term, John Fries was indicted for trial, be made known to the jury, high treason, and the opinion, and the respondent was therefore which is the subject of the charge, further influenced to make this was communicated to the counsel communication, from the hope of for the prisoner, after he was guarding them against any errobrought into court, but before the neous impression of the law, since petit jury was impannelled to try it was their right in this, as in all him. This was the second trial criminal cases, to render a general of Fries for the same offence. At verdict of acquittal, which could the first trial, the facts were fully not be set aside, although it should proved, and his counsel rested their be contrary to law. defence on the question of law. The respondent admits, that, at The opinion, which the respondent the trial, he expressed the opinions, delivered, was on this question ; that English deeisions in cases of viz, whether resisting and prevent- treason, at common law, against ing by armed force the execution the person of the king, ought not of a particular law of the United to be read to the jury, on trials for States, be a “ levying of war against treason under the constitution and the Urited States,” according to statutes of the United States ; that the true meaning of the constitu- English decisions on this subject, tion. In two solemn decisions, by prior to the revolution in 1988, Judges Paterson and Peters, in the ought to have very little influence cases of Vigoll and Mitchell, and in our courts; that decisions since by Judges Iredell and Peters, in that period, shewing what acts the case of Fries, the prisoner, in have been considered as a construct 1799, on arguments at great length, tive levying of war against the king and on mature deliberation of the in his legal capacity, were admis, court, this point had been adjudg. sible, but not those against his per: ed, and had thereby become a pre- son. Those opinions however cedent for all courts of equal or in- were not of binding authority in feriour jurisdiction. With the this country, but claimed respect correctness of this opinion, the res- from their intrinsick excellence, pondent was, on full consideration, and from the exalted legal estimasatisfied, and, in his own words, tion of their authors. “ by the authority of it he should The respondent insists, that it is have felt himself bound, even had the right and duty of the court, he regarded the question as doubt- “ to decide and direct what eviful in itself.” dence, whether by record or by The reasons stated for commu- precedents of decisions in courts nicating this opinion, in the man- of justice, is proper to be admitted per and at the time mentioned, for the establishment of any matwere, that the respondent felt him- ter of law or fact.” He insists alself bound by the authority of for- so, that he can be called in quesmer decisions, and considered it tion only for the correctness of his his duty, to prevent an unnecessa- motives, but he admits, that cases ry consumption of time, which was may be supposed, where a judge rendered precious by the pen- may have delivered "an opinion dency of more than ,one hundred so palpably erroneous, unjust, and civil actions, many of which had oppressive, as to preclude the posalready been subjected to great de. sibility of its having proceeded lay. It was necessary that this oe from ignorance or mistake." pinion should, at some stage of the II. In reply to the charge con on tained in the second article, rela- mony of Col. Taylor was rejected tive to his having over-ruled the on the ground, that his evidence objection of one of the jury to did not go to the whole: matter serve on the trial, the respondent contained in this article. Each observes, that the juror wished to count in the indictment contained be excused,“ because he had form twenty independent charges, or ed an opinion, that the publication, sets of words. Though one slandcalled “ The Prospect before us," er more or less in such a publicafrom which the words charged in tion as “ The Prospect before us,” thè indictment as libellous, were could be of no moment; yet as, on said to have been extracted, but legal principles, a plea of justificawhich publication he had never tion must always answer the whole seen, was, according to the rep- charge, or it is bad on demurrer, resentation of it, which he had re- and as the same rule is applicable ceived, within the sedition law." to evidence, when the matter may The reason, for which a juror be given in evidence, without a should not be permitted to serve formal plea ; evidence, which went a trial, is, “ that he does not to prove only a part of an entire stand indifferent between the par- and indivisible charge, was inadties.” The juror in the present missible, and therefore the testiinstance had neither expressed normony of Col. Taylor was rejected. formed an opinion as to the facts. IV. Posterity will be astonishAs he did not know, whether the ed, that it was made an article in contents of the book were really an impeachment against a judge, such as had been represented to that he required the counsel to rehim ; whether they would on trial duce their interrogatories to writbe proved to be true; whether ing, in a case of some difficulty, Callender was really the author of and for a more accurate observation the book ; or whether he wrote it of them. No lawyer could ever with that evil intent, which was al- doubt the right of a judge to make leged in the indictment, he stood such an order, if he deemed it indifferent as to the matter in issue necessary.' That it should excite in the legal and proper sense. murmurs, much more that it III. The evidence of John should be the ground of a serious Taylor was rejected on the follow- charge against the respondent, for ing ground. The twelfth charge misconduct in his official character, in the indictment contained these betrays in the counsel a childish words. “ He (meaning President impatience of restraint, and must Adams) was a professed aristocrat; forever be recorded, as a monument he proved faithful and serviceable of the condescension of the illusto the British interest.” Taken trious majority in the house of separately, they charge Mr. Adams representatives, for the year 1804. with no offence, and consequently If the court is the proper tribunal could not be indictable as libellous: to decide all questions of evidence, but taken together, they intend, it is certainly the duty of the judge that Mr. Adams, being an enemy es, to use great deliberation, whento the republican government of ever the correct decision of these his country, had subserved the questions requires the application British interest against the interest of exquisite legal principles, and of his own country; an offence great subtlety of reasoning. both moral and legal. The testi- It is one of the specifications in this article against Judge Chase, that he refused to postpone the trial of Callender. The continuance of a cause does not depend on the arbitrary will of the court, but on fixed principles. Every application for a continuance must come within those rules, or the trial must proceed. The true and only reason for granting a continuance is, that the party accused may have the best opportunity, which the law can afford him, of making his defence. Where the ground of a continuance is the absence of witnesses, it is a settled rule, and made necessary to the expeditious and happy administration of justice, that the application should be supported by an affidavit, that the testimony wanted is "competent and material," and that there is" reasonable expectation of procuring it within the time prescribed." The affidavit of Callender did not state, that he expected to procure, at the next term, such evidence as he wanted, or that he should obtain the attendance of the absent witnesses, who were scattered over the union. The affidavit was clearly defective, and it be came the duty of the court to reject the application. After perusing the trial of Callender, it is apparent from the conduct of his counsel, that they were unwilling to be tied down to an observance of the rules of law. It would have been vastly agreeable to them, and very much for the interest of their client, could the cause have been tried by a mob, instead of being heard before a tri bunal, whose judges well knew the rules of law, and had the virtue to accomplish the duties of their of ficial station. In concluding his defence against thofe charges, contained in the fourth article of impeachment, he declares, that his whole conduct in that trial, was regulated by a ftrict regard to the principles of law, and by an honeft defire to do juftice between the United States and the party accufed. He felt a fincere with, on the one hand, that the traverser might establifh his innocence, by thofe fair and fufficient means which the law allows; he fhould not, by fubterfuges and frivoand a determination on the other, that lous pretences, fport with the juftice of the country, and evade that punishment of which, if guilty, he was fo proper an object. Thefe intentions, he is confident, were legal and laudable; and if, in any part of his conduct, he fwerved from this line, it was an error of his judgment and not of his heart. V. In replying to the fifth article of the impeachment,the respondent shews, that the managers, who fabricated the article, were guilty of a material oversight in citing the law of Virginia, on which it is founded. The charge is, for awarding an erroneous process against Callender. But by the statute, it is left in the discretion of the court to award the proper process, provided it will bring the offender to answer to the presentment. The Judge then proves incontrovertibly, that in issuing a capias, his conduct was perfectly correct. VI. The sixth article charges the respondent with an intent to oppress Callender, in adjudging him to trial, during the term at which he was presented and indicted. But the respondent denies, that the law of Virginia, to which this article refers, warrants the inference drawn from it; "because it speaks of presentments, and not of indictments, which are very different things; and is, as he is informed, confirmed, by practice and construction in the state of Virginia, to cases of small offences, which are to be tried by the court itself upon the presentment, without an indictment, or the intervention of a jury," In passing a judgment on the character of the majority in the house of representatives, who voted in favour of the impeachment, posterity will inquire, wherefore Judge Chase was selected, as the sole object of this impeachment. He was but one of the judges, who constituted the courts, in which the facts took place. In the opinions expressed, and in the judgments rendered, the associates of Judge Chase concurred in sentiment. The turpitude, if any, attached to both. Why were actions regarded in one as venial, while they were made the subject of a criminal charge against the other? Was it because Judge Chase would be a more splendid victim on the altar of political intolerance? Or was it to sooth the wounded feelings of the principal prosecutor? In the eye of impartial minds, remote from the scene of action, and free from those impediments, which obscure the clearness of its vision, this selection remains a record of partiality. VII. It is sufficient to shew the futility of the charges, contained in the seventh article, to observe, that they do in substance amount to this; "that the respondent refused to discharge a grand jury on their request, which is every day's practice, and which he was bound to do, if he believed that the due administration of justice required their longer attendance; that he directed the attention of the grand jury to an offence against a statute of the United States, which he had been informed was committed in the district; and that he desired the district attorney to aid the grand jury, in their inquiries concerning the existence and nature of this offence. By these three acts, each of which it was his duty to perform, he is al leged, "to have degraded his high judicial functions, and tended to impair the publick confidence in, and respect for, the tribunals of justice, so essential to the general welfare." VIII. In replying to the eighth article, the respondent avows the political opinions, which he is charged with uttering. He then adds: It has been the practice in this country, ever fince the beginning of the re volution, which feparated us from Great Britain, for the judges to exprefs from the bench, by way of charge to the grand jury, and to enforce to the utmost of their ability, fuch political opinions, as they thought correct and useful. There have been inftances in which the legislative bodies of this country, have and it was adopted by the judges of the recommended this practice of the judges; fupreme court of the United States, as foon as the present judicial fyftem was established. If the legislature of the United States confidered this practice as mifchievous, dangerous, or liable to abuse, they might have forbidden it by law; to the penalties of which, fuch ́judges as might afterwards tranfgrefs it, would be july fubjected. By not forbiding it, the legislature has given to it an implied fanction; and for that legiflature to pun ifh it now by way of impeachment, would be to convert into a crime, by an ex poft facto proceeding, an act which when it was done and at all times before, they had themselves virtually declared to be innocent. Such conduct would be utterly fubverfive of the fundamental principles on which free government refts; and would form a precedent for the moft fanguinary and arbitrary per fecutions, under the forms of law. He then with brevity examines the political opinions, which were incorporated in his address to the grand jury, and in a satisfactory manner defends them. The close of the respondent's plea is inexpressibly solemn and dignified. We insert it as a sper cimen of genuine eloquence. This respondent has now laid before this honourable court, as well as the time allowed him would permit, all the circumftances of this cafe. With an humble truft in Providence and a consciousness that he hath discharged all his official duties with juftice and impartiality, to the best of his knowledge and abilities; and that intentionally he hath committed no crime or misdemeanour, or any violation of the conftitution or laws of his country-Confiding in the impartiality, independence, and integrity of his judges, and that they will patient ly hear and confcientiously determine this cafe, without being influenced by the fpirit of party, by popular prejudice, or political motives, he cheerfully fubmits himself to their decifion. If it shall appear to this honourable court from the evidence produced, that he hath acted in his judicial character with wilful injuftice or partiality, he doth not with any favour, but expects that the whole extent of the punishment permitted in the conftitution will be inflicted upon him. incident to man. He is fatisfied that bled univerfe. To his Omnifcient Judge, at that awful hour, he now appeals for the rectitude and purity of his conduct, as to all the matters of which he is this day accused. He hath now only to adjure each member of this honourable court, by the living GOD, and in his holy name to render impartial justice to him, ac cording to the constitution and laws of the United States. He makes this folemn demand of each member, by all his hopes of happiness in the world to come, which he will have voluntarily renounced by the oath he has taken; if he shall wilfully do this refpondent injuftice, or difregard the conftitution or laws of the United States, which he has folemnly fworn to make the rule and standard of his judgment and decifion. The object of the review of a book is to communicate to the publick information of its contents, and to pourtray its excellencies Milton observes, and defects. If any part of his official conduct shall appear to this honourable court, fricti" that it is of greatest concernment juris, to have been illegal, or to have pro- in the church and commonwealth, ceeded from ignorance or error in judge to have a vigilant eye how books ment; or if any part of his conduct demeane themselves, as well as Thall appear, although illegal, to have been irregular or improper, but not to men." From regard to publick have flowed from a depravity of heart, considerations, we always look on or any unworthy motives, he feels con- a new publication with jealousy, fident that this court will make allow well assured, that if it is written ance for the imperfections and frailties for immortality, no wound, which it can receive from the severity of criticism, will be fatal to its exist. ence. But if books inculcate evil and pernicious principles, either in taste or morals, " since they doc contain a potencie of life in them to be as active as that soule whose progeny they are," they must, at the tribunal of criticism, be duly informed against, and prosecuted to conviction and punishment, as offenders against the peace and dignity of the commonwealth. every member of this tribunal will obferve the principles of humanity and juftice, will prefume him innocent, until his guilt fhall be established by legal and credible witneffes; and will be governed in his decifion, by the moral and chriftian rule, of rendering that juftice to this refpondent, which he would wish to receive. This refpondent now stands not merely before an earthly tribunal, but also be fore that awful Being, whofe prefence fills all space, and whofe all feeing eye more especially furveys the temples of juftice and religion. In a little time, his accufers, his judges, and himself muft appear at the Bar of Omnipotence, where the fecrets of all hearts fhall be difclofed, and every human being shall This trial, the course of the proceedings, the examination of the witnesses, and the arguments for anfwer for his deeds done in the body, and against the prosecution, are and fhall be compelled to give evidence worthy the attention of all the citagainst himself in the prefence of affem-izens, but more particularly of the |