged it, is beyond all belief. Let not a casual conversation of this light and sportive kind be tortured into evidence of a deliberate design. No man, the least acquainted with the general character of Judge Chase, will entertain the idea for a minute.
Another circumstance complained of, is, that Judge Chase was provided with a scored copy of “The Prospect before Us;” and this is adduced to prove his purpose to oppress Callender. But we have given it in testimony that this copy was scored by Mr. Martin, who handed it to the judge, when he was about going to Richmond, to amuse him on the road, and to make such other use of it as he pleased. What was there improper or indecent in this? Further: the respondent is next hunted through a line of stages on his passage from Dumfries to Richmond; and Mr. Triplet is brought forward to prove that he expressed a wish that the damned rascal had been hanged. Had there been a settled purpose to convict or oppress Callender, would it not have been manifested by concealment and prudence, instead of being divulged by such an intemperate impulse of feeling?
We next find the respondent at Richmond. And here a gentleman states that having moved the Court for an injunction, he went to the chambers of Judge Chase on the subject, on the morning subsequent to the motion being made, and before the judge had gone to court; that while he was there, Mr. David M. Randolph, the marshal, came in, and showed the judge the panel of jurors for the trial of Callender; that the judge asked him whether there were on it any of the creatures called democrats; and added, if there are, strike them off. Here must be some mistake. The witness must have heard some other person say so. Sure I am that the testimony will show that the statement of Mr. Heath cannot be received as correct. I impute no criminal intention to the witness; this is not my habit; but, for ascertaining the weight which it ought to have, I will collect and compare the several parts of the testimony on this point.
It appears that Mr. Heath was at the judge’s chambers but once. Mr. Marshall, the clerk of the Court, called on Judge Chase the same morning that Mr. Heath was there—he cannot recollect whether Mr. Randolph went with him, according to his usual practice, but he is certain, from a conversation he states, that they walked together to court; he met Mr. Heath either in the act of coming out of the judge’s room, or exterior to the door; and he heard no such conversation as he relates. What says Mr. Randolph? That no such conversation ever did take place. Here, then, the testimony is directly opposed. But it is said that our testimony is negative, and is therefore outweighed by the positive testimony of Mr. Heath; this, however, is not the fact. Much of our testimony is positive. Mr. Randolph declares that he has never shown the panel of a jury to a judge, except in the case of a grand jury offered to the Court to select a foreman; and he is positive that the panel in the case of Callender was not made out until the morning of the third of July, in court, when his deputies came forward with the names of the jurors they had summoned, on small slips of paper; and in corroboration of this evidence, it appears on the testimony of Mr. Basset, who was sworn on the jury, that he was not summoned until the third of July; and that the marshal sent out his deputies that very morning to summon jurors. We oppose, then, to the simple declaration of Mr. Heath, unaccredited by other witnesses, the clear and strong evidence of Mr. Randolph, corroborated by that of Mr. Marshall and Mr. Basset.
It does, then, appear to me that none of the alleged facts are so supported as to show an indecent solicitude on the part of the respondent.
Mr. Lee.—May it please this honorable Court: We are now arrived, Mr. President, in the course of the defence, to the fifth article of impeachment. I have, sir, been led to believe, that the present prosecution is brought before this honorable Court as a court of criminal jurisdiction, and that this high Court is bound by the same rules of evidence, the same legal ideas of crime, and the same principles of decision which are observed in the ordinary tribunals of criminal jurisdiction. The articles themselves seem to have been drawn in conformity to this opinion, for they all, except the fifth, charge, in express terms, some criminal intention upon the respondent. This doctrine relative to impeachment is laid down in 4 Black., 259, and in 2 Woodeson, 611. “As to the trial itself, it must of course vary in external ceremony, but differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments, prevail. For impeachments are not framed to alter the law, but to carry it into more effectual execution, where it might be obstructed by the influence of too powerful delinquents, or not easily discerned in the ordinary course of jurisdiction, by reason of the peculiar quality of the alleged crimes. The judgment, therefore, is to be such as is warranted by legal principles and precedents.” The Constitution of the United States appears to consider the subject in the same light. By the third section of the third article, “the trial of all crimes, except in cases of impeachment, shall be by jury;” and by the fourth section of the second article, the nature and extent of the punishment in cases of impeachment is defined. Hence it may be inferred that a person is only impeachable for some criminal offence. With this view, I have examined and re-examined the fifth article of impeachment, to know against what the defence should be made. Looking at it with a legal eye, I find no offence charged to have been committed; and although it may seem strange, it is not the less true, this circumstance has produced the greatest difficulty and embarrassment in what manner the defence should be made.