One of the learned counsel in commenting upon the first article, declared that he discovered but a single truth in it, which was, that the judge had formed and reduced to writing an opinion upon the law; and that gentleman, as well as the Attorney-General of Maryland, labored with great zeal and with much display of talent, to convince the Senate that there could be nothing wrong in this. Unfortunately for these learned gentlemen, even that truth is not to be found in it, for by recurring to the article it will be found that the judge is not charged for having formed an opinion, or for having reduced that opinion to writing, but for “having delivered an opinion in writing on the question of law, on the construction of which the defence of the accused materially depended, tending to prejudice the minds of the jury against the prisoner before counsel had been heard in his defence.”
In this we find no charge against him for having formed an opinion, or for having reduced it to writing, and certainly the learned counsel might have spared themselves the trouble of proving what I am sure every member of the Court was fully convinced of before, that there was no impropriety in a judge’s forming an opinion on any subject whatever, whether legal or philosophical. It is not, however, usual for skilful advocates to attempt to draw the attention from the material points in dispute, for the purpose of fixing it on others of little or no importance. Such has been the course pursued by our adversaries. But, Mr. President, the real charge is, that Samuel Chase did, upon the trial of John Fries for treason, endeavor to prejudice the minds of the jury against him, by delivering an opinion to them upon the law before his counsel were heard; and this too in a case of life and death, where the jury had an ample, uncontrollable right, to decide as well the law as the fact. It is the right and duty of judges to inform their minds upon all questions of law whatsoever, but it is an unwarrantable proceeding, it is an unauthorized assumption of power in them, to deliver that opinion to the jury in a criminal cause before the jury is sworn, and before the counsel of the prisoner have been heard in his defence.
Much has been said with a view to convince the Court that the opinion thus delivered was a correct one, and it has therefore been argued that his conduct was perfectly justifiable. For my own part, I consider it totally immaterial in the present case whether the doctrine of treason, as laid down by the judge, was correct or not; for even if it were correct, the time and manner of delivering it, and the persons to whom it was delivered, form the substance of the charge against him. It is a misdemeanor, a high misdemeanor in a judge, wantonly to give an opinion upon any case which is to come before him, previously to the swearing of the jury, and the offence is made much greater by the opinion being publicly declared in the presence of the jury, who ought to come to the trial of every cause with minds wholly free from prepossession against either party.
Although the judge has said in his answer, that no gentleman of established reputation for legal knowledge would deliberately give a contrary opinion, yet I have not the slightest apprehension that any little reputation which I may possess, can in any manner be affected by my expressing, as I now do, my entire conviction that the doctrine of treason, as laid down in Fries’s case, is wholly repugnant to the spirit and meaning of the constitution. It is not my intention at this time to enter into an argument to prove this, for I have before said that I consider it quite immaterial in the present discussion; but I will offer some few observations, to demonstrate to the Senate that there was nothing very unreasonable in the wish expressed by Mr. Lewis and Mr. Dallas, to show that the constitution was susceptible of another construction.
The constitution declares that “treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” John Fries was indicted for levying war against the United States, and the facts I believe were, that he, with some others, did, in a forcible manner, rescue some prisoners from the marshal of Pennsylvania. This was called a resistance to a law of the United States, and, by construction, was determined at the former trial to be the treason of levying war. It was in opposition to this construction of the constitution that Mr. Lewis and Mr. Dallas wished to be heard. It was certainly not a very extravagant wish on their part, for it ought to be recollected that we are a young nation, and it is deeply interesting to us all that the Constitution of the United States should not receive a construction unwarranted by its letter. After the decisions had taken place in the courts upon the Western insurrection, (I mean in the cases of Vigol and Mitchell,) Congress had passed an act declaring that to resist a law of the United States should be deemed a high misdemeanor, punishable by fine and imprisonment; and they had before provided, by the act of 1789, that to rescue prisoners from the custody of the marshal should also be punishable by fine and imprisonment. Mr. Lewis and Mr. Dallas were desirous of showing that Fries’s case came within the provisions of these laws, and that his offence was not of such a nature as to forfeit his life. They also wished to have an opportunity of proving that the terms levying war ought not to receive the same construction here as in England. To convince the Senate that they were not singular in their ideas, and that the construction given by the Court has not been unanimously assented to, I shall take the liberty of referring to an author of merited reputation, to whom I believe our adversaries will not refuse their respect. Judge Tucker of Virginia, in his valuable edition of Blackstone’s Commentaries, in the appendix to the fourth volume, under the title of treason, after reciting that part of the constitution relating to the subject, observes:
[Here the opinions of Judge Tucker were read.]
Such we find are the opinions of Judge Tucker, an able and upright lawyer, who thinks that the constitution ought to be construed agreeably to the plain import of its language, and ought not to be involved in technical abstruseness. In that series of publications entitled the Federalist, written at the commencement of the present Government, by some of the ablest men in this nation, for the purpose of defending the constitution, it is matter of boast, that treason was fully defined, and not left to wild and arbitrary construction. But what avails the definition, if the constructive treasons of England are to be drawn in as precedents for us?
I before stated that I did not mean to enter into an argument against the correctness of the Court’s opinion; nor have I done so, but have offered these remarks to show that it was not unreasonable in Mr. Lewis and Mr. Dallas to wish that another construction of the constitution might be received. The counsel for Judge Chase seem to think it monstrous that they should have wished to argue the point after the law had been settled by three former decisions, which had taken place in the course of four years. Let it be remembered that Sir Matthew Hale doubted, after the lapse of one hundred and fifty years from the first of these constructive treasons, and after, for aught I know, one hundred and fifty cases had been decided. Mr. President, far from thinking their conduct on that occasion extraordinary, I, as a free man of America, most cheerfully accord them my thanks for the stand they made; and I do hope and trust, that if ever a similar case should occur, in which the same doctrine of constructive treasons shall be urged to a jury, men like Mr. Lewis and Mr. Dallas will be found, men of exalted talents and extensive learning, who will be bold enough to assert the rights of the citizen, and save the constitution of their country from destruction.
Another justification of a peculiar nature is set up in defence of Judge Chase, by a statement made in Keelyng’s Reports. It is there said that “after the happy restoration of King Charles the Second, Sir Orlando Bridgman, chief justice of the King’s Bench, and some six or eight others, judges, prosecutors, and King’s solicitors, assembled for the purpose of determining in what manner the regicides should be tried, and they settled many points which it was supposed would occur upon the trials.” This, sir, is an unfortunate period to refer to for justification of the conduct of judges in our day. Never was there a moment of such fawning servility; never was there a period of such unbounded licentiousness. The hope of reward or the fear of punishment brought almost every man crouching at the footstool of the throne, and all united in singing hosannas to the King, and crying aloud for the crucifixion of the miserable regicides. This conspiracy (which has been quoted) against the wretched victims whose sacrifice was resolved on, was headed by that most servile of all servile tools, Sir Orlando Bridgman. His character and those of his brother judges who conspired with him, may be recollected from the charge which he gave to the grand jury on that occasion. It will be found in the fourth volume of State Trials, and it will there be seen how flamingly he talked of the divine right of Kings, whom he called God’s vicegerents on earth; their persons he said were too sacred for their conduct to be inquired into: they held their power from God, and were accountable to him alone: it was treason in their subjects to inquire into the propriety of what they did; with much more of the same cast. These are the times, these the men, and this is the conduct now introduced for the justification of Judge Chase. If they will afford him a justification he is welcome to it for me. They were woful times indeed; one would have thought the Parliament which the King found in session upon his return, was submissive enough; but he was not satisfied, and finding the whole nation ready to bow at his nod, he ordered a new one elected, and they proved so compliant to all his wishes, that he continued them for eighteen years. This sufficiently proves the servile spirit of those whom the King thought proper to employ on this noted occasion, and it is not much to Mr. Keelyng’s honor that he was one of them. The points which they did settle were of an extraordinary nature, and one of them was read a few days since by one of the counsel (Mr. Key) to show that Basset was a good juror in Callender’s trial.
If, however, this famous precedent had been made in the best of times, it does not apply to the present case. For these judges, bad as they were, yet had modesty enough to keep their opinions to themselves, till after the trials had commenced, and did not deliver them until the occasions arose which called for them. Judge Chase, we have fully proved, delivered his opinion beforehand, publicly, and in the hearing of the jury, so that the authority of Mr. Justice Keelyng and Sir Orlando Bridgman does not justify him. He outstripped even them.