book I

did not know that Judge Chase was going on the circuit of Virginia. My scoring was for my own amusement, and for that of my friends. Afterwards I saw Judge Chase. I asked him if he was going down to Richmond; he answered yes. I asked if he had seen the book called the “Prospect before Us?” He said he had not. I then told him, I will put it into your hands; you may amuse yourself with it as you are going down, and make what use of it you please. There was a great deal more scored than was contained in the indictment. I most solemnly declare that I had no view to a prosecution in scoring it; though I have no hesitation in saying that in common with every worthy inhabitant of America I detested the book.

Mr. Nicholson. What do you mean by detest?

Mr. Martin. I am ready candidly to acknowledge that I did think it a book that ought to be prosecuted; and I did not think that Judge Chase would have an opportunity of seeing it unless I gave him a copy of it. Having since heard it suggested that I had some share in drawing up the indictment against Callender, I most solemnly declare I did not put pen to paper on the subject.

_James Winchester, sworn._

Mr. Harper. Will you please to state whether you were in Annapolis in 1800, in court with Judge Chase, and Mr. John T. Mason, and what was the conversation which then took place?

Mr. Winchester. I attended a circuit court held at Annapolis in 1800. I do not recollect either the day the Court commenced or ended. I think on the last day of the term sentence was passed on ---- Saunders for stealing, in his character of postmaster, the contents of a letter. A crowd gathered round the door, and retarded our passage out of court. I do not remember what persons remained; but Mr. Mason came up and addressed himself to Judge Chase. My recollection is at best but imperfect, and of this conversation necessarily indistinct. In the account of it, therefore, I shall use my own language. I may occasionally use the language of Judge Chase and Mr. Mason. According to the impression on my mind the conversation commenced in this way: Judge Chase had delivered a charge to the grand jury. Mr. Mason came up, and in a laughing manner jocosely asked, In what light are we to consider the charge, as moral, political, judicial, or religious? These are the words, I believe, but of this I am not certain. The judge replied in the same style and manner, I believe, that it was a little of all. I cannot be certain, but I think Mr. Mason intimated to the judge that he would not deliver such sentiments in Virginia. It appeared to me that the language of Mr. Mason conveyed to Judge Chase the idea that he was afraid to deliver such sentiments in Virginia, though I am not myself confident that such was his meaning. The judge replied that he would, and that he would at all times and in all places execute the laws in the manner he had declared.

_William Marshall, sworn._

Mr. Harper. Inform the Court how soon you saw Judge Chase after his arrival at Richmond, what passed between you, &c.

Mr. Marshall. Judge Chase arrived in Richmond, but whether on the 21st or 22d of May, I do not recollect; but my impression is that it was Tuesday. I waited on him, as was usual with me, and gave him information respecting the state of the docket. The associate judge did not attend on the 22d, when the Court was opened and the grand jury received their charge. They went to their room, and did not return till Saturday the 24th of May, when they returned a presentment against James T. Callender, which I have. [The original presentment was produced by the witness, read, and delivered to the Secretary.]

As soon as I had read the presentment, at the request of the attorney of the district the jury were taken back to their chamber, and progress was made in preparing the indictment. There was some conversation between Judge Chase and Mr. Nelson, which lasted for a few minutes. Judge Chase inquired what was the proper process on the presentment. The answer which the district attorney made, was, that he supposed a capias was the proper process. I recollect that Judge Chase said something of a bench warrant, which was a practice unknown to us. Judge Chase asked me to draw the warrant. I said I could not. He then said he would endeavor to draw it. Afterwards Judge Chase desired the district attorney to draw out the form of a capias; the judge said he would draw one himself, and that I might draw out another; and he said he would take the most approved of the three. I recollect mine was drawn first; but whether before Judge Chase and Mr. Nelson had finished theirs, I do not recollect. On looking over mine, he said he was better satisfied with mine than his own; and he requested me to sign, seal, and deliver it to the marshal.

[Mr. Marshall here produced and read the original capias.]

On Saturday the 24th of May, in the afternoon, the grand jury brought in the indictment. I have taken these circumstances from a copy of the minutes of my office, which, if the Court wish to see, I can produce, as I have them with me. Judge Chase alone formed the Court from the 22d to the 29th of May, inclusive. On the 27th of May the marshal brought Callender into court, Judge Chase being at that time the only member of the Court. A chair was handed to him, and he remained in court while the Court proceeded with the docket in the usual way, until near evening, when Judge Chase observed that as the traverser was in court, he might perhaps have some application to make. I do not recollect whether the counsel afterwards employed for the defence of Callender were then in court; but if they were, they made no observations. But Mr. Meriwether Jones, with whom Callender resided, said that Callender was not then prepared to make any application; but that perhaps to-morrow he would move a continuance. Then Judge Chase applied to Callender, and asked if he could give bail. Mr. Jones replied that he could give bail in a moderate sum. Judge Chase asked Callender what were his circumstances; that in fixing the sum, he would be governed by that circumstance. Callender said they were nearly equal. The judge repeated the question, and then Callender said he was indebted about two hundred dollars, and there was about as much due to him which he expected to receive; and therefore he did not consider himself worth any thing. Judge Chase then asked if he could give bail, himself in two hundred dollars, and another in a like sum. The reply made by Mr. Callender or Mr. Jones was, that he could find bail to that amount; and he accordingly gave bail. On the 28th May, an application was made by Mr. Hay; this was the first instance in which Mr. Callender took any steps for his defence. Mr. Hay stated that he was not well acquainted with the practice in such cases; that he had an affidavit, of a general nature, stating the impossibility of going into the trial, with any prospect of success, without the attendance of a number of witnesses who lived at a great distance. Mr. Hay also inquired whether a general affidavit was sufficient, or whether a special affidavit, stating the names of the witnesses and the facts they were expected to prove, would be required. Judge Chase said that the strict practice of the law required a special affidavit; but they might take till to-morrow to prepare a special affidavit, submitting it to their discretion to manage the cause as they thought proper. I beg pardon for being a little too hasty in my narrative. When Mr. Hay offered his motion for a continuance, the Court said that before they could hear the motion it was necessary that the traverser should plead to the indictment. For if he pleaded guilty, there would be no necessity for an application. Mr. Hay assured the Court that the traverser would not plead guilty. Mr. Callender was arraigned and he plead not guilty; and then the conversation which I have stated took place. The reply of Judge Chase was, after a general affidavit is made, it must be relied on, but you may withdraw the general, and file a special affidavit. Nothing further passed on the 28th.

On the 29th, in the morning, Mr. Hay produced a special affidavit; I have the original here. It is stated therein, that there were a number of witnesses, one from New Hampshire; one from Massachusetts; some from Pennsylvania, and some from South Carolina, absent; who were material witnesses for his defence; that there were also sundry documents to be procured; and an essay written by Mr. Adams on canon and feudal law, which the traverser supposed it important to have for his defence. Mr. Hay, on these grounds, moved for a continuance to the next term, in a pretty long speech. Judge Chase observed, that every person before he made a publication, if he meant to justify it, ought to know the names of his witnesses; and if he meant to justify it by documents, they ought to have been within his reach. It was not to be presumed, indeed, that he could calculate upon being able to procure his witnesses in a few days; that in this case, it was alleged that one witness resided in New Hampshire, which was a great way off. He said that the ordinary sittings of the Court would be too short for him to obtain witnesses from so great a distance. He said that the prisoner should have time, and he should have a fair trial, but he could not allow him to the next term. He said he might have two weeks--but that might be too short a time--you may have three weeks, a month, nay, six weeks. We cannot sit so long, because we are obliged to hold a court in the district of Delaware; but I will adjourn this Court, to go to Delaware, and will return in six weeks. In the course of the observations offered by Mr. Hay to the Court, as well as I can recollect, he said, if the documents and witnesses were here, he did not think he would be prepared during that term to investigate all the facts, and the law arising on them; but he would be prepared against the next term, if the Court would indulge him with a continuance. After Judge Chase had made this offer of a postponement, I do not distinctly remember that Mr. Hay or Mr. Nicholas made any reply. After a short interval Judge Chase said, as they did not seem disposed to take the time he had offered, the trial should come on within the time the testimony of the witnesses residing in Virginia, deemed material, can be procured. He asked the marshal what was the distance of the residences of Mr. Giles and General Mason, and in what time they could conveniently come to Richmond; and, whether his deputy marshals could go for them? The reply of the marshal was, that his deputies were prepared to execute any orders of the Court. Judge Chase then directed me to make out the subpœnas for Monday, the 2d of June; and I issued subpœnas for Messrs. Giles, Mason, and Taylor; but Colonel Taylor’s name does not appear in the affidavit. The deputy marshals were directed to use all possible expedition in serving the subpœnas: they were all returned executed on Monday the 2d of June, endorsed with the hour of the day on which they were executed.

[Here Mr. Marshall offered the originals with the endorsements of the time of service.]

On Monday, the 2d day of June, Colonel Taylor appeared in court. The other witnesses were called, but they did not appear. A postponement was asked by one of the gentlemen, for two hours, who stated that it had rained on Sunday preceding, which might have impeded travelling, and it was granted. Some time in the course of the day, Judge Chase observed he might have till to-morrow, which was accepted.

On Tuesday morning, soon after the opening of the Court, the motion for a continuance was renewed, founded on the affidavit of Callender, which gave rise to the first motion. Judge Griffin was then in court, having arrived on the 30th of May, and continued during the remainder of the term. It was argued much at length, and received the same decision as on the 29th. The marshal was then ordered to call the petit jury; twelve jurors appeared; there were some objections which I do not precisely recollect, to the panel of the jury; and a motion made to quash the array. An argument was made and some authorities quoted; Judge Chase said they were not to be relied on, and he asked for Coke upon Lyttleton. I brought it from the library in the capitol. Judge Chase looked into it, and said the array should not be quashed; but I do not know the principle on which he decided. When the jury had all answered, the gentlemen proposed to propound a question to the jurors as they came to the book. I do not recollect what the question was, but Judge Chase said he would propound the proper question himself. The question which Judge Chase said it was proper to propound, was: “Have you formed and delivered an opinion (for he said it was necessary to have delivered as well as formed it) on the indictment?” The answer of the first juror was, that he had never seen or heard the indictment, and could not say that he had formed an opinion respecting it. Eight or nine of the jurors were asked the same question, and gave a like answer. The gentlemen who defended the traverser then said it was unnecessary to ask the other jurors that question; the rest were sworn, and the trial proceeded. The course it took was pretty lengthy, and I cannot state all the circumstances that took place. I recollect that the testimony of Colonel Taylor was refused, but I do not recollect the particular circumstances attending it.

Mr. Giles was on a jury in the circuit court, on, I think, the 27th of May, the day Callender was brought into court by the marshal. When Mr. Giles’s name was called, Judge Chase asked me whether that was the celebrated Mr. Giles, member of Congress. I said that it was. He said that he had never seen him before. Nothing more passed at that time. In the evening I was at Judge Chase’s lodgings. He asked me whether I supposed Mr. Giles would remain in Richmond until the trial of Callender. I said it was uncertain, that it was not customary for Mr. Giles to remain any length of time when he came to town. Judge Chase said he wished he would remain, and serve in Callender’s case; nay, he wished that Callender might be tried by a jury of his own politics. He said that if his situation as a judge would permit him to drop a hint to the marshal with respect to the jury, he would intimate his wish that Callender should be thus tried; but, in his situation, it would be improper for him to interfere with the duty of the marshal.

Mr. Harper. Inform the Court at what time, if any, you were at Judge Chase’s chambers, when a certain Mr. John Heath was there; what passed, and what did not pass.

Mr. Marshall. Judge Chase was, as he informed me, a total stranger in Richmond, and had never been there until he held the Court in 1800. He asked me if I would call upon him from time to time. When I knew he was at home, I used to go in an evening, and spend an hour or two with him at his lodgings. I also generally went in the morning, about an hour before the meeting of the Court. I recollect about ten o’clock going to Mr. Chase’s lodgings. I went, I think, but of this I am not positive, with Mr. Randolph. I found Mr. Heath in Judge Chase’s chamber, or in the passage. Mr. Heath was, I think, in the act of leaving the room; he had his hat in his hand, and I met him either in his way out of the room, or in the passage.

President. Can you state the day of the month?

Mr. Marshall. I cannot, but I think it was the day before Judge Griffin arrived. I recollect very well, on that day Mr. D. Randolph and myself walked up to the court room. I was surprised at seeing Mr. Heath at Judge Chase’s, and asked Mr. Randolph what could have brought him there.

Mr. Harper. Was Mr. Heath in the act of going out when you entered?

Mr. Marshall. Yes, sir, he was on the floor. He had taken his leave, as I supposed, of Judge Chase, and was either out of the room, or in the act of coming out of it. I do not recollect positively whether Mr. Randolph went with me. I recollect going with Mr. Randolph to court, and that it was the usual practice of Mr. R. and myself to go to Judge Chase’s chambers in the morning and attend him to court. I do not certainly recollect whether that morning we went together to the judge’s chambers, but I am positive we left the chamber together. The Court met generally at eleven o’clock. I had something particular to do that morning, and it was from ten to half-past ten when I went to the judge’s chambers; it may have been about ten. The time I saw Mr. Heath must have been about ten o’clock.

Mr. Harper. Did any conversation take place between the judge and Mr. Heath while you were there?

Mr. Marshall. I believe I met Mr. Heath outside of the door. There was not a word of conversation at any rate.

Mr. Harper. Did any incident take place respecting a paper handed from Mr. Randolph to Mr. Chase?

Mr. Marshall. There did not.

Mr. Harper. Did you hear any thing about creatures called democrats?

Mr. Marshall. I never heard any thing pass between them. I never heard the judge say any thing about the jury, except what occurred either at the judge’s lodgings or at court, which I took to be instructions to summon twenty-four jurors about twenty-five years of age, and freeholders; that there should be enough to supply the juries required at that court.

SATURDAY, February 16.

The Court was opened at 10 o’clock A. M.

_David M. Randolph, sworn._

Mr. Harper. Were you marshal of the United States for the district of Virginia in 1800?

Answer. I was, sir.

Mr. Harper. Did you attend the circuit court held in May of that year, as marshal?

A. I did, sir.

Mr. Harper. Did you summon the panel of the jury that served on the trial of Callender?

A. I did.

Mr. Harper. Had you any conversation with Judge Chase on the forming that panel?

A. I had no conversation with him on that subject. There was a conversation offered to me by Judge Chase.

Mr. Harper. What was it?

A. The judge recommended to me that I should get persons generally from the country; represented that they should be twenty-five years of age, of fair characters, untainted by party prejudices.

Mr. Harper. Did any gentlemen summoned apply to you to be discharged?

A. Several. At the moment I received orders to have two juries ready by Monday, I called on my two deputies, and desired them to take down, on distinct papers, the names I mentioned to them. I observed that I chose to take the responsibility on myself. While they were taking down the names, I summoned several persons whose names were not put down till Monday. On Monday, finding my two deputies had not summoned a sufficient number, I went in quest of them. I found them at the end of the town, in the act of executing my orders. Mr. Moseby, one of my deputies, was standing with Colonel Vanderval, I think in conversation with him. I called him across the street, and asked him how they succeeded. At this time I saw my other deputy. They told me they wanted but one or two jurors. I told them they must make haste. About this time I saw Mr. Basset entering town on horseback. I told him that he had been crossed as a grand juror for non-attendance; that he must serve as a petit juror, which would give him an opportunity of offering his apology. I took out my watch, and told him that I allowed him five minutes. We arrived at the capitol, and my deputies there gave me their memorandums, from which, and my own, I made up the list of the jury. Two gentlemen, Mr. Lewis and Mr. Blakely, offered something like excuses. I looked at Mr. Blakely, and said there was only one excuse that I would admit, to wit: his being under twenty-five years of age. He said he was under that age, and I dismissed him. Mr. Lewis said he might make the same excuse. I said I doubted it, but I let him off. As I went into the passage, I met Mr. Samuel Myers, who also desired to be let off. I told him I could not and would not. He said I would excuse him for a reason which he could assign. He whispered, and said that he was prejudiced against Callender. I permitted him to go, but begged him to keep that reason to himself. Another juror summoned, was very warm and importunate to be excused. I told him there was only one ground on which I would excuse him. He asked me what it was. I answered that if it applied to him he already knew it. I begged him to go to the court, and he would learn what it was. He did so. Colonel Harvie stopped me in the passage in a hasty manner, and with great warmth and friendliness urged me to let him off. He said he was sheriff of Henrico County. I said I knew it, but that I also knew that his duties were generally performed by deputies. I did not let him off. He applied to the Court, and was excused.

_John Marshall, sworn._

Mr. Harper. Please to inform this honorable Court whether you did, or did not, on the part of Colonel Harvie, make an application for his discharge from the jury, and on what ground that application was made?

Mr. Marshall. I was at the bar when Colonel Harvie, with whom I was intimately acquainted, informed me that he was summoned on the jury. Some conversation passed, in which he expressed his unwillingness to serve, and stated that he was an unfit person; for that his mind was completely made up, that he thought the (sedition) law unconstitutional, and that, whatever the evidence might be, he should find the traverser not guilty; and requested me, on that ground, to apply to the marshal for his discharge. I told the marshal that Colonel Harvie was extremely desirous of being discharged, and, on his discovering great repugnance to his discharge, I informed him that he was predetermined, and that no testimony could alter his opinion. The marshal said that Colonel Harvie might make his excuse to the Court; he observed that he was watched, and to prevent any charge of improper conduct from being brought against him, he should not interfere in discharging any of the jurors who had been summoned. I informed Colonel Harvie of this conversation, and it was then agreed that I should apply to the Court for his discharge, upon the ground of his being sheriff of Henrico County; that his attendance was necessary, as that Court was then in session. I moved the discharge of the juror on that ground, and he was discharged by the Court.

Mr. Randolph. Were you in court during a part of the trial, or during the whole of the trial?

Mr. Marshall. I think I was there only during a part of the time.

Mr. Randolph. Did you observe any thing unusual in the conduct on the part of the counsel towards the Court, or the Court towards the counsel, and what?

Mr. Marshall. There were several circumstances that took place on that trial, on the part both of the bar and the bench, which do not always occur in trials. I would probably be better able to answer the question, if it were made more determinate.

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.

Mr. Randolph. Was it ever the practice of any court, in which you have practised or presided, to compel counsel to reduce to writing the questions which they meant to propound to their witnesses?

Mr. Marshall. It has not been usual; but in cases of the kind, the conduct of the Court will depend upon circumstances. If a question relates to a point of the law, and is understood to be an important question, it might be proper to require that it be reduced to writing. Unless there is some special reason which appears to the Court, or on the request of the adverse counsel, questions are not commonly reduced to writing, but when there is a special reason in the mind of the Court, or it is required by the opposite counsel, questions may be directed to be committed to writing.

Mr. Randolph. When these questions are reduced to writing, is it for a special reason, after the Court have heard the question, and not before they have been propounded?

Mr. Marshall. I never knew it requested that a question should be reduced to writing in the first instance in the whole course of my practice.

Mr. Randolph. Did you ever, sir, in a criminal prosecution, know a witness deemed inadmissible, because he could not go a particular length in his testimony--because he could not narrate all the circumstances of the crime charged in an indictment, or in the case of a libel; and could only prove a part of a particular charge, and not the whole of it?

Mr. Marshall. I never did hear that objection made by the Court except in this particular case.

[Some inquiry was here made relative to the above question put by Mr. Randolph, and objected to by Mr. Cocke, which Mr. R. answered by observing that he withdrew it.]

Mr. Harper. Please to inform this honorable Court, sir, whether you recollect that Judge Chase during any part of the proceedings made an offer to postpone the trial of Callender, and if you do, to what time?

Mr. Marshall. I recollect at the time a motion was made for the continuance till the next term, that Judge Chase declared, as his opinion, that it ought to be tried at the present term. A good deal of conversation took place on the subject. The counsel for the traverser stated several circumstances in favor of their client, particularly relative to the absence of his witnesses; but the whole terminated at that time by a postponement for a few days; so many days as, I thought at the time, were sufficient for obtaining the witnesses residing in Virginia. I do not now recollect what the time was, nor do I say it was sufficient. I simply recollect that I thought it was. When the cause came on again, there was no proposition that I recollect on the part of the traverser’s counsel for a continuance, but a desire was expressed of a postponement for a few hours in order to give their witnesses time to arrive at Richmond, as it was possible they had been impeded by the badness of the roads; a considerable quantity of rain having fallen the preceding day. There was a declaration on the part of the Court that they might take until the next day, and they went on to say they might have a longer time, if they thought it was necessary, but the precise length of time offered I do not recollect; but I do remember that they said the trial must come on before the present term closed.

The President. Do you recollect whether the conduct of the judge on this trial was tyrannical, overbearing, and oppressive?

Mr. Marshall. I will state the facts. The counsel for the traverser persisted in arguing the question of the constitutionality of the sedition law, in which they were constantly repressed by Judge Chase. Judge Chase checked Mr. Hay whenever he came to that point, and after having resisted repeated checks, Mr. Hay appeared to be determined to abandon the cause, when he was desired by the judge to proceed with his argument, and informed that he should not be interrupted thereafter. If this is not considered tyrannical, oppressive, and overbearing, I know nothing else that was so.

Mr. Randolph. Are you acquainted with Mr. Wirt; was he a young man at that time; was he single, married, or a widower?

Mr. Marshall. I am pretty well acquainted with him; he is about thirty years of age, and a widower.

_Edmund J. Lee, sworn._

Mr. Harper. Were you at the circuit court in the spring of 1800, held at Richmond, at which Judge Chase presided?

Mr. Lee. I was not in court when Callender was presented by the grand jury; but I was when application was made for a continuance, and I remember that Judge Chase, on an application made for a continuance, on account of the absence of some of the witnesses, informed the counsel that he could not continue the cause, but if they would fix upon any determinate time, within which they could obtain their witnesses, without its going over to the next term, the Court would postpone the trial. Judge Chase also added that he had no objection to postpone it for a fortnight or a month; I am not certain whether he did not say he would postpone it for a longer time, I do not know but he said for six weeks, but he said positively he would not postpone it to the next term. He added, if the counsel conceived they could obtain the evidence within the time mentioned, they might have it.

_Robert Gamble, sworn._

Mr. Harper. Were you at the circuit court of the United States for the Virginia district, in the month of May or June, 1800, held at Richmond?

Mr. Gamble. I was one of the jurors, sir, and I was in court when a motion was made for continuing the cause of Callender to the next term.

Mr. Harper. Do you recollect whether an offer was made by the Court to postpone that cause?

Mr. Gamble. Yes, sir; Judge Chase said he would postpone it for a week, a fortnight, a month, or more, and I think he mentioned he would postpone it for six weeks, or as long as the term would admit, without its going over to the next term.

_Philip Gooch, sworn._

Mr. Harper. What did you observe relative to the conduct of the Court and counsel on that day? State what happened.

Mr. Gooch. When Mr. Basset suggested to the Court his wish to be informed whether it was their opinion that he was a proper person to serve on the jury, because he had formed and expressed an opinion on the extracts which he had seen, and declared that if correctly copied from the work called “The Prospect before Us,” the author was within the pale of the sedition law; on that suggestion, I recollect, the Court decided, and laid it down as law, that he must not only have formed an opinion, but delivered it also, and the judge gave some reasons why he must not only have formed, but delivered an opinion. I think he said that if a notorious murder was committed in the body of a county, which every man believed ought to be punished with death, and had so formed his opinion, it would in that case be impossible to get a jury to try such an offender, if it was an objection that a man had formed an opinion. I understood that he had consulted Judge Griffin on this point. The court was very crowded, but I had obtained a situation just behind the judges, and had an opportunity of hearing in some degree what passed between them, though not distinctly. Mr. Basset was eventually sworn upon the jury. The cause proceeded.

Mr. Wirt opened the cause on the part of the traverser; he made some allusion to the Court’s prohibiting the mode of defence which the counsel for the traverser had adopted, but he was interrupted by the Court, and was told that the decision of the Court must be binding for the present; that if they objected, they might file their bill of error, and it should be allowed.

Mr. W. proceeded in the cause, and was endeavouring to show that the sedition law was unconstitutional; the Court interrupted him, and told him that what he had to say must be addressed to the Court, but if he was going on that point, he must again be informed that the Court would not suffer it to be urged. Mr. W. appeared to be in some agitation, but continued his argument, and when he came up to that point a second time, he was again interrupted by the Court. Mr. W. resumed his argument, and said he was going on. Judge Chase again interrupted him and said, “No, sir, you are not going on, I am going on; sit down.” I recollect, also, after the judge had made some observations, Mr. W. again proceeded, and having observed that as the jury had a right to consider the law, and as the constitution was law, it followed syllogistically that the jury had a right to decide on the constitutionality of a law. Judge Chase replied to him, A _non sequitur_, sir, and, at the same time, made him a bow. Whether these circumstances took place exactly in the order in which I have mentioned them, I am not positive, but I believe they did. Mr. W. sat down, and the judge delivered a lengthy opinion. He stated that the counsel must argue the law before the Court, and not before the jury, for it was not competent for the jury to decide that point, or that the jury were competent to decide whether the sedition law embraced this case or not, but that they were not competent to decide whether the sedition law was constitutional or not, and that he would not suffer that point to be argued.

Mr. Harper. What was the effect produced by the reply of Judge Chase to Mr. Wirt’s syllogism, a _non sequitur_?

Mr. Gooch. It appeared to me as if it was intended to excite merriment; and if it was so intended, it certainly had that effect, and the same appeared to me to be the motive of the judge in adding the word _punctuatim_ after the words _verbatim et literatim_. I thought these circumstances were calculated to display his wit.

Mr. Harper. When the judge told Mr. Wirt to sit down, did you conceive the conduct of the court to be rude and peremptory, or was there any thing like it in his application of the term “young gentlemen?”

Mr. Gooch. I did not perceive any thing rude or intemperate in his conduct, unless it can be inferred from the words themselves, when he said, You show yourselves clever young gentlemen, but the law is, nevertheless, not as you have stated it.

MONDAY, February 18.

_Gunning Bedford, sworn._

Mr. Harper. Please to state to the Court whether you were present in your judicial character at a circuit court held at Wilmington in 1800, and relate the circumstances which occurred.

A. I attended that Court on the 27th of June. Judge Chase presided. I arrived in the morning about half an hour before Judge Chase. We went into court about eleven o’clock. The grand jury was called and impanelled. The judge delivered a charge: they retired to their box; after an absence of not more than an hour they returned to the bar. They were asked by the judge whether they had any bills or presentments to make to the Court. They said they had none. The Court called on the attorney of the district to say whether there was any business likely to be brought forward. He replied that there was none. Some of the grand jury then expressed a wish to be discharged. Judge Chase said it was unusual for the Court to discharge the grand jury so early in the session; it is not the practice in any circuit court in which I have sat. He turned round to me, and said, Mr. Bedford, what is your usual practice? I said it depended upon circumstances, and on the business before the Court; that when the Court was satisfied there was nothing to detain them they were discharged. Judge Chase then turned to the jury, and observed, “But, gentlemen of the jury, I am informed that there is conducted in this State (but I am only _informed_) a seditious newspaper, the editor of which is in the practice of libelling and abusing the Government. His name is ----, but perhaps I may do injustice to the man by mentioning his name. Have you, gentlemen of the jury, ever turned your attention to the subject?” It was answered no. “But,” resumed the judge, “it is your duty to attend to things of this kind. I have given you in charge the sedition act among other things. If there is any thing in what is suggested to you, it is your duty to inquire into it.” He added, “It is high time that this seditious printer should be corrected; you know that the prosperity and happiness of the country depend upon it.” He then turned to the attorney of the district, and said, Mr. Attorney, can you find a file of those papers? He answered that he did not know. A person in court offered to procure a file. The attorney then said, as a file was found, he would look it over. Can you, said the judge, look it over, and examine it by to-morrow at ten o’clock. Mr. Attorney said he would. Judge Chase then turned to the grand jury, and said, Gentlemen, you must attend to-morrow at ten o’clock. Other business was gone into, and the Court adjourned about two o’clock.

On my way to Judge Chase’s lodgings, I said to him, My friend, I believe you know not where you are; the people of this country are very much opposed to the sedition law, and will not be pleased with what you said. Judge Chase clapped his hand on my shoulders and replied, “My dear Bedford, no matter where we are, or among whom we are, we must do our duty.”

The next day we went into court about ten o’clock. The grand jury went to their chamber, and I believe Mr. Read returned with them into court. They were asked if they had any thing to offer to the Court; and the attorney was called on again to state whether he had found any thing in the file of a seditious nature. He had a file of the paper before him, and he said he had found nothing that was a proper subject for the notice of the jury, unless a piece relating to Judge Chase himself. The judge answered, Take no notice of that, my shoulders are broad, and they are able to bear it; but where there is a violation of a positive law of the United States it is necessary to notice it.

_Nicholas Vandyke, sworn._

Mr. Harper. Please to state whether you were at the circuit court for Delaware in the year 1800?

A. I attended the circuit court held in Newcastle on the 27th and 28th of June, 1800. I was not present when the Court opened; but I think I entered the court house while Judge Chase was delivering a charge to the grand jury. After its delivery the grand jury retired; they were absent a short time: and as well as I can recollect before and when they returned, I was either out of the court house, or engaged in conversation with some person out of the bar. I think so, as I have no recollection of the question put to the grand jury, whether they had found any bills, and that put to the district attorney. I entered the bar while there was a pause, and silence prevailed. I recollect that the first circumstance that attracted my attention was the observation of Judge Chase to the grand jury, that since he had come among them, he had been credibly informed that there was a seditious printer within the State, in the habit of libelling the Government of the United States, and having received this information, he thought it his duty to call the attention of the grand jury to the subject. He appeared to me to be proceeding to state the name of the printer; but he did not name him. He said that might be doing injustice to the man, or that it was improper in him. I cannot say which was the term he used. I think he then asked the district attorney if there were not two printers in the State. He answered that there were. There was then some conversation between the judge and the district attorney. My impression was that it conveyed a request from Judge Chase to the district attorney to inquire into the subject on which he had previously spoken to the jury. Mr. Attorney said that he had not seen the papers. The judge asked him whether he could not procure a file of them. I do not recollect that the name of the printer was mentioned then, or during the whole sittings of the Court. Some person at the bar said a file could be procured. Judge Chase asked the attorney, if he could make the inquiry by to-morrow at ten o’clock. About this time I heard some observations made respecting the discharge of the grand jury on that day. Some of the gentlemen said it was a busy season, that they were farmers, and were desirous of returning to their homes. Judge Chase replied that might be very true; but that the business of the public was also important; it must be attended to: and therefore he could not discharge them. I do not pretend to say I have pursued the language used. I have only attempted to give my impression of the facts that occurred.

_Archibald Hamilton, sworn._

Mr. Harper. Please inform the Court whether you were present at a circuit court for Delaware in 1800?

A. I recollect that I was present on the 27th of June. I arrived about 10 o’clock, at which time Judge Chase was not there. Some time after, the Court was formed, the grand jury was sworn, and Judge Chase delivered a charge. Having retired for about an hour, the grand jury returned to the bar. Judge Chase asked them if they had any bills or presentments to make. Their reply was that they had not. Judge Chase then asked the attorney of the district if he had no business to lay before them. He said he had not. The jury requested to be discharged. Judge Chase said, it was not usual to discharge them so early, some business might occur during the course of the day. He told them he had been informed that there was a printer who was guilty of libelling the Government of the United States; his name is ----; here he stopped, and said, “Perhaps I may commit myself, and do injustice to the man. Have you not two printers?” The attorney said there were. Well, said Judge Chase, cannot you find a file of the papers of the one I allude to? Mr. Read said he did not take the papers, or that he had not a file. Some person then observed that a file could be got at Mr. Crow’s. Judge Chase asked the attorney if he could examine the papers by the next morning. Mr. Read said, that under the directions of the Court, he conceived it to be his duty, and he would do it.

On the second day the same questions, whether they had found any bills, were put to the grand jury. They answered that they had not. Mr. Chase asked the attorney of the district if he had found any thing in the papers that required the interposition of the jury. He said that he had found nothing which in his opinion came within the sedition law; but there was a paragraph against his honor. Judge Chase said, that was not what he alluded to. He was abused from one end of the continent to the other; but his shoulders were broad enough to bear it.

_Samuel Moore, affirmed._

Mr. Harper. Were you in the circuit court held in Delaware in June, 1800, when it met?

A. No, sir. I did attend early enough on the first day to hear the charge given to the grand jury. I think I did not attend before twelve o’clock. I attended as a juror. On the next day I attended early, and was in the court house when the Court met. When the jury returned into court, inquiry was made whether they had any bills or presentments to make. They answered no. The Court then inquired of the attorney of the district whether he had any business to lay before the grand jury. He said he had not. While he was making this reply, he rose, and laid hold of a file of newspapers, which I took to be the Mirror of the Times, and while he was in the act of presenting it, he observed that he had not seen any thing that in his opinion required notice, unless it were a publication reflecting on Judge Chase, which did not appear to him to come under the sedition law. Judge Chase answered, No, sir; they have abused me from one end of the continent to the other; but it is the Government, and not myself, that I wish protected from calumny. Immediately after the grand jury were discharged.

_William H. Winder, sworn._

Mr. Harper. I will ask you whether you were in the circuit court of the United States, held at Baltimore, in May, 1803? I will, however, previously observe that it is not my intention to say or to prove that the witness, when he deposed to certain facts, knew that they had not passed. I mean only to impeach his correctness, and to infer that, as he was angry, he gave to what he heard the coloring of his own feelings.

Mr. Winder. I was present at that court when it was opened, and the jury impanelled, and I heard Judge Chase deliver his charge. After delivering the general and usual charge to the grand jury he said he begged leave to detain them a few minutes, while he made some general reflections on the situation of public affairs. He commenced by laying down some abstract opinions, stating that that Government was the most free and happy that was the best administered; that a republic might be in slavery and a monarchy free. He also drew some distinctions with regard to the doctrine of equal rights, and said that the idea of perfect equality of rights, more particularly such as had been broached in France, was fanciful and untrue; that the only doctrine contended for with propriety was, the equal protection of all classes from oppression. He commented on the repeal of the judiciary system of the United States, and remarked that it had a tendency to weaken the judiciary, and to render it dependent. He then adverted to the laws of Maryland respecting the judiciary, as tending to the same effect. One was a law for the repeal of the county court system. He also alluded to the depending law for the abolition of two of the courts of Maryland. He said something of the toil and labor and patriotism of those who had raised the fair fabric, (constitution of Maryland,) and said that he saw with regret some of their sons now employed in destroying it. He also said that the tendency of the general suffrage law was highly injurious, as, under it, a man was admitted to full political rights, who might be here to-day and gone to-morrow.

_James Winchester, sworn._

Mr. Harper. Please, sir, to state to this Court your recollection respecting a charge delivered by Judge Chase in the circuit court of Maryland in May, 1803.

Mr. Winchester. As already stated, that Court sat in May, 1803, in a room in Evans’s tavern. The Court and gentlemen of the bar sat round several dining tables. I sat on the left of Judge Chase, and the jury were on his right. He addressed a charge to them, the beginning of which was in the usual style of such addresses. He then commenced what has been called the political part of the charge, with some general observations on the nature of government. He afterwards adverted to two measures of the Legislature of Maryland; the first related to an alteration of the constitution on the subject of suffrage; the other contemplated an alteration in the judiciary. He commented on the injurious tendency of the principle of universal suffrage, and deprecated the evil effects it was likely to have. Incidental to these remarks, he adverted to the repeal of the judiciary law of the United States. I say incidental, for my impression was that his object was to show the dangerous consequences that would result to the people of Maryland from a repeal of their judiciary system, and to show that as the act of Congress had inflicted a violent blow on the independence of the federal judiciary, it was more necessary for the State of Maryland to preserve their judiciary perfectly independent. I was very attentive to the charge for several reasons. I regretted it as imprudent. I felt convinced that it would be complained of; and I am very confident from my recollection, and from the publications respecting it, which I afterwards perused, that all the political observations of the judge related to the State of Maryland.

TUESDAY, February 20.

_Walter Dorsey, sworn._

Mr. Harper. Please to inform the Court whether you were at a circuit court held at Baltimore in 1803.

Mr. Dorsey. I was.

Mr. Harper. Were you present when Judge Chase delivered a charge to the grand jury?

Mr. Dorsey. I was.

Mr. Harper. Were you in such a situation as to hear that charge?

Mr. Dorsey. I was.

Mr. Harper. Were you near Mr. Montgomery?

Mr. Dorsey. I was; I think there was only one person between us.

Mr. Harper. Did you attend to the charge?

Mr. Dorsey. I attended to what is generally called the political part of it, because it was novel, and contained speculations with respect to government in general, and remarks on national and State laws.

Mr. Harper. Do you recollect any thing in it respecting the Administration?

Mr. Dorsey. I do not. I recollect a part of it relating to the State and national judiciary, and to universal suffrage. I did not hesitate to state that it was an indiscreet thing; my attention was particularly drawn to it by seeing in the room the editor of a newspaper, and from expecting that it would be the subject of newspaper animadversion.

_John Purviance, sworn._

Mr. Harper. Please to inform this honorable Court whether you were present at a circuit court held at Baltimore in May, 1803.

Mr. Purviance. I was.

Mr. Harper. State what happened on that occasion.

Mr. Purviance. I do not pretend to recollect every thing which occurred; but as I attended to what Judge Chase said in his charge to the grand jury, I think I have a pretty distinct recollection as to the manner in which he delivered that address; he appeared to me to read the whole from a written paper lying before him. I never expected that this inquiry would have been made of me, and after such a lapse of time I can only speak of the impressions now on my mind.

Mr. Harper. Do you recollect whether Judge Chase made any mention of the present Federal Administration, and what was it?

Mr. Purviance. I have no recollection that he mentioned it, but as it was identified with the repeal of the law for establishing the circuit court of the United States; and so far as the Executive composed a part of the Legislature, he may have mentioned the Administration.

Mr. Harper. Was there any particular mention or allusion to the Executive of the United States?

Mr. Purviance. No, sir, nothing of the kind; I have endeavored to retrace in my mind every thing which was said, and I have not the smallest recollection that any remark was made upon the Executive Department of the United States.

_Nicholas Brice, sworn._

Mr. Harper. Please to inform this honorable Court whether you were at a circuit court held in May, 1803, when a charge was delivered by Judge Chase to the grand jury.

Mr. Brice. I was there and attended to the charge very particularly.

Mr. Harper. Did he say any thing respecting the present Administration?

Mr. Brice. Not in the slightest manner, further than mentioning the repeal of the judiciary law of the United States, which he mentioned incidentally in the course of his observations on the alterations of the judiciary system in the State of Maryland. One thing more I will add, with respect to the advice which it is alleged he gave to the grand jury: shortly after the charge was delivered, in talking over this subject with Mr. Stephen, I recollect that I rather thought it was an inference drawn from the charge, than any express advice of the Court on that point. Indeed, I am pretty sure the words were not used.

_James P. Boyd, sworn._

Mr. Harper. Please to inform this honorable Court whether you were present at the circuit court held in Baltimore in May, 1803, and what occurred at that time.

Mr. Boyd. I was there, but I do not know whether I was there at the opening of the Court; but I was there when the charge was delivered to the grand jury. After Judge Chase had gone through that part of the charge which is an instruction to the grand jury relative to the duties of their office, he proceeded to make some further observations, to which I paid particular attention because they were novel to me. I was under an impression at the time that Judge Chase was watched.

Mr. Harper. Did that charge contain a sentiment like those you have heard, that the present Administration was weak, or wicked, &c.?

Mr. Boyd. I have not a scintilla of recollection of a word of the kind, no further than as an inference to be drawn from what was said in relation to the repeal of the Judiciary law. I have, however, a faint trace of the idea in my mind, not from my own recollection, but from having repeatedly heard it stated that there was such a remark made in the charge.

_William McMechin, sworn._

Mr. Harper. Inform this honorable Court whether you were present at the circuit court held at Baltimore, in May, 1803.

Mr. McMechin. I was present and heard the charge delivered by Judge Chase to the grand jury.

Mr. Harper. Have you any recollection of his having said any thing against the present Administration?

Mr. McMechin. I have no recollection of any thing of the kind, either that they were weak, or of their having unfairly acquired power; such an idea was mentioned in no way, unless it be inferred from the remark on the repeal of the law establishing the sixteen circuit judges.

_William S. Govane, sworn._

Mr. Harper. Were you at the circuit court of Baltimore in May, 1803?

Mr. Govane. I was, and heard the charge delivered by Judge Chase. The room in which the Court was held was a long one, in a tavern; a range of tables formed the bar, and the seats around were occupied by professional gentlemen. I went to the bottom of the table, opposite to Judge Chase, and directed my attention towards him. Whilst he was delivering his charge he appeared to read it from a book, but generally ended the sentences by looking towards the grand jury; except this circumstance, he appeared to read the whole time.

Mr. Harper. Do you retain a distinct recollection of the substance of what the judge said?

Mr. Govane. I think I do.

Mr. Harper. Do you remember any part containing animadversions on the present Administration, such as that they were weak, feeble, or incompetent?

Mr. Govane. I think no such words were used. If I could swear to a fact negatively after such a lapse of time, I could swear that no such expressions fell from the judge. He said that a Monarchy might be free, and a Republic a tyranny; and then proceeded to define what a free government was.

_William Cranch, sworn._

Mr. Harper. Were you present at the circuit court held at Baltimore in 1803?

Mr. Cranch. I was. The Court was held at Evan’s tavern, in Baltimore. Judge Chase was seated in an arm-chair, at one end of a long table placed before him. The grand jury were on his right, some sitting on benches placed along the wall and others standing. I stood myself about fifteen feet from the judge, who was sitting during the whole time he was delivering his charge; he generally held the book in his hand.

Mr. Harper--(showing a book). Is that the book?

Mr. Cranch. He appeared to be reading from such a book.

Mr. Harper. Did he read the whole, and did he read constantly?

Mr. Cranch. He appeared to me to read the whole charge, but I did not keep my eyes so constantly fixed upon him as to declare positively that he did.

Mr. Harper. Were there variations in his manner of delivering the charge, as if he was at one time reading and at another speaking _ex tempore_?

Mr. Cranch. He delivered some parts with more emphasis than others. He often raised his eyes from the book, but I did not observe that he repeated more than one sentence without recurring to the book; he repeated no more than a man might repeat after running his eyes hastily over a passage.

Mr. Harper. Did he raise his eyes for a longer time than a man might be supposed to do who was reading a composition of his own?

Mr. Cranch. I do not think he did.

Mr. Harper. Do you recollect the latter part of the charge?

Mr. Cranch. I recollect more of the latter part than of the beginning, because I paid more attention to the latter part.

Mr. Harper. Do you recollect any sentiments expressed relating to the weakness of the present Administration, and that they were not employed in promoting the public good, but in preserving ill-gotten power?

Mr. Cranch. No, sir, there was no such expression, as I recollect.

Mr. Harper. Was there any expression at all relative to the present Administration?

Mr. Cranch. Not as an Administration, nor any thing alluding to the Administration separate from the Government of the United States.

Mr. Harper. In what way was the Government alluded to?

Mr. Cranch. By alluding to the repeal of the act of February, 1801, for the establishment of the circuit judges. I recollect no other measure of the General Government which was alluded to, or any allusion to the present Executive.

WEDNESDAY, February 20.

[_The testimony on both sides being closed, the argument of the case began, Mr. Early, one of the managers, opening for the prosecution._]

Mr. EARLY.--The relative rights of judges and juries have at some periods of judicial history been so little understood, and the limits of each so indistinctly marked, that the benefits of the institution of jury trial were left much at the mercy of _arbitrary and overbearing judges_. But it was reserved for the honor of modern times to dissipate this uncertainty so baneful to justice, and to fix down the establishment upon its only proper foundation; that of the right to determine, without control, both the law and the fact _in all criminal cases whatsoever_. This right has now been so long practised upon in the United States, and may be considered as so well established, that it is scarcely to be expected we shall witness upon that point any difference of opinion. Still less is it to be expected that we shall witness such difference, when we are discussing principles which apply to cases capital. In such case it is the glory of the laws of this country, that the offence of the accused should be left exclusively to the judgment of those least liable to be swayed by the weight of accusing influence. It is no part of my intention to deny the right of judges to expound the law in charging juries. But it may be safely affirmed that such right is the most delicate they possess, and the exercise of which should be guarded by the utmost caution and humanity.

The accused shall enjoy the right to a “trial by an _impartial_ jury.” We charge the respondent with deliberately violating this important provision of the constitution, in arresting from John Fries the privilege of having his case heard and determined by an impartial jury; for that the respondent took upon _himself_ substantially to decide the case by prejudging the law applying thereto, at the same time accompanying the opinion thus formed and thus delivered, by certain observations and declarations calculated necessarily to create a prepossession against the case of Fries in the minds of those who had been summoned to serve upon the jury, thereby making them the reverse of impartial.

These were the acts of a man, who, from his own declarations, appears to have well understood upon what _points the defence would turn_. It was the act of a man, who, it appears, had been well informed of all that passed at the previous trial of Fries; who knew that there was no dispute as to facts, and that the whole of the defence depended upon the discussion and determination of those very principles of law which he had thus prejudged, and upon the application of those authorities which he had thus excluded in the hearing and very presence of those who were to pass upon the life and death of the accused. No argument had been heard from counsel; no opportunity had been afforded to prove that the offence committed did not amount to the crime charged; no defending voice had been raised in behalf of the accused; but, without being heard, and without having had any opportunity to be heard, his case was adjudged _against_ him. I say, _adjudged against him without the chance of being heard_. For surely the case was adjudged against him, when the only point upon which it was defensible was determined against him, and that determination publicly announced from the bench. That this was done before the accused could possibly have had a chance of being heard, is placed beyond contradiction by all the testimony. And that the judge knew the point which he thus prejudged, to be the only ground upon which the defence rested, is perfectly clear. For, from his own declarations at the time of announcing the opinion, it appears that he was well acquainted with all that had passed at the previous trial of Fries.

But, sir, we must look further into the progress of this transaction. It was not enough that the poor trembling victim of judicial oppression should thus have his dearest privileges snatched from him, by a prejudication of his case; it was not enough that the impartiality of those who were to compose his jury should be converted into a prepossession against him, by the imposing authority of solemn declarations from the bench; but the small remaining, darling hope of life, was to be smothered by a preclusion of his counsel from arguing the law to the jury. This fact, though sternly denied in the answer of the respondent, has, nevertheless, been established in a manner which must irresistibly force conviction upon the mind. Mr. Lewis affirms it positively. Mr. Dallas confirms it in a manner peculiarly strong. Not being himself present when the opinion was delivered to the bar, he received from Mr. Lewis a statement of what had passed, and, in an address to the Court afterwards, repeated distinctly this statement, and particularly that part which attributed to the judge a declaration, that, if the counsel had any thing to say upon the law, they must address themselves to the Court, and not to the jury. To this statement no reply was made by the Court, either correcting or denying it. Thus stands the evidence in the affirmative. Opposed to this we have the negative testimony of Messrs. Rawle, Tilghman, and Meredith, who have no recollection of any such declaration. I address myself to those who well know the difference between affirmative and negative testimony. I address myself to those who well know the established rule in the law of evidence, that the testimony of one affirmative witness countervails that of many negative ones; and I am sure that I address myself to those who must feel the complete coincidence of this rule with the dictates of common sense. Upon this ground alone we might safely rest our proposition; but, sir, we will not rest it here. It appears from the testimony of the witnesses on both sides, that almost every observation from the council to the Court, on the second day, was predicated upon the idea that something had been said on the preceding day, restrictive of their privileges. These observations, although addressed to the Court, and carrying this feature prominent in their face, were neither contradicted nor corrected by the Court. This was a strong tacit admission of the correctness of the idea upon which they were bottomed. But, sir, we have not only this tacit admission, but we have in testimony, this strong and impressive declaration from Judge Chase, that “the counsel might be heard in opposition to the opinion of the Court at the hazard of their characters.”

But, Mr. President, we have the positive admission of the respondent, in page 18 of his answer, that certain observations were made by him condemning the use of common law authorities upon the doctrine of treason, and also condemning authorities under the statute of treasons, but prior to the English Revolution. [Here the passage was read.] By a recurrence to page 22 of the answer, it will be found that the respondent admits that these observations of his were made on the first day; yet, sir, nothing of all this is remembered by Messrs. Rawle, Tilghman, or Meredith. How light, then, how extremely light, must their bare want of recollection weigh against the positive affirmative testimony of Messrs. Lewis and Dallas!

Considering my position as uncontrovertibly established, I will proceed to observe that the offence with which Fries stood charged, was the highest possible offence which can be committed in a state of society. The punishment annexed to its commission, was the highest possible punishment known to our laws. The accused was, therefore, entitled to every possible indulgence. In favor of life, not only every possible ground should be occupied by counsel to the jury, but every possible argument listened to and weighed with patience and forbearance; and it should never be forgotten that Judge Chase had such a conduct set as an example before him in a previous trial of the same case. Yes, sir, a brother judge of his, who has since gone to the world of spirits, had set him an example conspicuous for the purity of its excellence, and which should have arrested his career in the commission of this cruel outrage upon all humanity. But Judge Chase predetermines the law, then prohibits the counsel from proving to the jury that the law was not as laid down. This was, in effect, an extinguishment at once of the whole right of jury trial. All the privileges and all the benefits of that institution were swept at once from an American court of justice, and scarcely the external form preserved. The law was predetermined by the judge, and the accused was debarred from pleading it to the jury. Of what avail is it, sir, that the jury should be made judges of law and of fact, when the law is not permitted to be expounded to them? Of what avail is it that the accused should have a trial by jury, when he is prevented from stating and explaining to the jury the only grounds upon which his case is defensible? The right to hear and determine facts is _not more the right_ of a jury, than the right to hear and determine the law. To deprive them, then, of the privilege of hearing and determining the law, is as much a violation of their rights, as to deprive them of the privilege of hearing and determining facts. The right of the accused to be heard upon the facts to the jury, is not more his right, than the right of being heard upon the law to the jury. To deprive him, then, of the privilege of being heard upon the law to the jury, is as much a violation of his rights, as to deprive him of the privilege of being heard upon the facts to the jury.

The second, third, and fourth articles, exhibited by the House of Representatives, charge the defendant with a course of conduct upon a

## particular trial which affords many grounds of accusation. In this case

it is true no unfortunate individual was charged with an offence which demanded his life as an expiation; yet, sir, there were other rights involved equally sacred in the laws of a free country. The liberty and the property of the accused were the price of a conviction. In casting our eyes over the ground upon which the different scenes of the transaction now about to be examined are spread, we are struck with a feature not usual in the history of human concerns. It would seem that even the restraint of appearances was no longer felt. We find the respondent setting out with a conduct, which seemed to prove that the fate of the accused was fixed. We find him pursuing a system of conduct throughout, which wrested from the accused some of his established and most valuable privileges. We find him endeavoring to heap shame and odium on those who occupied the station of advocates, because they would not tamely yield to his unwarrantable invasion of long-established rights.

Mr. President, notwithstanding the labored attempts made by the defendant in his answer to exculpate himself from imputation in compelling Mr. Basset to serve upon the jury, in the trial of Callender; yet, sir, I must be permitted to say that those attempts appear to me to be only the exertions of a mind conscious of impropriety, and seeking to impose upon the understanding of others. The test adopted, by which to try the impartiality of the jurors, in that case may possibly by some be held a correct one; but the manner of applying that test as then practised upon, is what I believe can be accounted for upon no other supposition than that of a determination on the part of the judge to procure the conviction of the accused. Upon what other principle can it be accounted for, that the jurors should be asked whether they had formed and delivered an opinion upon the charges laid in the indictment, when they knew not and were not suffered to know what those charges were? Why else could it be laid down by the judge, that because the individuals called to serve upon the jury did not know what charges were in the indictment, (having never seen it nor heard it read,) that therefore they could not have formed and delivered an opinion upon the subject? And why else did the judge, when this monstrous logic was contradicted by the fact of one of the jurors delivering in open court an opinion upon the whole subject of those charges, without having seen or heard the indictment read; why else did the judge, in the teeth of this damning fact, order the jurors sworn?

Every juror sworn might, like Mr. Basset, have formed and delivered an opinion which concluded the conviction of the accused, and yet because they did not know that the subject-matter of such opinion constituted the charges in the indictment, having neither seen it nor heard it read, the expression of such opinion created no disqualification. Unworthy evasion! An evasion which prevents the doctrine of disqualification in a juror from receiving any practical operation. An evasion which effectually puts at naught that principle of the constitution so often adverted to in a former part of the argument, that “the accused shall enjoy the right of a trial by an impartial jury.” Upon this point I beg leave to read two authorities. [Mr. Early here cited 3 Bac. Abr. 176, and Co. L. 157.]

But, sir, the scene rises upon us. We have now to examine a part of the transaction for which, I had supposed, human invention might be tortured for a palliation in vain. I allude to the rejection of Mr. Taylor’s testimony. The reason assigned for that rejection was, that the witness could not prove the truth of the whole of _any one charge_. Let us, for a moment, examine the consequences of this doctrine. According to the judge’s own decisions then, as well as his doctrine now, each charge laid in the indictment must have constituted a separate offence. For it is explicitly declared both by Mr. Hay and Mr. Nicholas, that when an application was made to continue the case, because of the absence of some material witnesses, the application was rejected, upon the ground that it did not appear from the affidavit filed that the witnesses, so absent, could prove the truth of all the charges. That proof of the truth of a part only, would be of no avail, and that the whole must be proved to entitle the traverser to an acquittal. Each charge in the indictment, then, must have constituted a _separate offence_; for the charges cannot be made to help each other out. One charge, however, it seems might consist of different facts. This was the case with several in that indictment. It was particularly the case with the very charge, the truth of which Mr. Taylor was called to prove. “The President was a professed aristocrat. He had proved faithful and serviceable to the British interest.” Here was a charge made up of two distinct facts; so distinct in their nature, that the knowledge of their truth might not only rest with different persons, but was extremely likely not to rest with any _one_ witness. Put the case of a man charged with any offence--murder, theft, or any other crime you please. There may be a string of facts upon the proof of which the defence may depend; some within the knowledge of one man, some within that of another. Was it ever heard of before, that, because one witness could not prove the existence of all those facts, that, therefore, such witness should not be examined as to what he did know? Or, if some of the facts depended upon written testimony, was it ever heard of before, that, therefore, a witness should not be examined as to those resting on oral testimony? To these questions no man will answer in the affirmative. Why, then, was an unheard-of and palpably absurd doctrine brought to bear in Callender’s case? Was the defence of justification, under the sedition law of the United States, such an anomaly in its nature, that none of the established rules of jurisprudence would apply to it? Was it a thing so _entire_ in its nature, that it could not consist of different parts? I have always been taught, and the respondent’s answer confirms the principle, that a defence must apply to the whole of a charge. If, then, a charge consist of different parts, surely, so must the defence. But, according to Judge Chase, be the parts ever so many, they shall not be proven, unless the proof can all be made by one witness, or unless it appear that the defendant has proof in reserve to establish all.

The fifth and sixth articles rest upon grounds so extremely simple, and so easily comprehended, that it appears totally unnecessary to fatigue the patience of the honorable Court by dwelling upon them.

The seventh article is as follows:

“That at a circuit court of the United States, for the district of Delaware, held at Newcastle, in the month of June, one thousand eight hundred, whereat the said Samuel Chase presided, the said Samuel Chase, disregarding the duties of his office, did descend from the dignity of a judge, and stoop to the level of an informer, by refusing to discharge the grand jury, although entreated by several of the said jury so to do; and after the said grand jury had regularly declared, through their foreman, that they had found no bills of indictment, nor had any presentments to make, by observing to the said grand jury that he, the said Samuel Chase, understood ‘that a highly seditious temper had manifested itself in the State of Delaware, among a certain class of people, particularly in Newcastle County, and more especially in the town of Wilmington, where lived a most seditious printer, unrestrained by any principle of virtue, and regardless of social order; that the name of this printer was’--but checking himself, as if sensible of the indecorum which he was committing, added, ‘that it might be assuming too much to mention the name of this person, but it becomes your duty, gentlemen, to inquire diligently into this matter,’ or words to that effect; and that with intention to procure the prosecution of the printer in question, the said Samuel Chase did, moreover, authoritatively enjoin on the District Attorney of the United States, the necessity of procuring a file of the papers to which he alluded, (and which were understood to be those published under the title of ‘Mirror of the Times and General Advertiser,’) and, by a strict examination of them, to find some passage which might furnish the groundwork of a prosecution against the printer of the said paper; thereby degrading his high judicial functions, and tending to impair the public confidence in, and respect for, the tribunals of justice, so essential to the general welfare.”

The respondent stands here charged with a conduct, than which, in my opinion, nothing could be more at war with his official duty--nothing more tarnish his official character. The constitution and laws of this country certainly intended in erecting high judicial tribunals, that those who might be appointed to minister therein, should be impartial dispensers of justice between such as might resort thither for an adjustment of their differences. In public prosecutions more especially was it intended that such dispensation should be made without respect to persons. In these, above all other cases, ought a judge to stand aloof from influence, free from predilection towards one, or prejudice against the other. Most peculiarly here is it his duty to stand firm at his post, resisting the overbearing influence of a powerful public, and protecting the rights of the accused in so unequal a contest. But Judge Chase, disregarding these principles, always held sacred in a land of laws, converts himself into a hunter after accusations. He who, in the humane language of the laws, should be counsel for the accused, becomes himself an accuser. He, whose duty it is impartially to decide between the prosecutor and prosecuted, becomes himself the procurer of prosecutions.

The eighth article charges the respondent with prostituting the judicial character by making a political speech to the grand jury at Baltimore, in the State of Maryland, against the Government of the United States and the Government of Maryland.

There are features in that part of the judge’s official conduct, charged in this article, which place him in a point of view awfully grand. We have heretofore been viewing him as bringing his talents to bear upon individuals. Here we see his genius rising, in the majesty of its strength, to far higher objects. Here we see him consigning over whole governments to the scourge of his own avenging wrath. Whithersoever he turned his eyes, whether to the State constitution and laws, or to the laws and constitution of the whole Union, they were equally exposed to the whip and the rack.

M. CAMPBELL then rose and spoke as follows.

Mr. President and Gentlemen of the Senate: The scene, presented to the nation by this trial, is more than usually interesting and important. One of the highest officers of the government, called upon by the voice of the people, through their representatives, before the highest tribunal known to our constitution--that same tribunal that sanctioned his elevation--to answer for the abuse of the power with which he had been intrusted! It is a melancholy truth, that derogates much from the dignity of human nature, but it is a truth that has been for ages established by experience, that high and important powers have a tendency to corrupt those on whom they are conferred. Few minds are possessed of sufficient integrity and independence, when elevated above the ordinary level of the great mass of their fellow-citizens, to resist the impulse their high station gives them, to grasp at still greater powers, and prostitute those which they already possess.

Hence it has been the great exertion of all governments, who regard the rights and liberties of the people, and still must continue to be so, to watch over the conduct of the high and confidential officers of State, and guard against their abusing the powers reposed in them. For this purpose the mode of trial by impeachment was resorted to in very early times in that country from which we have derived most of our laws and usages. Near five hundred years ago, the representatives of the people in that nation felt themselves clothed with sufficient authority to check the abuses of power, in the highest officers under the Crown, by calling upon them by impeachment to answer before the House of Lords for their conduct, and punishing them for such acts as were unauthorized, illegal, or oppressive.

It was a wise and politic measure to have charges of this nature tried by the highest tribunal in the nation, that would not be _awed_ by the great powers and elevated standing of the accused, nor influenced by the popular voice of the accusers, further than a strict regard to impartial justice would require. As I conceive, therefore, that pure and unstained impartiality ought to be the characteristic feature in the trial by impeachment, I shall for myself, and I conceive I may in the name of the representatives of the people, utterly disclaim any design or wish that party considerations, or difference in political sentiments, should, in the remotest degree, enter into the investigation, or affect the decision of this question. Yet, in order to ascertain the motives that actuated the respondent, it may become necessary to notice the difference of political sentiments, so far as regarded the accused, and those who are stated to have been injured by his conduct, at the time those transactions took place, that gave origin to this prosecution.

In the view which I propose taking on this subject, I shall in the first place notice the provisions in the constitution relative to impeachment, and endeavor to ascertain the precise object and extent of such provision, so far as the same may relate to the present case.

The first provision in the constitution on this subject, (art. 1st, sec. 3,) declares, that the Senate shall have the sole power to try all impeachments. Here we discover the great wisdom of the framers of the constitution. The highest and most enlightened tribunal in the nation is charged with the protection of the rights and liberties of the citizens against oppression from the officers of Government under the sanction of law; unawed by the power which the officer may possess, or the dignified station he may fill, complete justice may be expected at their hands. The accused is called upon before the same tribunal, and in many instances, before the same men, who sanctioned his official elevation, to answer for abusing the powers with which he had been intrusted. Men who are presumed to have had a favorable opinion of him once, are to be his judges; no inferior or co-ordinate tribunal is to decide on his case, which might from motives of jealousy or interest be prejudiced against him and wish his removal. No, sir, his judges, without the shadow of temptation to influence their conduct, are placed beyond the reach of suspicion.

The next provision in the constitution declares that judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

Here the constitution seems to make an evident distinction between such misdemeanors as would authorize a removal from office, and disqualification to hold any office, and such as are criminal, in the ordinary sense of the word, in courts of common law, and punishable by indictment. So far as the offence committed is injurious to society, only in consequence of the power reposed in the officer being abused in the exercise of his official functions, it is inquirable into only by impeachment, and punishable only by removal from office, and disqualification to hold any office; but so far as the offence is criminal, independent of the office, it is to be tried by indictment, and is made punishable according to the known rules of law in courts of ordinary jurisdiction. As, if an officer take a bribe to do an act not connected with his office, for this he is indictable in a court of justice only. Impeachment, therefore, according to the meaning of the constitution, may fairly be considered a kind of inquest into the conduct of an officer, merely as it regards his office; the manner in which he performs the duties thereof; and the effects that his conduct therein may have on society. It is more in the nature of a civil investigation, than of a criminal prosecution. And though impeachable offences are termed in the constitution high crimes and misdemeanors, they must be such only so far as regards the official conduct of the officer; and even treason and bribery can only be inquired into by impeachment, so far as the same may be considered as a violation of the duties of the officer, and of the oath the officer takes to support the constitution and laws of the United States, and of his oath of office; and not as to the criminality of those offences independent of the office. This must be inquired into and punished by indictment.

THURSDAY, February 21.

Mr. CAMPBELL, _in continuation_.

I will now proceed, as well as my indisposition will permit, to examine in a brief manner the second part of the subject, containing the several charges founded on the trial of Callender, at Richmond, as stated in the second, third, and fourth articles of the impeachment. I will consider these several articles in the order in which the transactions on which they are founded took place in court. In order to ascertain the motives that actuated the judge in this whole transaction, it will only be necessary to view his conduct as proved, so far as the same relates to this subject, previous to the trial. The first account we have of the intended prosecution, or I might say persecution, of Callender, is at Annapolis. Here the judge received the famous book called the “Prospect before Us,” and upon which the prosecution was founded, and here the determination was formed to convict and punish Callender. The respondent said he would take the book with him to Richmond; that the libellous parts had been marked by Mr. Martin, and that before he returned he would teach the lawyers of Virginia to know the difference between the liberty and licentiousness of the press; and that, if the Commonwealth of Virginia was not totally depraved, if there was a jury of honest men to be found in the State, he would punish Callender before he returned from Richmond. This is the evidence of Mr. Mason, nearly in his own words, and no person will pretend to doubt its correctness. What language could be used that would more clearly show the partiality and predetermination of the judge to punish Callender, and the spirit of persecution by which he was actuated? Again: on his way to Richmond, according to the evidence of Mr. Triplett, the judge reviles the object of his intended vengeance; states his surprise and regret that he had not been hanged in Virginia; remarks that the United States had shown too much lenity to such renegadoes; and after arriving at Richmond, informs the deponent he was afraid they would not be able to get the damned rascal at that court. Thus evincing in every stage of this business that intolerant spirit of oppression and vengeance that seems to have given spring to all his actions. After the indictment is found against Callender, the panel of the petit jury is presented to the judge; he inquires if he had any of the creatures called Democrats on that panel, directs the marshal to examine it, and if there were any such on it, to strike them off. This is the evidence of Mr. Heath, whose character and standing in society are known to many of the members of this honorable Court. And, though his evidence is opposed to the negative declarations of Mr. Randolph, who affirms that he did not present the panel of the jury to the judge, or receive such directions, yet I conceive the Court will give more weight to the affirmative declarations of Mr. Heath, with regard to these facts, than to the negative assertions of Mr. Randolph, who may have forgotten the transaction. This point rests upon the integrity and veracity of Mr. Heath. He could not receive the impression of these facts, unless the transaction had taken place; he could not reasonably be mistaken; the affair was new and extraordinary, and must have arrested his attention; and in this case there is no ground to make allowance for a treacherous memory, for it is not pretended that the witness, Mr. Heath, has forgot the facts, but that they never existed. If you do not, therefore, believe the statement he makes, it must follow that you admit the witness has wilfully and corruptly stated a falsehood. This, I presume, will not be admitted. But, on the other hand, Mr. Randolph may have forgotten the transaction in the bustle of business, and this will account for the difference in the evidence of the witnesses without impeaching the veracity of either. This mode of reconciling the evidence is agreeable to the rules of law. I take the facts, therefore, as stated by Mr. Heath, to be correct, and they afford an instance of judicial depravity hitherto unequalled and unknown in our country--a direct attempt to pack a jury of the same political sentiments with the judge to try the defendant. This is a faint representation of the previous conduct of the judge relative to this subject, before whom the defendant was about to be tried, or rather before whom he was to be called for certain conviction and punishment, for it ought not to be dignified with the name of a trial. With this view, therefore, of the temper and disposition of the judge, and of his previous conduct on this occasion, we will examine the first important step taken in the trial, in which the designs of the judge begin more clearly to unfold themselves, viz: his refusal to postpone or continue the trial until the next term, on an affidavit regularly filed, stating the absence of material witnesses and the places of their residence, being the second charge in the fourth article.

The next charge which I propose to examine is contained in the second article of the impeachment, and consists in the judge’s overruling the objection of John Basset, one of the jury, who wished to be excused from serving on the trial of Callender, because he had made up his mind as to the book from which the words charged to be libellous in the indictment had been drawn. The constitution secures to defendants charged with crimes, the right of a trial by an impartial jury; any thing, therefore, that goes to show that a man has made up an opinion with regard to the guilt or innocence of the accused, or with regard to the matter in question, or decided it in his own mind, proves him to be disqualified to serve as a juror, because it proves he is not impartial, has a bias upon his mind, and cannot be said to be indifferent. The same doctrine is supported by the laws of England. In order to show this, I will refer the Court to 3 Bac. Ab. (new ed.) 756, and also Co. Litt. 158; where it is stated, if a juror has declared his opinion, touching the matter in question, &c., or has done any thing by which it appears that he cannot be indifferent or impartial, &c., these are principal causes of challenge; and therefore such juror would be disqualified. Here it is manifest, that though declaring an opinion is good cause of challenge to a juror, if it is not necessary he should declare such opinion in order to disqualify him; it is sufficient that he has done something, whether making up an opinion, or doing any act whatever, by which it appears he is not indifferent, is not perfectly impartial.

The next charge to be inquired into, is that stated in the third article, in rejecting the evidence of Colonel Taylor, a material witness in favor of the defendant, on the pretence that he could not prove the truth of the whole of one charge. In this instance the judge acted contrary to all former precedents in courts of justice, and without the shadow of law or reason to justify his conduct. Not a solitary case could be stated by any of the witnesses of a similar conduct in a judge. The rule here adopted, with regard to the admissibility of evidence, would deprive the jury of their undoubted right to decide on the credibility and weight of evidence, as well as on the extent to which it proved the matter in question; would transfer in substance this right to the Court, and thereby shake to its very centre the fabric so justly admired, and held so sacred, _of trial by jury_. It would make it necessary for the party to present to the Court all the evidence relied upon to make out his case. This evidence, the Court or judge would first deliberately examine, compare it with the charges or case to be supported, and if it did not, in his opinion, prove the whole of one charge, or go the whole extent of the case to be established by it, he would reject it, and not permit the jury to hear it. This would strip the jury of the very prerogative that renders this kind of trial so much superior to all others, that of deciding on the weight and credit of evidence.

But it is stated that Judge Griffin concurred with him in opinion, and this is insisted upon by the accused in different parts of his answer, as an excuse for the errors he committed, if, as he states, they were errors. This seems to be a kind of forlorn hope resorted to, when all other expedients fail. To this argument of the judge I would in this place answer, once for all, that it can be no excuse for him, nor any justification of his offences, that another has been equally guilty with himself; and it must strongly prove the weakness of his defence to rely upon this ground. Though Judge Griffin has not yet been called to an account for his conduct on this occasion, that is no reason why he should not hereafter be made to answer for it. The nation has not said he was innocent, or that he will not be proceeded against for this conduct; and there is no limitation of time that would screen him from the effects of charges of this kind, if they should be brought forward and supported against him hereafter. No ground of excuse therefore can arise from the circumstance of Judge Griffin not having been called upon to answer for his conduct in this respect.

I will now proceed to notice very briefly the conduct of the judge in the subsequent part of this trial. Compelling the defendant’s counsel to reduce to writing all questions to be asked the witness, was a direct innovation on the practice in our courts of justice, and tended to embarrass the management of and weaken the defence. It is proved by the testimony of all the witnesses, that no such practice ever prevailed in our courts of justice, for such a purpose as that avowed in this instance; the only cases in which it is required to reduce to writing questions to be asked a witness, and the only cases in which it can be proper or consistent with reason and justice to do so, are those in which an objection is made to a question proposed to be asked, on the ground of its being improper and contrary to the rules of evidence; and in order to ascertain the precise meaning and effect of the question, so as to decide on the objection made to it, it may be proper to require it to be reduced to writing, but it never was before done, so far as we can discover, for the purpose of ascertaining how far the witness could prove the matter in question, and whether he could prove the whole of one charge or not, and thereby decide whether the witness should or should not be examined. According to this rule the judge would first try the cause himself upon the evidence offered, by the questions thus reduced to writing, and if he did not consider such evidence fully sufficient to support the whole of the charge or case to which it was offered, he would reject it, and not permit the jury to hear a word of it, lest they might consider it stronger than he did, and give it sufficient weight to support the case to which it was offered. This mode of proceeding was left to be discovered and adopted by Judge Chase.

Barely to notice the conduct of the respondent, at Newcastle in Delaware, as charged in the seventh article, is sufficient to show that he was there actuated by the same spirit of persecution and oppression that has, as already stated, marked the whole of his conduct during the course of these transactions. That he should descend from the elevated and dignified station in which he was placed as a judge, to hunt for crimes as a common informer against his fellow-citizens; urge the jury to take notice of, and present certain persons sufficiently designated though not named; and press the attorney for the district to search for evidence among the files of newspapers to support a prosecution, was degrading to the sacred character of a judge, and was perverting the judicial authority to a mere engine of persecution to answer party purposes. Of the same complexion with this is the conduct of the respondent in delivering an inflammatory and disorganizing charge to the grand jury at Baltimore, as stated in the eighth article of the impeachment. This proceeding evinced a mind inflamed by party spirit and political intolerance; it was calculated to disturb the peace of the community, and alarm the people at the measures of Government: to force them by the terror of judicial denunciation to relinquish their own political sentiments and adopt those of the judge. This was the favorite object of this whole proceeding, and to obtain it no means were left untried. It was attempted to excite the fears of the public mind, to destroy the confidence of the people in the administration of their Government. The judicial authority was prostituted to party purposes, and the fountains of justice were corrupted by this poisonous spirit of persecution, that seemed determined to bear down all opposition in order to succeed in a favorite object. Citizens of all descriptions felt alarmed at this new and unusual conduct. All the counsel at the bar, wherever the respondent went, though consisting of the ablest and most enlightened in the nation, were agitated into a general ferment, and the whole community seemed shocked at such outrages upon common sense; for to go to trial was to go to certain conviction. Is this, Mr. President, the character that ought to distinguish the Judiciary of the United States? No, sir. The streams of justice that flow from the American bench ought to be as pure as the sunbeams that light up the morning. The accused should come before the Court, with a well-founded confidence that the law will be administered to him with justice, impartiality, and in mercy. When this is the case, he submits without a murmur to his fate, and hears the sentence of condemnation pronounced against him, with a mind that must approve the justice of the law and the impartiality of those who administer it.

The decision of this cause may form an important era in the annals of our country. Future generations are interested in the event. It may determine a question all-important to the American people; whether the laws of our country are to govern, or the arbitrary will of those who are intrusted with their administration. Mr. President, we, on this important occasion, behold the rights and liberties of the American people hover round this honorable tribunal, about to be established on a firm basis by the decision you will make, or sent afloat on the ocean of uncertainty, to be tossed to and fro by the capricious breath of usurped power and innovation.

Mr. CLARK addressed the Chair as follows--Mr. President: I rise only to make a few remarks on two of the articles, the fifth and sixth, that the counsel for the respondent may be possessed of all the points we mean to make. I will endeavor, in a few words, to state the practice which we think ought to have been pursued in the case of Callender. The practice in the federal courts is regulated by that in each State. If this position be correct, we contend, that the proper process in the case of Callender was a summons. An act of Virginia, passed in the year 1792, provides that the grand jury “shall present all treasons, murders, felonies, _or other misdemeanors whatsoever_, which shall have been committed or done within the district for which they are impanelled.”

By another act of Virginia, passed in the same year, it is enacted that, “upon presentment made by the grand jury of an offence not capital, the Court shall order the clerk to issue a summons or other proper process against the person or persons so presented, to appear and answer such presentment _at the next Court_, and thereupon hear and determine the same according to law.”

In this last provision, the words, “_or other proper process_,” have a direct application to the previous provision, which enacts that the grand jury shall present all treasons, murders, felonies, “or other misdemeanors.” For treasons, murders, and felonies, we admit that a capias is the proper process; and when the law directs _other proper process_, it had reference to a class of crimes where a capias was required. It is in vain alleged, that the counsel for Callender made no objection to the process issued. They were not at that time to be considered as his counsel; it was only after he was brought into court that their duty commenced.

Further, whether the proper process was a capias or summons, the law of Virginia requires that it shall be returnable to the next Court; and I contend that this point is established by the English practice. To show which I refer to Hawkins’s Pleas of the Crown, where it is stated that a _venire facias_, which is in the nature of a summons, is the proper process, and that it is returnable to the next Court.

It was surely, then, the duty of the judge to be acquainted with the laws of England, however unacquainted he may have been with the laws of Virginia. He cannot, therefore, on this ground, attempt a justification from ignorance. In his answer he informs us that ignorance of the law is no excuse. If it is no excuse in an unlettered individual, shall it constitute the apology of him who was expressly appointed to expound the law and administer justice? And if, on this occasion, he was not acquainted with the law, did it, therefore, become him to proceed with such fatal precipitancy? No sooner was the presentment made than the marshal, before any indictment was brought in, was despatched after Callender. We can only account for this by supposing that it was the intention of the judge to act in conformity to his previous declaration, however jocularly it may have seemed to have been made; and that this was one of the means he had determined to pursue in order to convict Callender, regardless of the dignity of his station or the innocence of the man. Having offered these remarks, I am instructed to say that the case is fully opened on the part of the prosecution.

_Argument for the Defence._

Mr. HOPKINSON.--Mr. President: We cannot remind you, and this honorable Court, as our opponents have so frequently done, that we address you in behalf of the majesty of the people. We appear for an ancient and infirm man, whose better days have been worn out in the service of that country which now degrades him; and who has nothing to promise you for an honorable acquittal but the approbation of your own consciences. We are happy, however, to concur with the honorable Managers in one point; I mean the importance they are disposed to give to this cause. In every relation and respect in which it can be viewed, it is, indeed, of infinite importance. It is important to the respondent to the full amount of his good name and reputation, and of that little portion of that happiness the small residue of his life may afford. It is important to you, Senators and judges, inasmuch as you value the judgment which posterity shall pass upon the proceedings of this day. It is important to our country, as she estimates her character for sound, dignified, and impartial justice, in the eyes of a judging world. The little, busy vortex that plays immediately round the scene of action, considers this proceeding merely as the trial of Judge Chase, and gazes upon him as the only person interested in the result. This is a false and imperfect view of the case. It is not the trial of Judge Chase alone. It is a trial between him and his country, and that country is as dearly interested as the judge can be, in a fair and impartial investigation of the case, and in a just and honest decision of it. There is yet another dread tribunal to which we should not be inattentive. We should look to it with solemn impressions of respect. It is posterity; the race of men that will come after us. When all the false glare and false importance of the times shall pass away; when things shall settle down into a state of placid tranquillity, and lose that bustling motion that deceives with false appearances; when you, most honorable Senators, who sit here to judge, as well as the respondent who sits here to be judged, shall alike rest in the silence of the tomb, then comes the faithful, the scrutinizing historian, who, without fear or favor, will record this transaction; then comes a just and impartial posterity, who, without regard to persons or to dignities, will decide upon your decision. Then, I trust, the high honor and integrity of this Court will stand recorded in the pure language of deserved praise, and this day will be remembered in the annals of our land, as honorable to the respondent, to his judges, and to the justice of our country.

We have heard, sir, from the honorable Managers who have addressed you, many harsh expressions. I hope, sir, they will do no harm. We have been told of the respondent’s unholy sins, which even the heavenly expectation of sincere repentance cannot wash away; we have been told of his volumes of guilt, every page of which calls loudly for punishment. This sort of language but pursues the same spirit of asperity and reproach which was begun in the replication to our answer. But we come here, sir, not to complain of any thing; we come expecting to bear and to forbear much. It does, indeed, seem to me, that the replication filed by the honorable Managers on behalf of the House of Representatives and of all the people, carries with it more acrimony than either the occasion or their dignity demanded. It may be said that they have resorted for it to English precedent, and framed it from the replication filed in the celebrated case of Warren Hastings. There is, however, no similarity between that case and ours. Precedents might have been found more mild in their character, and more adapted to the circumstances of our case. The impeachment of Hastings was not instituted on a petty catalogue of frivolous occurrences, more calculated to excite ridicule than apprehension, but for the alleged murder of princes and plunder of empires. If, however, the choice of this case as a precedent for our pleadings, has exposed us to some unpleasant expressions, it also furnishes to us abundance of consolation and hope. There, the most splendid talents that ever adorned the British nation, were strained to their utmost exertion to crush the devoted victim of malignant persecution. But in vain; the stern integrity, the enlightened perception, the immovable justice of his judges, stood as a barrier between him and destruction, and safely protected him from the fury of the storm. So, I trust in God, it will be with us.

In England, the impeachment of a judge is a rare occurrence. I recollect but two in half a century. But, in our country, boasting of its superior purity and virtue, and declaiming ever against the vice, venality, and corruption of the Old World, seven judges have been prosecuted criminally in about two years. A melancholy proof either of extreme and unequalled corruption in our Judiciary, or of strange and persecuting times amongst us.

The first proper object of our inquiries in this case is, to ascertain with proper precision what acts or offences of a public officer are the objects of impeachment. This question meets us at the very threshold of the case. If it shall appear that the charges exhibited in these articles of impeachment are not, even if true, the constitutional subjects of impeachment; if it shall turn out on the investigation that the judge has really fallen into error, mistake, or indiscretion, yet if he stands acquitted in proof of any such acts as by the law of the land are impeachable offences, he stands entitled to discharge on his trial. This proceeding by impeachment is a mode of trial created and defined by the constitution of our country; and by this the Court is exclusively bound. To the constitution, then, we must exclusively look to discover what is or is not impeachable. We shall there find the whole proceeding distinctly marked out; and every thing designated and properly distributed necessary in the construction of a court of criminal jurisdiction. We shall find, 1. Who shall originate or present an impeachment. 2. Who shall try it. 3. For what offences it may be used. 4. What is the punishment on conviction. The first of these points is provided for in the second section of the first article of the constitution, where it is declared that “the House of Representatives shall have the sole power of impeachment.” This power corresponds with that of a grand jury to find a presentment or indictment. In the third section of the same article, the Court is provided before whom the impeachment thus originated shall be tried: “The Senate shall have the sole power to try all impeachments.” And the fourth section of the second article points out and describes the offences intended to be impeachable, and the punishment which is to follow conviction; subject to a limitation in the third section of the first article.

I offer it as a position I shall rely upon in my argument, that no judge can be impeached and removed from office for any act or offence for which he could not be indicted. It must be by law an indictable offence. One of the gentlemen, indeed, who conduct this prosecution, (Mr. Campbell,) contends for the reverse of this proposition, and holds that for such official acts as are the subject of impeachment no indictment will lie or can be maintained. For, says he, it would involve us in this monstrous oppression and absurdity, that a man might be twice punished for the same offence--once by impeachment, and then by indictment. And so most surely he may; and the limitation of the punishment on impeachment takes away the injustice and oppression the gentleman dreads.

The House of Representatives has the power of impeachment; but for what they are to impeach, in what cases they may exercise this delegated power, depends on other parts of the constitution, and not on their opinion, whim, or caprice. The whole system of impeachment must be taken together, and not in detached parts; and if we find one part of the constitution declaring who shall commence an impeachment, we find other parts declaring who shall try it, and what acts and what persons are constitutional subjects of this mode of trial. The power of impeachment is with the House of Representatives--but only for impeachable offences. They are to proceed against the offence in this way when it is committed, but not to _create_ the offence, and make any act criminal and impeachable at their will and pleasure. What is an offence, is a question to be decided by the constitution and the law, not by the opinion of a single branch of the Legislature; and when the offence thus described by the constitution or the law has been committed, then, and not until then, has the House of Representatives power to impeach the offender. So a grand jury possesses the sole power to indict; but in the exercise of this power they are bound by positive law, and do not assume under this general power to make any thing indictable which they might disapprove. If it were so, we should indeed have a strange, unsettled, and dangerous penal code. No man could walk in safety, but would be at the mercy of the caprice of every grand jury that might be summoned, and that would be crime to-morrow which is innocent to-day.

What part of the constitution then declares any of the acts charged and proved upon Judge Chase, even in the worst aspect, to be impeachable? He has not been guilty of bribery or corruption; he is not charged with them. Has he then been guilty of “_other high crimes and misdemeanors_?” In an instrument so sacred as the constitution, I presume every word must have its full and fair meaning. It is not then only for crimes and misdemeanors that a judge is impeachable, but it must be for _high_ crimes and misdemeanors. Although this qualifying adjective “_high_” immediately precedes and is directly attached to the word “_crimes_,” yet, from the evident intention of the constitution and upon a just grammatical construction, it must be also applied to “_misdemeanors_.” Observe, sir, the crimes with which these “other high crimes” are classed in the constitution, and we may learn something of their character. They stand in connection with “_bribery and corruption_;” tried in the same manner and subject to the same penalties. But if we are to lose the force and meaning of the word “_high_” in relation to misdemeanors, and this description of offences must be governed by the mere meaning of the term “misdemeanors,” without deriving any grade from the adjective, still my position remains unimpaired, that the offence, whatever it is, which is the ground of impeachment, must be such a one as would support an indictment. “Misdemeanor” is a legal and technical term, well understood and defined in law; and in the construction of a legal instrument we must give to words their legal signification. A misdemeanor or a crime, for in their just and proper acceptation they are synonymous terms, is an act committed or omitted, in violation of a _public_ law, either forbidding or commanding it. By this test let the conduct of the respondent be tried, and, by it, let him stand justified or condemned.

Does not, sir, the Court, provided by the constitution for the trial of an impeachment, give us some idea of the grade of offences intended for its jurisdiction? Look around you, sir, upon this awful tribunal of justice--is it not high and dignified, collecting within itself the justice and majesty of the American people? Was such a court created--does such a court sit to scan and punish paltry errors and indiscretions, too insignificant to have a name in the penal code, too paltry for the notice of a court of quarter sessions? This is indeed employing an elephant to remove an atom too minute for the grasp of an insect. Is the Senate of the United States, solemnly convened, and held together in the presence of the nation, to fix a standard of politeness in a judge, and mark the precincts of judicial decorum?

If I am correct in my position that nothing is impeachable that is not also indictable, for what acts then may a man be indicted? May it be on the mere caprice or opinion of any ten, twenty, or one hundred men in the community; or must it not be on some known law of the society in which he resides? It must unquestionably be for some offence, either of omission or commission, against some statute of the United States--or some statute of a particular State, or against the provision of the common law. Against which of these has the respondent offended? What law of any of the descriptions I have mentioned has he violated? By what is he to be judged, by what is he to be justified or condemned, if not by some known law of the country; and if no such law is brought upon his case--if no such violation rises on this day of trial in judgment against him, why stands he here at this bar as a criminal? Whom has he offended? The House of Representatives--and is he impeached for this?

I maintain as a most important and indispensible principle, that no man should be criminally accused, no man can be criminally condemned, but for the violation of some known law by which he was bound to govern himself. Nothing is so necessary to justice and to safety as that the criminal code should be certain and known. Let the judge, as well as the citizen, precisely know the path he is to walk in, and what he may or may not do. Let not the sword tremble over his unconscious head, or the ground be spread with quicksands and destruction, which appear fair and harmless to the eye of the traveller. Can it be pretended there is one rule of justice for a judge and another for a private citizen; and that while the latter is protected from surprise, from the malice or caprice of any man or body of men, and can be brought into legal jeopardy only by the violation of laws before made known to him, the latter is to be exposed to punishment without knowing his offence, and the criminality or innocence of his conduct is to depend not upon the laws existing at the time, but upon the opinions of a body of men to be collected four or five years after the transaction? A judge may thus be impeached and removed from office for an act strictly legal, when done, if any House of Representatives, for any indefinite time after, shall for any reason they may act upon, choose to consider such act improper and impeachable. The constitution, sir, never intended to lay the judiciary thus prostrate at the feet of the House of Representatives, the slaves of their will, the victims of their caprice. The judiciary must be protected from prejudice and varying opinion, or it is not worth a farthing. Suppose a grand jury should make a presentment against a man, stating that most truly he had violated no law or committed any known offence; but he had violated their notions of common sense--for this was the standard of impeachment the gentleman who opened gave us--he had shocked their nerves or wounded their sensibility. Would such a presentment be received or listened to for a moment? No, sir. And on the same principle, no judge should be put in jeopardy because the common sense of one hundred and fifty men might approve what is thus condemned, and the rule of right, the objects of punishment or praise, would thus shift about from day to day. Are we to depend upon the House of Representatives for the innocence or criminality of our conduct? Can they create offences at their will and pleasure, and declare that to be a crime in 1804, which was an indiscretion or pardonable error, or perhaps an approved proceeding in 1800? If this gigantic House of Representatives, by the usual vote and the usual forms of legislation, were to direct that any act heretofore not forbidden by law, should hereafter become penal, this declaration of their will would be a mere nullity; would have no force and effect, unless duly sanctioned by the Senate and the approbation of the President. Will they then be allowed, in the exercise of their power of impeachment, to create crimes and inflict the most serious penalties on actions never before suspected to be criminal, when they could not have swelled the same act into an offence in the form of a law? If this be truly the case, if this power of impeachment may be thus extended without limit or control, then indeed is every valuable liberty prostrated at the foot of this omnipotent House of Representatives; and may God preserve us! The President may approve and sign a law, or may make an appointment which to him may seem prudent and beneficial, and it may be the general, nay the universal sentiment that it is so; and it is undeniable that no law is violated by the act. But some four or five years hence there comes a House of Representatives whose common sense is constructed on a new model, and who either are or affect to be greatly shocked at the atrocity of this act. The President is impeached. In vain he pleads the purity of his intention, the legality of his conduct; in vain he avers that he has violated no law and been guilty of no crime. He will be told, as Judge Chase now is, that the common sense of the House is the standard of guilt, and their opinion of the error of the act conclusive evidence of corruption. We have read, sir, in our younger days, and read with horror, of the Roman Emperor who placed his edicts so high in the air that the keenest eye could not decipher them, and yet severely punished any breach of them. But the power claimed by the House of Representatives to make any thing criminal at their pleasure, at any period after its occurrence, is ten thousand times more dangerous, more tyrannical, more subversive of all liberty and safety. Shall I be called to heavy judgment now for an act which, when done, was forbidden by no law, and received no reproach, because in the course of years there is found a set of men whose common sense condemns the deed! The gentlemen have referred us to this standard, and being under the necessity to acknowledge that the respondent has violated no law of the community, they would on this vague and dangerous ground accuse, try, and condemn him. The code of the Roman tyrant was fixed on the height of a column, where it might be understood with some extraordinary pains; but here, to be safe, we must be able to look into years to come, and to foresee what will be the changing opinions of men or points of decorum for years to come. The rule of our conduct, by which we are to be judged and condemned, lies buried in the bosom of futurity, and in the minds and opinions of men unknown, perhaps unborn.

The gentleman (Mr. Early) who has offered you his observations on these articles of impeachment, appears to have grounded his argument not on the evidence, but on the articles. Supposing, perhaps, that they would be proved, he has taken it for granted that they have been proved, and has shaped his remarks accordingly. Had we filed a general demurrer to these charges, thereby admitting them as stated, the argument of the gentleman might have had the force and application he intended. But, if I mistake not, the respondent has pleaded not guilty, and the case must therefore be decided by the amount of the evidence, and not by the averments of the articles. I admit, indeed, that the honorable Managers are put to some difficulty in this respect. They are under the necessity of making their election between the articles and the evidence as the foundation of their argument; for they are so totally dissimilar, that they could not take them both; they meet in so few and such immaterial points, that no man can argue from them both for five sentences. This being the situation of the gentleman, he has thought proper to select the articles and the facts therein set forth as the foundation of his argument in defiance of the testimony. In the observations I shall have the honor to submit, I propose to take the evidence as my text and guide, and leave the articles to shift for themselves, under the care and patronage of our honorable opponents.

Upon reading this first article of impeachment against the respondent, after a due degree of horror and indignation at the monstrous tyranny and oppression portrayed in it, the first question that would strike the mind of the inquirer would naturally be, when did this horrid transaction take place--when and where was it that Judge Chase thus persecuted an unfortunate wretch to the very brink of the grave, from which he was snatched by the interference of executive mercy, shocked at the injustice of his condemnation? When were the rights of juries and the privileges of counsel and their clients thus thrown down and prostrated at the feet of a cruel and inexorable judge? What would this inquirer think and believe on being informed that these atrocious outrages upon justice, law, and humanity, were perpetrated five years since? Why and where has the justice of the country slumbered so long? What now awakens it from this lethargic sleep? Why has this monstrous offender so long escaped the punishment of his crimes? To what region of refuge did he fly? But will not surprise be greatly increased when it is told that at the time of the trial of John Fries, this injured and oppressed man,--at the very time when these crimes of the judge were committed, the Congress of the United States, the guardian of our lives and liberties, were actually in session in the very city where the deeds were done, and probably witnessed the whole transaction? I do not expect to be answered here, for I cannot suspect our honorable opponents of so much illiberality, that at that period the administration of our affairs was in the hands of the political friends of the judge, and therefore he was permitted to escape, however atrocious his crimes. Whatever, sir, may have been the character of that Administration, even if a weak and wicked one, as it has been represented, it could have no object in protecting any individual at so great a risk to themselves and their reputation. If Judge Chase had really violated the law and constitution to come at the blood of Fries, and had done this in the face of the public, the Administration would have put too much at hazard by endeavoring to shelter him. I hope, however, no such reason will be given for the neglect of these charges; and as we most cheerfully and truly confide in the justice of the present Administration, we trust no such distrust will be avowed of the integrity of the former; we feel as safe under trial now as we should have done then, and look without distrust for the same impartial justice from this honorable Court, as we should have expected and received at any time.

This first article, sir, charges, “that unmindful of the solemn duties of his office, and contrary to the sacred obligations by which he stood bound to discharge them faithfully and impartially and without regard to persons, the said Samuel Chase on the trial of John Fries, charged with treason, before the circuit court of the United States, held for the district of Pennsylvania, in the city of Philadelphia, during the months of April and May, 1800, whereat the said Samuel Chase presided, did, in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust.” This general accusation is followed by three distinct specifications of offence, to wit:

“1. In delivering 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 case of the said John Fries, the prisoner, before counsel had been heard in his defence:

“2. In restricting the counsel for the said Fries from recurring to such English authorities as they believed apposite, or from citing certain statutes of the United States, which they deemed illustrative of the positions, upon which they intended to rest the defence of their client:

“3. In debarring the prisoner from his constitutional privilege of addressing the jury (through his counsel) on the law, as well as on the fact, which was to determine his guilt, or innocence, and at the same time endeavoring to wrest from the jury their indisputable right to hear argument and determine upon the question of law, as well as the question of fact, involved in the verdict which they were required to give.”

In the whole of these specifications I am able to discover but one truth; the rest is wholly contradicted and disproved by the evidence. It is true, that Judge Chase did form and reduce to writing, and, in a limited manner, deliver an opinion on a question of law, on the construction of which the defence of the accused materially depended--but when the article goes on to charge that this opinion tended to prejudice the minds of the jury against the case of John Fries the prisoner, before counsel had been heard in his defence, it is utterly unfounded and untrue. To whom was this opinion delivered? To the counsel for Fries and to the Attorney for the United States; and to no other person. The third copy, and but three were made, never was delivered to the jury or to any other person, and never could produce any prejudice or injury to John Fries--nor indeed was it ever intended to come to the knowledge of the jury, until they had completely heard the discussion of the case by counsel, when they were to have _taken out_ with them this opinion of the judge upon the law of the case submitted to them. At that period of the trial when it was not only the right but the duty of the Court to state to the jury their opinion of the law arising on the facts, then, and not until then, was it the intention of the judge to communicate to them this deliberate opinion. Could this be done with any intention to injure or oppress the prisoner? If such was the intention of the act, then, and not otherwise, it was criminal. In inquiring into the nature of this act, I confine myself now to the forming and delivery of this opinion, and to decide its innocence or criminality we should consider it in relation to its _motives_, its _time and manner_, and its _consequences_. If nothing

## partial, oppressive, or corrupt, is to be found in any of these, I know

not in what or whence the criminality is to be established. In deciding, sir, upon the _motive_ which prompted the judge to this act, we must look for materials in the testimony: by this we must be governed, and not by the imputations, surmises, and constructions of our opponents, however eloquent and ingenious. The judge and his motives are not only strongly denounced in the article, but have also had the same fate from the mouths of the Managers. I take the evidence for my guide, and I know it will be the guide of this honorable Court.

What then, sir, is the whole amount of the crime of the judge on this occasion? That he, a law judge, had been bold enough to form an opinion--not on John Fries’s case, or the facts or circumstances of it, for he knew them not; but on certain abstract points of law, without first consulting and hearing Messrs. Lewis and Dallas. And further, he had not only formed such opinions, but he had the audacity to put them into the hands of these gentlemen, which, in the article of impeachment, is called “delivering the opinion.” The judge, then, on mature deliberation, from a full consideration both of English and American precedents and decisions, had really made up his mind upon what overt acts would constitute the treason of levying war; and to prevent mistake, he had reduced this opinion to writing, and for the information of the counsel on both sides (no partial selection) he gave a copy of this opinion to each of them, and intended to give another to the jury to take out with them. The jury should have this opinion where they could not mistake it, instead of their memories where it might be misunderstood. Is not this, sir, a fair and just epitome of the facts given in evidence? Is it not the full measure and amount of the judge’s crime and corruption?

We have heard much about the agitation of the bar on this occasion. The

## particular cause of it has not been clearly explained. It might have been

produced by the demeanor of Mr. Lewis, which, from his own account, was violent and indignant, or it might have been the mere bustle produced by the different efforts that were made to get hold of the obnoxious paper which Mr. Lewis cast from him with so much feeling as too foul for his hand; or from a combination of these with other causes. Another circumstance equally immaterial has been dignified with much importance by the attention the Managers have bestowed upon it--I mean the _novelty_ of the proceeding. Every witness was asked in solemn form, “Did you ever see the like before?” “How long have you been a practising lawyer?” “How many criminals have you defended?” “Was not this mode of forming and giving opinions by the Court a novelty to you?” Granted--it was a _novelty_--I say granted for argument’s sake--it was a novelty; and what follows? Is it therefore impeachable? Every innovation, however just and beneficial, is subject to the same consequence. But, sir, if this novelty proceeded not from impure intentions, and was not followed by oppressive or injurious consequences, where is its injustice or criminality? There were many other novelties in that trial. It was a novelty that a man named John Fries should commit treason, and be tried and convicted for it. I never heard of precisely the same thing before. It was a novelty that counsel should desert their cause in the abrupt manner in which it was then done. But I presume it will not be pretended that these things were wrong merely because they were novel; much less that a judge is to be convicted of high crimes and to be removed from office for a harmless novelty. The articles charge not the judge with innovations and novelties in legal forms, but with depriving John Fries and his counsel of their constitutional rights; and if he has not done this, the rest is of no importance now. But what is this strange novelty that excites so much interest and alarm? Is it that a law judge had a law opinion, and was capable of making it up for himself without the assistance of learned counsel? I hope not. I should be sorry to suppose this is a novelty in the United States. Was it then the reducing this opinion to writing, putting it on paper with pen and ink, that makes the dangerous novelty? To have the opinion is nothing; but to write it constitutes the crime. And yet, sir, where is the difference to the prisoner? Except that in the latter case there is more certainty; less chance of misapprehension and mistake on the part of the jury than when it is delivered to them verbally. It should be recollected, sir, and I am sure it is too important to be forgotten by this honorable Court, this written opinion contained all the limitations and discriminations on the law of treason which could serve the prisoner, as well as those which might operate against him. But, sir, I deny that there was so much novelty either in forming this opinion, or in reducing it to writing, as is pretended. Is it uncommon for judges to state their opinions on particular points of law to counsel, even before argument, for the direction of their observations? And was it ever before considered a prejudication of the case, or an encroachment upon the rights of the bar? In criminal courts the practice is constant and universal. Previous to the trial of the cases of treason, after the restoration of Charles II., the judges of England met together, and did form and reduce to writing opinions, not only upon the mode of proceeding upon the trials, but also on all those questions or points of law which they supposed would arise and require their decision in the course of the trials. (See Kelynge’s Reports, pp. 1, 2, &c.--11.) Here the judges met in consultation expressly for the purposes now deemed so criminal in Judge Chase, and took to their aid the King’s counsel. Our judge did not take to his assistance the Attorney of the United States in forming his opinion; nor did the judges in England deliver to the counsel of the accused the result of their deliberations, but doubtless it would have been received as a favor if they had. In the only two points of difference, therefore, between the two cases, we have most decidedly the advantage.

Suffer me now, sir, to offer you some observations on the second specification of the first article of impeachment. I hope it will not be necessary to trespass greatly on your patience in refuting it. It charges Judge Chase with “restricting the counsel for the said John Fries from recurring to such English authorities as they believed apposite, or from citing certain statutes of the United States, which they deemed illustrative of the positions upon which they intended to rest the defence of their client.” This charge consists of two parts; it complains of a restriction as to English authorities, and as to American statutes. I will consider them distinctly. First, sir, permit me to remark that these allegations are made to support the general charge of partiality, oppression, and injustice. But what becomes of these pretences when we bear in mind the testimony of Mr. Rawle, the district attorney, and always, and in every situation, a gentleman whose character, in all its relations both public and private, bears the first stamp of respectability, and fears no competition for credit? He has informed this honorable Court that this restriction so grievously complained of, and now the subject of a criminal prosecution, was imposed upon him as well as upon the counsel of Fries. Is this the character or the conduct of partiality or oppression? Does it evince that strong appetite the judge is said to have, to drink the heart’s blood of this unfortunate German, and stain the pure ermine of justice with his gore? I have always understood by partiality in a judge, a favoring bias to one party to the prejudice of the other; but where a restriction is put equally on both sides, I cannot conjecture how it can be resolved into

## partiality or oppression. It will be seen presently that as far as this

restriction could have any operation, it was friendly in that operation to John Fries. But, sir, what was this restriction so much complained of, and now magnified into a high crime? That certain English decisions in the law of treason, made before the Revolution of 1688, should not or ought not to be read to the jury; and pray, sir, what were these decisions? I will take their character from Mr. Lewis himself, and no man is better acquainted with them. He says they were decisions of dependent and corrupt judges, who carried the doctrine of constructive treason to the most dangerous and extravagant lengths. True, they were so--sanguinary, cruel, and tyrannical in the extreme; and could the exclusion of such cases injure John Fries? If cases which extenuated and softened the crime of treason had been rejected, he might indeed have suffered; but how he was or could be injured by keeping from the jury those cases which aggravated his offence, I am really at a loss to learn. The restriction there was on the United States. Had they been adduced by the Attorney-General, no doubt they would have been ably answered by the defendant’s counsel; but the ability of the counsel was not inferior to Fries’s counsel; and if Judge Chase had indeed a design to oppress and injure John Fries, and to convict him on strained constructions of treason, his best policy would surely have been to have suffered these cases to have come forward, and if supported by his authority and the talents of the counsel of the United States, they might have had their influence with the jury, notwithstanding the able refutations they might have received.

May I not now flatter myself, sir, that all the criminality charged upon the respondent, in the second specification of the first article of impeachment, is washed away from the minds of this honorable Court? Under this hope and impression, I will proceed to consider, as briefly as possible, the third and last specification. In this the judge is charged with “debarring the prisoner from his constitutional privilege of addressing the jury (through his counsel) on the law as well as on the fact which was to determine his guilt or innocence, and at the same time endeavoring to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict which they were required to give.” This charge is absolutely unfounded and untrue, and is, in all its parts, most completely disproved by the evidence. As to debarring counsel from being heard, I need only refer you, sir, to the testimony of Messrs. Tilghman and Meredith, who expressly swear, that Judge Chase, when he threw down the paper containing the opinion the Court had formed on the law, explicitly declared, that, nevertheless, counsel would be heard against that opinion. It is, indeed, true that Mr. Lewis seems, throughout the business, to have been under an impression that nothing would be heard in contradiction to that opinion; and that his professional rights were invaded. But this appears to be a hasty and incorrect inference or conclusion of his own, from the conduct of the Court. He wholly misapprehended the Court, and has charged his misapprehension to their account. This is the usual effect of such precipitate proceedings. The Managers have greatly relied on this circumstance; they urge that Mr. Lewis, through the whole affair, and in all he said concerning it, took for granted and stated that he was debarred from his constitutional privileges. He did so; but he did so under a mistake of his own, not proceeding from the Court. It is not only that no other witness speaks of any such restriction, but expressly negative it and say, some of them at least, that none such was imposed; but Mr. Rawle has further informed you, that it appeared to him throughout the business that Mr. Lewis had wholly misunderstood the Court and mistook their intention. But, surely, sir, we are not to be condemned because we have been misunderstood; especially as the mistake seems to have been peculiar to Mr. Lewis, and no other witness fell into the same error. I rely most implicitly on Mr. Rawle’s testimony, not only from the strength and correctness of his character, but from the unusual pains he took to be accurate in his knowledge of this transaction. His notes are copious, connected, and satisfactory, and although he has no notes of the first day’s proceeding, yet he seems to have given an uncommon and cautious attention to every circumstance to which he has testified. This gentleman negatives every idea of any restriction upon the arguments of counsel, and is supported by every witness but Mr. Lewis.

But, sir, there is one circumstance in this second day’s proceeding, which has been introduced to show, that the respondent continued the same tyrannical spirit with which he is charged on the first day, and which it may be incumbent on him to remove. I mean the “unkind menace,” as it has been termed by one of the witnesses, used to the counsel of Fries, when the judge told them they would proceed in the defence at the hazard or on the responsibility of their character. To ascertain the true nature of the expression, whatever it was, which fell from the Court in this respect, I will refer to the same guide I have endeavored to follow throughout my argument, I mean the evidence. The aspect of this pretended menace will then be changed into a complimentary confidence in the discretion of the counsel, or at least into no more than such a menace as every gentleman of the bar acts under in every case; that is, to manage every cause before a jury with a due regard to their own reputation; to urge nothing as law to the jury, which they are conscious is not law, and to introduce no matter which they know to be either improper or irrelevant. This, in its worst character, will be found to be the whole amount of this terrible menace. What account does Mr. Lewis give of this occurrence? After stating that the Court manifested a _strong desire_ that he and his colleague should proceed in the defence of their client; that every restriction, if any had been imposed, was now removed, and that they were at full liberty to address the jury on the law and the fact as they thought proper; the judge said that this would be done “under the direction of the Court, and at the peril of their own character, _if we conduct ourselves with impropriety_.” And was it not so? And where is the criminality of saying so? Mr. Lewis did not consider this as a menace intended to restrict him in the exercise of the rights just before conceded him by the Court, but rather as an unwarranted suspicion of his sense of propriety; for, says he, “I did not know of any conduct of mine to make this caution necessary.”

A very strange and unexpected effort has been made, sir, to raise a prejudice against the respondent on this occasion, by exciting or rather forcing a sympathy for John Fries. We have heard him most pathetically described as the ignorant, the friendless, the innocent John Fries. The ignorant John Fries! Is this the man who undertook to decide that a law which had passed the wisdom of the Congress of the United States, was impolitic and unconstitutional, and who stood so confident of this opinion as to maintain it at the point of the bayonet? He will not thank the gentleman for this compliment, or accept the plea of ignorance as an apology for his crimes. The friendless John Fries! Is this the man who was able to draw round himself a band of bold and determined adherents resolved to defend him and his vile doctrines at the risk of their own lives, and of the lives of all who should dare to oppose? Is this the John Fries who had power and friends enough actually to suspend, for a considerable time, the authority of the United States over a large district of country, to prevent the execution of the laws, and to command and compel the officers appointed to execute the law to abandon the duties of their appointment, and lay the authority of the Government at the feet of this _friendless usurper_? The innocent John Fries! Is this the man against whom a most respectable grand jury of Pennsylvania, in 1799, found a bill of indictment for high treason; and who was afterwards convicted by another jury, equally impartial and respectable, with the approbation and under the direction of a judge, whose humanity and conduct, on that very occasion, have received the most unqualified praise of the honorable Manager who thus sympathizes with Fries? Is this the John Fries, against whom a second grand jury, in 1800, found another bill for the same offence, founded on the same facts, and who was again convicted by a just and conscientious petit jury? Is this _innocent_ German the man who, in pursuance of a wicked opposition to the power and laws of the United States, and a mad confidence in his ability to maintain that opposition, rescued the prisoners duly arrested by the officers of the Government, and placed those very officers under duress; who, with arms in his hands and menace on his tongue, arrayed himself in military order and strength, put to hazard the safety and peace of the country, and threatened us with all the desolation, bloodshed, and horror of a civil war; who, at the moment of his desperate attack, cried out to his infatuated followers, “Come on! I shall probably fall on the first fire, then strike, stab, and kill all you can?” In the fervid imagination of the honorable Manager, the widow and orphans of this man, even before he is dead, are made in hypothesis to cry at the judgment seat of God against the respondent; and his blood, though not a drop of it has been spilt, is seen to stain the pure ermine of justice. I confess, sir, as a Pennsylvanian, whose native State has been disgraced with two rebellions in the short period of four years, my ear was strangely struck to hear the leader of one of them addressed with such friendly tenderness, and honored with such flattering sympathy by the honorable Manager.

It is not unusual, sir, in public prosecutions for the accused to appeal to his general life and conduct in refutation of the charges. How proudly may the respondent make this appeal! He is charged with a violent attempt to violate the laws and constitution of his country, and to destroy the best liberty of his fellow-citizens. Look, sir, to his past life, to the constant course of his opinions and conduct, and the improbability of the charge is manifest. Look to the days of doubt and danger; look to that glorious struggle so long and so doubtfully maintained for that independence we now enjoy; for those rights of self-government you now exercise, and do you not see the respondent among the boldest of the bold, never sinking in hope or in exertion, aiding by his talents and encouraging by his spirit; in short, putting his property and his life in issue on the contest, and making the loss of both certain by the active part he assumed, should his country fail of success! And does this man, who thus gave all his possessions, all his energies, all his hopes to his country and to the liberties of the American people, now employ the small and feeble remnant of his days, without interest or object, to pull down and destroy that very fabric of freedom, that very Government, and those very rights he so labored to establish? It is not credible; it cannot be credited, but on proof infinitely stronger than any thing that has been offered to this honorable Court on this occasion. Indiscretions may have been hunted out by the perseverance of persecution; but I trust most confidently that the just, impartial, and dignified sentence of this Court, will completely establish to our country and to the world, that the respondent has fully and honorably justified himself against the charges now exhibited against him; and has discharged his official duties, not only with the talents that are conceded to him, but with an integrity infinitely more dear to him.

FRIDAY, February 22.

Mr. KEY.--Mr. President, I rise to make some observations on the second, third, and fourth articles of the impeachment. I shall not apologize for the manner in which I shall discharge a duty which I have voluntarily undertaken, but merely regret that indisposition has prevented my giving the subject that attention which it merits. It will be at once perceived that these articles relate to the trial of Callender. Before, however, I go into an examination of the second article, it may be proper to notice the situation in which the judge found himself and the state of the public mind at the time. The sedition law was passed in the year 1799. It immediately arrested the public attention, and strongly agitated the public feelings. In the State of Virginia it was peculiarly obnoxious; many of the most respectable characters considered it as unconstitutional, and as a violation of the liberty of the press; most deemed it impolitic; while some viewed it as a salutary restraint on the licentiousness of the press, more calculated to preserve than to destroy it. In this state of the public mind it became the duty of the respondent, in the ordinary assignment of judicial districts, to go into the district of Virginia, where he was entirely a stranger, to carry the laws into execution. It is scarcely necessary to observe that when laws are considered obnoxious, much of the odium attending them inevitably falls on those who carry them into effect. In May, 1800, Judge Chase went to Richmond to hold a court; and soon after it was in session, the grand jury found a presentment and afterwards a bill against James T. Callender for an infraction of this law, in publishing the book entitled “The Prospect before Us,” which brought into issue its constitutionality. Professional men of talents, carried along by the tide of public opinion, volunteered their services in defence of the accused; and every effort was exhausted to wrest the decision from the respondent. Exceptions were accordingly taken at every stage of the case; and when the jurors were brought to the book, a question arose which forms the foundation of the charge contained in the second article.

If we extract from this article the epithets it contains nothing will remain, and epithets fortunately do not constitute crimes. The offence and fact charged is, the permitting Mr. Basset to be sworn on the jury with an intention to oppress the traverser, which is not in the least supported by the testimony. The article alleges that Mr. Basset wished to be excused. I appeal to the testimony, whether he did wish or desire to be excused. The observations he made arose entirely from a scruple in his own mind, and not from any objection to serving. Instead of his wishing to be excused, the real fact is that which he said flowed from the peculiar situation in which he stood; and he says that he declared himself willing to serve, provided in law he was competent. The fact, therefore, on which this article rests, is not supported by the testimony, and not being supported, I might here dismiss this branch of the subject without further animadversion.

Suppose we are mistaken in the fact, which we say is proved, that Mr. Basset did not desire to be excused; admit that he did pray to be excused; still, so far as he has himself, on oath, explained the situation of his mind, there was no cause for challenge.

Admit, also, that we are mistaken in the law we have laid down, does it follow as a necessary consequence that the directing Basset to be sworn on the jury, was done with an intent to oppress the traverser? We call for the facts that impeach the motives of Judge Chase. In the opening of this case we were told that the respondent was highly gifted with rich attainments of mind. It was correctly said; and it might have been added that his integrity was equal to his talents. But the observation was made to raise his head at the expense of his heart. I will examine this argument.

The truth is that no judge is liable for an error of judgment. I apprehend this is conceded by the article itself, which states a criminal intent. Now for the evidence. What criminal intention do the honorable Managers draw from it? It is said that the respondent is highly gifted with intellectual powers, and must have known in this instance the law. _Timeo Danaos et dona ferentes._ I dislike the compliment; the best-gifted mortals are frail, and a single erroneous decision may be made by any man.

I will now proceed to the third article, which, when correctly understood, will be found as destitute of impeachable matter as either of the other articles. It is as follows: “That, with intent to oppress and procure the conviction of the prisoner, the evidence of John Taylor, a material witness on behalf of the aforesaid Callender, was not permitted by the said Samuel Chase to be given in, on pretence that the said witness could not prove the truth of the whole of one of the charges contained in the indictment, although the said charge embraced more than one fact.”

In opening the case one of the honorable Managers inquired what human subtilty or ingenuity could devise to extenuate this act of the respondent. Our reply is that it requires no subtilty or ingenuity; that it was correct in point of law, and that the case is so clear, that he who runs may read. The Court must permit me to observe that the article presents an abstract case, not growing out of, or connected with the evidence. This Court, I apprehend, is not sitting here to decide this abstract point, whether in any case it is admissible to prove one fact contained in a particular charge by one witness, and one by another; but to determine whether in this case, where one witness was offered to prove part of one charge, and no other witness offered to the same charge, it was proper to receive testimony offered. I contend that the decision was correct on the case before the Court.

Mr. Robertson says, “The attorney for the United States having concluded, the counsel for the traverser introduced Colonel Taylor as a witness, and he was sworn; but at the moment the oath was administered, the judge called on them, and desired to know what they intended to prove by the witness. They answered, that they intended to examine Colonel Taylor, to prove that Mr. Adams had avowed principles in his presence which justified Mr. Callender in saying that the President was an aristocrat--that he had voted against the sequestration law, and the resolutions concerning the suspension of commercial intercourse with Great Britain.” This was then the object and view with which Colonel Taylor was called on. What is the charge in the articles of impeachment? That the testimony of Colonel Taylor was rejected “on pretence that the said witness could not prove the truth of the whole of one of the charges, contained in the indictment, although the said charge embraced more than one fact.” The charge in the indictment is that the President “was a professed aristocrat; that he proved faithful and serviceable to the British interest:” and Colonel Taylor was called to prove that Mr. Adams had voted against the sequestration law, and the resolutions concerning the suspension of commercial intercourse with Great Britain. Was it competent to Colonel Taylor to give evidence on this point? The best evidence the nature of the case will admit must be adduced. Colonel Taylor then was clearly an incompetent witness on this point; as there was better evidence, the journals of this honorable body, within the reach of the traverser. It only then remained for Colonel Taylor to prove that the President had avowed principles which showed him to be an aristocrat; which, if proved, would have been altogether immaterial. To prove no other facts was he called upon. Are then counsel to be indulged in consuming the time of courts in the examination of witnesses, who have nothing relevant to offer?

I will now proceed to the fourth article, which contains five distinct specifications of facts charging misconduct on the respondent at Richmond.

This conduct is said to have been evinced, in the first place, “In compelling the prisoner’s counsel to reduce to writing, and submit to the inspection of the Court, for their admission or rejection, all questions which the said counsel meant to propound to the above-named John Taylor, the witness.”

If this was incorrect, I cannot perceive its injustice to Callender, nor its partiality or intemperance. But did the conduct of the Court in this instance correspond with the law and the practice? I apprehend that it did. I understand it to be a clear and admitted principle of law, that the Court is the only competent tribunal to determine the competency, the admissibility, and the relevancy of evidence; when admitted, its credibility is the exclusive province of the jury. I have before stated the reasons which rendered it necessary in this case to know what Colonel Taylor could prove. To understand the object for which he was produced with greater certainty and precision, the judge ordered the questions proposed to be put to be previously reduced to writing. I am not sufficiently acquainted with the practice in the courts of Virginia to say this was not novel, but I may surely venture to affirm that there was nothing criminal in it. I know well that in different States there are different forms of practice. I can only say, that Judge Chase, going from Maryland, where the practice does prevail, would naturally carry to Virginia the knowledge of the practice of the State from which he went.

The _second_ specification is in the following words:

“In refusing to postpone the trial, although an affidavit was regularly filed, stating the absence of material witnesses on behalf of the accused; and although it was manifest that, with the utmost diligence, the attendance of such witnesses could not have been procured at that term.”

This charge is grounded on the fact of a refusal to postpone the trial on an affidavit. That the Court acted correctly in this instance will appear from this consideration. Nothing is more clear than that, under the common law, all applications for a continuance, on affidavit, are founded on the discretion of the Court. Is it not wonderfully singular that there should have been an application founded on an affidavit, if the law of Virginia, as stated in the 6th article, applied to the case? One thing is clear: either that the Attorney-General and Mr. Hay lost all recollection of the existence of this law of Virginia respecting continuances, or that they considered it inapplicable; for they would not otherwise have founded the application on an affidavit. They would have produced the law and have demanded a continuance. Did they do so? No. If, then, the law officer of the State and Mr. Hay both forgot that it existed, is it surprising that it should be unknown to Mr. Chase? If those gentlemen did recollect the existence of the law, they must surely have been of opinion that it did not apply to the case of Callender, or they would have saved themselves the trouble of filing an affidavit. It will however be shown that it did not apply, and hence their application founded on affidavit.

On the third specification, which charges the respondent with “the use of unusual, rude, and contemptuous expressions towards the prisoner’s counsel; and in falsely insinuating that they wished to excite the public fears and indignation, and to produce that insubordination to law, to which the conduct of the judge did, at the same time, manifestly tend;” I have but a few observations to make. I should indeed have spared many of the remarks I have made, were it not for an ignorance of the peculiar ground on which the honorable Managers mean to rely in their reply, and were it not for the fear that an omission to notice any of the charges preferred, might be considered as an abandonment of our defence as far as related to them.

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.

In conformity to the rule of the Supreme Court and the authority of the case just cited, Judge Chase determined that the laws of the State of Virginia, which require a summons to be issued in cases of the Commonwealth, did not apply to the courts of the United States. Why, let me again ask, should this section receive the construction contended for by the honorable Managers? It has been shown that the laws of the United States provide fully in regard to the process to be issued by their courts: that, for the furtherance of justice, such a construction is neither necessary nor convenient, and is inconsistent with other parts of the same statute. It is therefore perfectly correct in the Court to bestow no attention upon the laws of Virginia concerning the process to be awarded against Callender. When a presentment was found by the grand jury, it was the duty of the Court to act; it was their duty to award a proper process for arresting the offender. This is not only warranted by the principles and reasons already adduced, but is inferrible from various passages of the laws of Congress, particularly from the 19th and 20th sections of the statute passed 30th April, 1790, 1st vol. page 108.

I will now proceed to make some observations upon the sixth article of impeachment: “And whereas it is provided by the 24th section of the aforesaid act, entitled ‘An act to establish the judicial courts of the United States,’ that the laws of the several States, except where the constitution, treaties, or statutes of the United States, shall otherwise require or provide, shall be regarded as the rules of decision in trials at common law in the courts of the United States, in cases where they apply; and whereas by the laws of Virginia it is provided, that in cases not capital, the offender shall not be held to answer any presentment of a grand jury until the Court next succeeding that during which such presentment shall be made; yet the said Samuel Chase, with intent to oppress and procure the conviction of the said James Thompson Callender, did, at the Court aforesaid, rule and adjudge the said Callender to trial, during the term at which he, the said Callender, was presented and indicted, contrary to law in that case made and provided.”

The charge in this article against the respondent is in substance that he, with intent to oppress and procure the conviction of Callender, ruled him to trial during the term at which he was presented and indicted, contrary to the laws of Virginia, which it is alleged have provided that in cases not capital, the offender shall not be held to answer any presentment of a grand jury until the next succeeding Court.

This article it is admitted does contain an accusation of crime; but I hope I shall be able to satisfy this honorable Court, that in this instance no crime or offence was committed. I shall undertake to show that no error in law was committed, and that if the judge had done otherwise he would have been more liable to censure than he now is. If this be made to appear, as a supposed illegality of his conduct is the foundation of the charge, there will remain nothing to support the charge.

The accused judge had sworn to support the Constitution of the United States, and to administer justice without respect to persons, and to perform all the duties of his office according to the laws of the United States. If in ruling Callender to trial at the same term at which he was indicted, he acted according to law, the judge performed his duty, and ought not to be charged with oppression.

The article may be understood as affirming, that there exists some law of Virginia which positively prohibits the trial of a misdemeanor at the same term at which the indictment is found. No such law has been produced, and I must be allowed to deny that any such law of Virginia exists. When the party appears and answers the presentment, the trial may immediately take place. When the party appears and answers an indictment, the trial may immediately take place, _if_ so ruled by the Court, who are vested with a discretion unfettered by any positive statute. The defence of this article may therefore be placed on two grounds, either of which will be sufficient. 1st. There is no law of Virginia which prohibits the trial of a misdemeanor at the same term the indictment is found. And, 2dly. If there be such a law, the same is not binding on the courts of the United States, in respect to offences against the United States.

In cases where bail is requirable, to delay the trial may be used to the oppression of the accused. It is therefore enjoined by the constitution and by the laws that there shall be no delay. If the honorable judge, who stands accused of trying Callender too soon, had deferred the trial to another term, that is to say six months, and the traverser could not have given bail, he would have been imprisoned six months without a trial. After he was convicted, the sentence of imprisonment pronounced by the same judge was only an imprisonment of about nine months. He had acted, therefore, not only according to law, but with humanity, in bringing the traverser to trial at the same term at which he was indicted. If the trial had been postponed to another term, and Callender in the mean time had been imprisoned, such a conduct in the Court would have given cause of complaint against the judge, who would then have been accused of postponing the trial of an innocent man, for the purpose of oppression. What in such a case ought the judge to have done? Exactly what he did. Obeying the constitution and the laws of the United States, he brought the traverser to a speedy and public trial.

It is, may it please the honorable Court, upon these grounds that the respondent stands justified in his conduct, in relation to the charge contained in the sixth article of impeachment.

In the distribution of the articles of impeachment among the counsel of the respondent, he assigned to me the 5th and 6th, and I humbly indulge the hope that the defence which has been made will be deemed satisfactory. But before I conclude, I hope I may be allowed shortly to advert to some of the remarks which have fallen from the honorable Managers in respect to this part of the accusation.

The honorable Managers have attempted to show a difference between a presentment and an indictment, and that until the indictment was found, a capias ought not to have been issued, even if it were lawful to issue it upon an indictment. That there is no such distinction, I appeal to those passages of the acts of Congress to which reference has been already made. I appeal to the reason of the thing and to the nature of a presentment. It is a species of indictment, an informal indictment; it is an accusation of a grand jury. There are cases where it would be improper in a court to wait until a presentment shall be put in the form of an indictment. Circumstances may be such that the offender would escape if process was not issued upon the presentment.

It has been objected that the judge misconducted himself towards the counsel during the trial of Callender in various instances, which it has been argued proceeded from a desire to convict and punish the traverser, howsoever innocent. I will observe with great deference, that if in the opinion of some gentlemen the judge did not act with becoming politeness to the counsel, it is not a high crime or misdemeanor that may be examined or tried in this honorable Court. But I trust, upon a view of the circumstances as they have been given in evidence, that this Court will be of opinion that the respondent behaved to the counsel with sufficient propriety. One of the counsel, Mr. Wirt, offered to the Court a syllogism, to which the honorable judge promptly replied in a technical phrase of logic, and this excited in the audience some diversion. When another of the counsel, Mr. Nicholas, was speaking on the favorite topic of the right of the jury to consider the constitutionality of the sedition law, he was not interrupted by the judge. But Mr. Nicholas has been proved to have been always civil, always respectful to a court of justice, consequently the Court would be civil to him. A third counsel, Mr. Hay, who was extremely desirous, as he has himself testified, to make an oration, not only for the purpose of satisfying the jury but the audience that a jury had a right to judge of the constitutionality of the sedition law, was interrupted by the judge, who denied his position. Mr. Hay had stated other matters during the trial which appeared to the judge to be erroneous. He had stated that a jury in this case of Callender, was the proper tribunal to assess the fine, in which he had been corrected by the Court; that one of the jurors, Mr. Basset, was not qualified to serve, &c. His zeal in the cause of liberty and the constitution made him pertinacious in some things which the judge pronounced to be errors. It was no wonder then that such an advocate was stopped and often interrupted by the Court. If any thing was done amiss by the judge during the trial, it was his desiring Mr. Hay to proceed in his own way, and promising to interrupt him no more let him say what he would; but this circumstance plainly evinces that the interruptions did not arise from corrupt motives. It may truly be said that Judge Chase, in his behavior to counsel, was “all things to all men.” To the logical Mr. Wirt, he was logical; to the polite Mr. Nicholas, he was polite; to the zealous and pertinacious Mr. Hay, he was warm and determined. If the counsel had conducted themselves with propriety towards the Court there would have been no interruptions; but when the judge found that the opinions of the bench were slighted, and that the conduct of the bar had a tendency to mislead and influence the public mind against a statute of Congress, he endeavored to turn their sentiments and reasoning into ridicule, and he produced by his wit a considerable degree of merriment at their expense, of which no doubt Colonel John Taylor, who has proved it for the prosecutors, was, from his natural temper, a full partaker.

You are now about to set an example in a case of impeachment which will have a most important influence in our country. It will be an example to the tribunals in the several States who like you possess the power of trying impeachments, and who may learn from you by what rules the doctrine of impeachment is to be regulated. It will be a polar star to guide in prosecutions of this kind. You are about to set an example to the ordinary tribunals of justice in every corner of the United States. They will know how this high Court has done justice between the House of Representatives of the American nation and a single individual, and hence they may learn how to do justice to the most weak and friendless individual, when accused in their courts by the most powerful. An upright and independent judiciary is all-important in society. Let your example be as bright in its justice as it will be extensive in its influence. If the people shall find that their confidential servants, the House of Representatives, have brought forward an accusation against another of their servants for high crimes and misdemeanors in his exalted office, which after a fair and patient hearing has not been supported by evidence, it will afford them pleasure to hear of his honorable acquittal, and such, may it please this honorable Court, will be, I trust, the result of your deliberations.

SATURDAY, February 23.

Mr. MARTIN.--Mr. President: Did I _only_ appear in defence of a friend, with whom I have been in habits of intimacy for nearly thirty years, I should feel less anxiety on the present occasion, though that circumstance would be a sufficient inducement; but I am, at this time, actuated by superior motives. I consider this cause not only of importance to the respondent and his accusers, but to my fellow-citizens in general, (whose eyes are now fixed upon us,) and to their posterity, for the decision at this time will establish a most important precedent as to future cases of impeachment.

My observations thus far have been principally with a view to establish the true construction of our constitution, as relates to the doctrine of impeachment. I now, Mr. President, will proceed to the particular case before this honorable Court; and, in the first place, I agree with the honorable Managers, that there is a manifest difference even between the credibility of witnesses, and the credibility of testimony, for, I admit, if witnesses are equally credible, and some swear that words were uttered, or acts were done, and others, that they did not hear the words, or that they did not see the acts done, the presumption is certainly in favor of the positive, and against the negative testimony. But this must be admitted with considerable restrictions.

If immediately after a transaction, there is a full and clear memory of the words spoken, or the acts done, there is great reason to credit the testimony; but, even in that case, if there are a number of persons equally respectable, having equal opportunity to hear and see, and who were attentive to what took place, and none of them heard or saw what is testified by a single witness, there would be great reason to suspect the affirmative witness to be mistaken; more so if the transactions had happened for some years antecedent to the examination.

But, as to _Heath_, we do not contradict him _merely by negative testimony_; we contradict him by a series of positive facts which my honorable colleague (Mr. Key) has detailed, proved by characters, whose _veracity cannot be doubted_, which positive facts incontestably show that what he swore never could have taken place. And, here again, permit me, sir, to make a further observation, that, where a person is charged _criminally_ for words he is supposed to have uttered, those words ought to be proved _with precision_. Every witness on _this_ occasion, who hath been examined as to expressions used by my honorable client, either on the one or the other charge, which are held as exceptionable, declares he cannot pretend to recollect the express words uttered by the judge, but only to state what at this distance of time he can consider the amount of what was said. Nay, Messrs. Lewis and Dallas declare further, that they cannot pretend to say with accuracy, what part of the conversation, of which they give testimony, took place on the first or the second day, or in what order. Such kind of testimony, therefore, ought to be received with great caution, and not to be considered as conclusive.

Having laid down these general principles as to the relative rights and duties of the Court, the bar, and the jury, I shall proceed with my honorable client to the State of Pennsylvania.

It was known that John Fries, charged with treason, had, on a former trial, been found guilty, and that a new trial had been granted upon a suggestion, which I hope will not become a precedent, will never be a rule for decisions. When I say this, I mean not to detract from the merit of that highly-respectable character who presided, and who granted the new trial. His conduct flowed, I am convinced, from his humanity; his was the error of the heart, not of the head. It was an honest, nay, an amiable error. My honorable client knew, when he arrived at Philadelphia, that the trial of Fries was to take place that term. He has been acknowledged by the honorable Managers, to be a gentleman of the highest legal talents. In this they have only done him justice; and have been as prodigal of their praise as his warmest friends could have wished. It would have given me great pleasure if they had been as just in expressing their sense of his integrity. He had been in the practice of the law for forty years, and also a judge for a number of years, and for about six years, I believe, presided in the criminal court of Baltimore County, where, during that time, there were more criminal trials probably than in any other court in America. I believe I speak moderately, when I say, that I have attended, on behalf of the State, at least five thousand criminal trials in that court. From those circumstances it is to be presumed that he was not deficient in knowledge of what related to criminal proceedings; but would he have acted the part of an upright judge, if he had not endeavored to make himself master of the law of treason, when a case of that nature was about to come before him;

## particularly the law of treason, as it related to levying war against

the United States, or in adhering to those who levied war against them, which is the only kind of treason that our constitution acknowledges; although I have heard, I must own, of _treason_ against the _principles_ of the constitution, and _treason_ against the _sovereignty_ of the people--words well enough suited to a popular harangue, or a newspaper essay, but not for a court of justice.

When Judge Chase arrived at Philadelphia he had the advantage of perusing the notes of Judge Peters and the district attorney, relating to the former trial; he thereby became well acquainted with all the points at that time made by the counsel for Fries; and Mr. Lewis has sworn, that all the points which were intended to have been made before Judge Chase, had been made at the former trial. Why then should the Court either wish, or be obliged to hear counsel again on the law? In two previous cases the law had been settled. Judge Patterson, a gentleman of the first abilities, mild and amiable, whom no person will charge of being of a vindictive, oppressive disposition, and who certainly has more suavity of manners than my honorable client had, after a most patient and full hearing, where eminent counsel attended, decided the law as it was decided by the respondent. Judge Iredell, whose encomium has been most justly given us by the Managers, a gentleman of great legal talents, than whom no worthier man has left this for a better world; and who, while living, honored me with his friendship, after having heard Messrs. Lewis and Dallas, and after full and patient investigation, gave, in the case of Fries himself, a similar decision; in both which opinions Judge Peters perfectly coincided. Under these circumstances, Judge Chase, who had no doubt of the propriety of those decisions, to prevent waste of time when there was so much business to transact, and to facilitate the business, thought it best to inform the counsel on each side, that the Court considered the law to be settled, and in what manner. For which purpose they delivered to the clerk three copies of their opinion, one for the counsel on each side, the third to be given to the jury, when they left the bar. On this subject, Mr. Lewis, in his testimony, said it was to be given to the jury when the counsel of the United States had opened, or after he had closed the pleadings, but he believed the last. Mr. Rawle is clear that it was to be given to them, when the case was finished, to take out with them.

No gentleman on behalf of the impeachment has denied the correctness of this opinion. But the criminality of the judge is, we are told, not in the opinion itself, but in the _manner_ and the _time_ in which it was given.

Was there any thing improper that the opinion should be reduced to _writing_? Why are opinions given? Surely to regulate the conduct of those to whom given; for this purpose they ought to be perfectly understood, and in no degree subject to misconception; delivering the opinion, _in writing_, greatly facilitates these objects; if, therefore, it was _proper_ to give an opinion, it was _meritorious_ to reduce it to writing, and Judge Chase, in so doing, most certainly acted with the strictest propriety. And, unless a court of justice is bound to sit and hear counsel on points of law, where they themselves have no doubts, before they give their opinion, my honorable client could not be incorrect in delivering it at the time when it was delivered. If the opinion was _proper_, how, I pray, could any _injury_ be done to Fries by its being delivered? The honorable Managers say, it was intended to influence the jury. In the first place, this assertion is not supported by the evidence. When the paper was thrown on the clerk’s table, not one word was said of its contents; nor did the Court declare any opinion on Fries’s case. They only determined the indictment correct in point of form, and not liable to be quashed. They determined that the overt acts stated were overt acts of treason, if Fries had committed them, but whether Fries had committed those acts remained for the jury to determine upon the evidence; as to that part of the case the Court gave no opinion. But the honorable Managers have told us that Judge Chase must have known what were the facts in the case, because they had been disclosed in the former trial. And I pray you, sir, if he had the knowledge, could it _alter the law in the case_, or render the declaration of what the law was _more improper_? But, as a new trial was granted, the judge could not know what additional evidence might be brought forward to vary the case from its former appearance.

But if the opinion had been publicly read and known, how could it have _injured_ Fries? He was to have an _impartial_ trial. What is the meaning of these expressions? It is a trial according to law and fact, in which, if he is proved innocent, he shall be acquitted; if guilty, convicted. If, then, the opinion was agreeable to law, it could not prevent, it could not interfere with his having an impartial trial. If in any case a person is acquitted, when the facts are clearly proved, and the law is against him, it must be because he has had a _partial_, not an _impartial trial_.

Well, be it so, and let us consider the trial of Fries as if it had been conducted on that principle. The judges, with their minds like this white sheet of paper, were to sit still and suffer the counsel to scrawl thereon whatever characters they pleased, to blot and to blur it, until they were perfectly satisfied. After this ceremony, the judges, examining the impressions thus made upon the antecedent clean sheet, were from these, and these _only_, to form their opinion of the law; and this opinion, having been thus formed from nothing but what occurred _during_ the trial, and _after_ the jury were sworn, would not be called a prejudicated opinion, and therefore, I presume, would be perfectly satisfactory to the honorable Managers. So far we should have done very well as it related to the trial of Fries. But next day another criminal is to be tried for a _similar_ offence; Messrs. Lewis and Dallas are not his defenders. Getman has selected Mr. Tilghman for his counsel. How, I pray you, are the judges to be qualified to preside with propriety in this trial? Yesterday they gave a solemn determination in Fries’s case upon the _same_ question of law which now must come forward in the case of Getman. Mr. Tilghman was not then heard. The opinion then given is, as _to Mr. Tilghman and his client_, as much a prejudicated opinion, an opinion as contaminating to the hands of a lawyer to receive, and as highly criminal for a court to give, as was the opinion given by my honorable client. What can be done? The minds of the judges are _no longer a pure unsullied sheet of paper_. Yesterday, in the trial of Fries, they had been scrawled upon and sullied by Lewis and Dallas; the impressions still remain. I, sir, can think of no remedy in this difficulty, except that the judges should be supplied with a reasonable quantity of _India rubber_, or something which will answer in its place, with which they might wipe off and erase every impression which had been made the day before by Lewis and Dallas, during the trial of Fries; and thus _once more_ take their seats on the bench for the trial of Getman, with minds again like clean sheets of white paper, ready to be again scrawled over, again to be blotted and blurred at the pleasure of Mr. Tilghman, and from these scrawls, blots, and blurs, and from these _alone_, to take their impressions as to the law, and form their decision as to Getman’s case, without regarding, or even _remembering_ the decision they had given the day before; and in this manner to proceed in every case that might come before them successively in their judicial capacity.

I shall conclude what relates to this article by observing that the conduct of Fries’s counsel to the Court on that trial was such as nothing can excuse. It can only be palliated by the reflection, that for his crimes he was liable to suffer death. Feelings of humanity and compassion, independent of interest, might excite in their bosoms an earnest anxiety to save his life; this may serve to mitigate censure; but even those feelings, however amiable, ought not to be gratified at the expense of national justice, nor by an endeavor to stamp upon judges of uprightness and integrity the dishonorable charge of partiality and oppression. I fear, sir, I have been tedious on this article; but it will be considered that, whatever may be my own sentiments of the futility of any part of these charges, I cannot determine how far this honorable Court may correspond with me in sentiment; nor can I do otherwise than treat, as of consequence, any charge brought forward by the honorable House of Representatives, or not consider it as being of importance.

The second article goes on to charge Judge Chase with overruling the objection of John Basset, who wished to be excused from serving on the jury in the trial of Callender, and causing him to be sworn, and to serve on the said jury by whose verdict Callender was convicted.

This article requires a discussion of the law relating to challenges of jurors, and whether Mr. Basset was legally sworn on that jury. And here again, as well as in the case of Fries, I meet with the most perfect novelties, for except in those trials I never heard of jurors, when called to be sworn, examined on oath whether they had formed, or formed or delivered, or whether they had formed and delivered an opinion on the subject about to be tried. And here also let me observe, that there is no just grounds for the charge that Judge Chase from partiality administered the oath differently in Callender’s case from the manner in which he administered it to the jurors in the case of Fries; for Mr. Rawle, referring to his notes taken at the time, has told us that in the case of Fries, one or two of the first jurors were only asked whether they had formed an opinion, after which the question was put whether he had formed _or_ delivered an opinion, but ultimately the question asked was, whether they had formed _and_ delivered an opinion, which question was put to the greater part of the jurors; so that the interrogatory _ultimately_ fixed upon in the case of Fries, is the same which was put to all the jurors who were interrogated in the case of Callender.

I have, Mr. President, been in the practice of the law for thirty years. Before the Revolution I attended, two or three years, the two counties on the Eastern Shore of Virginia--Sussex County in Delaware, and Somerset and Worcester in Maryland; since the Revolution I have constantly attended the general courts on the Western and Eastern Shores of Maryland, and the civil and criminal courts of Baltimore County, and for about six years several other counties in Maryland. In the whole course of my practice, I have never known a single case, either civil or criminal, in which the jurors have been, when called to the book, demanded to answer upon oath either of the aforesaid questions which the defendant’s counsel requested to be put to them.

If either party choose to challenge a juror for favor, on account of declarations made by the juror, the only ground for it is that he has used expressions showing his determination to decide for one party or the other without regard to truth and justice. In which case the party makes his objection to the particular juror, specifying the expressions uttered by the juror indicative of such improper determination, and produces witnesses to establish his objection; for the juror cannot be examined on oath to substantiate the charge; and, unless by mutual consent, the objection made must be decided, not by the Court, but by triers. And the only matter to be decided is, whether the juror has made any declaration of a design to give a verdict one way or the other, whether right or wrong; for if the juror made the declarations from his knowledge of the facts in the case, this would be no cause of challenge, nor any objection to his being sworn on the jury. And as the juror himself against whom such objection is made cannot be examined on oath, it follows, of course, he cannot be challenged for having formed an opinion, but only for having delivered it, as third persons cannot know of an opinion being formed but by its having been delivered. And, as I have observed already, even the delivery of an opinion is no cause of challenge, if it appears to have been founded upon the juror’s knowledge of facts, and not from partiality. In consequence of this principle of law, it can be no objection against a juror being sworn, even though he should have the most perfect knowledge of every fact relative to the issue, to try which he is about to be sworn; on the contrary, the principal reason assigned why trials ought to be by jurors from the vicinage, is the presumption that they will be best acquainted with the facts which will be put in issue for their decision.

I now come, Mr. President, to the third article, wherein my honorable client is criminally charged for the rejection of the evidence proposed to be derived from Colonel John Taylor.

In this part of the case the facts are admitted. The next question of law, therefore, which presents itself for discussion is, whether or not Col. Taylor’s evidence ought to have been received, or was properly rejected. Here again I must observe that the honorable Managers, to support their charge, resort to principles which are to me, to the last extremity, strange and novel. We are told that the Court have no right to order questions which are meant to be put to a witness to be reduced to writing. Nay, that the Court have no right to know what evidence is meant to be given by the witnesses, or its connection with other testimony, or its bearing on the cause, but to receive it drop by drop, as the counsel think proper to deal it out. In answer to these extraordinary ideas which we have had thus introduced, I must be permitted to assert that the Court have, in my opinion, an undoubted _right_ to require of the counsel that they should open their case, explain the nature of the evidence meant to be given, and on the production of a witness, state what they expect to prove by such witness. In the course of my practice it has been the usual method of proceeding for counsel to conduct themselves in this manner, and on this subject McNally, in his rules of evidence, page 14, expressly lays it down as a _rule_, “that counsel ought not to call a witness without first opening to the Court the nature of the evidence they intend to examine into. This has been _often solemnly adjudged_, though _not strictly adhered to in practice_.” And in page second he gives us as the _first_ rule, “that no evidence _ought to be admitted to any point_ but that on which the issue is joined.” But how is a court to prevent, and it is only the Court which can prevent, evidence being admitted which is not pertinent to the point on which the issue is joined, unless they are first informed what evidence is meant to be given? It is then upon the authority of McNally established that the Court have the legal right to know what counsel mean to prove by a witness; and having that right, they may exercise it whenever, in their discretion, they may think it necessary.

Let us now examine the set of words to which Colonel Taylor’s evidence was meant to apply; they were without any innuendo, as follows: “He was a professed aristocrat; he had proved faithful and serviceable to the British interest.”

This sentence consists of two separate distinct clauses or parts; the first, that “he was a professed aristocrat;” the second, that “he had proved faithful and serviceable to the British interest.” I ask this honorable Court if either of these clauses or parts, of themselves, and without an innuendo, carry with them any charge of criminality, or any thing libellous? To say that a man is an aristocrat, a democrat, or a republican, is not of itself charging the person with any thing criminal, nor is it slanderous, unless indeed the charge is accompanied with an innuendo, stating that, by the epithet so _used_, something very bad was intended; and _that_ government would indeed merit contempt in which a person should be punished upon such a charge. So, also, to say that a man had been faithful and serviceable to the British interest charges him with nothing criminal, and therefore cannot be slanderous, because the British and the American interest in many instances have been and may be the same.

There may be a variety of instances in which the interest of two nations may concur. There have been many in which the interest of America and of Britain did concur; many also in which the interest of America and France have combined. In the first instance a man may have been faithful and serviceable to Britain, in the other to France, without the violation of any duty to the United States--without having been guilty of the least criminality.

The sentence then taken altogether, connecting the two clauses, does not of itself import any thing criminal, and consequently is not slanderous, if it remained without any innuendo; and if it was free from an innuendo, being not slanderous, would not require any evidence relative thereto. Nay, it would be no part of the charge put in issue, for in legal construction it is only such part of the publication stated in an indictment which is slanderous; that is the point in issue.

As to the second question, to wit: “Whether Mr. Adams, while Vice President, had expressed his disapprobation of the funding system?” the question could not be in any degree relevant to the one or the other clause in the sentence. Whether Mr. Adams expressed his disapprobation, while he was Vice President, of the funding system, or not, could in no respect go to prove or disapprove his being a professed aristocrat, or his having sacrificed the interest of the United States to the interest of Great Britain. The Court, therefore, considering this question totally irrelevant to the “point in issue,” did as was their duty to do, they refused to suffer it to be put to the witness.

So much for the two first questions. We now come to the third, respecting the votes of Mr. Adams, when Vice President, against the bill for the sequestration of British debts, and the bill for suspending intercourse with Great Britain. For the conduct of my honorable client in refusing to permit this question to be put to Colonel Taylor, two reasons may be assigned; the first, that if the fact was as stated, it could not be proved by Colonel Taylor. The second, that if the fact was established it would be totally immaterial to the issue; Colonel Taylor’s evidence was not the best which the nature of the case admitted. I will not say that the traverser, in order to prove this vote, was under the necessity of procuring a copy from the Journal of the Senate, properly authenticated by their clerk, but he certainly ought at least to have produced a printed copy of the votes and proceedings of the Senate, as published by them. One thing at least is certain, that the traverser could not, consistently with rules of law, give parol evidence to establish the vote of Mr. Adams, and therefore that Colonel Taylor could not be legally examined on that subject. But I will go further in defence of my client, and will say, that if they had had the best possible evidence of the fact, if they had had an attested copy from the records of the Senate, the judge would have departed from his duty if he had permitted the evidence which was wished to have been obtained from Colonel Taylor to have been given to the jury. Ought any evidence to be given to a jury which is not proper and pertinent to prove the _fact in issue_, or to prove some fact from which the fact in issue _ought_ legally to be _inferred_--evidence not relevant to the point before the Court and jury? Was not, as to this part of the charge, the fact in issue, whether Mr. Adams had swerved from his duty by intentionally prostrating the interest and welfare of his country to the interest and welfare of Great Britain? Should not a charge of so atrocious a nature be proved by some direct act of this criminal sacrifice of the interests of the United States to the interest of Great Britain, or by the proof of some other act from which such criminal sacrifice must and ought on principles of law to be clearly and necessarily inferred? And what was the proof proposed to be offered for the purpose? That upon the question whether British debts should be sequestered, and whether our intercourse with Great Britain should be suspended, after full discussion one-half the members of the Senate voted in favor of those measures, and one-half of the Senate against them; and that in this situation Mr. Adams, thinking them of too hazardous a nature, and such as might involve our country in a war, did not choose to take upon himself so great a responsibility as to give his casting voice in the affirmative.

I shall now, sir, proceed to the fourth article, which charges the respondent’s conduct to have been marked during the whole course of the trial by manifest injustice, partiality, and intemperance.

From the evidence it certainly appears that Judge Chase prevented the counsel from arguing to the jury that the sedition law was unconstitutional; and this seems to have given rise to a great portion of the altercation and ill-humor between the Court and the bench.

I admit that the constitution gives to a criminal the right of having counsel; but the constitution has not defined the rights or duties of counsel, or to what extent they are to exercise them. One thing, however, is certain; that they have no constitutional right to impose upon the Court or mislead the jury.

When Callender’s counsel contended that if the jury have a right to decide questions of law, then the constitution being the supreme law of the land, the jury must of course have the power of deciding on the _constitutionality_ of a law; the judge might well say it was a _non sequitur_.

What has been allowed to the jurors as their incidental right on the general issue? Not to decide whether there is an existing law, or whether a law is in force, but to declare the true construction of an _existing_ law, and whether the case at issue comes within the true construction of such law.

But those who contend that the jury have a right to determine the constitutionality of a law, insist not for the power of the jury to decide its true construction and whether the prisoner’s case comes within it, but to decide whether what is produced as law is not void, a mere nullity, a dead letter; or in other words, whether such a law is in existence. The maddest enthusiasts for the rights of jurors, their most zealous advocates, have never contended for such a right before the cases of Fries and Callender. Whether a law exists, whether a law has been enacted, whether a law has been repealed, whether a law has become obsolete or is in force? The decision of these questions hath always been allowed the exclusive right of the Court. The power of the Court to decide exclusively upon these questions hath never been before controverted. Nay, the very right claimed on behalf of jurors, that they may determine what is the true construction of the law, and whether the case is within its provisions, of itself necessarily presupposes, and is predicated upon the _existence of a law_, the _construction or meaning of which_ they are to determine. It has indeed been seriously questioned, and that by gentlemen of great abilities, whether even the Judiciary have a right to declare a law, passed by the Legislature, to be contrary to the constitution and, therefore, void! I shall not enter into an examination of that question, but I have no hesitation in saying that a jury have no such right, that it never was intended they should have such right, and that if they had the right, we might as well be without a constitution.

The first specific instance of my client’s unjust, partial, and intemperate conduct, which is stated in this fourth article is, that he compelled the traverser’s counsel to reduce to writing the questions which they meant to propound to Colonel Taylor. The correctness of this procedure will depend on the question whether the Court had by law such a power, for if such a power was possessed by them, it is to be presumed that they, on that occasion, exercised it according to their best discretion, nor can it be inferred that their conduct was criminal, because the procedure was _novel_ in Virginia. There are cases in which the practice of a court may be considered the law of the court; but these are not in any manner analogous to the case in question; nor do I find the _practice_ of the State courts is obligatory “in any case of this kind on the courts of the United States.” My honorable client did not consider what was usual in Virginia, but what was correct and proper; he knew that the law authorized him to make this demand. In Maryland, where he imbibed his legal knowledge, and where at the bar and on the bench he had carried it into practice, nothing was more common than for questions to be reduced to writing at the request of counsel, or at the request of the Court. If counsel doubt of the propriety of the evidence meant to be drawn from the witness, or the correctness of the question meant to be propounded to him, they have a right to request it to be reduced to writing. So also, if the Court, without whose approbation no testimony can be given to a jury, and whose duty it is to prevent improper testimony to be given, has reason to suspect an intention to introduce such evidence, they have a right, and they ought to require the questions to be reduced to writing, that there may be no misapprehension of the tendency of the question, and that they may more deliberately decide whether it is proper to be put to the witness. And in this case, the counsel were not required to reduce their questions to writing in the first instance, or before they had stated what they had meant to prove, as hath been suggested. When Colonel Taylor was called and sworn, the Court desired to be informed what they meant to prove by him. McNally is an authority that in so doing they acted legally. The counsel stated the facts, to prove which Colonel Taylor was called; upon which, the Court doubting the admissibility of the testimony directed the question to be reduced to writing for their consideration. It cannot for a moment be seriously contended, but that the Court had a right so to do. As my respectable colleague (Mr. Key) has observed, the practice of this honorable Court during this trial, hath perfectly sanctioned that part of my client’s conduct. If at any time a question has been put, the propriety of which hath been doubted, it has been directed to be reduced to writing. It is true, that this has been, principally, when an objection has been made by the counsel; but there can be no doubt, that if any honorable member of this Court had apprehended the question to be improper, the Court would have had a right, and would have directed the question to be propounded in writing for their consideration. The propriety, the principle, in each case is the same. On this part of the charge I need not dwell any longer.

The _next instance_ of the judge’s conduct specified in this article is his refusal to continue Callender’s case to the next term, notwithstanding the affidavit filed, and the applications made. On this subject, I shall not make many observations as to the law; but I may venture to assert that the conduct of Judge Chase in this instance also appears to have been free from any corrupt or oppressive motive or design; no part of his conduct on this occasion has been produced to show that he entertained a disposition to prevent Callender from obtaining the testimony of his witnesses, or deprive him of the necessary time to procure their attendance. Let it be recollected that the first affidavit prepared and proposed to be filed in order to obtain a continuance of the cause was a general affidavit. By the laws of England a general affidavit is not sufficient to entitle the party to a continuance, and upon principles of law as adopted in England and the United States, at least in Maryland, a supplemental affidavit cannot in a case of this nature be received.

If, then, Judge Chase had wished that Callender should have been, at all events, prevented from a continuance of his cause, he would have suffered them to file their general affidavit.

Why should capital cases, rather than inferior crimes, be tried at the first court? The honorable Managers admit that it is the general rule not to continue, but to try at the first term, capital cases. Surely if indulgence, if delay is necessary in any case, it is in a capital case, where life is at risk; where an injury, if done, is irretrievable!

There are many reasons which show the propriety that prosecutions of every kind should be decided with as little delay as possible. One of the principles as to criminal jurisprudence, as Governor Claiborne has justly observed, is, that though punishments should be mild, yet they ought to be _speedy_; by having an immediate decision there is a great certainty that the criminal shall not elude justice by flight.

The next specification, in this article, of improper conduct in the judge, is, that he “used _unusual_, _rude_, and _contemptuous expressions_ towards the prisoner’s counsel; and insinuated that they wished to excite the public fears and indignation, and to produce that insubordination to the law, to which the conduct of the judge did at the same time manifestly tend.” As to this part of the charge, there is but little of a legal nature contained in it, I shall, therefore, hastily pass over it. If true, it seems to be rather a violation of the principles of politeness, than of the principles of law; rather the want of decorum, than the commission of a _high crime and misdemeanor_. I will readily agree that my honorable client has more of the “_fortiter in re_,” than the “_suaviter in modo_,” and that his character may in some respects be considered to bear a stronger resemblance to that of Lord Thurlow than to that of Lord Chesterfield; yet Lord Thurlow has ever been esteemed a great legal character, and an enlightened judge.

But let me ask this honorable Court whether there is not great reason to believe that the sentiments my honorable client expressed with respect to the conduct of the counsel, and their object, was just and correct? What was the conduct of Callender’s counsel? Was it not such as immediately tended to inflame the minds of the bystanders, and to excite their indignation against the Court, and highly insulting to the judges? In the first place, they endeavored to obtain a continuance of the cause to the next court, merely with an intention to procure delay, and to prevent the cause being tried before Judge Chase, acknowledging that they had no hopes or expectation from _any testimony_ to save their client if the law was determined to be constitutional; and yet they brought forward their client to swear just what they pleased, in order to procure this delay, with respect to the necessity of witnesses, whose testimony they acknowledged they were conscious could be of no service to them, and yet they wished the bystanders to consider the Court acting highly _improper_ for not granting that continuance? Was this even to serve Callender? No, they avow they did not appear to serve him, but to serve _the cause_. Sir, it appears from their own evidence that Callender would have submitted to the Court, but for their interference; that they volunteered on the occasion not for _him_, but for _their cause_; and yet the volunteers wanted the Court to give them to another term to prepare themselves, and made Callender swear what they pleased to effect their purpose. They said they were not well acquainted with the law upon libels, and therefore wanted time to examine the subject; but surely when persons undertake to volunteer their services on any subject, they ought to be masters of it, and are entitled to no indulgence of delay. And as they declare they had formed the determination, on the first instance of an indictment under the sedition law, to come forward and volunteer their services for the sake not of the man, but of their cause, common decency to the Court, and a proper respect for themselves, ought to have dictated to them in the interim to have made themselves fully acquainted with all the law relative to that subject in which they had thus determined officiously to interpose.

When my honorable client went from Baltimore to Richmond, to hold the circuit court, he knew how violently that State was opposed to the enforcement of this law; but he equally knew that it was his duty to carry it into execution, without regard to the sentiments of any portion of the community, or however disagreeable it might be to them. Under these circumstances he went to Richmond, and found the counsel, from the first step in this cause, attempting, as he could not but consider it, to inflame the audience and excite their indignation against him. My honorable client, who well knows mankind, and has been accustomed to popular assemblies, appears to have been anxious, as his best security, to keep the bystanders in good humor, and to amuse them at the expense of the very persons who were endeavoring to excite the irascibility of the audience against him. Hence the mirth, the humor, the facetiousness, by which his conduct was marked during the trial; and which, most fortunately, was attended with the happy consequence he hoped from it, for it is admitted that he kept the bystanders in great good humor, and excited peals of laughter at the expense of the counsel, as the witness very justly concludes, for he says, “the counsel did not appear to join in the laugh.” And this, sir, most satisfactorily accounts for the more than usual exertion of his facetious talents on the trial of Callender; and I doubt not was the real cause of that exertion.

But the judge is also charged with great rudeness in the manner in which he replied in one part of the argument to Mr. Wirt, just at a time when that gentleman had finished a syllogism, by replying that it was a _non sequitur_. I will state the transaction: Mr. Wirt having, as he supposed, established the position, that the jury had a right to decide the law as well as the fact, he proceeded to state that the constitution was the supreme law of the land, and, therefore, that since the jury had a right to decide the law, and the constitution was also the law, the jury must certainly have a right to decide the constitutionality of a law made under it; and this conclusion was, as he declared, perfectly syllogistic. As Mr. Wirt had assumed the character of a _logician_ in his argument, nothing could be more natural than for the judge, in his answer, to assume the _same character_; he therefore replied, like a logician, “A _non sequitur_, sir”--the correct answer to a syllogism which is rather lame in its conclusion. But it seems this answer was accompanied by a _certain bow_. As _bows_, sir, according to the manner they are _made_, may, like _words_, according to the manner they are _uttered_, convey very different meanings; and as it is as difficult to determine the merit or demerit of _a bow_ without having seen it, as it is the expression of words without having _heard_ them; to discover, therefore, whether there was any thing _rude_ or _improper_ in this _bow_, I could have wished that the witness, who complained so much of its effect, had given us a _fac simile_ of it. Had we been favored not only with the answer, but also with a complete _fac simile_ of the _bow_, we might have been enabled to have judged of the propriety of my honorable client’s conduct in this instance. But it seems this _bow_, together with the “_non sequitur_,” entirely discomfited poor Mr. Wirt, and down he sat “and never word spake more!” If so, it was a saving of time. But we have no proof that Mr. Wirt meant to have proceeded any further in the argument, even had he not been encountered with this formidable bow and non sequitur. And the presumption is, that having condensed the whole force of his argument into a syllogistic form, and, finding his syllogism did not produce the conviction intended, he took his seat without wishing to spend more of his breath in what, after the failure of his logical talents, he no doubt considered a fruitless attempt. Mr. Nicholas followed Mr. Wirt. He is a gentleman mild and polite in his manners; he was treated by the Court with politeness. He did not _persist_ in addressing the jury contrary to the decisions of the Court; he, therefore, met with no interruptions.

But, sir, there is another charge which has been made against my honorable client, to justify that part of the article which accuses him of _rudeness_. It is said that speaking of Callender’s counsel, or addressing himself to them, he called them “_young gentlemen_.” To me it appears astonishing that these expressions, if used by the judge, should be thought reproachful to the counsel, or a proper subject of a criminal charge; and it gave me real pleasure to find that Mr. Nicholas, whose whole conduct marks him as a gentleman, did not consider them as offensive. He has observed that he was young at the time, and whoever has seen him as a witness, must be convinced of the truth of his assertion. But we are told that Mr. Wirt was at that time about thirty years of age, had been a married man, and was then a widower. It doth not appear that Judge Chase knew of these circumstances; but if he had, considering that Mr. Wirt was a widower, he certainly erred on the right side, if it was an error, in calling _him_ a _young_ gentleman. But, sir, let it be considered that my honorable client has been stated by the honorable Managers, to be nearly threescore and ten, let also his great legal attainments be considered, and let me ask, if any person can think his addressing gentlemen, so much inferior to himself in age and knowledge, by the epithet of “young gentlemen,” offensive to them, much less criminal as to the public? But as another instance of his rudeness we are told, that, addressing himself to Mr. Wirt, who observed that “he was going on,” the judge replied, “No, sir, I am going on, therefore sit down, sir.” This address was made by the judge to Mr. Wirt, when he (the judge) was about to give a long opinion to him and the counsel employed with him, which opinion, upon Mr. Wirt’s sitting down, the Court did give; and pray, sir, was there the least impropriety in a situation of that nature, that the Court should desire the counsel to be silent and to take their seats?

Before Judge Chase went from Baltimore to hold the circuit court at Richmond, he knew that the sedition law had been violated in Virginia. I had myself put into his hands “The Prospect before Us.” He felt it his duty to enforce the laws of his country. What, sir, is a judge in one part of the United States to permit the breach of our laws to go unpunished because they are there unpopular, and in another part to carry them into execution, because there they may be thought wise and salutary? And would you really wish your judges, instead of acting from principle, to court only the applause of their auditors? Would you wish them to be what Sir Michael Foster has so correctly stated, the most contemptible of all characters, popular judges; judges who look forward, in all their decisions, not for the applause of the wise and good, of their own consciences, of their God, but of the rabble, or any prevailing party? I flatter myself that this honorable Senate will never, by their decision, sanction such principles! Our Government is not, as we say, tyrannical, nor acting on whim or caprice. We boast of it as being a Government of laws. But how can it be such, unless the laws, while they exist, are sacredly and impartially, without regard to popularity, carried into execution? What, sir, shall judges discriminate? Shall they be permitted to say, “This law I will execute, and that I will not; because in the one case I may be benefited, in the other I might make myself enemies?” And would you really wish to live under a Government where your laws were thus administered? Would you really wish for such unprincipled, such time-serving judges? No, sir, you would not. You will with me say, “Give me the judge who will firmly, boldly, nay, even _sternly_, perform his duty, equally uninfluenced, equally unintimidated by the “_Instantis vultus tyranni_,” or the “_ardor civium prava jubentium_!” Such are the judges we ought to have; such I hope we have, and shall have. Our property, our liberty, our lives, can only be protected and secured by such judges. With this honorable Court it remains, whether we shall have such judges!”

MONDAY, February 25.

Mr. HARPER.--It was greatly to be desired, Mr. President, and might have been confidently expected, that in a case every way so important, where it so greatly concerns the public happiness that the decision should command the public confidence, nothing would be presented to the view of this honorable Court in aid of the prosecution, except the law which ought to govern the decision, and the proofs relied on for supporting the allegations.

But it has not so seemed good to the honorable Managers. They have thought proper to introduce into the discussion, the political opinions and party connections of the respondent, for the purpose of throwing a shade of doubt over his motives and of establishing inferences unfavorable to his character. How far this conduct ought to be commended, it is not for me to decide. My confidence in the justice and discernment of this honorable Court forbids me to apprehend that it can be successful.

But since these opinions and connections have been introduced, permit me to use them for a different purpose.

The duty imposed on judges is at all times delicate, and in criminal cases, where life or liberty may be affected, where reputation, dearer than both, depends on the issue, this duty becomes peculiarly arduous and painful to an honorable and generous mind. But if there be a situation more delicate, more embarrassing than every other to such a mind, it is that of a judge sitting on the trial of a person who, from political opposition, or any other cause, may have excited hostile or angry feelings in his mind. It is then that he most fears to trust himself. It is then that he most dreads the influence of his passions in misleading his judgment. It is then that he feels the strongest alarm for his reputation, lest he should possibly afford ground for the suspicion that he had gratified his resentments under the semblance of executing the law. Hence he constantly leans towards the side of the accused, and requires the clearest conviction before he condemns. Hence he rejects all doubtful or contradictory testimony, lays out of the case all little indiscretions and slight shades of suspicion; and is rigid in requiring from the prosecutors the unequivocal proof of unequivocal offences. That his enemy is in his power, is always a reason for the utmost forbearance. The fear that he may possibly be misled by his passions, is always a reason for acquittal, where doubt can exist.

Need I invoke these noble and generous sentiments in the breasts of this honorable Court? No! my heart tells me I need not. I see on those benches distinguished soldiers and eminent statesmen, who have triumphed alike in the fields of politics and war, and who always disdained to tarnish their laurels by the blood or humiliation of a vanquished foe.

If, then, the person now arraigned at your bar be connected with a political party in opposition to any of those who sit as his judges; if it were possible that, in promoting the views of that party, he may have excited feelings of anger or resentment in the mind of any member of this honorable tribunal; if it were possible that any portion of the angry passions engendered by the conflicts of party could find a place within these hallowed walls, and could attach itself to him who stands upon his trial at this bar, the existence of such a possibility would furnish every member of this honorable Court with the strongest motives that can operate on a generous and noble mind, for leaning constantly to the side of the accused, and for pronouncing in favor of an acquittal, wherever there remains a doubt of guilt.

Attempts have also been made to enlist the sympathy of this honorable Court on the side of the prosecution, and for this purpose, a criminal twice convicted, who did not hesitate to risk civil bloodshed in support of political theories, and is now indebted for his life to the clemency of that Government against whose laws he armed his ignorant and misguided neighbors, is presented to view, decked out in all the ornaments which rhetoric can bestow. We, Mr. President, disclaim the aids, and protest against the interference of rhetoric and sympathy. However proper in other situations, they ought to be excluded from courts of justice, whose decisions should be governed by truth and not by feeling.

But if sympathy could find a place in this tribunal, what object more fit to awake it than that now presented at your bar? An aged patriot and statesman, bearing on his head the frost of seventy winters, and broken by the infirmities brought upon him by the labors and exertions of half a century, is arraigned as an offender, and compelled to employ, in defending himself against a criminal prosecution, the few and short intervals of ease allowed to him by sickness. Placed at the bar of a court, after having sat with honor for sixteen years on the bench, he is doomed to hear the most opprobrious epithets applied to his name by those whose predecessors were accustomed to look up to him with admiration and respect, and whose fathers would have been proud to have been numbered among his pupils. His footsteps are hunted from place to place, to find indiscretions which may be exaggerated into crimes. The jests which, flowing from the gayety and openness of his temper, were uttered in the confidence of private conversation; the expressions of warmth produced by the natural impetuosity of his character, are detailed by companions converted into spies and informers, and are adduced as proofs of criminal intention.

This cup, so full of bitterness for one who has been accustomed for forty years to fill the most honorable stations in his country, he drinks to the dregs without complaining. In this sad reverse, he supports himself with a calmness, a fortitude, and a resigned dignity which melt the hearts of those who are not his enemies, and extort the respect of those who are.

If sympathy must be excited, here let it find a nobler object. If from generous breasts it cannot be excluded, let it be turned towards

“A brave man struggling with the storms of Fate,”

and greatly supporting himself under a pressure of evils the most afflicting that an elevated mind can know.

Not content with endeavoring to blow up a flame of party spirit against the respondent, and to engage sympathy in the ungracious, and to her unnatural, task of aiding a criminal prosecution, the honorable Managers have resorted to a principle as novel in our laws and jurisprudence as it is subversive of the constitutional independence of the judicial department, and dangerous to the personal rights and safety of every man holding an office under this Government. They have contended “that an impeachment is not a criminal prosecution, but an inquiry in the nature of an inquest of office, to ascertain whether a person holding an office be properly qualified for his situation; or, whether it may not be expedient to remove him.” But if this principle be correct--if an impeachment be not indeed a criminal prosecution, but a mere inquest of office--if a conviction and removal on impeachment be indeed not a punishment, but the mere withdrawal of a favor of office granted--I ask why this formality of proceeding, this solemn apparatus of justice, this laborious investigation of facts? If the conviction of a judge on impeachment is not to depend on his guilt or innocence of some crime alleged against him, but on some reason of State policy or expediency, which may be thought by the House of Representatives, and two-thirds of the Senate, to require his removal, I ask why the solemn mockery of articles alleging high crimes and misdemeanors, of a court regularly formed, of a judicial oath administered to the members, of the public examination of witnesses, and of a trial conducted in all the usual forms? Why not settle this question of expediency, as all other questions of expediency are settled, by a reference to general political considerations, and in the usual mode of political discussion? No! Mr. President! This principle of the honorable Managers, so novel and so alarming; this desperate expedient, resorted to as the last and only prop of a case, which the honorable gentlemen feel to be unsupported by law or evidence; this forlorn hope of the prosecution, pressed into its service, after it was found that no offence against any law of the land could be proved, will not, cannot avail. Every thing by which we are surrounded informs us that we are in a court of law. Every thing that we have been three weeks employed in doing reminds us that we are engaged not in a mere inquiry into the fitness of an officer for the place which he holds, but in the trial of a criminal case on legal principles. And this great truth, so important to the liberties and happiness of this country, is fully established by the decisions of this honorable Court, in this case, on questions of evidence--decisions by which this Court has solemnly declared, that it holds itself bound by those principles of law which govern our tribunals in ordinary cases. These decisions we accepted as a pledge, and now rely on as an assurance that this cause will be determined on no newly discovered notions of political expediency, or State policy, but on the well settled and well known principles of law and the constitution.

Having taken this view of these preliminary points, I now proceed, Mr. President, to consider the various charges against our honorable client, in the order in which they have been stated by the prosecutors. It is not my design to go over the same ground which has been so recently trodden by my able colleagues. The task assigned to me, is to range rapidly over the first six articles; to present some views of the subject, which the multiplicity of the matter induced my learned colleagues to omit; and then to discuss at large the law and the facts, under the seventh and eighth articles, which have not yet been touched.

Let the charge, Mr. President, be carefully examined, and it will be found to have no object in view but to convince the people of Maryland, by arguments drawn from reason and experience, of the danger of adopting a change in their State constitution, which had been submitted to their consideration, and the object of which was to abolish all their supreme courts of law; to introduce a system entirely new and untried; and above all, to destroy the independent tenure of judicial office, secured to them by their existing constitution; and to leave the judges dependent on the Executive for their continuance in office, and on the Legislature for their support. The respondent, who had contributed largely to the formation and establishment of the State constitution, was greatly alarmed at these changes. He considered them as of the most destructive tendency to the liberty and happiness of the State to which he belonged, and he resolved to take this opportunity of warning his fellow-citizens against them. This is the whole scope of his address to the grand jury, to show the importance of an independent judiciary, the dangerous tendency of changes already made, and the mischiefs which would result from taking this additional step in the career of innovation. He did, indeed, advert to the act of Congress for repealing the circuit court law, and remarked that it had shaken to its foundation the independence of the Federal judiciary; but the manifest and sole object of this was, to show that the spirit of innovation had gone forth, and ought to be carefully watched; that the public respect for great constitutional principles had begun to be weakened; and that by how much the security which might have been derived from an independent Federal judiciary had been diminished, by so much the more vigilantly it behooved us to guard our State institutions. No other object can be discovered in the charge, or inferred from its general tenor, or from the language in which it is expressed; neither is there any evidence which has the most remote tendency to show that he had any other object in view. And was not this an object which a citizen of this country might lawfully pursue? Is it not lawful for an aged patriot of the Revolution to warn his fellow-citizens of dangers, by which he supposes their liberties and happiness to be threatened? Or will it be contended that a citizen is deprived of these rights because he is a judge? That his office takes from him the liberty of speech which belongs to every citizen, and is justly considered as one of our most invaluable privileges? I trust not. And if there could be any doubt on this point, I would remove it by referring to a recent instance of two judges of the Supreme Court of Maryland, who, in a late political contest, entered the lists as champions for the rival candidates, and travelled over a whole county, making political speeches in opposition to each other. Yet these gentlemen justly possess the confidence and respect of the public; their conduct in this instance has never been considered as a violation of duty; and he who espoused the interest of the successful candidate has been far from receiving any marks of displeasure from the Government of this country.

If, therefore, a judge retain this right, notwithstanding his official character; if it still be lawful for him to express his opinions of public measures, to oppose by argument such as are still pending, and to exert himself for obtaining the repeal, by constitutional means, of such as have been adopted, I ask what law forbids him to exercise these rights by a charge from the bench? In what part of our laws or constitution is it written that a judge shall not speak on politics to a grand jury?--shall not advance, in a charge from the bench, those arguments against a public measure which it must be admitted he might properly employ on any other occasion? Such conduct may perhaps be ill-judged, indiscreet, or ill-timed. I am ready to admit that it is so; for I am one of those who have always thought that political subjects ought never to be mentioned in courts of justice. But is it contrary to law? Admitting it to be indecorous and improper, which I do not admit, is every breach of decorum and propriety a crime? The rules of decorum and propriety forbid us to sing a song on the floor of Congress, or to whistle in a church. These would be acts of very great indecorum, but I know of no law by which they could be punished as crimes. Will they who contend that it is contrary to law for a judge to speak of politics to a grand jury, be pleased to point out the law of the land which forbids it? They cannot do so. There is no such law. Neither is there any constitutional provision or principle, or any custom of this country, which condemns this practice.

And will this honorable body, sitting not in a legislative but a judicial capacity, be called on to make a law, and to make it for a particular case which has already occurred? What, sir, is the great distinction between legislative and judicial functions? Is it not that the former is to make the law for future cases; and that the latter is to declare it as to cases which have already occurred? Is it not one of the fundamental principles of our Constitution, and an essential ingredient of free government, that the legislative and judicial powers shall be kept distinct and separate? That the power of making the general law for future cases shall never be blended in the same hands, with that of declaring and applying it to particular and present cases? Does not the union of these two powers in the same hands constitute the worst of despotisms? What, sir, is the peculiar and distinguishing characteristic of despotism? It consists in this, sir, that a man may be punished for an act which, when he did it, was not forbidden by law. While, on the other hand, it is the essence of freedom, that no act can be treated as a crime, unless there be a precise law forbidding it at the time when it was done.

It is this line which separates liberty from slavery; and if the respondent be condemned to punishment for an act, which far from being forbidden by any law of the land, is sanctioned by the custom of this country for more than twenty years past, then we have the form of free government, but the substance of despotism.

Let the gentlemen, before they establish this principle, recollect that it is a two-edged sword. Let them remember that power must often change hands in popular governments; and that after every struggle the victorious party come into power, with resentments to gratify by the destruction of their vanquished opponents, with a thirst of vengeance to be slaked in their blood. Let them remember that principles and precedents, by which actions innocent when they were done, may be converted into crimes, are the most convenient and effectual instruments of revenge and destruction with which a victorious party can be furnished. Let them beware how they give their sanction to principles which may soon be turned against themselves; how they forge bolts which may soon be hurled on their own heads. In a popular government, where power is so fluctuating, where constitutional principles are therefore so important for the protection of the weaker party against the violence of the stronger, it above all things behooves the party actually in power to adhere to the principles of justice and law, lest by departing from them they furnish at once the provocation and the weapons for their own destruction.

This charge, therefore, fails like the rest; and what remains of the accusation? It has dwindled into nothing. It has been scattered by the rays of truth, like the mists of the morning before the effulgence of the rising sun. Touched by the spear of investigation, it has lost its gigantic and terrifying form, and has shrunk into a toad. Every part of our honorable client’s conduct has been surveyed; all his motives have been severely scrutinized; all his actions have been brought to the test of law and the constitution; his words and even his jocular conversations, have been passed in strict review; and the ingenuity and industry of the honorable Managers have proved unable to detect one illegal act, one proof, or one fair presumption of improper motive.

TUESDAY, February 26.

The Court opened at about half past ten o’clock, A.M.; the Managers, the House of Representatives, and the counsel of the respondent having taken their seats.

Mr. NICHOLSON, as one of the Managers, addressed the Court in reply to the counsel of the accused. He said the House of Representatives having impeached Samuel Chase, one of the associate justices of the Supreme Court of the United States, of high crimes and misdemeanors; the evidence on their part having been adduced, and that on behalf of the accused, and the arguments of his counsel having been fully and patiently heard, it now became his duty to reply in support of the impeachment. To me, Mr. President, this duty is an unpleasant one. Upon all occasions and under all circumstances, the office of a public accuser is the most painful that can be imposed on us; but it is more peculiarly so when the object of accusation appears before us covered with age and infirmities. I think I speak the sentiment of my brother Managers of the House of Representatives, when I say, that this impeachment never would have been instituted, that it never would have arrived at its present crisis, if we had not believed that the best interests of our common country required that the conduct complained of should not go unpunished. There is no nation on earth, sir, in which the freedom of man and the consequent happiness of society are not inseparably interwoven with the full, free and impartial administration of justice.

“Una salus ambobus erit commune periculum.”

It was to preserve this unity of safety, to avert this common danger, that we thought ourselves bound by the most solemn obligation to bring these charges before the highest tribunal of the nation. We may in vain make laws to secure our property, to protect our liberty, and to guard our lives, if those to whom we appeal, and to whose decrees we are bound to submit, shall prove unfaithful in the discharge of their duty. If our laws are not faithfully administered; if the holy sanctuary of our courts is to be invaded by party feeling; if justice shall suffer her pure garment to be stained by the foul venom of political bigotry, we may indeed boast that we live in a land of freedom, but the boast will be vain and illusory.

In this point of view, therefore, this cause may justly be called an important one. I need not however urge its importance to the Court, for the feelings of every honorable member will speak its importance more forcibly than any thing that I can utter. But I do trust that those frequent appeals which you have heard, those frequent instances in which you have been reminded that posterity will pass between the accused, his accusers, and his judges, will have no influence on your minds. A desire to secure the approbation of posterity is an honorable feeling, pervading every human breast, and is most inseparable from our nature: but to secure the approbation of posterity, we must take care to pursue the dictates of our own consciences, and, by doing justice here, trust to posterity to do us justice too.

Our country, it is true, are now looking on with anxious solicitude for the event of this cause; but the sentence which they shall pass will not depend upon the judgment given here. To the world and to posterity the conviction of the accused, by this Court, will not establish his guilt; and I thank God, as the case has been put in issue between us, his acquittal will not prove his innocence. The facts in the cause, sir, those facts which we have proved by the most undeniable evidence, and upon which your judgment must be given; those facts will be presented to the eyes of the world and of posterity, and upon those only will they decide. If it should ever be the fortune of my humble name to descend to posterity, by the vote which I gave for instituting this impeachment, and by my conduct in discharging the great duty now committed to me, I cheerfully consent to be tried. To this awful tribunal I willingly submit. If the judge is guilty, posterity will heap on him all that odium which his guilt deserves; if he is innocent, let that odium be turned upon his accusers.

Because Sidney and Russell bled upon a scaffold, have their names been less the objects of veneration with posterity? and because Scroggs and Jeffries escaped the punishment due to their crimes, have they therefore been less the objects of universal execration? No, sir; and the honorable counsel (Mr. Hopkinson) who first addressed you on behalf of the accused, gave us himself a memorable example of the poor respect which posterity will feel for the decisions of those who have gone before them. That honorable gentleman told you that Warren Hastings was impeached for the murder of princes and the plunder of empires, and yet he was acquitted. But, is there any who hears me, that believes he was innocent? If we read the history of that trial; if we look to the facts charged, and listen to the unexampled eloquence by which they were supported, our only wonder will be, that he was not condemned. Sir, it has been said that those plundered millions were the best witnesses to prove his innocence; and I greatly fear that the day will come when the crying blood of those murdered princes will be the best witnesses to prove his guilt. The most splendid action in Edmund Burke’s life was his accusation of Warren Hastings; the foulest stain upon the national justice of England was his acquittal.

We have been charged, sir, by one of the honorable counsel (Mr. Harper) with having endeavored to enlist on our side the sympathies of the Court. Permit me to ask, what sympathy have we endeavored to excite? What feelings have we endeavored to engage? To what passion have we addressed ourselves? None, sir. We came here to demand justice. The constitution has placed in your hands the power of punishing guilt; we have proved the guilt of the person accused, and at your hands we demand his punishment. To your consciences and your understandings we appeal, and not to your feelings. These have been assailed by our adversaries. They have exhibited their client to you, covered, as they say, with the frost of seventy winters, and have endeavored to hide the magnitude of his crimes, in the length of his years, and the infirmity of his health. In attempting to excite your compassion, they have wished to drown the voice of justice, and have addressed you not as judges but as men. I do trust, however, that if any sympathy is to be excited, it will be neither for the accused, nor his accusers. Let your feelings be turned toward the nation! Let your sympathy be awakened for those who are to come after you, for by the sentence which you pronounce in this case, it must ultimately be determined whether justice shall hereafter be impartially administered, or whether the rights of the citizen are to be prostrated at the feet of overbearing and tyrannical judges. We, who are engaged in this prosecution, feel that our fathers handed down to us a glorious birthright, and we appear at this bar to demand that it be transmitted to our children unimpaired and unpolluted. Do the nation justice, and you will do justice to us, to yourselves, and to posterity. We were also told by the honorable counsel for the accused, that when we found the accusation shrunk from the testimony, and that the case could no longer be supported, we resorted to the forlorn hope of contending that an impeachment was not a criminal prosecution, but a mere inquest of office. For myself I am free to declare, that I heard no such position taken. If declarations of this kind have been made, in the name of the Managers, I here disclaim them. We do contend that this is a criminal prosecution, for offences committed in the discharge of high official duties, and we now support it, not merely for the purpose of removing an individual from office, but in order that the punishment inflicted on him may deter others from pursuing the baneful example which has been set them.

Nor do we mean to take another ground which the counsel for the accused have thought proper to assign us, for we never entertained the most distant idea that any citizen might be impeached. It was with no little surprise that I heard such doctrines ascribed to us, and I was astonished to hear the Attorney-General of Maryland combating positions which we had not laid down, and searching for argument to prove that which we should not have hesitated to admit.

But, sir, there is one principle upon which all the counsel for the accused have relied, upon which they have all dwelt with great force, and to the maintenance of which they have directed all their powers, that we cannot assent to; we mean to contend against it, because we believe it to be totally untenable, and because it is of the first importance in the decision of the question now under discussion. We do not contend that, to sustain an impeachment, it is not necessary to show that the offences charged are of such a nature as to subject the party to an indictment, for the learned counsel have said that the person now accused is not guilty, because the misdemeanors charged against him are not of a nature for which he might be indicted in a court of law.

To show how entirely groundless this position is, I need only pursue that course which has been pointed out to us by the respondent himself, and his counsel. I might refer to English authorities of the highest respectability, to show that officers of the British Government have been impeached for offences not indictable under any law whatever. But I feel no disposition to resort to foreign precedents. In my judgment, the Constitution of the United States ought to be expounded upon its own principles, and that foreign aid ought never to be called in. Our constitution was fashioned after none other in the known world, and if we understand the language in which it is written, we require no assistance in giving it a true exposition. As we speak the English language, we may, indeed, refer to English authorities for definitions, as we should refer to English dictionaries for the meaning of English words; but upon this, as upon all occasions, where the principles of our Government are to be developed, I trust that the Constitution of the United States will stand upon its own foundation, unsupported by foreign aid, and that the construction given to it will be, not an English construction, but one purely and entirely American.

The constitution declares, that “the judges both of the supreme and inferior courts shall hold their commissions during good behavior.” The plain and correct inference to be drawn from this language is, that a judge is to hold his office so long as he demeans himself well in it; and whenever he shall not demean himself well, he shall be removed. I therefore contend that a judge would be liable to impeachment under the constitution, even without the insertion of that clause which declares, that “all civil officers of the United States shall be removed for the commission of treason, bribery, and other high crimes and misdemeanors.” The nature of the tenure by which a judge holds his office is such that, for any act of misbehavior in office, he is liable to removal. These acts of misbehavior may be of various kinds, some of which may, indeed, be punishable under our laws by indictment; but there may be others which the law-makers may not have pointed out, involving such a flagrant breach of duty in a judge, either in doing that which he ought not to have done, or in omitting to do that which he ought to have done, that no man of common understanding would hesitate to say he ought to be impeached for it.

The words “good behavior” are borrowed from the English laws, and if I were inclined to rest this case on English authorities, I could easily show that, in England, these words have been construed to mean much more than we contend for. The expression _durante se bene gesserit_, I believe, first occurs in a statute of Henry VIII. providing for the appointment of a _custos rotulorum_, and clerk of the peace for the several counties in England. The statute recites, that ignorant and unlearned persons had, by unfair means, procured themselves to be appointed to these offices, to the great injury of the community, and provides that the _custos_ shall hold his office until removed, and the clerk of the peace shall hold his office _durante se bene gesserit_. The reason for making the tenure to be during good behavior, was, that the office had been held by incapable persons, who were too ignorant to discharge the duties; and it was certainly the intention of the Legislature that such persons should be removed whenever their incapacity was discovered. Under this statute, therefore, I think it clear that the officer holding his office during good behavior, might be removed for any improper exercise of his powers, whether arising from ignorance, corruption, passion, or any other cause. To this extent, however, we do not wish to go. We do not charge the judge with incapacity. His learning and his ability are acknowledged on all hands; but we charge him with gross impropriety of conduct in the discharge of his official duties, and as he cannot pretend ignorance, we insist that his malconduct arose from a worse cause.

It has been alleged by the counsel for the accused, that my honorable colleagues have argued this case upon the articles and not upon the evidence; and this allegation contains an admission, that if the articles are proved, the guilt of the party is established. It shall be my endeavor to show that there is no material variance between the charges as laid in the articles, and the evidence brought to support them; but that they are amply and fully proved by the very best testimony which could be adduced.

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.

Having thus, as I conceive, fully established the first specification contained in this article, and having answered the only colorable excuses advanced in favor of the judge, I shall proceed to the second specification. This is a charge against him for “restricting Fries’s counsel from recurring to such English authorities as they believed apposite, and from citing certain statutes of the United States, which they deemed illustrative of the positions upon which they intended to rest the defence of their client.”

I must therefore be permitted to insist that Fries’s counsel were prohibited from recurring to English authorities, and from citing certain statutes of the United States. It is fully proved by Mr. Lewis, and corroborated by Mr. Dallas. The latter was not in Court when the conversation took place; but coming in immediately after, he was informed of it by Mr. Lewis, and then stated to the Court what Mr. Lewis had told him. The Court did not deny it, and certainly it is to be presumed, if Mr. Lewis had made an erroneous statement of facts to Mr. Dallas, and they had been repeated by Mr. Dallas, the Court would have contradicted them. This was not done, and both these gentlemen now swear that they were prohibited.

An attempt, however, is made to shelter the judge from this part of the accusation, by saying that he declared counsel would be heard although this opinion was given. Sir, this is another evasion. The opinion itself carries with it internal, uncontrovertible evidence of the determination of the Court that the counsel should not address the jury. What is the principal ground of the defence? what is the leading reason urged for giving this extraordinary opinion before the jury was sworn? It was, as the judge says, and as his counsel have argued, to save time. They state that there were more than one hundred civil causes then depending, that the delay of business in Pennsylvania had been long a subject of complaint, and the judge was anxious to make Fries’s trial a short one, in order that they might have time to proceed with the other business. Now suffer me to inquire how time was to be saved; how the trial of Fries was to be shortened, if his counsel were to be allowed to address the jury on the law which the Court had already decided? Was not the opinion of the Court given for the express purpose of preventing them from addressing the jury; or, if not for this, let me ask for what purpose it was given? Was it to prejudice the minds of the jury; to close their ears and their understandings against any arguments which might be offered them? Gentlemen say no. Was it to save time? This was impossible, because the time was still to be occupied by the counsel being permitted to address the jury. Why then, let me ask, was the opinion given? The answer is ready. It was intended to produce both these effects. The minds of the jury were to be preoccupied by the imposing authority of the Court, and in this manner it was expected to deter the counsel from addressing them on the law. Nothing, therefore, can be clearer, than that the counsel were prevented from addressing the jury, and that the judge “_endeavored_ (in the language of the article) to wrest from the jury their right to hear argument, and determine upon the question of law.” But it is said that the right of the jury to decide the law does not give them a dispensing power over the law, and that therefore they are bound by the opinion of the Court. Nor does the right of the _Court_ to decide the law give _them_ a dispensing power over the law. The jury have a right to decide the law, and are not bound by the opinion of the Court. In order to enable them to decide correctly they have a right to hear argument, and any attempt to prevent this, is an attempt to wrest from them their right to decide the law, and is a high misdemeanor.

We are told, however, that if any thing wrong was done on the first day, ample atonement was made on the second. It is true that the judge exhibited some appearance of a wish that the counsel would proceed on the second day, but Mr. Lewis well remarked, that although the papers were withdrawn, the impression which had been made on the minds of the jurors could not be removed. What sort of an atonement, too, was this? It carried insult with it; and the language in which it was made had a still greater tendency to strengthen the impression made the day before. The counsel were publicly informed they might proceed as they pleased, _but it must be at the hazard of their characters_, under the direction of the Court. Is there a man of reputation on earth, possessed of the smallest spark of feeling, that would consent to disgrace himself by addressing a jury under such circumstances? This alone, if nothing else had taken place, was sufficient to drive them from the defence of their client; and if they thought that their abandoning him might eventually save his life, they were fully justified in doing so.

The learned advocates for the judge have talked highly of the independence of the judiciary, and have asked what inducements any judge could have to act as we have charged Judge Chase with acting. Are there then no inducements for a judge to swerve from his duty? Has he no feelings to gratify, and is it impossible for him to become a partisan? Does his character as a judge divest him of his ambition as a man? Is he so incorruptible that temptation cannot assail him? Look through the annals of other nations--read the history of England for the last forty years. Judicial independence has been for a long time as well secured there as here; and yet how many instances shall we find in that country of prosecutions in which the feelings of the Ministry had been engaged, and in which their influence over the judges has been too flagrant to be mistaken? In Ireland, miserable Ireland, a still more gloomy prospect presents itself. They, too, have boasted an independent judiciary; but an overruling influence has crumbled it into ruins. The demon of destruction has entered their courts of justice, and spread desolation over the land. Execution has followed execution, until the oppressed, degraded, and insulted nation has been made to tremble through every nerve, and to bleed at every pore. Let us then be warned by the fate of Ireland. In State prosecutions her judges look to the Castle; although they cannot be put down, they may be elevated. Some of our judges have been elevated to places of high political importance; splendid embassies have been given to them. I will not say that they were given or accepted with improper views; but they have been given, and surely they hold out inducement enough for a judge to bend to the ruling party. It is our duty to prevent party spirit from entering into our courts of justice. Let us nip the evil in the bud, or it may grow to an enormous tree, bearing destruction upon every branch. You have now an opportunity of doing it, and I trust you will not suffer it to escape you. I therefore hope that you will not only remove Judge Chase from the high office which he now fills, but that by your judgment you will for ever hereafter disqualify him from holding any office of profit or trust under the Government of the United States.

Mr. RODNEY.--Mr. President, and Gentlemen of the Senate: The present trial exhibits a spectacle truly solemn and impressive. A man who holds one of the highest judicial offices under the Government, who, from the period of the Revolution, has filled many of the most important public situations, and whose hairs have been bleached in the service of his country, is charged before this dignified tribunal, by the Representatives of the American people, with the commission of acts in violation of his duty as a judge, and of the laws and constitution of the land.

On one hand, the character of an aged and respectable individual, which may be dearer to him than the small remnant of his life, is involved in your decision; on the other, the most precious rights of free citizens, and the dearest interests of society.

The mind which could contemplate, unmoved, such a scene, cannot feel for the welfare of the people, or the honor of the nation, and must be equally insensible to the finer sympathies of life, and the practice of its charities and affections.

The public anxiety manifested by this deeply interesting trial must be evident to all--a trial of the first importance, because of the first impression--a trial not confined to a single act in the conduct of the accused, but embracing a variety of transactions at different periods of his life--a trial which departs from the ordinary mode of decision, whose novelty and magnitude have excited so much interest and attention that it seems to have superseded for the moment, not only every other grave object or pursuit, but every other fashionable amusement or dissipation.

The task of prosecuting is always very unpleasant, and to me extremely painful; but my rule has ever been not to suffer private considerations or personal feelings to stand in the way of a firm and independent discharge of public duty.

To this exalted tribunal I look with confidence for a display of that dignified impartiality, which will do credit to their elevated situation, and reflect honor on their country. You will raise yourselves, I am convinced, above the common level of human prejudices, personal or political, and will suffer no considerations but those which are perfectly correct to be blended with your inquiries or mingled with your decisions.

Party, it is true, is a spirit of so subtle a nature as to diffuse itself almost imperceptibly over the human mind; it frequently pervades the system without being felt, and sometimes warps the judgment when least suspected. Against the influence of this spirit I need scarcely caution the judges whom I have the honor to address. It cannot approach within the pale of this Court, or enter their hallowed walls.

I have marked, Mr. President, in the questions which you have so correctly put to the witnesses in the course of their examination, that singleness of eye, which looks to the discovery of truth alone, without reference to the party whose case it may affect; whilst your conduct in maintaining that order and decorum suitable to the solemnity of the occasion has exhibited an example worthy of imitation.

I have observed, with heartfelt pleasure and honest pride, the unwearied and impartial attention paid by the members of this Court during the progress of this momentous cause. To my mind it presages a decision worthy of themselves, and serviceable to their country, and is a sure pledge that their determination will be honest, upright, and independent.

If, after a fair and full inquiry into the facts, illustrated by the arguments for and against the accused, and a careful examination of the law, commented on by those whose duty it is to support the impeachment, and those who are opposed to it, the Senate shall be of opinion that the charges have not been substantiated, and pronounce a verdict of acquittal, believe me, sir, I, as a citizen faithful, obedient, and affectionate to the laws of my country, shall most cheerfully acquiesce in the decision. But I do confidently trust that it will not take place, on the principles or the precedent established in the case of Warren Hastings, the Governor of Bengal, that plunderer of India, that destroyer of the people of Asia, that devastator of the East, whose crimes were without number, and whose enormities exceeded calculation. What fields have been dyed, what streams have been tinged with the innocent blood of victims sacrificed on the altar of his avarice or his ambition! An obligation however solemn, a treaty however sacred, interposed but a weak and feeble barrier to the views of his personal or political aggrandizement. Even a zenana, the sacred retreat of women, holy and consecrated to the fairest work of the creation, by the religious customs of that country, has been violated whenever the silver and the gold, the jewels and the diamonds, were sufficient objects to attract his attention or gratify his rapacity.

The House of Representatives, so far from deserving blame, in my humble opinion, merit commendation for the reluctance with which they proceeded to accusation, and for the care, caution, and dignity which have marked their steps. I have frequently heard an unbecoming zeal reprobated in a prosecutor; but never before did I hear from the lips of a counsel for an offender, a complaint of delay and remissness in charging his client with guilt. What a striking contrast does their conduct furnish, compared with that of the defendant! They betrayed no thirst for prosecution, but an unwillingness to accuse; no eager appetite for conviction, but an anxious desire that impartial justice should take place between the public and an individual, whom irresistible evidence had compelled them to present before the highest judicial authority of the nation. Not, it is true, for the murder of despotic princes whose will was the law, and whose laws perhaps were as sanguinary as those of Draco; nor for the plunder of empires, swayed by an iron sceptre as oppressive as the dominion of Hastings. Far other crimes are laid to his charge. The defendant, a citizen of this free land, sworn to support our mild constitution and our equal laws, and bound by his oath of office to administer justice impartially, having a perfect knowledge of his duty, (for of ignorance the whole world will acquit him,) stands charged with plundering, in the holy habit of a judge, a jury of his country of their most sacred rights, and injured and insulted freemen of their constitutional privileges.

He was indeed providentially prevented from imbruing his hands in the blood of poor Fries, but he stands accused of shedding, with unfeeling severity, the life-blood of the constitution itself.

Such are the crimes for which he is arraigned at your bar, and which one of the gentlemen has been pleased to term petty offences. In the dark catalogue of criminal enormities, perhaps few are to be found of a deeper dye. If I were an advocate of the doctrines of constructive and cumulative treasons, of which the learned judge appears to have been a great admirer and a zealous supporter, I would say that he himself was guilty of judicial treason against the constitution of the country and majesty of the people.

The independence of the Judiciary, the political tocsin of the day, and the _alarm bell of the night_, has been rung through every change in our ears. They have played upon this chord until its vibrations produce no effect. The sound is rather calculated to stun us into an insensibility against real attacks, for the poor hobby has been literally rode to death. To the rational independence of the Judiciary, I am, and ever have been a firm and uniform friend. But I am no advocate for the inviolability of judges more than of kings. In this country I am afraid the doctrine has been carried to such an extravagant length, that the Judiciary may justly be considered like a spoiled child. They are here placed almost beyond the reach of the people, though not beyond the immediate power and influence of the Executive. I wish not to see them the slaves of any administration, but the faithful and impartial executors of justice. My desire is that the laws, like the providence of the Deity, should shed their protecting influence equally over all.

It will be allowed that the hopes of an individual are as powerful inducements to action as his fears. Whether the Executive can depress or exalt him, his influence is equally great. Whether he can punish his errors or reward his faults, his dominion is the same. We all know that an associate judge may sigh for promotion, and may be created a Chief Justice, whilst experience teaches us, that more than one Chief Justice has been appointed a Minister Plenipotentiary. These facts are staring us in the face, when we talk of judges being independent of the Government.

What has been the natural effect of such conduct? Have the judges stood aloof during the political tempests which have agitated the country--or have they united in the _Io triumphe_ which the votaries and idolaters of power have sung to those who were seated in the car of Government? Have they made no offerings at the shrine of party; have they not preached political sermons from the bench, in which they have joined chorus with the anonymous scribblers of the day and the infuriate instruments of faction? Let a recurrence to past events decide.

I wish to be understood as speaking on these topics in the abstract, and not with a view of imputing improper motives to those concerned in the arrangements which have taken place.

The people of the United States, on the other hand, have no offices of profit and emolument to bestow. They have no post immediately in their power to give, except a station in the House of Representatives, which a judge would not accept from their hands. But, let me ask, was there no vacancy in the gift of the Executive, to which the defendant could aspire, and to which his conduct might furnish him with a passport or a letter of introduction?

Some observations have been made on the independence of the judges in England. In that country they are removable by an address of both Houses of Parliament. By what a slight tenure, by what a slender thread, are their offices held! The voice, nay, the whisper, or the breath of the Minister for the time being, may remove them, and yet they have generally manifested a spirit of real independence, even in the season of alarm and terror, of which I fear our judges at a similar period cannot boast. But in that country, a seat on the bench is considered as a place of rest, and they look not beyond it. There the judges are not made Envoys Extraordinary or Ministers Plenipotentiary.

We ought not to be imposed upon by names in this country. Give any human being judicial power for life, and annex to the exercise of it the kingly maxim “that he can do no wrong,”--you may call him a judge or justice, no matter what is the appellation--and you transform him into a despot, regardless of all law but his own sovereign will and pleasure.

Suffer me at this place to notice the remarks of the learned counsel who spoke yesterday, (Mr. Harper,) with so much sensibility and feeling for his client, on the change of parties in popular governments, and the proscriptions, persecutions, and punishments, too frequently inflicted by those who are triumphant, on the fallen victims of their authority; when acts, innocent in themselves, because against no known law, have been converted into crimes to gratify the vindictive passions of the victorious against those whom the fortune of political war has placed within their power. No man can deprecate more sincerely than I do, such a state of things. To the situation of affairs in this country, I presume these remarks cannot have the most distant application. If they were made with reference to the present Administration, to the Executive or Legislative Departments of the Government, the allusion may, perhaps, have the light support of visionary imagination, but has no substantial foundation in reality. It may be fancy, but is not fact.

The illustrious Chief Magistrate of the Union[22] has furnished a precedent, by his liberal and enlightened conduct, of which the lamentable annals of mankind afford no example. Under his wise and his mild guidance, what auspicious beams of public sunshine have been diffused over the whole face of the country! until, to the discontented few, the language of the Latin poet might justly be applied--

“O fortunati nimium sua si bona norint.”

This enlightened policy has been adopted in conjunction with the luminous constellation of distinguished worthies, by whom he is surrounded; whose exalted character and talents add to the usefulness, the dignity, and splendor of his measures, and increase to an extent almost incalculable the general sum of the happiness of this great and independent nation.

Turning our eyes to those who have exercised the high and responsible functions of legislation, we find their acts equally deserving commendation. Their proceedings are calculated to excite at once the envy and the admiration of their opposers and the world. They breathe not the fell spirit of resentment and persecution. To their honor be it spoken, that, instead of enlarging the circle of offence, they have reduced the scale of criminality. They have abolished an odious, and, I believe, an unconstitutional sedition law, which had been executed with a rigor and severity perfectly congenial with the passionate policy which gave it birth. The decrees under it, if not written in the blood of the sufferers, were written in their tears. A more dreadful engine of persecution and oppression cannot well be conceived. With this instrument in their hands, they could have smote their enemies and shielded themselves. It would have been a sword and a buckler, but they disdained the idea.

Actuated by the best motives, with the honest view of purifying the fountain of justice, and restoring the characters of the American bench, they are now engaged in the unpleasant, but indispensable task of bringing to exemplary punishment a judge who has offended against the letter and the spirit of the constitution, and the well-known statutes of Congress; who has violated the bounden duties of his office, and that high legislative act, which, to the sanction of a law, added the solemnity and obligation of an oath.

In this important undertaking they are contending not for themselves, but for posterity; not for those in power, but those whom power has forsaken. Against all the wild theories of new-fangled opinions and the monstrous iniquity of exploded doctrines, they wish to teach a lesson of instruction to future judges that, when intoxicated by the spirit of party, they may recollect the scale of power may one day turn, and preserve the scales of justice equal.

It appears that Fries had been tried in the year 1799, before Judges Iredell and Peters, and convicted of the crime of high treason. His counsel afterwards moved for a new trial, on the ground that one of the jury had been prejudiced against him--that he had not in fact been an impartial juror in the case. The Court, consisting of the same judges, upon argument, ordered a new trial to be had. A new trial, according to the best authorities, is “a rehearing of the cause before another jury, but with as little prejudice to either party as if it had never been heard before.” In this light Judge Chase should have considered it. He ought to have gone to Pennsylvania with a mind totally unprejudiced, and viewed every circumstance of the case with the utmost impartiality. The very circumstance which produced the second trial ought to have put him sufficiently on his guard. When a new trial has been directed, to use the language of the respondent in his answer, “solely on the ground that one of the jury” (a single man out of twelve) “after he was summoned, but before he was sworn on the trial, had made some declarations unfavorable to the prisoner,” how ought an impartial judge to have felt and to have acted? Mr. Chase, let it be recollected, presided in a court composed of but two members. With this lesson before his eyes, we find the respondent forming an opinion in his closet on the law of treason, applicable to the case of poor Fries, and not satisfied with making up his own mind on this subject, he took care to bind the judgment of his associate, by obtaining his approbation of that opinion, which he reduced to writing for the purpose. This irregular and reprehensible measure was adopted before the hour of trial arrived, when the man whose life was at stake was to be heard on a subject that involved his existence. This bold step in the path to conviction, has been defended on plausible grounds, and by subtle refinements.

The respondent in his answer and the learned counsel in their defence, have endeavored to prove that this conduct was not only right, but perfectly proper and correct. Among the various pretexts eagerly laid hold of to justify this novel procedure, they urge as a reason for prejudging and despatching a capital case, the multiplicity of civil business pending in the same court! I will forbear to inquire into the facts on this point, though I believe there is not a spark of testimony to prove the allegation to its full extent, because, if the docket had been loaded with civil suits, it would form no excuse for hurrying through a criminal trial, on the issue of which the life of a fellow-citizen depended. That cause must be bad indeed that requires to be propped by such miserable expedients. When I first read this passage in the answer, it struck me with astonishment, and excited a burst of indignation which it is my duty to repress. “A multitude of civil business is depending, and therefore I must make up my mind conclusively on the law in a capital case, before the proper season arrives, without hearing a single word from the prisoner or his counsel in defence!” The learned judge certainly did not reflect on the effect of such an excuse, which instead of palliating his conduct, aggravates it. That he was in a great hurry, every part of his conduct proves. From the opinion, a copy of which is annexed to his answer, it would appear that he did not intend to make it public, at least until after the jury had been sworn and Fries was on his trial. In that we find these expressions: “The Court heard the indictment read on the arraignment of the prisoner some days past, _and just now on his trial_, and they attended to the overt acts stated in the indictment.”

This honorable Court will recollect that the whole current of the testimony proves, and the defendant in his answer admits, that he delivered the papers containing this _ex parte_ opinion before Fries’s trial commenced. Such was his eagerness to despatch the case, with a view, he says, of reaching expeditiously the civil list. As if gifted with the spirit of intuition and with an infallible judgment, he seems not to have proceeded on the principle of _castigatque auditque_, but to have improved even upon that model, considering it not necessary for him to hear arguments at any stage of a cause, for the purpose of forming a correct opinion. His counsel ask us whether it be a fault in a judge to have a profound knowledge of the law, which will enable him to decide promptly any question that may occur; and the respondent said, on Fries’s trial, that “he had an opinion in point of law as to every case which could be brought before the Court, or else he was not fit to sit there.” Yet, when Callender’s trial was progressing, we find this same judge, upon a common point of practice relative to a challenge to the jury, calling out for Coke on Littleton to be brought into court before he could make up his mind on the subject.

The aid of precedent has been called in to justify this wide departure from principle, and it is contended that the opinion was correct in point of law. My honorable friend (Mr. Randolph) has detected and exposed the fallacy of this species of justification. I will remark that a great and respectable character (Lord Mansfield) has observed, that he is a most unrighteous and wicked judge who decides without hearing both sides--even when he decides correctly--because his judgment is the effect of chance or accident, and not the result of a fair, full, and impartial investigation. Precedents, let me observe, do not make the law, they are merely evidence of it; nor is the law to be absolutely decided by precedents, _judicandum est legibus, non exemplis_. “If a judge conceives that a judgment given by a former court is erroneous, he ought not in conscience to give the like judgment, he being sworn to judge according to law,” says Lord Chief Justice Vaughan. But Judge Chase declares that, had he differed in opinion from former precedents, even in a capital case, he should have held himself bound by them. But here let me ask, what are those precedents to which he subscribes? It is not my intention to go at full length into the discussion of them, or comment at large on the law of treason. My object is, on this interesting occasion, to enter a solemn protest against doctrines which would entail on us all the constructive treasons of another country, and to assign in a few words the reasons of my opinion. I am not to be deterred from my duty by the assertion that no counsel of eminence would controvert the principles laid down by the respondent in his _ex parte_ opinion, more especially when characters of such high standing at the bar as Mr. Lewis and Mr. Dallas, have honorably and conscientiously opposed such monstrous doctrines. The Western insurrection in Pennsylvania was materially different from the momentary disturbances in the counties of Bucks and Northampton. The precedents which arose from one could not be applicable to the other, and the cases of Mitchell and Vigol, which have been cited, are readily distinguished from that of Fries.

In the first, the combination was formed and organized to seize _all_ records and papers, and to destroy _all_ offices, to expel _all_ officers in the whole survey. The insurgents traversed the country armed, seized papers, attacked offices, and drove officers out of the country.

They seized and imprisoned the marshal, who escaped and returned to Philadelphia by a circuitous route.

They assembled at Cooche’s fort, consulted on the attack upon Colonel Neville’s house, marched thither in military array, summoned him to surrender by a flag, set fire to his house, and destroyed his records. They assembled at Braddock’s field; deliberated on taking the garrison at Pittsburg; marched thither with that avowed object; but finding the garrison prepared for defence they filed off.

They assembled after the proclamation, and after the militia were ordered to march. They avowed an intention to resist. They compelled the Government to negotiate. The leaders, Bradford and Marshal, fled on the approach of the army, and the insurgents generally accepted the terms of amnesty, as in a case of treason. The army was, however, maintained for some time in the country.

In the last, the people were illiterate, ignorant of the laws and language. They did not conspire to act themselves, but to prevent _particular_ inferior officers from acting, by making the assessments in _particular_ townships.

They acted like a mob, in obstructing the progress of the officers by threats, hooting, &c., and once they took an officer’s tax list or papers, but immediately returned them.

They assembled expressly to release or rescue a _particular_ set of prisoners whom they called their neighbors.

They rescued the prisoners, and withdrew without injuring or attempting to injure the marshal, or the tax officers who were at Bethlehem.

They never suggested the idea of resisting the army. They dispersed as soon as the proclamation was issued, and they never met afterwards.

The distinctions are striking and obvious.

In the insurrection of 1794, the object was general; in the riot of 1799, it was particular.

In 1794, the insurgents _acted_ as assailants; the rioters of 1799 stood on the defensive, and only obstructed the officers in attempting to act.

In 1794, the design of attacking a fort and resisting the army was deliberately formed, and overt acts committed to carry it into effect; in 1799, the idea of attacking or resisting the military power of the Government never was suggested.

In 1794, the sedition act had not provided for combinations to impede the execution of a particular law. In 1799 that act was in existence.

In 1794, the outrage extended to the seizure of the marshal to prevent his executing any process. In 1799, it was confined to the release of a

## particular set of friends and neighbors.

The precedents, therefore, of Mitchell and Vigol, which have been so much relied upon, did not, I humbly submit, apply to the case of poor Fries. But the defendant has dwelt much on the opinion expressed by Judge Iredell, in his charge to the petit jury on the former trial of Fries, notwithstanding the verdict was set aside, which was given on that occasion, and Judge Chase should have proceeded on the second trial, as little prejudiced by any opinions on the former, as if such trial had never taken place. It appears from the testimony of Mr. Dallas, that so confident was he of the broad difference between the cases of 1794 and 1799, that in the first trial he did not advert to the former, little suspecting that they would be considered as precedents for the latter. When he found, by the charge of Judge Iredell, that he did unexpectedly rely upon them, his intention was, in the second trial, to direct his arguments to the manifest distinctions between them. In this, however, he was disappointed by the arbitrary conduct of the defendant. Under these circumstances, can this case be considered binding and obligatory; or, is a single precedent to make the law, and absolutely prevent counsel from controverting it?

The case of Fries was succeeded by that of Callender. There is seldom one act of crying injustice without being followed by another. It is the misfortune, if not the fault, of the respondent, that his conduct compels us to unfold more than one solitary case, in which he grossly violated his duty and the laws of the land.

Callender had written a book, which I never saw until since the commencement of this trial--a wretched performance, which ought never to have excited in the breasts of the honest supporters of the late Administration any passion but contempt. They should have applied to it the memorable declaration of one who once figured in political life, “a wise and virtuous Administration is not to be battered down by mere paper shot.” The respondent, it appears, was furnished by one of his present counsel, (Mr. Martin,) when in the act of setting off for the district of Virginia, with a copy of this formidable work, which threatened destruction, in his opinion, to the Federal fabric. The book was ready scored to his hands, so that, with a single glance, he might discover the fatal passages. With this volume for a “_vade mecum_, or travelling companion,” he proceeded to Richmond to hold a circuit court. Soon after his arrival a presentment was made and an indictment found against Callender. The miserable object of persecution was hunted up and down the country. At length he was discovered by the marshal and brought into court. To the indictment he pleaded not guilty, and able and eminent counsel appeared to defend him.

Callender not being prepared with the testimony necessary to substantiate his defence, an affidavit was filed in due form, which stated ample grounds to postpone the trial of the cause, and upon which the Court ought certainly to have granted a continuance.

What are the objections raised against the motion to postpone, founded on this affidavit, and the reasons urged in support of the respondent’s refusal to put off the trial? They are truly singular. One is a refined technical objection to the form of the affidavit, because it does not state in strict legal language that Callender expected to be able to procure at a future time the attendance of the witnesses. But he states facts which prove on the face of them, that by postponing the trial he could obtain the benefit of their testimony, for he mentions the places of their residence, all of them within the United States. I say the case is stronger than if, _secundum formam_, he had sworn that he could procure their attendance. When he tells where they lived, the Court must have been satisfied on this point. However, the respondent assigns a curious reason to be sure, for his conduct. If the witnesses who were absent were actually before the Court, and were to prove all that Callender had stated or expected, it would riot have justified all the libellous passages that had been selected from the book and thrown into the indictment. How was Judge Chase to know but that Callender had testimony as to those points on which his absent witnesses would not have deposed?

The respondent, it seems, was willing to postpone it for a particular period, provided he would be present at the trial. Nay, he would go all the way to Delaware, and return again to accomplish an object he seems to have had so much at heart. In my humble opinion this part of the Judge’s conduct proves stronger than almost any other of his acts, the motives which influenced him. If I were to select any one circumstance to prove that his intentions were improper, I would lay my hand on this. “I will not postpone this important trial until the next term, because, according to the arrangement, I shall not then be on this bench, but I will agree to delay it for a shorter period, and travel three or four hundred miles in order to accommodate Mr. Callender with my presence on the trial.” Did any lawyer ever hear of such conduct? Did they ever hear of a court adjourning to a particular time, to try a single solitary case of a common misdemeanor?

I do respectfully submit, for the reasons assigned, that the conduct of the learned judge, in refusing to postpone the trial of Callender, was a most manifest violation of the principles of law, and was attended with such circumstances as render it highly improbable that it proceeded from a mere error in judgment.

From Virginia, flushed with success and elated with his triumph over Callender, the respondent hastened to Delaware. The night preceding the day on which the respondent was to hold the court, he lodged at the village of Christiana, about five miles distant from the court-house. From this place he rode into Newcastle the next morning with Dr. William McMechin, who was summoned as a grand juror to the court, and it is in evidence, was actually sworn on the panel. This is the very man, who, it is represented, gave the respondent the information relative to the seditious printer. As a grand juror it was his duty to communicate to his fellows any offences against the laws of the land which had come to his knowledge, and it was the duty of the grand jury to present every criminal act punishable by the laws of the United States. We are bound to pronounce that Mr. McMechin put the rest of the grand jury, for he was sworn so to do, in complete possession of all the information which he communicated to the respondent. With these circumstances, the respondent was perfectly well acquainted. He saw with his own eyes the very man impanelled on the inquest who had opened the budget to him, and knew it was his duty to unfold the intelligence to his brethren. The respondent proceeds to deliver an appropriate charge to the jury--a charge free from all those blemishes which stain a subsequent performance of the same kind. He presented to their view in chaste and eloquent language the proper subjects for their inquiry. In my humble opinion it may have been equalled but never excelled. I considered it, according to my poor judgment at the time, a perfect model; the most finished piece in style and substance that I ever heard addressed to a grand jury. Had he stopped here he would have been an object of praise rather than complaint. Had he been contented with discharging his official duty, he would have been entitled to our thanks, rather than merited an accusation.

The grand jury retire to their chamber, and after some time return to the box. To the credit of the then marshal of the Delaware district, I must observe, that he had manifested on that occasion, (as I know him uniformly to have done, even when the storm of party raged with the greatest violence,) in the selection of his jurors, an independence becoming the responsible station which he filled. They were not men of pliant tempers, nor were they carefully culled from the ruling sect, but chosen without respect to party, from the most respectable of both sides. It gives me great pleasure to speak of such conduct, because I wish to hold it up as an example. The grand jury were asked by the clerk in the usual form, “Have you any bills or presentments to make?” Their foreman respectfully answered they “had not.” On this, the judge could no longer bridle his temper. He had anticipated perhaps a treat from the prosecution of an obnoxious printer, and expected to regale his palate with a favorite dish. Provoked by disappointment, his passion burst into a flame, and he condescended to stoop from his bench, for the purpose of seizing on his prey. It was at this period he betrayed emotions so highly reprehensible, and so very unsuitable to the dignity of his situation. In a tone, well adapted to the exceptionable language, he observed to the grand inquest, “What! no bills or presentments?” This was matter of astonishment to him, and he proceeded to make the observations so correctly described by Mr. Read, the District Attorney of Delaware, a gentleman of irreproachable life and manners, whose character is not only unimpeached but unimpeachable, and Mr. Lea, one of the grand jury themselves, to whom part of the observations were addressed, a merchant of established reputation, and as a man respected by all who are acquainted with him. Sir, after the observations I have made on positive and negative testimony, I will not stop to demonstrate that every thing stated by Mr. Read and Mr. Lea was said, though not recollected by some other witnesses. I will barely mention that all the extra-judicial remarks of the respondent were addressed to the grand jury or to the district attorney. They must, therefore, naturally be presumed to have paid the strictest and closest attention to all that fell from the learned judge, and we have produced one of the grand inquest themselves, and the district attorney, to prove the language he used. I feel confident, under these circumstances, that implicit credit will be given to them. I am also convinced that the statement made by the respondent is scarcely more favorable to his cause. The grand jury repeat, to the interrogatory put to them by the respondent, the answer which they gave to the previous question of the clerk, and request additionally that they may be discharged, as many of them were farmers, and it was hay harvest, a very busy season with them. But no matter for that, the business of the persecution, for I will not say prosecution, must go on if possible. The judge would not discharge the grand jury on the first day, agreeably to general practice, as proved by Judge Bedford, though pressed so to do. He proceeds to give them information of the seditious temper which had manifested itself in the State, and particularly in Newcastle County: a county, which, suffer me to say, is well known from its old and unshaken patriotism from the Revolution to the present day. But he did not stop here; he proceeds to mention a seditious printer, point out the place where he lived, and the borough of Wilmington, justly celebrated for its uniform attachment to the cause of republicanism, and, according to his own answer, to specify the title of his paper, and just as his name was escaping from his lips, a returning sense of propriety checked his speech. Sensible how deeply he had committed himself already, he paused for reflection. But he had gone too far to effect a safe and honorable retreat. He calls on the district attorney to know if a file of the papers cannot be had. Some officious person offers to procure them, and the respondent directs the district attorney to examine them and lay them before the grand jury, who are ordered to attend the next morning. They do accordingly attend, the file of the papers is laid before them and examined. Behold, after all his exertions, the respondent had his labor for his pains; after all this noise and bustle _montes parturiunt_, and not even _ridiculus mus nascitur_. The grand jury return once more to the box without any bills or presentments, and the learned judge with admirable address covers his defeat.

The conduct of the learned judge at the circuit court in Maryland, furnishes, I consider, one of the strongest articles of impeachment. I had intended to have dilated very much at length on this charge, but the fatigue of yesterday has really indisposed me, and I have already trespassed too much on your time.

Every member of this Court must have been sensible of the impropriety of the respondent’s conduct on that occasion. Every reflecting man must be decidedly opposed to the idea of blending political discussion with the legal observations which ought to proceed from the bench. A party harangue little comports with the temperate and learned charges to be delivered by the president of a court. The character of an electioneering

## partisan, whose rostrum is a stump, or whose stage is the head of a

hogshead, is utterly inconsistent and incompatible with that of a grave and upright judge. The duty of a judge is to expound the laws, and not to exercise the office of a censor over them, and much less to disgrace himself by reprobating them in a manner calculated to excite groundless alarm and apprehensions in the minds of the people, and to alienate their affections from the Government. Every man in his individual capacity possesses the undoubted right to advocate the political principles which he believes most beneficial to his country. The respondent as an individual is entitled to this privilege in common with his fellow-citizens, and to the free exercise of his splendid talents in such a case. But does this justify him as a judge in his judicial character, and from the judgment seat, to preach political sermons, and impose his private dogmas on the people, under the garb of administering the laws? Sophistry may for a moment confound two things perfectly distinct in their nature and effect, but the mist vanishes before the light of argument.

It will be conceded that there yet exist State jealousies against the General Government, the acts of which are closely watched and scrutinized. When the Constitution of the United States was framed, it was the legitimate offspring of a liberal spirit of accommodation, which reconciled jarring interests, _discordia semina rerum_. It requires the patriotic exertion of every good man to preserve and to promote a reciprocal cordiality between the General and State Governments. The officers particularly of each should manifest a respect and reverence which would inspire at once confidence and attachment. What language can express the criminality of the respondent, when from the bench of the United States he undertook to thunder anathemas against the act of the Legislature of an individual State? Was this a part of his duty, or was it not? Can there be a doubt, sir, but that it was a gross violation of his duty, and that the respondent well knew it at the time? Yet such were his unbridled passions and his uncontrolled prejudices, that, regardless of the station which he held, and the dignified post which he occupied, he did not hesitate to commit the character of the United States by conduct which must have irritated the audience against the government of Maryland and its officers. If ever a _mobocracy_ take place in this country, it will be brought about by such instruments and such conduct. Let those clothed with the laws become the violators of them, let the judges of the United States issue fulminations against the measures of individual States, and the judges of the different States retaliate, by declaiming against the acts of the General Government, and the consequences are easily foreseen.

When a poor miserable object like Callender, without character and without influence, censures the measures of our Administration, or reprobates an unconstitutional law, the respondent considered him guilty of a crime and deserving of punishment. But a man elevated to the bench may declaim in the strongest language against any measure or law of the United States, or of an individual State with perfect impunity! Recollect, sir, that if the defendant be justified in reprobating a single law of the United States, he has the right to reprobate them all indiscriminately. It is without question the duty of a judge to inculcate a respect and a reverence for the laws of the land. But, sir, the respondent, so far as he was able, has endeavored to excite the indignation of the people against them, and to terrify them into an opposition to measures which he has chosen from the bench to denounce, by the dread of a _mobocracy_ and other alarming stories unworthy the columns of a common newspaper, and scarcely equalled since the days of the Rye House, and of Titus Oates.

WEDNESDAY, February 27.

Mr. RANDOLPH.--Mr. President: The course which has been pursued by my learned colleagues and right excellent friends leaves but a barren field in which to glean after them. I shall, therefore, present you with the most condensed view that I can take of the subject, endeavoring, as far as possible, to avoid the ground which has been already trodden; and should I fail in this attempt, I hope to be pardoned, as having been absent during a great part of this discussion. Very far indeed is it from my intention, by tiresome repetitions, yet more to weary the patience of the Court, and prolong that decision which is anxiously awaited by all. I was not present when the defence was opened, in a style so honorable to himself, by the junior counsel of the respondent, (Mr. Hopkinson.) I was then ill abed. I regret the loss of the very able argument which he is said to have urged against the first article. God forbid that the time shall ever come with me when merit shall be disparaged because found in an adversary. Report speaks fairly of the gentleman’s performance, and I am willing to credit her to the utmost extent.

Suffer me to say a few words on the general doctrine of impeachment, on which the wildest opinions have been advanced--unsupported by the constitution, inconsistent with reason, and at war with each other. It has been contended that an offence, to be impeachable, must be indictable. For what then I pray you was it that this provision of impeachment found its way into the constitution? Could it not have said, at once, that any civil officer of the United States, convicted on an indictment, should (_ipso facto_) be removed from office? This would be coming at the thing by a short and obvious way. If the constitution did not contemplate a distinction between an impeachable and an indictable offence, whence this cumbrous and expensive process, which has cost us so much labor, and so much anxiety to the nation? Whence this idle parade, this wanton waste of time and treasure, when the ready intervention of a court and jury alone was wanting to rectify the evil? In addition to the instances adduced by my right worthy friend, (Mr. Nicholson,) who first addressed the Court yesterday, permit me to cite a few others by way of illustration. The President of the United States has a qualified negative on all bills passed by the two Houses of Congress, that he may arrest the passage of a law framed in a moment of legislative delirium. Let us suppose it exercised, indiscriminately, on every act presented for his acceptance. This surely would be an abuse of his constitutional power, richly deserving impeachment; and yet no man will pretend to say it is an indictable offence. The President is authorized by the constitution to return any bill presented for his approbation, not exceeding ten days, Sundays excepted, within which period he may return it to the House wherein it originated, stating his reasons for disapproving it. Now let us suppose that, at a session like the present, which must necessarily terminate on the third of March, (and that day falls this year on a Sunday,) the President should keep back until the last hour of an expiring Congress, every bill offered to him for signature during the ten preceding days, (and these are always the greater part of the laws passed at any session of the Legislature,) and should then return them, stating his objections, whether good or bad is altogether immaterial. It is true that a vote of two-thirds of each branch may enact a law in despite of Executive opposition; but, in the case I have stated, it would be physically impossible for Congress to exercise its constitutional power. Indeed, over the bills presented to the President within nine days preceding its dissolution, the Legislature might be deprived of even the shadow of control, since the Executive is not bound to make any return of them whatever. Now, I ask whether such misconduct in the President be an indictable offence? And yet is there a man who hears me who will deny that it would be a flagrant abuse, under pretence of exercise of his constitutional authority, for which he ought to be impeached, removed, and disqualified? Sir, this doctrine, that impeachable and indictable are convertible terms, is almost too absurd for argument. Nothing but the high authority by which it is urged, and the dignified theatre where it is advanced, could induce me to treat it seriously. Strip it of technical jargon, and what is it but a monstrous pretension that the officers of Government, so long as they steer clear of your penal statutes--so long as they keep without the letter of the law--may, to the whole length of the tether of the constitution, abuse that power, which they are bound to exercise with a sound discretion, and under a high responsibility for the general good?

Mr. President, through every stage of this transaction you perceive every symptom of guilt--trepidation, remorse, and self-abasement. Look at the consultation at Rawle’s, who was followed home by the judges as soon as the Court rose. Recollect the conversation which ensued, and the conduct of the Court on the following day, when the respondent is said to have atoned for his misbehavior; although, in the same breath, you are told there was no offence to expiate. Do you recognize in that procedure an honorable and manly acknowledgment of unintentional error, which, from a sense of justice, the respondent was anxious to rectify? Or do you behold the sullen perverseness of guilt, half ashamed to confess its offences, yet trembling at their consequences?--now soothing, now threatening its adversary--every characteristic of conscious crime? Sir, I blush for the picture which the gentleman has drawn of his client; and I ask you, Mr. President, if such a character is fit to preside in a court of justice?--a man whose violent temper and arbitrary disposition perpetually drives him into acts of tyranny and usurpation, from which, when vigorously opposed, he must disgracefully recede; equally ready to take an untenable position, or meanly to abandon it. To-day, haughty, violent, imperious; to-morrow, humble, penitent, and submissive; prostrating the dignity of his awful function at the feet of an advocate, over whom, but the day before, he had attempted to domineer. Is this a character to dispense law and justice to this nation? No, sir! It demands men of far different stamp--firm, indeed, but temperate; mild, though unyielding; neither a blustering bravo, nor a timid poltroon. I speak not of private character; with it I have nothing to do. It is the official conduct only that concerns me. I have no hesitation in saying that such men are not fit to preside in your judiciary; and that the greatest abilities, when joined to such tempers, serve but still more to disqualify their possessors.

I must here reiterate my regret at losing the argument of the gentleman who opened the defence. I understand him to have said, (speaking of Fries,) “Could that man be ‘innocent,’ who had been twice convicted of treason? Could he be ‘illiterate,’ who pretended to expound the constitution? Could he be ‘friendless,’ who had arrayed his numerous followers in opposition to the laws of his country?” Sir, this is a very pretty specimen of antithesis; but, unfortunately for itself, it proves too much, whilst, as to the question before the Court, it proves nothing. Does the gentleman believe the London mob, in 1780, to have been among the most influential men in England? or, because their discontents grew out of religion, that they were more deeply read in canon law than any other body of men in that kingdom? They far surpassed the Northampton rioters in depth and intricacy of research. They undertook to expound the Constitution of the Church of England. But, unfortunately for this gentleman, the guilt or innocence of his honorable client is in nowise affected by the guilt or innocence of this poor German and his comrades. The respondent stands charged with a departure from the principles of the constitution and the established forms of law, in conducting the trial which was to ascertain the guilt or innocence of John Fries. What has this to do with his character? How does that affect the question? Guilty or innocent, he was entitled to a fair and impartial trial, according to the known usage and forms of law; for, be it remembered in such cases, _form_ is _substance_. It is the denial of this sacred right, which the constitution equally secures to the most hardened offender as to persecuted virtue--this daring outrage on the free principles of our criminal jurisprudence, that constitutes the respondent’s crime. If Fries was innocent, what language can sufficiently reprobate the conduct of the judge? An innocent man, by his procurement, iniquitously consigned to an ignominious death. If guilty, he ought to have expiated his guilt upon a gibbet. But what was the fact? The President of the United States, in consequence of the arbitrary and unprecedented conduct of the Court, was, in a manner, _compelled_ to pardon him. The public mind would never have brooked the execution of any man thus tried and condemned. By the misdemeanor of the respondent, then, to rescue the administration of justice from the foulest imputation, to make some atonement for the offended majesty of the constitution, the Executive was reduced to the necessity of turning loose upon the country, again to sow the seeds of disaffection and revolt, a man represented by the adverse counsel to be every way desperate and daring--a traitor and a rebel. Upon what other principle, sir, can you account for the President’s application to the prisoner’s counsel, and his subsequent pardon? I repeat, Mr. President, that it is wholly immaterial to the question before you, whether John Fries was or was not a traitor. Either alternative is fatal to the respondent. He is charged with oppression and injustice on the trial, and you have not only the clearest testimony of the fact, but it is in proof before you that such was the President’s motive in issuing the pardon. He must have believed that the sentence was in itself unjust, (which serves but to aggravate the respondent’s guilt,) or he must have acted (as I am unwilling to concede he appears to have done) on the ground that, however deserving of punishment, the prisoner had been unfairly tried, and his condemnation illegally obtained. Whichsoever of these positions be _true_, the defence set up on behalf of the respondent is _false_. What have you seen? A man condemned to death, unheard, by a prejudiced jury and an unrighteous judge, thirsting for his blood; the Executive demanding to hear that defence, to which the Court would not listen, and extending the arm of its protection to snatch the victim from the oppressor’s grasp. And will you now turn this man loose upon society, armed with the terrors of the law and secure in impunity, to perpetrate similar offences?

But our opponents have not only resorted to the practice in civil cases, which here is totally inapplicable, but they have brought forward English precedents before the Revolution, and decisions of the court of _Star Chamber_! Precedents drawn from the worst periods of their history, from hard, unconstitutional times--decisions from the most flagitious tribunals, whose very name has passed into a proverb of corrupt, unfeeling tyranny. For an account of this Star Chamber I would refer you to John, Lord Somers, of whom it has been said, not with more elegance than justice, that, “like a chapel in a palace, he alone remained unpolluted, whilst all around was profanation and uproar.”

“We had a privy council in England (says this great constitutional lawyer) with great and mixed powers; _we suffered under it long and much_. All the rolls of Parliament are full of complaints and remedies; but none of them effectual till Charles the First’s time. _The Star Chamber was but a spawn of our council_, and was called so only because it sat in the usual council chamber. It was set up as a formal court in the third year of Henry VIII., _in very soft words_, ‘to punish great riots, to restrain offenders too big for ordinary justice; or, in modern phrase, to preserve the peace.’ ‘_But in a little time it made the nation tremble._ The privy council came at last _to make laws by proclamation, and the Star Chamber ruined those that would not obey_. At last they fell together.’” (Hatsell’s Precedents, vol. 4, page 65, Note.) Is this the court whose adjudications are to justify the decisions of an American tribunal in the nineteenth century? And in a case of _treason_, too? Is this vile and detestable tribunal (whose decisions, even in England, are scarce suffered to be drawn into precedent) to furnish rules of conduct for the courts of this great confederate Republic? Yes, sir, you have not only been obliged to listen to Star Chamber doctrines, but you have been referred to one most arbitrary magistrate to justify the oppressions of another. I allude to Chief Justice Keelyng. Who he was may be seen in the same volume of Hatsell, page 113.

“On the 16th of October, 1667, the House being informed, ‘that there have been some innovations of late in trials of men for their lives and deaths;’ [the very offences charged upon the respondent;] ‘and in some particular cases restraints have been put upon juries, in the inquiries’--this matter is referred to a committee. On the 18th of November, this committee are empowered to receive information against the Lord Chief Justice Keelyng, for any other misdemeanors besides those concerning juries. And on the 11th of December, 1667, this committee report several resolutions against the Lord Chief Justice Keelyng, of illegal and arbitrary proceedings in his office.” The first of these resolutions is: “That the proceedings of the Lord Chief Justice, in the cases now reported are innovations in the trial of men for their lives and liberties: and that he hath used an arbitrary and illegal power, which is of dangerous consequence to the lives and liberties of the people of England, and tends to the introducing of an arbitrary government.” The respondent’s own case. The second resolution is, “that in the place of judicature”--[how does this bear upon the eighth article?] “the Lord Chief Justice hath undervalued, vilified, and contemned Magna Charta, the great preserver of our lives, freedom, and property.” And the authority of this infamous judge, the minion of Charles II.,--of judges in the most corrupt period of English history, from the restoration of that king to the revolution, is relied upon by his counsel to absolve the respondent from guilt. Permit me to do their client more justice. I do believe that the man who is held up here as a revolutionary patriot, of 1776, although in a moment of human infirmity he hath imitated their crimes, would blush to be justified by their example. For his sake I rejoice in that visitation of God which hath saved him this last degradation: from seeing his defence rested upon the authority of those infamous times, and yet more infamous men, with whom, with all his weakness and all his infirmities upon him, he would yet (I am persuaded) disdain a comparison. Yes, I do feel relieved that he hath been spared the disgraceful spectacle of beholding himself defended by his friends on principles more unjust and iniquitous, if possible, than have ever been imputed to him by his enemies: that he hath not been reduced to see those very decisions, prior to the revolution, cited in his defence, which he himself denied to a fellow-creature put in jeopardy of life! The benefit of these decisions (it seems) can be taken only by the powerful oppressor--they offer no shelter to his victim. I thank God, sir, that I have indeed studied at the feet of far different Gamaliels from the honorable Attorney-General of Maryland, or those by whom, it would appear, he has been brought up; that I have drawn my notions of justice and constitutional law from a far different source--not from the tribunals of Harry VIII., nor the tools and parasites of the house of Stuart, but from the principles, the history, and the lives of those illustrious patriots and their disciples, who brought the Star Chamber to ruin, and its abettors to the block.

But I cannot consider the able Attorney-General of Maryland quite sincere in the doctrine which he has advanced. He shines indeed a luminary in this defence. Mr. President, there is an obliquity in human nature that too often disposes us rather to applaud the brilliant, though pernicious ingenuity that can “make the worse appear the better reason,” than the humble but useful efforts of a mind engaged in an honest search after truth. There is something fascinating in such a display of the powers of the human mind. The vanity of the whole species soothes itself with the excellence of an individual. We yield to the illusions of self-love--“_we_ lay the flattering unction to our souls”--and are cheated and abused. It is under this perverse bias of our nature that I render to the honorable Attorney-General of Maryland the willing tribute of my admiration. But, he will pardon me, I cannot suppose him serious. I will not do him the injustice to believe that to a noble motive, to long habits of political and social intercourse, a friendship of thirty years’ standing, he has refused what he himself tells you is done, every day, nay in nine hundred and ninety-nine cases in a thousand, by persons of his profession, for a mercenary consideration. What has he said? “That, in defence of their clients, lawyers are in the daily habit of laying down as law what they know not to be law.” Mr. President, when I see a man of his unrivalled resources reduced to the miserable shift of Star Chamber doctrines and precedents before the revolution--and, conscious, no doubt, of the actual weakness of his defence, calling to his aid all the force of wit, ingenuity, repartee, pleasantry, and good humor, what inference must I draw? and what must be the conclusion of this honorable Court?

On the subject of Mr. Taylor’s testimony, its rejection is attempted to be defended by a solitary precedent, _in a civil case_, drawn from a reporter, who, I am informed by gentlemen of the first professional character, is far from being considered as very good authority. I mean McNally. In support of this article I might urge as well the admissions of the honorable Attorney-General of Maryland, as the universal practice of our courts. What said Mr. Robertson--and what said the Chief Justice of the United States, on whose evidence I specially rely? He never knew such a case occur before. He never heard a similar objection advanced by any court, until that instance. And this is the cautious and guarded language of a man placed in the delicate situation of being compelled to give testimony against a brother judge. What more could you expect from a person thus circumstanced? What does it prove but that the respondent was the first man to raise, to invent such an objection to a witness? Can any one doubt Mr. Marshall’s thorough acquaintance with our laws? Can it be pretended that any man is better versed in their theory or practice? And yet in all his extensive reading, in his long and extensive practice, in the many trials of which he has been spectator, and the yet greater number at which he has assisted, he had never witnessed such a case. It was reserved for the respondent to exhibit, for the first, and I trust, for the last time, this fatal novelty, this new and horrible doctrine that threatens at one blow all that is valuable in our criminal jurisprudence.

Against the fourth article the Attorney-General of Maryland hath adduced a similar and doubtful authority, in defence of his client. And here again I bottom myself upon the testimony of the same great man, yet more illustrious for his abilities than for the high station that he fills, eminent as it is. He declares that he has never known a similar requisition made by any court; that where the propriety of questions verbally propounded, has been denied, or for the sake of precision, (where they were intricate,) they have been reduced to writing, at the request or order of the Court; but in the first instance, and before they had been stated verbally, _never_, within the compass of his experience. And what inference can any candid, unprejudiced mind draw from these repeated, and, until then, unprecedented acts of interference by the judge, on behalf of the prosecution, but that, instead of an umpire, he was a partisan?

With regard to his deportment toward the counsel, I shall call the attention of the Court not to the statement made by themselves--because I question it in the slightest degree? God forbid--I know those able and honorable men too well--but because I would deprive our opponents of their almost sole argument--the personal irritation which they allege those witnesses must have felt. Waiving then any remarks on their testimony, powerful as it is, I again ask you, what said the Chief Justice? And, if I may say so, _what did he look_? He felt all the delicacy of his situation, and as he could not approve, he declined giving any opinion on the demeanor of his associate. What does Mr. Robertson say? In substance, every thing that has been deposed by other witnesses: “That the judge always spoke in the first person singular.” And here I will remark, that the short hand report which this gentleman made of the trial, and which he has given in evidence, was published, in the first instance, as a defence of Mr. Chase against alleged misrepresentations of his conduct on that occasion. It cannot be considered, therefore, as an _un_favorable view of the transaction, at least so far as the respondent is concerned. What says Mr. Gooch? That the judge was very ‘_yearnest_’ with the counsel; that they were much abashed; that he set them down; that they appeared alternately red and pale; that he exhibited their confusion to the mirth of all the bystanders: and Colonel Taylor tells you, “that the conduct of the judge had the full effect it seemed intended to produce--to abash the counsel for the prisoner, and turn them into ridicule, for that every body laughed but themselves.”

But the ingenious Attorney-General of Maryland, whose fruitful invention is never without resource, has endeavored to persuade you, that this conduct was not merely justifiable, but even meritorious. That the design of the counsel was to irritate and inflame the people; and the respondent, dreading a riot, had no object but to keep the audience in a good humor; and that, by a seasonable exertion of his acknowledged wit and pleasantry, he completely succeeded in turning their weapons upon themselves, and totally defeated their purpose. This apology reflects credit on the inventive faculty of him who makes it, and yet what is it but an admission of the charge? Look to the evidence. You will see nothing to support the twist which has been attempted to be given to it--no apprehension of disorder and confusion but what grew out of the insufferable tyranny and insolence of the judge. Where was the respondent at this time? In some obscure corner of the Union--some remote district notorious for disaffection, infamous for its spirit of insurrection, far removed from the protection of State or Federal authority? No, sir, he was in the enlightened capital of Virginia, a country never disgraced by rebellion--unless the epithet be applied by some squeamish politician to our glorious revolutionary struggle--a State whose soil has never been stained by insubordination to law. No, sir, he was sitting within a stone’s throw of the residence of the Governor of Virginia, a man of whom I shall say nothing. Let the exalted stations he has more than filled, the high public trusts on which he has seemed rather to confer honor than receive it, his unshaken constancy in the worst of times, the dismay and confusion of his enemies, whose vain aspersions have passed him like the idle wind--let the confidence of a united people speak his eulogium. The respondent was sitting within musket-shot of a cantonment of Federal troops. Why were these troops placed there at that time, and why were they kept there for some time afterwards, belongs not to my present purpose. It is enough to say that they were a part of our famous provisional army--“_fruges consumere nati_”--to ascertain their readiness to protect, in any outrage on the law or constitution, (then practised, or meditated,) the government that maintained them in dissolute idleness. Governor Monroe was more interested in the respondent’s safety than he himself appears to have been. He trembled lest the indignation of the people should get the better of their good sense, and hurry them into some act of violence, that would cast an odium on the State, and afford matter of triumph to her enemies. That the respondent’s object was to goad her citizens to some outrage, which might justify the humiliation that was preparing for her, there is too much reason to believe, and that he would have succeeded, but for the intervention and influence of that excellent man, and the persuasions of the counsel themselves, whom the Attorney-General of Maryland would represent as endeavoring to excite public commotion, that he may find some shelter for the enormities of his client.

But our doctrine, it is said, goes to prostrate the rights of the accused--where?--at the feet of juries. There may they for ever lie, but never at the foot of a judge. The gentleman from South Carolina (I beg his pardon) deprecates the placing of criminal law solely in the power of juries. He would not have the life of a man depend on their decision of a point of law. But it is the glorious attribute of jury trial, that the question of guilty or not guilty, involving both law and fact, _that_ law as well as _that_ fact the jury alone is competent to determine. It is the necessary consequence of the general verdict which they are required to find. The very able and learned Attorney-General of Maryland indeed says that this is an incidental _power_, rather than a _right_ of the jury. But, sir, what is that power which no man may question, but a right? For, whether incidental or direct, the exercise of it is final and complete, if in favor of the accused; and the power of the Court to award him a new trial is further protection to the prisoner against abuse. There is no specific power given, in so many words, by the constitution, to Congress, to punish robberies of the mail; but it is incidental to the right of establishing post offices and post roads, and necessary to carry the specified power into effect. This curious distinction between “_right_ and _power_, _direct_ and _incidental_,” is an _ignis fatuus_ of the learned gentleman’s composition to bewilder and mislead us from our object, that we may be lost and led astray over a wide moor of absurdities. The right of the jury is not the less, whether immediate, or derivative; as Congress possess the power to pass all laws necessary to carry any delegated power into effect, in like manner juries possess every power necessary to the general verdict which they have a right to give. The violation on the part of the judge of the incidental power, as much subjects him to punishment, as if he had invaded the original right over the fact, to which it is appendant. What would he say to a robber of the mail claiming impunity because the power to make the offence penal was incidental, and not specified in the constitution? But, say gentlemen, we admit the _power_ in the jury, we only deny the _right_: and in this tissue of self-contradictions they declare, that whilst a jury is bound by the exposition of the law, as laid down by the Court, yet they have not the right to determine whether the facts come within the law. Can there be a greater absurdity?

“Whilst the jury have no right to decide the law, they must decide whether the facts come within the law!” If the jury is tied down by the Court’s construction of the law, is it not plain that _they_ do _not_ decide whether the fact is, or is not, embraced by the law? but that whilst they find naked fact, it is the _Court_ that decides whether that fact does, or does not, come within the law? Gracious God! is it come to this? Are the great principles for which our forefathers contended, and many of yourselves have bled, now to be frittered away by technical sophistry? Is the same doctrine to be established here in capital offences--in cases of treason--that Lord Mansfield attempted to impose on the people of England as the law of libel, and which they would not endure? Shall principles of criminal law which they have scouted, even in cases not capital, be established here for the decision of capital offences? that whilst the jury finds the facts, their application to the law shall depend solely on the will of the Court? I deny the gentleman’s law; and assert that, as an American citizen, I would refuse to be bound by it. A man is charged with having committed certain treasonable acts. The constitution has defined treason to consist “in levying war against the United States, or in adhering to their enemies, giving them aid and comfort.” But the Court, assuming to themselves a more than Papal infallibility--the exclusive exposition and construction of the constitution--tell me, as a juror, to surrender into their hands my conscience and my understanding; that, as a levying of war is treason, so is the picking up of a pin a levying of war; that I, an unlearned layman, must not presume to expound the holy scripture of the constitution, but must leave that to the elect; and, if the fact of his having picked up the pin be proved to my satisfaction, I am bound to find the prisoner guilty of levying war against his country--to convict him of treason. Sir, the parallel runs on all-fours; for there is nothing to uphold this monstrous judicial assumption, but that which supported the pretensions of the Roman Pontiff--the willing obedience of ignorant superstition. If the jury is contumacious, if, whilst they confess their entire conviction of the truth of the fact charged in the indictment, they deny the legal doctrine and acquit the prisoner, the Court is without redress. They may bully and look big--there is no help. Put the case of murder. A killing with malice aforethought is charged upon the prisoner--there is no dispute about facts--it is admitted that the party arraigned did kill the deceased. Shall I, a juror, contenting myself with deciding a fact that nobody disputes, surrender to the Court the question of law, should they attempt to usurp it, (as that killing with a particular weapon is a killing with malice prepense,) and find a man guilty of murder whom I believe to have acted in self-defence?--in defence of life, or, what is dearer than life, of reputation? No, sir; I will not find him guilty, although all the courts in the universe should instruct me to do so. I will look to the great precept, “do as you would be done by,” and say, “I would have done so too, and, therefore, I will not say, that man ought not so to have done.” And what is there, sir, in the words, “_levying of war_” more unintelligible than in the words, “_malice prepense_?” The first, being altogether a matter of fact, would appear more exclusively the province of the jury than the last, which rather partakes of a question of opinion. If you leave the law in criminal cases to the jury, (as well as the fact,) you are safe; but if your decision should sanction the opposite doctrine, you set all our liberties, fixed by the decisions of ages, afloat on an ocean of uncertainty and contention. We have no beacon, no compass, no polar star to direct our course. If you suffer the rights of a jury to be thus invaded on a criminal trial--on a trial for life and death--you bind us in conclusions more fatal than those of the Church of Rome. You force us one moment to say whether such a fact amounts to such a crime, and, the next, you will not permit us to know what the crime is. I hope the marshal will never summon me on such a jury. I give him warning; I will never surrender the constitution, my understanding, and my oath to the “_grim gribber_” of a court of law. I should consider myself as much entitled to decide the law for the judge in a civil case, as bound by his decision of it in a criminal one. Vain and futile is the attempt of the constitution to settle and define treason, if that definition is to mean any thing or nothing at the option of a corrupt judge. If this doctrine, sir, be denied by any member of this honorable Court, let him, in his legislative capacity, move for a bill “to render juries more obedient to the judges, and _especially in criminal cases_.” Until that is done, I shall refuse obedience to their dictates, and act as a juror upon the principles which I have avowed.

Mr. President, much as I regret the trespass that I have already committed on your patience, I must (painful as it may be to you, and it is not less so to myself) attempt something like a review of the conduct of this judge. In May, 1800, you find him in Philadelphia, engaged in propagating and establishing the detestable doctrine of constructive and implied treason, which, in England, has proved the dreadful engine of persecution and murder. From thence you trace him to Annapolis; (not by the blood of John Fries--no thanks, however, to him for that;) you hear his declaration in presence of Mr. Mason. But this, his counsel tell you, was all a joke, nothing but humor, sir; like his conduct at Richmond. If you listen to them, you must become a Pythagorean, and believe that the soul of Yorick himself has transmigrated into the body of this judge. It is true he could not be the king’s jester, because, _unfortunately_, we have no king, we have not yet reached that stage of civilization; but, sir, he is the jester of the sovereign people, a jester at your laws and constitution, and it is for you to say whether he shall continue to exercise his function. This jocular conversation is likely to prove a bitter and biting jest to the respondent. So serious did that most intelligent and respectable witness deem it to be, that he locked it up in his own bosom, without venturing to mention it to any human being. He did not consider himself authorized to play with the fame of the respondent, however disposed _he_ might be to sport with the feelings and rights of others. This merry fit lasted a long time. He indulges the same humor in the stage with Mr. Triplett, an entire stranger; and here let me observe, in justice to this gentleman, that never did any man deliver a more clear and unimpeachable testimony in a court of justice than this witness. It is conclusive. When the judge made personal declarations against Callender, could he be said to administer justice without respect to persons? But, sir, one of our adversaries (Mr. Harper) protests against this sort of evidence, and deems it highly inadmissible. Why? Because, forsooth, it violates the sanctity of private conversation, and wounds the feelings of gentlemen who may be called on as witnesses. Thank God! sir, we live in a country where the law is open to all, and knows no distinction between _gentlemen_ and _simple-men_. No man, I trust, has a greater respect for the real gentleman than myself. When Francis I., the accomplished monarch of the most gallant people of Europe, deemed it his first distinction to be ranked as the first gentleman of his kingdom, he did not hold that sacred character in higher reverence than I do. But the respondent himself has told you that a court of justice is a coarse sort of thing, blind to these nice discriminations; that the polished address of a Chesterfield, and the rugged scowl of a Thurlow, in the eye of the law are equal. Suppose a person killed, will not the Court hear evidence of a previous declaration by the prisoner, of ill-will to the deceased, as “that he would be the death of him,” &c.? or, will they stop to ask whether it was uttered in a tippling-house, or a drawing-room; by a ruffian in rags, or in ermine? and yet we are accused of lying in wait for the respondent, of watching his unguarded and convivial hours, of wounding the nerve of social intercourse to the quick. We are ministers of justice, and as such, we know nothing of these delicate distresses, equally unknown to our forefathers, to the framers of our free and manly institutions. Their composition was of sterner stuff than this modern, flimsy, fashionable ware. To their robust constitutions and strong common-sense, these qualmish megrims, these sickly sensibilities of modern refinement were happily unknown.

Follow the respondent, then, with the steady and untired step of justice, from Philadelphia to Annapolis, from Annapolis to Richmond, and back again to Newcastle. You see a succession of crimes each treading on the heel, galling the kibe of the other--so connected in time, and place, and circumstance, and so illustrated by his own confessions, as to leave no shadow of doubt as to his guilt. You are to take the facts, not, as his counsel would have you, isolated and dismembered, but embodied; a series of acts indissolubly linked together, each supporting, each animated by the vital principle of guilt that pervades and gives life to the whole. God hath joined them; no man shall or can put them asunder. Carry your mind back to the state of things in 1800; then advert to the testimony in the case of Fries. Lewis, Dallas, Tilghman, and _even Rawle_, declaring that they had never witnessed such a proceeding before; pronouncing the conduct of the judge, on that occasion, to be altogether novel in the annals of our criminal jurisprudence. The same spirit pervades his whole career. But you are warned by the counsel (Mr. Harper) not to tarnish the laurels of your political victory by an unmanly triumph over a fallen adversary. He implores the tribute of a sigh for the mournful yew and funeral cypress that bedecks the hearse of his political reputation. Dreading the decision of your judgment, your sympathies are enlisted for his client. An aged patriot, whose head is whitened with the hoar of threescore and ten years, is presented to your afflicted imaginations: broken with disease, compelled to employ his few and short intervals from pain and sickness, to spend the last moments of a life devoted to a thankless country’s service, in defending himself against a criminal prosecution. Do we thirst for his blood? yet, even there, English authorities would bear us out. Do we seek to lead him to Tower Hill? If his heart will fly in his face, is it we who cast it there? Do we even ask his disfranchisement? No, sir, we only demand the removal of a man, whom the very suspicion of such crimes unfits for the high station which he fills. A man bent with age and infirmity, struggling with misfortune, is a venerable object, entitled to your sympathy, even although he were not a patriot. Mine shall never be denied to such a character. But, sir, mark the difference between Samuel Chase, powerful and protected, and John Fries, feeble and oppressed. Look at the one lodged in a sumptuous hotel, partaking of the best cheer, surrounded and supported by every comfort of life, by a large and respectable circle of friends, indulged with ample time for his defence, assisted by counsel second to none in the land, unrestricted in the conduct of their cause. When I give a man so situated my sympathy, it is not of so jejune a cast as to refuse itself to the victim of his injustice--a hardy yeoman wrestling with indigence and persecution--selling his last bit of property to support a long imprisonment and meet the expenses of this very prosecution; a soldier of the Revolution, with whom the words “stamp act” and “window tax” were synonymous with slavery; who, in a moment of political delirium, perhaps of intoxication, had instinctively raised his hand against what he deemed an oppressive tax--immured in a dungeon, listening only to the clanking of fetters; snatched from the bosom of his family, to whom no doubt he was a kind parent and an affectionate husband--for be it remembered he was popular and beloved among his neighbors--this man, caught in the trap of judicial and constructive treason, at which common sense revolts, laid by the heels, trembling at the charge, ignorant of the extent of the law, without a friend to comfort and console him, no counsel in his defence; such a man, so situated, is as much entitled to my sympathy as any king that ever wore a crown, and he shall have it; he shall have more, he shall have justice from this honorable Court. Yes, sir, to my shame I confess, that my sympathy is not of this exclusive sort. It is not scared by the homely garb of poverty and wretchedness. It can feel for misfortune, even if it be not sumptuously arrayed.

We are asked to assign any rational motive for the conduct imputed to the respondent. His object might have been to court the Administration which he upheld and supported, to recommend himself to the President of the United States, to obtain the Chief Justiceship. Those who are anxious to attract the notice and favor of the powers that be, are not apt to put their light under a bushel. The fulsomeness of sycophants, who always overact their part, is proverbial. Sir, he might be aspiring to the Presidency itself, and anxious to engage the favor of the leaders of his party. Let it be remembered, the triumph of that day was complete, and the reckoning of this day too remote from probability to be taken into the account. Here, sir, you have a key to his whole conduct. It becomes you, then, Mr. President and gentlemen of the Senate, to determine whether a man whose whole judicial life hath been marked by habitual outrage upon decorum and duty, too inveterate to give the least hope of reformation, interwoven and incorporated with his very nature, shall be arrested in his career, or again let loose upon society, to prey upon the property, liberty, and life of those who will not rally around his political standard. We have performed our duty; we have bound the criminal and dragged him to your altar. The nation expects from you that award which the evidence and the law requires. It remains for you to say whether he shall again become the scourge of an exasperated people, or whether he shall stand as a landmark and a beacon to the present generation, and a warning to the future, that no talents, however great, no age, however venerable, no character, however sacred, no connections, however influential, shall save that man from the justice of his country, who prostitutes the best gifts of nature and of God, and the power with which he is invested for the general good, to the low purposes of an electioneering partisan. We adjure you, on behalf of the House of Representatives and of all the people of the United States, to exorcise from our courts the baleful spirit of party, to give an awful memento to our judges. In the name of the nation, I demand at your hands the award of justice and of law.

FRIDAY, March 1.

The Court being opened by proclamation, the Managers, accompanied by the House of Representatives, attended.

The counsel for the respondent also attended.

The consideration of the motion, made yesterday for an alteration of one of the rules in cases of impeachments, was resumed: Whereupon,

_Resolved_, That in taking the judgment of the Senate upon the articles of impeachment now depending against Samuel Chase, Esq., the President of the Senate shall call on each member by his name, and upon each article, propose the following question, in the manner following: “Mr. ----, how say you; is the respondent, Samuel Chase, guilty or not guilty of a high crime or misdemeanor, as charged in the ---- article of impeachment?”

Whereupon, each member shall rise in his place, and answer guilty or not guilty.

The PRESIDENT rose, and addressing himself to the members of the Court, said:

Gentlemen: You have heard the evidence and arguments adduced on the trial of Samuel Chase, impeached for high crimes and misdemeanors: you will now proceed to pronounce distinctly your judgment on each article.

The Secretary then read the first article of impeachment, as follows:

ARTICLE 1. That, unmindful of the solemn duties of his office, and contrary to the sacred obligation by which he stood bound to discharge them “faithfully and impartially, and without respect to persons,” the said Samuel Chase, on the trial of John Fries, charged with treason, before the circuit court of the United States, held for the district of Pennsylvania, in the city of Philadelphia, during the months of April and May, one thousand eight hundred, whereat the said Samuel Chase presided, did, in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust, viz:

1. In delivering 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 case of the said John Fries, the prisoner, before counsel had been heard in his defence:

2. In restricting the counsel for the said Fries from recurring to such English authorities as they believed apposite, or from citing certain statutes of the United States, which they deemed illustrative of the positions upon which they intended to rest the defence of their client:

3. In debarring the prisoner from his constitutional privilege of addressing the jury (through his counsel) on the law, as well as on the fact, which was to determine his guilt, or innocence, and at the same time endeavoring to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict which they were required to give:

In consequence of this irregular conduct of the said Samuel Chase, as dangerous to our liberties as it is novel to our laws and usages, the said John Fries was deprived of the right, secured to him by the eighth article amendatory of the constitution, and was condemned to death without having been heard, by counsel, in his defence, to the disgrace of the character of the American bench, in manifest violation of law and justice, and in open contempt of the rights of juries, on which ultimately rest the liberty and safety of the American people.

When the PRESIDENT took the opinion of the members of the Court respectively, in the form following:

“Mr. ----, how say you; is the respondent, Samuel Chase, guilty or not guilty of a high crime or misdemeanor, as charged in the first article of impeachment?”

Those who pronounced guilty, are:

Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Condit, Ellery, Franklin, Howland, Logan, Maclay, Moore, Stone, Sumter, Worthington, and Wright--16.

Those who pronounced not guilty, are:

Messrs. Adams, Bayard, Bradley, Dayton, Gaillard, Giles, Hillhouse, Jackson, Mitchill, Olcott, Pickering, Plumer, Smith of Maryland, Smith of New York, Smith of Ohio, Smith of Vermont, Tracy, White--18.

The second article was read by the Secretary, as follows:

ART. 2. That, prompted by a similar spirit of persecution and injustice, at a circuit court of the United States, held at Richmond, in the month of May, one thousand eight hundred, for the district of Virginia, whereat the said Samuel Chase presided, and before which a certain James Thompson Callender was arraigned for a libel on John Adams, then President of the United States, the said Samuel Chase, with intent to oppress and procure the conviction of the said Callender, did overrule the objection of John Basset, one of the jury, who wished to be excused from serving on the said trial because he had made up his mind as to the publication from which the words charged to be libellous in the indictment were extracted; and the said Basset was accordingly sworn and did serve on the said jury, by whose verdict the prisoner was subsequently convicted.

Those who pronounced guilty on this article, are:

Messrs. Anderson, Breckenridge, Cocke, Condit, Ellery, Giles, Howland, Maclay, Moore, and Sumter--10.

Those who pronounced not guilty, are:

Messrs. Adams, Baldwin, Bayard, Bradley, Brown, Dayton, Franklin, Gaillard, Hillhouse, Jackson, Logan, Mitchill, Olcott, Pickering, Plumer, Smith of Maryland, Smith of New York, Smith of Ohio, Smith of Vermont, Stone, Tracy, White, Worthington, and Wright--24.

The third article was read by the Secretary, as follows:

ART. 3. That, with intent to oppress and procure the conviction of the prisoner, the evidence of John Taylor, a material witness on behalf of the aforesaid Callender, was not permitted by the said Samuel Chase to be given in, on pretence that the said witness could not prove the truth of the whole of one of the charges contained in the indictment, although the said charge embraced more than one fact.

Those who pronounced guilty on this article, are:

Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Condit, Ellery, Franklin, Giles, Howland, Jackson, Logan, Maclay, Moore, Smith of Maryland, Sumter, Worthington, and Wright--18.

Those who pronounced not guilty, are:

Messrs. Adams, Bayard, Bradley, Dayton, Gaillard, Hillhouse, Mitchill, Olcott, Pickering, Plumer, Smith of New York, Smith of Ohio, Smith of Vermont, Stone, Tracy, and White--16.

The fourth article was read by the Secretary, as follows:

ART. 4. That the conduct of the said Samuel Chase was marked, during the whole course of the said trial, by manifest injustice, partiality, and intemperance; viz:

1. In compelling the prisoner’s counsel to reduce to writing, and submit to the inspection of the Court, for their admission or rejection, all questions which the said counsel meant to propound to the above-named John Taylor, the witness:

2. In refusing to postpone the trial, although an affidavit was regularly filed, stating the absence of material witnesses on behalf of the accused; and although it was manifest, that, with the utmost diligence, the attendance of such witnesses could not have been procured at that term:

3. In the use of unusual, rude, and contemptuous expressions towards the prisoner’s counsel; and in falsely insinuating that they wished to excite the public fears and indignation, and to produce that insubordination to law to which the conduct of the judge did, at the same time, manifestly tend:

4. In repeated and vexatious interruptions of the said counsel, on the part of the said judge, which at length induced them to abandon their cause and their client, who was thereupon convicted and condemned to fine and imprisonment:

5. 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.

Those who pronounced guilty on this article, are:

Messrs. Anderson, Breckenridge, Brown, Cocke, Condit, Ellery, Franklin, Giles, Howland, Jackson, Logan, Maclay, Moore, Smith of Maryland, Stone, Sumter, Worthington, and Wright--18.

Those who pronounced not guilty, are:

Messrs. Adams, Baldwin, Bayard, Bradley, Dayton, Gaillard, Hillhouse, Mitchill, Olcott, Pickering, Plumer, Smith of New York, Smith of Ohio, Smith of Vermont, Tracy, and White--16.

The fifth article was read by the Secretary, as follows:

ART. 5. And whereas it is provided by the act of Congress, passed on the 24th day of September, 1789, entitled “An act to establish the judicial courts of the United States,” that for any crime or offence against the United States, the offender may be arrested, imprisoned, or bailed, agreeably to the usual mode of process in the State, where such offender may be found: and whereas it is provided by the laws of Virginia, that upon presentment by any grand jury of an offence not capital, the Court shall order the clerk to issue a summons against the person or persons offending, to appear and answer such presentment at the next court; yet the said Samuel Chase did, at the court aforesaid, award a capias against the body of the said James Thompson Callender, indicted for an offence not capital, whereupon the said Callender was arrested and committed to close custody, contrary to law in that case made and provided.

All the members pronounced not guilty on this article.

The sixth article was read by the Secretary, as follows:

ART. 6. And whereas it is provided by the 34th section of the aforesaid act, entitled “An act to establish the judicial courts of the United States,” that the laws of the several States, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as the rules of decision in trials at common law, in the courts of the United States, in cases where they apply; and whereas by the laws of Virginia it is provided, that in cases not capital, the offender shall not be held to answer any presentment of a grand jury until the court next succeeding that during which such presentment shall have been made, yet the said Samuel Chase, with intent to oppress and procure the conviction of the said James Thompson Callender, did, at the court aforesaid, rule and adjudge the said Callender to trial during the term at which he, the said Callender, was presented and indicted, contrary to law in that case made and provided.

Those who pronounced guilty on this article, are:

Messrs. Breckenridge, Cocke, Howland, and Maclay--4.

Those who pronounced not guilty, are:

Messrs. Adams, Anderson, Baldwin, Bayard, Bradley, Brown, Condit, Dayton, Ellery, Franklin, Gaillard, Giles, Hillhouse, Jackson, Logan, Mitchill, Moore, Olcott, Pickering, Plumer, Smith of Maryland, Smith of New York, Smith of Ohio, Smith of Vermont, Stone, Sumter, Tracy, White, Worthington, and Wright--30.

The seventh article was read by the Secretary, as follows:

ART. 7. That at a circuit court of the United States, for the district of Delaware, held at Newcastle, in the month of June, one thousand eight hundred, whereat the said Samuel Chase presided--the said Samuel Chase, disregarding the duties of his office, did descend from the dignity of a judge and stoop to the level of an informer, by refusing to discharge the grand jury, although entreated by several of the said jury so to do, and after the said grand jury had regularly declared, through their foreman, that they had found no bills of indictment, nor had any presentments to make, by observing to the said grand jury, that he, the said Samuel Chase, understood “that a highly seditious temper had manifested itself in the State of Delaware, among a certain class of people,

## particularly in Newcastle county, and more especially in the

town of Wilmington, where lived a most seditious printer, unrestrained by any principle of virtue, and regardless of social order--that the name of this printer was”--but checking himself, as if sensible of the indecorum which he was committing, added, “that it might be assuming too much to mention the name of this person, but it becomes your duty, gentlemen, to inquire diligently into this matter,” and that with intention to procure the prosecution of the printer in question, the said Samuel Chase did, moreover, authoritatively enjoin on the District Attorney of the United States the necessity of procuring a file of the papers to which he alluded, (and which were understood to be those published under the title of “Mirror of the Times and General Advertiser,”) and by a strict examination of them to find some passage which might furnish the groundwork of a prosecution against the printer of the said paper; thereby degrading his high judicial functions, and tending to impair the public confidence in, and respect for, the tribunals of justice, so essential to the general welfare.

Those who pronounced guilty on this article, are:

Messrs. Breckenridge, Cocke, Franklin, Howland, Jackson, Maclay, Smith of Maryland, Stone, Sumter, and Wright--10.

Those who pronounced not guilty, are:

Messrs. Adams, Anderson, Baldwin, Bayard, Bradley, Brown, Condit, Dayton, Ellery, Gaillard, Giles, Hillhouse, Logan, Mitchill, Moore, Olcott, Pickering, Plumer, Smith of New York, Smith of Ohio, Smith of Vermont, Tracy, White, and Worthington--24.

The eighth article was read by the Secretary as follows:

ART. 8. And whereas mutual respect and confidence between the Government of the United States and those of the individual States, and between the people and those Governments, respectively, are highly conducive to that public harmony, without which there can be no public happiness, yet the said Samuel Chase, disregarding the duties and dignity of his judicial character, did, at a circuit court, for the district of Maryland, held at Baltimore, in the month of May, one thousand eight hundred and three, pervert his official right and duty to address the grand jury then and there assembled, on the matters coming within the province of the said jury, for the purpose of delivering to the said grand jury an intemperate and inflammatory political harangue, with intent to excite the fears and resentment of the said grand jury, and of the good people of Maryland, against their State government and constitution--a conduct highly censurable in any, but peculiarly indecent and unbecoming in a judge of the Supreme Court of the United States; and, moreover, that the said Samuel Chase, then and there, under pretence of exercising his judicial right to address the said grand jury, as aforesaid, did, in a manner highly unwarrantable, endeavor to excite the odium of the said grand jury, and of the good people of Maryland, against the Government of the United States, by delivering opinions, which, even if the judicial authority were competent to their expression, on a suitable occasion and in a proper manner, were at that time, and as delivered by him, highly indecent, extra-judicial, and tending to prostrate the high judicial character with which he was invested, to the low purpose of an electioneering partisan.

Those who pronounced guilty on this article, are:

Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Condit, Ellery, Franklin, Giles, Howland, Jackson, Logan, Maclay, Moore, Smith of Maryland, Stone, Sumter, Worthington, and Wright--19.

Those who pronounced not guilty, are:

Messrs. Adams, Bayard, Bradley, Dayton, Gaillard, Hillhouse, Mitchill, Olcott, Pickering, Plumer, Smith of New York, Smith of Ohio, Smith of Vermont, Tracy, and White--15.

The PRESIDENT rose and said, on the first article, sixteen gentlemen have pronounced guilty, and eighteen not guilty; on the second article, ten have said guilty, and twenty-four not guilty; on the third article, eighteen have said guilty, and sixteen not guilty; on the fourth article, eighteen have said guilty, and sixteen not guilty; on the fifth article, there is a unanimous vote of not guilty; on the sixth article, four have said guilty, and thirty not guilty; on the seventh article, ten have said guilty, and twenty-four not guilty; and on the eighth article, nineteen have said guilty, and fifteen not guilty.

Hence, it appears that there is not a constitutional majority of votes finding Samuel Chase, Esq., guilty, on any one article. It, therefore, becomes my duty to declare that Samuel Chase, Esq., stands acquitted of all the articles exhibited by the House of Representatives against him.

Whereupon the Court adjourned without day.

EIGHTH CONGRESS--SECOND SESSION.

PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES.

MONDAY, November 5, 1804

This being the day appointed by law for the meeting of the present Session, the following members of the House of Representatives appeared and took their seats, to wit:

_From New Hampshire_--Silas Betton, Clifton Claggett, David Hough, and Samuel Tenney.

_From Massachusetts_--Jacob Crowninshield, Thomas Dwight, Nahum Mitchell, Ebenezer Seaver, William Stedman, Joseph B. Varnum, and Lemuel Williams.

_From Rhode Island_--Nehemiah Knight and Joseph Stanton.

_From Connecticut_--John Davenport and John Cotton Smith.

_From Vermont_--William Chamberlin, Martin Chittenden, James Elliot, and Gideon Olin.

_From New York_--Gaylord Griswold, Josiah Hasbrouck, Henry W. Livingston, Andrew McCord, Samuel L. Mitchill, Beriah Palmer, Erastus Root, Thomas Sammons, David Thomas, Philip Van Cortlandt, Killian K. Van Rensselaer, and Daniel C. Verplanck.

_From New Jersey_--Adam Boyd, Ebenezer Elmer, James Sloan, and Henry Southard.

_From Pennsylvania_--Isaac Anderson, David Bard, Joseph Clay, Frederick Conrad, William Findlay, Joseph Heister, Michael Leib, John Rea, Jacob Richards, John Smilie, John Stewart, and John Whitehill.

_From Maryland_--John Archer, Wm. McCreery, Nicholas R. Moore, and Thomas Plater.

_From Virginia_--Thomas Claiborne, John Dawson, John W. Eppes, Thomas Griffin, David Holmes, John G. Jackson, Joseph Lewis, jun., Anthony New, Thomas Newton, jun., John Randolph, Thomas M. Randolph, John Smith, James Stephenson, and Philip R. Thompson.

_From Kentucky_--George Michael Bedinger, John Boyle, and Thomas Sanford.

_From North Carolina_--Willis Alston, jun., William Blackledge, James Gillespie, James Holland, William Kennedy, Nathaniel Macon, (Speaker,) Richard Stanford, and Joseph Winston.

_From Tennessee_--George W. Campbell, William Dickson, and John Rhea.

_From South Carolina_--John B. Earle.

_From Georgia_--Peter Early and David Meriwether.

_From Ohio_--Jeremiah Morrow.

_Delegate from the Mississippi Territory_--William Lattimore.

Several new members, to wit: from Massachusetts, SIMON LARNED, returned to serve in this House as a member for the said State, in the room of TOMPSON J. SKINNER, who has resigned his seat; from New York, SAMUEL RIKER, returned to serve as a member for the said State, in the room of JOHN SMITH, appointed a Senator of the United States; and from Virginia, CHRISTOPHER CLARK, returned to serve as a member for the said State, in the room of JOHN TRIGG, deceased; appeared, produced their credentials, and took their seats in the House; the oath to support the Constitution of the United States being first administered to them by Mr. SPEAKER, according to law.

And a quorum, consisting of a majority of the whole number, being present,

_Ordered_, That a message be sent to the Senate, to inform them that a quorum of this House is assembled, and ready to proceed to business; and that the Clerk of this House do go with the said message.

The following committees were appointed pursuant to the standing rules and orders of the House, viz:

_Committee of Elections._--Mr. FINDLAY, Mr. VARNUM, Mr. LIVINGSTON, Mr. KENNEDY, Mr. EPPES, Mr. CLAGGETT, and Mr. ELMER.

_Committee of Ways and Means._--Mr. JOHN RANDOLPH, Mr. JOSEPH CLAY, Mr. GAYLORD GRISWOLD, Mr. BOYLE, Mr. DAVENPORT, Mr. NICHOLAS R. MOORE, and Mr. MERIWETHER.

_Committee of Commerce and Manufactures._--Mr. SAMUEL L. MITCHILL, Mr. CROWNINSHIELD, Mr. MCCREERY, Mr. LEIB, Mr. NEWTON, Mr. EARLY, and Mr. CHITTENDEN.

_Committee of Claims._--Mr. JOHN COTTON SMITH, Mr. HOLMES, Mr. PLATER, Mr. CHAMBERLIN, Mr. Bedinger, Mr. STANFORD, and Mr. STANTON.

_Committee of Revisal and Unfinished Business._--Mr. TENNEY, Mr. DICKSON, and Mr. EARLE.

The SPEAKER laid before the House a letter from the Governor of the State of Maryland, enclosing a certificate of the election of ROGER NELSON, to serve in this House as a member for the said State, in the room of DANIEL HEISTER, deceased; which was referred to the Committee of Elections.

TUESDAY, November 6.

Several other members, to wit: from Massachusetts, MANASSEH CUTLER; from Connecticut, SAMUEL W. DANA and ROGER GRISWOLD; from New Jersey, JAMES MOTT; from Pennsylvania, JOHN A. HANNA, JOHN B. C. LUCAS, and ISAAC VAN HORNE; from Maryland, JOHN CAMPBELL; from Virginia, JOHN CLOPTON; and from South Carolina, THOMAS LOWNDES, appeared, and took their seats in the House.

Another new member, to wit: ROGER NELSON, from Maryland, returned to serve in this House as a member for the said State, in the room of DANIEL HEISTER, deceased, appeared, produced his credentials, was qualified, and took his seat in the House.

Mr. J. RANDOLPH moved for the appointment of a committee on the part of the House to join a committee of the Senate to wait on the PRESIDENT and inform him that a quorum of both Houses is formed, and ready to receive his communications.

Mr. DANA inquired if a quorum of the Senate was formed? That circumstance, he thought, ought to be ascertained before the House adopted the gentleman’s resolution.

Mr. RANDOLPH did not know whether or no the Senate had formed a quorum, but he saw no objection on that account to proceeding with their own business. He, however, had understood that the Senate would form a quorum this day.

The resolution was carried, and Messrs. J. RANDOLPH and R. GRISWOLD appointed the committee.

WEDNESDAY, November 7.

Several other members, to wit: from Maryland, JOSEPH H. NICHOLSON; from Virginia, WALTER JONES; from South Carolina, THOMAS MOORE; and from Georgia, JOSEPH BRYAN, appeared, and took their seats in the House.

Mr. JOHN RANDOLPH, from the joint committee appointed to wait on the President of the United States, and inform him that a quorum of the two Houses is assembled, reported that the committee had performed that service, and that the President signified to them he would make a communication to this House, in writing, to-morrow at twelve o’clock.

THURSDAY, November 8.

Several other members, to wit: from New Hampshire, SAMUEL HUNT; from Massachusetts, SAMUEL TAGGART; from Connecticut, SIMEON BALDWIN and CALVIN GODDARD; and from North Carolina, SAMUEL D. PURVIANCE, appeared, and took their seats in the House.

A Message was received from the PRESIDENT OF THE UNITED STATES, by Mr. BURWELL, his Secretary, as follows:

_Mr. Speaker_: I am directed to hand you a communication, in writing, from the PRESIDENT to the two Houses of Congress.

The communication was read, and, together with the documents accompanying the same, referred to the Committee of the whole House on the state of the Union. [See Senate proceedings of this date, page 164, for the Message.]

_Sword to Decatur._

Mr. J. CLAY moved the following resolution:

_Resolved_, That the President of the United States be requested to present, in the name of Congress, to Captain Stephen Decatur, a sword, of the value of ---- dollars, and to each of the officers and crew of the United States ketch Intrepid, ---- months’ pay, as a testimony of the high sense entertained by Congress of the gallantry, good conduct, and services, of Captain Decatur, the officers, and crew, of the said ketch, in attacking and destroying a Tripolitan frigate, of forty-four guns, late the United States frigate Philadelphia.

_Ordered_, That the said motion be referred to a Committee of the Whole to-morrow.

FRIDAY, November 9.

Two other members, to wit: from Massachusetts, WILLIAM EUSTIS; and from Pennsylvania, ROBERT BROWN, appeared, and took their seats in the House.

_Frigate Philadelphia._

Mr. J. CLAY’s motion relative to Captain Decatur and the officers and crew of the ketch Intrepid, was taken up in Committee of the Whole.

On motion of Mr. CLAY, the resolution was altered, by striking out after the word “sword,” the words “the value of ---- dollars,” and filling up the other blank with the word “two,” thereby giving the officers and crew two months’ pay.

Mr. C., with a view of showing the propriety of the measure, read extracts of letters written by Commodore Preble and Lieutenant Decatur, which had been obtained from the Secretary of the Navy; they contained an account of the circumstances attending this honorable exploit, which have heretofore been printed in the public newspapers.

The committee rose and reported the resolution as amended.

Mr. GRISWOLD presumed the object of this step was to pay a tribute of respect to those brave men who had so gallantly achieved this glorious and dangerous enterprise. He wished to do this in a manner the most honorable and notorious, and perhaps the best course would be to obtain from the Head of the Navy Department, a list of the names of the officers and the number of the crew, together with a detail of the circumstances attending the event. With this view, he moved to postpone the consideration of the resolution reported by the Committee of the Whole, till to-morrow, in order to introduce a resolution to this effect:

_Resolved_, That the Secretary of the Navy be directed to communicate to this House the name of the officers and the number of the men employed in the destruction of the frigate Philadelphia in the harbor of Tripoli, together with a statement of the circumstances attending that event.

The postponement was agreed to without opposition, and the resolution of Mr. GRISWOLD was adopted, with a small variation, suggested by Mr. J. RANDOLPH, and acquiesced in by the mover, to wit: “That the President of the United States be requested to cause to be laid before this House,” etc.

Mr. J. CLAY and Mr. T. M. RANDOLPH were appointed a committee to wait on the PRESIDENT and communicate the request of the House.

MONDAY, November 12.

Several other members, to wit: from Massachusetts, PELEG WADSWORTH; from New Jersey, WILLIAM HELMS; from Delaware, CÆSAR A. RODNEY; from Virginia, MATTHEW CLAY; from North Carolina, MARMADUKE WILLIAMS and THOMAS WYNES; and from South Carolina, LEVI CASEY and RICHARD WINN, appeared, and took their seats in the House.

_British Treaty._

Mr. J. RANDOLPH informed the House that the Committee of Ways and Means had received a communication from the Treasury Department, stating that the appropriation of $50,000, for carrying into effect the seventh article of the British Treaty, had not been sufficient to discharge the second instalment upon all the awards made in pursuance thereof, and suggesting the propriety of making, as early as possible, a further appropriation for that object. The Secretary of State estimated the amount unpaid at $60,000, and that, in order to prevent any disappointment, it would be eligible to make the appropriation $70,000. Mr. R. hereupon moved that the Committee of Ways and Means have leave to report a bill on this subject. Leave being granted,

Mr. J. R. reported a bill accordingly, which was read a first and second time, and referred to a Committee of the Whole to-morrow.

TUESDAY, November 13.

Two other members, to wit: from Massachusetts, RICHARD CUTTS; and from South Carolina, WILLIAM BUTLER, appeared, and took their seats in the House.

No quorum being present, the House adjourned.

WEDNESDAY, November 14.

Another member, to wit, PHANUEL BISHOP, from Massachusetts, appeared, and took his seat in the House.

THURSDAY, November 15.

Two other members, to wit: from Massachusetts, SAMUEL THATCHER; and from Pennsylvania, ANDREW GREGG, appeared, and took their seats in the House.

A Message was received from the PRESIDENT OF THE UNITED STATES, as follows:

_To the House of Representatives of the United States_:

Agreeably to your resolution of the ninth instant, I now lay before you a statement of the circumstances attending the destruction of the frigate Philadelphia, with the names of the officers and the number of men employed on the occasion; to which I have to add, that Lieutenant Decatur was, thereupon, advanced to be a Captain in the Navy of the United States.

TH. JEFFERSON.

NOV. 15, 1804.

The said Message and the papers referred to therein, were read, and ordered to lie on the table.

MONDAY, November 19.

_Sword to Decatur._

The House proceeded to consider the resolution reported, on the ninth instant, from the Committee of the whole House, to whom was referred a motion relative “to Captain Stephen Decatur, the officers, and crew, of the United States ketch Intrepid;” and the said resolution being twice read, and amended at the Clerk’s table, was agreed to by the House, as follows:

_Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled_, That the President of the United States be requested to present, in the name of Congress, to Captain Stephen Decatur, a sword; and to each of the officers and crew of the United States ketch Intrepid, two months’ pay, as a testimony of the high sense entertained by Congress of the gallantry, good conduct, and services of Captain Decatur, the officers, and crew, of the said ketch, in attacking, in the harbor of Tripoli, and destroying a Tripolitan frigate of forty-four guns.

_Ordered_, That the said resolution be engrossed, and read the third time to-day.

TUESDAY, November 20.

Another member, to wit, GEORGE TIBBITS, from New York, appeared, and took his seat in the House.

WEDNESDAY, November 21.

_Louisiana Lead Mines._

The engrossed resolution authorizing the President to appoint an agent, who shall be instructed to collect all the material information respecting the actual condition, occupancy, and title of the lead mines in Louisiana, was taken up on its third reading.

Mr. LUCAS entertained a doubt as to the propriety of this measure; indeed, the gentleman from New York (Mr. MITCHILL) seemed to admit that it was superfluous, for he had said that the President, under proper authority, had already appointed agents to explore generally the Territory of Louisiana; that they have been some time engaged in that service at the Missouri, Arkansas, Red River, and about Detroit, and indeed Major Lewis had been some time in St. Louis, a post in the neighborhood of these very lead mines, and from his known enterprise and minute inquiries, there was good reason for believing that the subject which was the object of the proposed resolution, would be narrated in his general report of discoveries. But in addition to this expectation, the document accompanying the President’s Message sheds considerable light. The information as to the condition of the lead mines, their number, names, and value, were explained, and as he had heard no gentleman suggest a doubt as to the accuracy of the narrative, he was inclined to give it full credit, from the general character of the gentleman who made the communication, and the particular knowledge he must necessarily have acquired by a long residence in the country. From this view of the subject he was compelled to acknowledge that he had altered his idea of the resolution, and could not now vote in its favor.

Mr. MITCHILL had hoped that the gentleman from Pennsylvania, after the explanation of yesterday, would consent to the resolution; he would now add but a few explanatory words. The object of the resolution was simply to appoint an agent to inquire into the occupancy and titles of the present holders and claimants; this required a civilian versed in the municipal laws of the nations who had heretofore held that territory; not a natural historian, or mineralogist, not one who was acquainted with the art of mining, or smelting and testing ores. Neither did Mr. M. believe it would be necessary to send the agent to the mines themselves, but to the place where the deeds and conveyances constituting the title-papers of the proprietors, or pretended claimants, are recorded or preserved. Whether these were at New Orleans, or what other place, he did not know. As to the expense, it was not likely to exceed $1,000 or $2,000, even if the agent were sent from this city; but he imagined if the business could be as well conducted by the appointment of an agent in Louisiana, the President would instruct the Governor how to act. It might be seen too, from the words of the resolution, that it was a mere temporary employment, not likely to be of longer duration than three or four months, for the report is instructed to be made before the next meeting of Congress. Mr. M. concluded, that if Mr. LUCAS would reconcile himself to vote for the present motion upon this explanation, and should he hereafter desire a more extensive examination into the actual circumstances of the newly-acquired Territory, he might rely upon his earnest co-operation.

Mr. L. observed in reply, that Louisiana had been held alternately by three or four nations: each of which in sequence had granted titles to more or less of the lands in question. An examination into those titles would at this time excite a high degree of sensibility among the inhabitants, who, he thought, ought in their youthful state to be treated by Congress with tenderness and delicacy. The titles were various, some derived from the Governors of the country, some from commanders of posts. Many of the latter he believed might be considered by the agent illegal; especially as he had learned that the commander of St. Louis, in North Louisiana, held paramount authority over the subordinate posts, and that without his approbation the lands so granted would not be allowed; yet these persons held under such title, and by occupancy and improvement consider themselves the _bona fide_ proprietors of the lands. He feared that the inquiry intended by the resolution might create great dissatisfaction, while a postponement for the present could do no possible evil.

Mr. EARLY said, if Mr. L. had made a correct statement of the condition in which the titles in that country really stood, and he had no reason to doubt it, it would operate as the strongest reason on his mind to pass the resolution: though it would be perceived that the agency to be given on the present occasion extended no farther than to the lead mines. The gentleman, Mr. L., had yesterday mistaken his friend, Mr. MITCHILL’s object, supposing a general agency was intended to be raised. He had mistaken him again to-day, by thinking the agent was to go into the Territory of Louisiana to decide upon the titles he might have an opportunity of examining. This was not the case. He was merely to inquire into the actual condition of the lead mines, the occupancy and title, for the information of Congress. We are not going to send a Board of Commissioners, or a Judiciary Establishment, for the purpose of hearing and determining upon the claims set up, but to procure for ourselves that information which will enable the Government to decide, without their instrumentality. If the gentleman (Mr. L.) views the subject in this point of light, he will find it freed from his objection.

The question was now put, and the resolution passed, 74 members voting in its favor.

THURSDAY, November 22.

Two other members, to wit: PETERSON GOODWYN and EDWIN GRAY, from Virginia, appeared and took their seats in the House.

MONDAY, November 26.

_Preservation of Peace._

The House resolved itself into a Committee of the Whole on the bill for the more effectual preservation of peace in the ports and harbors of the United States, and in waters under their jurisdiction.

The first section authorizes the President and other proper officers to call in the aid of the militia, regular troops, or armed vessels, to execute civil process upon offenders who take refuge on board foreign armed vessels.

On motion of Mr. NICHOLSON, any commanding officer refusing to obey a requisition to this effect was subjected to a fine not exceeding five thousand dollars.

_Remission of Duties._

Mr. RANDOLPH called for the order of the day on the report of the Committee of Ways and Means respecting the remission of duties on books imported for the use of colleges and seminaries of learning--the resolution declaring it to be inexpedient to allow the same.

The House taking the subject into consideration--

Mr. J. RANDOLPH observed that the Constitution of the United States was a grant of limited powers for general objects, which Congress had no right to exceed, although they might think the powers too limited. This position he considered as of primary importance. Its leading feature was an abhorrence of exclusive privileges; it might be called the key to that instrument; every thing which rose up in the shape of privilege, was repressed in a peculiar manner, whether it related to orders or classes of men. Whenever they have touched the doctrine of privilege, the framers of that instrument, and the people of the United States adopting it, have been careful that nothing should be got by inference, or construction; the privileges of this House even have been precisely defined, and nothing is left for its extension, whatever may be the wishes or disposition of its members. The principle that this constitution is but a limited grant of power occurs, if not directly, yet frequently and effectually, so that it cannot be mistaken. On the privilege asked for, to permit colleges and universities to import their books free of impost, we refer to the eighth section of the first article, where it is declared that Congress shall have power to levy and collect taxes, duties, imposts and excises; but all duties, imposts and excises, shall be uniform throughout the United States. The impost shall be uniform. It is a lamentable fact, but nevertheless it is a fact, and cannot be too much dwelt and insisted upon, nor too well known, that the ambiguity of language gives our constitution that character which leaves it in the power of civilians to say it means any thing or nothing. Whatever may have been said on other points, I think in this instance the language is so definite that it cannot possibly be mistaken. They shall be uniform, that is to say, there shall be but one quantum, one mode of collecting, and one manner; there shall not be two measures to mete with. If Congress undertake to exempt one class of people from the payment of the impost, they may exempt others also. If they begin with colleges and universities for the advancement of learning, surely they may go on to exempt the clergy and congregation for the advancement of religion; they may exempt their own members. Indeed, it cannot be seen where they are to stop, having once overleaped the constitutional barrier and entered on the wide field of privilege. The duties must be uniform! Nobody can be exempted: the President, if he chooses to import books, must pay the duty as well as any private citizen. In this country we have no privileged class, all must fare alike, every man must bend to the law, and the tax must be uniform whether on land or books.

Mr. FINDLAY observed, that in addition to the constitutional objections urged, he had others on the ground of expediency. The country colleges and seminaries whose funds were small, had seldom or never an opportunity of importing books; they were happy to receive them in the country as donations, or by cheap editions; they would therefore receive no corresponding accommodation, and yet they were more useful and their use more universally felt than those called higher institutions, which claim to be exempted from paying impost. There are only a few of the well-endowed academies that can afford to procure foreign books, and when they have them, their circulation is extremely confined; to say nothing more, these reasons would engage me to support the resolution.

Mr. R. GRISWOLD.--The gentleman from Virginia (Mr. RANDOLPH) must have misunderstood me when he supposed I objected to the report because the committee had assigned no reason for the resolution: I mentioned the circumstance merely to show that we ought not then to decide. With respect to the constitutional objection he has set up, I acknowledge it is new to me. Such an inquiry may be of great weight, but it does not appear so to me. The paragraph quoted from the eighth section of the first article, “that Congress shall have power to levy and collect taxes,” has never struck me in the way it has that gentleman. The words are, “levy and collect taxes, duties, imposts, and excises;” but it drops the word _taxes_, it being settled in another part of the constitution, and declares that duties, imposts, and excises shall be uniform. The one speaks of direct taxes, the other of indirect--meaning that if an indirect tax is laid, it shall be uniform. No one State is to have an excise laid upon its inhabitants unless it extends to the citizens of every other: one part is not to be excised and another excused. This has always been the construction of that section of the constitution till the present moment, and I think it the true one. It is now said that Congress can only promote science and literature in one way. Why, have not Congress made grants of lands to promote those objects in the Western country? They have. I believe the power of Congress adequate to promote literature in the way applied for; and it has been frequently the case that, even after duties have been paid into the Treasury upon the uniform system, yet individuals have had those duties returned. I do not want to detain the House; but I am well persuaded that the constitution forms no impediment, and the expediency must be apparent.

Mr. J. CLAY said he was one of the committee, and had agreed to the report. Since reasons had been called for, he would in a few words assign those which influenced him. The gentleman from Connecticut (Mr. DANA) mistakes in thinking that a denial to exempt books from impost is a tax on literary institutions, and therefore not uniform, as the constitution requires all imposts should be; but he did not make his stand on the ground of the constitution--he rested the question upon its expediency. Giving literary institutions the privilege of exemption from imposts would open a wide door for fraud: we should soon have them importing books for sale duty free, rivalling the booksellers, who are subjected to the payment of impost, and vending them in every street and avenue of the nation. But why privilege colleges and universities to accommodate the rich; for we may believe that the rich, and the children of the rich, are the only persons who have access to these collections? The poor have little leisure and less opportunity to improve the advantage which even _neighborhood_ would give them to peruse works of the kind alluded to; and sure it would be thought unjust to tax their pittance of imported articles, in order to enable gentlemen to read the classic authors, or the sublime and beautiful of the modern writers.

Mr. FINDLAY spoke of colleges, not of universities. We have three in Pennsylvania--one of them, to be sure, has also the title of university--but two of them have not funds to import books on their own account. It is only rich institutions that have this advantage: the poorer class of seminaries buy of booksellers, and pay them the impost as well as their retail profit. Indeed, this remission of duties will rather tend to create disgust than give satisfaction; and those seminaries which have large collections of books would be induced to sell them at their present price in order to procure new ones cheaper, as they have had to pay the duty on the former, but would have none to pay upon those they should hereafter import.

The question being called for, it was put on agreeing to the report of the Committee of the Whole, that it is inexpedient to remit the duty on books, and carried in the affirmative--seventy-nine members voting in the affirmative.

The House then adjourned.

WEDNESDAY, November 28.

_Potomac River._

The House resolved itself into a Committee of the Whole on the bill authorizing the corporation of Georgetown to make a dam or causeway from Mason’s Island to the western shore of the river Potomac.

Mr. MACON (Speaker) moved to strike out the first section of the bill, with a view of trying its merits.

Mr. J. RANDOLPH seconded the motion of his respectable friend, (the Speaker.) The river Potomac was the joint property of the States of Maryland and Virginia under compact between those States. This property, at least on the part of Virginia, had never been relinquished. Congress, in his conception, had no right to pass the law in question; but if they had, there was another objection. The corporation of Georgetown were empowered to lay a tax which would be unequal and oppressive, since the property on which it was to be levied would not be equally benefited by deepening the harbor, supposing that effect to be accomplished. He hoped a prompt rejection of the bill would serve as a general notice to the inhabitants of the District to desist from their daily and frivolous applications to Congress, to the great obstruction of the public business.

Mr. SMILIE understood there was a rival interest between the towns of Alexandria and Georgetown, and as this rivalry had been exhibited on many former occasions, he deemed it proper, before they passed any bill for the encouragement of either place, that the parties should be obliged to publish their intentions some weeks before the application, that if there were any objections to the measure contemplated, they might be before the House at the same time. He stated this merely as a ground of postponement, not saying whether he was in favor or against the measure.

Mr. GREGG thought the House bound to legislate for these people, until they relinquished the claim to the jurisdiction, either by authorizing them to legislate for themselves, or retroceding them to the States to which they originally belonged. He approved of the idea of publishing, as expressed by his colleague, (Mr. SMILIE,) which he considered absolutely necessary. If Alexandria were opposed to the bill, it is probable they would have sent in a memorial on the subject before this time; their not having done so inclined him to believe that they were satisfied that the measure should go into operation. He did not think the bill perfect, but nevertheless he should not oppose its progress.

Mr. LEWIS said the landholders of Georgetown had very generally signed the petition to Congress. And no person out of the walls of this House gave it opposition. The people of Alexandria were content, and the owner of the island and the west shore of the river was the person most likely to be affected, yet he had given it his hearty assent. He was well persuaded that no injury would be done to the navigation of the Eastern branch, or to the port of Alexandria; if, therefore, they could render a benefit to Georgetown, without injuring any other property, he trusted the House would agree to the bill.

Mr. SLOAN felt interested in the result of this measure. The people here have nobody to look to but Congress to make legislative provision for their well-being; he therefore considered it a duty to attend to their desires; but he wished the applicants to give notice of their intentions, in order that any person conceiving himself likely to be aggrieved should have an opportunity of being heard. This was the usual course pursued in the State where he resided.

Mr. CLAIBORNE was by no means satisfied that the removal of the mud bank would do no injury to the Eastern branch and to Alexandria.

Mr. NELSON said that on a question so important to the upper parts of Maryland and Virginia, he could not refrain from stating some reasons in favor of the measure, and against the motion of the Speaker, which was intended to destroy the bill. It had been urged that the sediment which now obstructed the navigation to Georgetown, if set afloat by increasing the current and volume of water across it, would impede the navigation of the Eastern branch or fill up the harbor of Alexandria. Those who would take a view of the Eastern branch would be convinced it could make no deposit there, it being intercepted or turned aside by the point which projected into the Potomac; and as the water of the Eastern branch was more rapid than the Potomac, the breadth of the latter being much wider than the former, there certainly was no danger to be apprehended in that quarter. As to Alexandria, it was not to be supposed that the solid mass of sediment was to be taken off the bar at once and lodged in that harbor; the probability was, it would remove gradually and deposit at the eddy on each side of the river, while the union of the Eastern branch with the Potomac would increase the celerity of the current and carry it far below Alexandria.

The compact mentioned by the gentleman from Virginia (Mr. RANDOLPH) between the States of Maryland and Virginia, he acknowledged to exist; but as the measure contemplated the improvement of the navigation of the Potomac, instead of obstructing it, the right of each State to the free navigation thereof remained unimpaired. He imagined that the inhabitants of Alexandria and the citizens of Virginia wished success to the measure. He knew his constituents had it much at heart, knowing that a choice of markets is a great accommodation to farmers; and if defeated, it would be as much to their advantage to bring their produce to a shipping port at once by land, as to use the canal recently constructed at such prodigious expense, having afterwards to go with their produce to Alexandria by land.

Mr. SMILIE should not be against the bill, if upon full and fair inquiry it was found proper to pass it. But he could not agree to be hurried along without allowing time to acquire information. He therefore moved that the committee rise and report progress.

Mr. MACON (Speaker) opposed the rising of the committee, because it was leaving the business exactly where it stood, unless it was meant to recommit it to a select committee for modification. But as he was determined to vote against it in any and every shape, he was prepared to decide now. As to the mode he had taken to come at his object, he should only say it was a fair one, and such as had been the uniform practice of the House since he had a seat in it.

The gentlemen in favor of this dam or causeway, say it will do no harm; but where is the demonstration? On the other side, serious apprehensions are entertained of its injurious effects upon the United States navy yard in the Eastern branch, and its causing obstructions in the harbor of Alexandria. He would assure the committee he was ready to promote the welfare of any of the citizens; but it must in justice be done, without injuring any other portion whatever.

At the last session, an application was made for a permanent bridge across the Potomac, with a draw for the passage of vessels; the petitioner urged the general utility of the measure to all persons travelling North or South, but particularly the vast benefit accruing to the inhabitants of the district, by affording a solid and secure means of intercourse between its several parts. This measure was opposed by the present petitioners, on the ground of the compact between Maryland and Virginia securing the right of free navigation to the river, and also alleging that their navigation to Georgetown would be impeded. The argument which they applied then, now applies against them, and it ought, in the minds of the same legislators, to apply with equal success.

Mr. FINDLAY was rather in favor of the bill, believing the mode proposed would be successful in deepening the channel, which would certainly improve the navigation to and from Georgetown, and in that object the citizens of some of the western counties of Pennsylvania were materially interested; several of their boatable creeks nearly interlocking with those of the Potomac. He would, however, agree to the committee rising, with a view to postpone the bill, until gentlemen acquired the information they asked for.

Mr. GODDARD hoped the committee would rise, and the subject be postponed until sufficient light was obtained to guide their votes to a proper decision. He also hoped that no member might be considered as the friend or the foe of the present bill, until he became such by an examination into its merits or demerits. He narrated the course the business had taken since its introduction into this House, and inferred that the same deliberate mode ought to be pursued to the end. Whether the measure was good or evil could only be determined in that way, and gentlemen ought not to object to doing positive good, unless it was demonstrated that positive evil would result to counterbalance the good that was intended. He conceived the members ought to inquire for themselves on this point, and legislate accordingly. He would on all occasions endeavor to promote the interests of the district; and as it had no immediate representative on the floor, he considered every representative bound to serve them, while the seat of Government remained among them.

Mr. G. W. CAMPBELL would not declare whether he should vote for the final passage of the bill or not. But he was disposed to take notice of the applications made from time to time by the inhabitants of the district; whether to redress grievances, or procure benefits. But he by no means approved of the principles of legislation without representation. He regretted that they were placed in this unfortunate situation; but he should decide on the present question according to its merits; and if it was found to be of great consequence to the petitioners, and not likely to work an injury to others, he presumed the bill would finally pass. But he wished the committee to rise, in order to give further time to obtain information. It had been alleged that the friends of the measure ought to demonstrate that the erection of a causeway would do no injury to any one. This was not a fair position; it was requiring them to prove a negative. The burden of proof should lie on those who oppose the bill, and it was for them to demonstrate that injury would result. The gentleman from Virginia (Mr. J. RANDOLPH) has stated that the boats from the western country have a choice of passing by the western or eastern channel to the market below Georgetown, and this, it is presumed, he means they should be still entitled to under the compact between Maryland and Virginia. Let us hear from those persons also, and then ascertain whether they have any objection to the project on that account. This was also an argument in favor of the rising of the committee, and perhaps it may be added, that a little delay will enable the House so to modify the bill as to render it less exceptionable than at present.

Mr. SOUTHARD had not considered this subject of much consequence in the outset, but he found that its importance increased as it toiled along. He thought this morning it would have occupied but a short portion of their time; in that he found himself deceived; and he believed he was not singular in these opinions. He suspected many other members were in the same predicament. He therefore would vote for the committee’s rising. That navigable waters are considered as highways, is a matter of great notoriety; but he did not know that to deepen a channel, by contracting its surface, was considered as obstructing the free navigation of a river, nor could he conceive that the body of sediment meant to be removed, would descend _en masse_ and deposit itself at the confluence of the next stream it met. On the contrary, he imagined it would be separated by the force of the current giving it action into millions of

## particles, some of which would settle promiscuously on either side, while

a part would ultimately be deposited in the ocean.

The committee hereupon rose and reported progress, and asked leave to sit again. On the question, Shall the committee have leave to sit again?

Mr. J. RANDOLPH requested that the act of cession by Virginia might be read, by which it would clearly appear that she had not ceded, or intended to cede to the United States any right acquired under her compact with Maryland. [The act was read.]

It is plain from the preamble, said Mr. R., that the intention of the State was to make a cession above the tide water; that the expected seat of Government would be fixed in some place contiguous to the limits of Maryland and Pennsylvania. It is not contended that the United States were bound to select any particular spot. This circumstance is mentioned only to show what was contemplated at the time by the Legislature of Virginia. Her act of cession was more broad. It extended to any tract of country not exceeding ten miles square, “to be located within the limits of the State.” Over this she had relinquished to Congress her jurisdiction as well of soil as of persons. But her limits did not extend beyond high water mark on the western bank of the Potomac. Her right of highway on the river was a natural right acknowledged and secured by convention with Maryland. Her civil jurisdiction over its waters was a conventional right, entirely derived from compact with that State, was a jurisdiction not within her limits, and which the words of the act just read could not embrace or convey.

Mr. DAWSON would vote against the committee having leave to sit again. He was convinced that the objection made by his colleague (Mr. J. RANDOLPH) was conclusive: the fact was, that neither Maryland nor Virginia had ceded their joint rights to this river, nor could they do so, by their separate acts; the terms of the compact requiring that any thing done respecting the navigation of the Potomac, should be done by their joint act. It was worthy of remark, that the petitioners for the causeway were the identical persons who petitioned against the bridge as a violation of the compact between the two States, and denied the authority of Congress to legislate on the subject of the navigation of the Potomac. He thought them right then, and he voted against the bridge. His opinion had not changed with their opinions, and, therefore, he should vote against the causeway now.

Mr. R. GRISWOLD said that from the vote just taken, he presumed that the question of expediency had been settled. But it is now objected that Congress have no exclusive jurisdiction over the Potomac. In reply he would submit a few observations. By the constitution, Congress were empowered to exercise exclusive jurisdiction over any place not exceeding ten miles, which might be ceded by particular States. The States of Maryland and Virginia had ceded this district to Congress, and the cession had been accepted. But the gentleman from Virginia (Mr. RANDOLPH) had said that Virginia did not cede the jurisdiction of the Potomac, because she did not own it separately. To this he would answer, that the river Potomac must have been under the jurisdiction of either Maryland or Virginia, or both. And as both allowed Congress to accept of any part of their territory not exceeding ten miles square, and Congress had chosen to accept of part from one and part from the other, he presumed the jurisdiction of the Potomac, let it have been held by either of the States, or jointly, must have passed to the United States. He was of opinion, that if Congress had no jurisdiction over the Potomac, they had none over the district. The constitution provides only for the cession of one district of country not exceeding ten miles square. The act of Congress, made in pursuance of the constitution, had also provided for the laying out one district. If the arguments of the gentleman from Virginia were correct, and Congress had no jurisdiction over the Potomac, the Commissioners and the then President of the United States, under whose direction the district was laid off, had been mistaken, and had taken two districts of territory instead of one. This being the case, Congress had no jurisdiction in the district, because it not being laid off conformably to the constitution and the law of Congress, the acceptance by Congress was absolutely void. If this was correct, there was an absolute necessity for giving leave to the committee to sit again, for the purpose of deliberating whether Congress had jurisdiction or not. If they had not, and were legislating for the people of the district without authority, the sooner they put an end to such an assumption of power, the better.

Mr. J. RANDOLPH declared that the opinion which he had just given was the result of his most deliberate judgment. To what it might lead he should not at that time undertake to determine; but when that question should come before the House he was not sure that he should deny the corollary of the gentleman from Connecticut, (Mr. R. GRISWOLD,) at least as far as related to the testimony on the other side of the river. The question, however, then was, whether Congress possessed exclusive jurisdiction over the Potomac. How could they acquire it? From Maryland? It was more than she had to give. At farthest she could only grant her own qualified right. Had they obtained it from Virginia? Not at all. She had granted a jurisdiction exclusively her own, over a tract of country within her limits. And could any man pretend to say that this was a grant of her concurrent jurisdiction over the Potomac, confessedly without her limits? She had, to use the expression, issued her warrant to Congress, to be located somewhere within the State, and, under this pretext, her property out of the State was about to be usurped. Suppose the gentleman from Connecticut were to convey by deed his exclusive property, by certain metes and bounds, would his joint interest in other property not contained within those bounds pass by such a deed? Surely not. To a person setting up a claim to such property he would probably say, produce the evidence of your title; and in like manner Mr. R. demanded to be shown the conveyance by which Virginia had relinquished her concurrent jurisdiction over the Potomac? And in answer to this, gentlemen refer to a conveyance relinquishing something else in nowise connected with it, and tell us we always believed that we had a grant for this jurisdiction; we shall be grievously disappointed if we have not; it will be a great inconvenience to us to do without it, and, therefore, we must have it. And Virginia is to be forcibly dispossessed of her right, to suit the convenience of Congress.

Mr. NELSON said, it was with diffidence he again troubled the House after the lengthy discussion which had taken place. But doubts having been originated as to the authority of Congress to pass the bill in question, he felt compelled to remove those doubts, as far as lay in his power. As the House had decided the expediency of the measure by a large majority, if upon an investigation it should be demonstrated that Congress possessed ample power to pass the bill, he trusted the same majority would still be found in favor of it. He would proceed to examine the power which Congress possessed to pass the bill, and he trusted that he should be able to satisfy a majority of the House, that they had sufficient power. Previous to the compact between Virginia and Maryland, which had been so much talked of, Maryland claimed the sole jurisdiction of the Potomac river, and Virginia claimed Cape Henry and Cape Charles, also the jurisdiction of the Pocomoke as her property. In order to prevent any duties from being imposed upon their vessels at either of those places, the two States entered into a compact by which Maryland agreed that the navigation of the Potomac should be free to the people of Virginia, and Virginia contracted not to impose duties on the vessels of Maryland coming by Cape Henry, or navigating the Pocomoke. By this compact, the Potomac became the joint property of Maryland and Virginia as to the free navigation, but all the islands were under the jurisdiction of Maryland. This being the situation, each of these States, by a law, ceded to Congress any part of their territory not exceeding ten miles square, which they might choose to accept. Congress chose to accept of part from one and part from the other; and, among the rest, this joint property the river Potomac. There was no exception made in the act of cession as to the water courses, and it would be needless to inform the members that a grant of land necessarily carried with it a grant of the waters thereon, unless an exception was made.

Mr. J. RANDOLPH.--The gentleman asks in the body of what county is the river Potomac passing through the District of Columbia? Will he take it for an answer that its jurisdiction is within the bodies of the same counties it was in before the acceptance of the territory on each side?

In addition to the observations made on passing joint property with exclusive property, suppose England and France to hold Malta in joint possession, and that they cede to Germany, for her acquiescence in that measure, some of the exclusive property held by each within the German empire, will they say that their joint property in Malta passed by the treaty?

Mr. CLARK was unwilling to trouble the House at that late hour with any remarks, and would have entirely forborne, was not the question on which we were about to decide, and which had become extremely important, susceptible of a position which it had not assumed. It had been stated, and generally agreed to, and he supposed was correct, that the State of Maryland, previous to her compact with Virginia, rightfully claimed the whole river Potomac to the high-water mark on the western bank. Virginia owned the Capes. This collision of interest produced, in the year 1786, an adjustment of their interfering interests, and it was expressly stipulated that the river Potomac should remain a highway, free for the navigation of each State. In the year 1799, the Legislature of Virginia passed a law making a cession to the United States of a territory ten miles square, or any less quantity that should be accepted for the seat of the General Government, to be located and laid off within her limits; thus by the terms of her cession confining it to her territory. Maryland, nearly at the same period, made a similar cession. Out of these two cessions is the present Columbian Territory made. It is contended by the gentleman from Maryland, (Mr. NELSON,) that the two States uniting in the cession makes the grant complete, and the right in the United States predominant and exclusive. He acknowledges, at the same time, this correct principle that they could grant no greater right than they possessed. This doctrine I hold incontrovertible, that the alienee can have no greater or better title than the alienor, otherwise the derivative would be superior to the original title, a principle not to be admitted.

Let it be distinctly recollected that, prior to the cession, Virginia had purchased a right out of the soil of her sister State, distinct from the land--an incorporeal hereditament, a franchise which she had the right of exercising, unconnected with the use of the soil--so that, while Maryland owned the land, Virginia owned the right of way. She never passed this right by the terms of her cession or by any other act. Maryland could not, having already parted from it. No strength of argument can be derived from the terms of the constitution; for, if Virginia never parted with her right, the United States could never have acquired it. I trust I have shown that Virginia purchased a right in the navigation of the Potomac, which she never parted from, and, of course, retains to this moment. We, therefore, cannot constitutionally legislate on this subject.

Let it not be said that the object is improvement and not obstruction. Is not building the wall from Mason’s Island to the Virginia shore an obstruction, and the improvement at best problematical? But, this is begging the question. On a fair admission of my construction, I contend, and have endeavored to prove, that we possessing no jurisdiction over the river, it cannot be touched by any legislative act of ours in any point whatever. For, if it be touched in one way, it may be in another, and may finally end in whatever arrangement Congress may think expedient to make.

Mr. JACKSON did not stop to inquire whether it was proper for Congress to retain the jurisdiction over this district, but he was willing to remove a grievance which the people complained of and required to be done. He was not one of those who was disposed to guard the people against their worst enemies, themselves, as he did not believe the doctrine to be true. The objection that Virginia and Maryland had only ceded their exclusive property, and not the joint property of the free navigation of the Potomac, might, perhaps, be extended further than gentlemen wished, or were aware of. By the Treaty of Paris, France had ceded Louisiana in full sovereignty to the United States, but expressly reserved the right of free navigation of the Mississippi; if, then, the United States were disposed to shorten the navigation by cutting through the bend of that river, or in any other way improve the same, will it be necessary for the United States to consult and obtain the assent of France to the measure before they ventured to put it in execution?

Mr. NICHOLSON had but few observations to make upon the question before the House. His opinion was the same as at the last session, when a petition was presented for the erection of a bridge. He then thought that the erection of a bridge over the Potomac would tend much to the improvement of the place. He thought so still. But he then thought that Congress had no right to interfere in the least with the free navigation of the Potomac, and, of course, was opposed to the bridge. The same reason operated, in his mind, against the bill now in question. Neither of the States of Maryland or Virginia could have passed such a law previous to the cession of the district to Congress. The question to be determined, then, was “whether the jurisdiction of the Potomac was ceded to Congress.” If this should be answered in the negative by the committee, all questions as to the expediency of the measure would be at an end. Previous to the compact between Virginia and Maryland, the latter claimed the river Potomac as its exclusive property. By that compact it was declared that the navigation of the said river should be free. Virginia, therefore, acquired a kind of property in the river, inasmuch as she acquired the right to the free navigation thereof. The question, then, to be inquired into, was, Had Virginia parted with this right? He conceived she had not. By the act authorizing the cession of ten miles square or less to the United States, this could not have been done; Virginia had no power to make the cession of the Potomac, because she had not the jurisdiction over it, and could not grant more than she possessed. After this grant by Virginia, the State of Maryland granted to Congress a portion of territory not exceeding ten miles square for the seat of Government. Had Maryland the sole property in the river, it could have passed in this grant, provided Congress accepted that part of her territory. But she had not this sole property, because the State of Virginia had a right by compact to the free navigation thereof. How, then, had the United States acquired the jurisdiction over the Potomac? Would it be contended that they had acquired it from Maryland? This did not appear from the act of cession. Had they acquired it from Virginia? That could not be, because Virginia had no power to make such a grant. So long as he had the honor of a seat in the House, he would hold up his hands against any measure like the present, which would go to affect the rights of any of the States. If Congress had a right to interfere in the least with the free navigation of the Potomac, they had a right to stop it altogether. He conceived they had no right to pass any law on the subject; and, believing so, he would certainly vote against the committee having leave to sit again.

On motion the committee rose and the House adjourned.

THURSDAY, November 29.

_Recession of the District of Columbia._

On a motion made and seconded that the House do come to the following resolutions:

_Resolved_, That it is expedient for Congress to recede to the State of Virginia the jurisdiction of that part of the Territory of Columbia which was ceded to the United States by the said State of Virginia, by an act passed the third day of December, in the year one thousand seven hundred and eighty-nine, entitled, “An act for the cession of ten miles square, or any lesser quantity of territory within this State, to the United States in Congress assembled, for the permanent seat of the General Government;” provided the said State of Virginia shall agree thereto.

_Resolved_, That it is expedient for Congress to recede to the State of Maryland the jurisdiction of that part of the Territory of Columbia within the limits of the City of Washington, which was ceded to the United States by the said State of Maryland, by an act passed on the nineteenth day of December, in the year one thousand seven hundred and ninety-one, entitled, “An act concerning the Territory of Columbia and the City of Washington;” provided the said State of Maryland shall consent and agree thereto:

_Ordered_, That the said motion be referred to a Committee of the whole House on Wednesday next.

THURSDAY, December 6.

The SPEAKER laid before the House a letter from the Governor of the State of Virginia, enclosing a return of the election of ALEXANDER WILSON, to serve in this House, as a Representative for the said State, in the place of ANDREW MOORE, appointed a Senator of the United States; which was referred to the Committee of Elections.

FRIDAY, December 7.

_Post Roads._

Mr. JACKSON, from the committee appointed on the sixteenth ultimo, presented a bill making provision for the application of the money heretofore appropriated to the laying out and making public roads leading, from the navigable waters emptying into the Atlantic, to the Ohio river; which was read twice and committed to a Committee of the Whole on Monday next.

On a motion made and seconded, that the House do come to the following resolution:

_Resolved_, That a post road ought to be established from Knoxville, in the State of Tennessee, by the most direct and convenient route that the nature of the ground over which it is to pass will admit, to the settlements on the Tombigbee river, in the Mississippi Territory, and from thence to New Orleans; and that a post road ought also to be established from ---- in Georgia, to the said settlement on the Tombigbee, to intersect the former road at the most convenient point between Knoxville and the Tombigbee.

_Ordered_, That the said motion be referred to a Committee of the whole House on Monday next.

_Duty on Salt._

Mr. THOMAS said, he rose with a view to propose an inquiry relative to the duty on salt. On this article a duty of six cents per bushel was first laid, in the year 1790 it was raised to twelve cents, and in the year 1797 eight cents more were added, making the duty twenty cents per bushel of 56 lbs.; at which rate it now stands. But, as every measured bushel of good strong salt which is imported into this country will weigh 80 or 90 lbs., this is in reality a duty of 30 cents per bushel.

Three years ago, when the repeal of the stamp act, excise, and other internal tax laws, were before Congress, an attempt was made to reduce the duty on salt, and retain a part of that system.

At that time, although he was conscious the duty on this article of real necessary consumption was too high, and fell extremely heavy on the agricultural part of the community, particularly those living back from the seaboard, who were obliged to use large quantities of it, for their black cattle and other beasts of pasture, notwithstanding the increased price at which it came to them, in consequence of the transportation, and the profits charged on the amount of duty as well as original cost by the several merchants or traders through whose hands it passed, yet he did believe it better to allow this duty to remain as it was a while longer, rather than not be enabled to abolish that expensive, inconvenient and anti-republican system of internal taxation.

And should it now be found, on due inquiry, that a reduction of the duty on this article, at this time, would be incompatible with the great object of paying off the national debt and meeting the other exigencies of Government, for his part he would not urge it; but he was persuaded this was not the case--he believed our finances are amply sufficient to authorize the measure.

On examining the report of the Secretary of the Treasury he found, that besides meeting all the calls of Government, including the sum appropriated annually towards the reduction of the public debt, there was a surplus of $4,882,225 in the Treasury, and although there are several payments to be made out of this sum, there will still be a large balance remaining.

It also appears, from a comparative view of the bonded duties of the present with former years, that there will be an increase of revenue coming into the Treasury the ensuing year, and he believed there was no reasonable probability of any new causes for expenditure.

This being the case, he flattered himself it would not be deemed unseasonable or improper to propose a reduction of the duty, on this article of necessary consumption, at this time.

With this object, however, said Mr. THOMAS, I wish to couple another which I consider of equal importance, as it respects the reputation of our beef, pork, fish, and butter, put up for exportation, as well as the health of our seaport towns, and seamen employed on foreign voyages.

He said, by the Treasury accounts it appears that the aggregate amount of salt imported into the United States during the year, ending the 30th September last, was 3,858,195 bushels of 56 lbs. each, of this about one-fourth part, or 868,355 were imported in foreign vessels. All this salt was brought from foreign places, and no part of the salt prepared from the briny waters near the Onondaga, in New York, the various springs in the Western States, and the sea water of Cape Cod, Portsmouth, &c., is taken into this calculation.

Of this salt some parts came from the Swedish, Danish, and Dutch West Indies--other parts were imported from the British West Indies, and other British colonies, from the French West Indies, from Spain, from Teneriffe, and the other Canaries, and the Spanish West Indies; parcels of the same salt were likewise brought from Portugal, Madeira, Cape de Verd Islands, and Italy, and about 20,000 bushels of a similar kind has heretofore annually been brought from Louisiana, which is now a part of the United States.

But notwithstanding all this trade in salt, to so many parts of the earth, the commerce in that article between the United States and Great Britain is very extensive and important. During the year he before mentioned, the proportion of imported salt which was furnished by England alone, and of the manufacture of that country, amounted to 1,271,537 bushels of 56 lbs. So that it is evident at least one-third of the salt consumed in our country is exported from that part of Great Britain called England, and chiefly from those countries of which Liverpool is the mart.

This salt, as he understood, was prepared by the process of boiling the brine of the rock salt from Cheshire, and the water of the sea; and on account of the great plenty and cheapness of coal in Lancashire, there being also, as he believed, no export duty laid on it, this salt was produced in abundance and sold on very low terms; it is employed as ballast for British ships coming into our ports, and when arrived is sure to sell and pay the freight and frequently afford a profit; our own ships also very commonly take it in for ballast, and often as part of the cargo.

This traffic would be perfectly fair and convenient if English salt was of a strength and quality fit to preserve animal flesh for provisions. But he was clearly of opinion, from his own knowledge, this was not the fact, and he had lately observed a discussion on this subject in the British Parliament which confirmed that opinion.

The British Government long ago made a distinction between English salt and foreign salt on their importation into Ireland. To encourage the introduction of salt from the Bay of Biscay and the Portuguese dominions, they permitted it to be imported into that kingdom at the rate of 84 lbs. the bushel, while Liverpool salt was charged with the same duty of two shillings on the bushel of 56 lbs. The reason of this distinction was undoubtedly wise and cogent; experience had proved that British salt, as brought to the market, was destitute of that purity and strength which was necessary to preserve animal flesh from taint and corruption, and fit for human food in hot climates and on long voyages.

The trade of Ireland in beef, pork and butter, was of great importance, not only to that country itself, but to the whole navy and army of Britain. To keep up the character and wholesomeness of their provisions was a matter of immense national importance, and this could only be done by attention to have it preserved with salt of purity and strength. Experience had proved that the salt formed by crystallization in the open sunshine on the western shores and islands of Southern Europe, was vastly better than that produced by artificial concretion, in a boiling heat over a fire in the North. And the Government had with prudent discernment favored the introduction of Bay salt into Ireland, by permitting 84 lbs. to be imported for the same duty that was paid on the introduction of 56 lbs. of Liverpool salt.

The people of Liverpool have lately expressed uneasiness at this

## partiality, and an attempt has been made in Parliament, so to equalize

the duty, as to give to both Bay and English salt a fair competition in the Irish market. This, however, was repelled by the Irish members, with manly discernment and spirit, on the ground that Bay salt was of a stronger quality, less easy to dissolve, and indispensable to the salters of meats; that English or Liverpool salt would not answer for this extensive and important branch of business; that the discrimination in favor of Bay salt was politic and proper, especially connected with the provision trade and the health of the fleets and armies.

It is my wish, said Mr. T., that such a distinction should be made on the introduction of English salt into the United States, as has been made by the British laws themselves, on its importation into Ireland. There certainly exists the same causes for it. Like Ireland, our country abounds in provisions--beef, pork, fish and butter, are great and staple articles of export; but their quality is very far inferior to the provisions of Ireland. The putrefaction of beef, pork and fish, to a very serious extent, has often occurred; the loss of the property thereby was great, and the reputation of our provisions materially affected. But that was not the greatest evil; there is no doubt but that the exhalation from tainted and corrupted meats and fish, in our towns as well as on board our vessels, poison the atmosphere and excite malignant fevers and other diseases.

His object was to retrieve and establish the reputation of our salted provisions in foreign markets--to prevent the loss of property by those who put up provisions for exportation, and also to prevent the evils resulting to our citizens and seamen from tainted and spoiling meats and fish. With this view of the subject he should propose, in the first place, an inquiry into the expediency of reducing the duty on salt generally; and, in the second, the propriety of making a distinction, so as to encourage the importation of strong and pure salt, in preference to the weak and impure salt manufactured in England.

He, therefore, moved the following resolution:

_Resolved_, That the Committee of Ways and Means be instructed to inquire into the expediency of reducing the duty on salt, and also into the propriety of making a distinction in the duty, so as to encourage the importations of salt from the dominions of Denmark, Sweden, the United Netherlands, Spain, France, Portugal, and the British West Indies, in preference to any other place or places; and that they report thereon by bill or otherwise.

Mr. J. RANDOLPH said, that the resolution which the gentleman from New York had submitted, and in relation to which he had favored the House with such copious details, embraced two objects: the reduction of the duty on salt, generally, and the encouragement of the importation of a

## particular description of that article. The last subject belonging to a

class which was consigned to the Committee of Commerce and Manufactures, he should confine himself to the first branch of the resolution; nor should he have troubled the House at all were not the motion of the gentleman from New York calculated to excite an expectation, which he wished to repress, because he feared it could not be gratified. It was not to oppose inquiry, but to apprise the mover and the public that the result was likely to prove unpropitious to his wishes, that he had risen. The country on which the salt duty fell with peculiar force was that middle region, near enough to the seaboard to be supplied altogether by importation, but too remote to have its consumption diminished by vicinage to the sea. Those whose stock had access to salt water felt the duty but partially; those whose situation obliged them to use salt of home manufacture only, not at all. As an inhabitant of that district of country by which the duty was principally paid, and as a friend to agriculture, he had at an early period of the session, in conjunction with his friend the Speaker, turned his attention to the practicability of reducing the duty on salt, and you well know, sir, (said Mr. R.) that the result of our inquiry satisfied us that this desirable object was not at present attainable. He mentioned this to show that other members felt an interest in this subject, as well as the gentleman from New York, although they had not brought it before the House. The Treasury statements on which that gentleman relied for the support of his position, that we can dispense with a portion of our existing revenue, establish the opposite opinion, beyond controversy.

MONDAY, December 10.

Two other members, to wit: MATTHEW WALTON, from Kentucky, and NATHANIEL ALEXANDER, from North Carolina, appeared, and took their seats in the House.

TUESDAY, December 11.

_Recession of District of Columbia._

The SPEAKER laid before the House a letter addressed to him from George Washington Parke Custis, chairman of a meeting of the inhabitants of the county of Alexandria, in the District of Columbia, enclosing sundry resolutions of the said inhabitants, expressive of their disapprobation of so much of a motion now depending before the House, as relates to a recession of jurisdiction to the State of Virginia, of that part of the District of Columbia which is contained in the county of Alexandria, aforesaid.--Referred.

_Potomac River._

The House again resolved itself into a Committee of the Whole on the bill authorizing the Corporation of Georgetown to make a dam or causeway from Mason’s Island to the western shore of the river Potomac.

Mr. MACON gave it as his opinion that it would be improper at this time to take up the subject, as there was a motion on the table to recede the territory of the district back to the jurisdiction of the States out of which it had been carved. If it is intended to recede the territory, it would certainly be better to recede with as few encumbrances or alterations as possible; indeed, the striking propriety of the business taking the course he had just mentioned, had led him to expect that the present bill would not be again agitated until the question of recession had been investigated and decided. He would therefore move that the committee rise and report progress.

Mr. SMILIE voted against going into a Committee of the Whole, on the ground mentioned by the Speaker. If it be the intention of the Legislature to recede this territory, there was certainly no necessity of discussing the propriety of erecting a causeway; if it be not the intention, when this is manifest it will be time enough to consider the bill before them. From what he had observed on the part of the inhabitants of the District of Columbia, there seemed to be a disposition, if not a determination, to give Congress as much trouble in legislating for them as they had for all the rest of the Union. During the present session, this single ten miles square had occupied as much of the time of the House as the whole of the United States, whose general and important business was daily caused to be suspended for the local concerns of this place. From observing this to be the settled course of proceeding, he was convinced that Congress must do one of two things, either recede them to their respective States, or put them in a situation capable of managing their own affairs, in their own way. The daily pay of the members amounted to a considerable sum, and the length of time consumed on every trifling application for want of some member able to explain the true situation of the district, occasioned by its unrepresented state on this floor, were evils much to be lamented, if they could not be remedied. He thought members could hardly justify the waste of time, intended to be devoted to the public, whatever they might think of the expense it occasioned. He hoped the committee would agree to rise.

Mr. LEWIS did not think it fair to anticipate the opinion of the House on the subject of recession, which he considered would be the effect of the committee’s rising. If, however, the committee shall determine that they would not, at this time, discuss the present bill, he had no objection to enter on the consideration of the other subject.

Mr. NELSON thought this the proper time to discuss this question, even in preference to that of recession. It appears from the petition of the inhabitants of Georgetown, that the channel of the river, on which the salvation of that town depends, is filling up daily; that the mass of mud would soon increase to such a degree as totally to ruin the navigation to that port. If even it should be agreed by Congress to recede the territory to the States of Virginia and Maryland--which he wished and hoped in God would not be the case--it would be late in the session, and in all probability, at a time when neither of those State Legislatures will be in session. Supposing both States were willing to accept the recession, which he believed would not be found to be the case, the petitioners could not apply to the Virginia Legislature until next December, as their session began in that month, nor to Maryland until next November. A twelvemonth’s delay might defeat the object altogether, for the petitioners assert that it requires immediate exertions to prevent the channel filling up altogether.

Mr. SLOAN reminded the committee of an old saying: “The time present only is in our power, the future we know not of.” The time present, then, is the time to redress the grievances of the suffering part of this community, and as the citizens of Georgetown were really embarrassed, and their apprehensions excited of greater danger, he hoped the committee would proceed with the business.

Mr. STANFORD seldom troubled the House with any motion; but the one alluded to by his colleague, (Mr. SPEAKER,) he had brought forward from a sense of duty. The reiterated applications of the inhabitants of this district for legislative provisions, he had always listened to with attention, and he had no objection to proceeding in the discussion of the present bill, convinced that it would only serve to show the necessity of receding the territory. From all that had hitherto been done, it was apparent that they could not attempt to accommodate one part of the district without drawing forth petitions against the same from another part. Counter-petitions were constantly coming in. He was willing to hear every thing, but he did not believe the House could agree to any thing, and it was not to be wondered at when the inhabitants could not agree among themselves; or, if the House agreed at this time relative to the objects of the bridge company and the causeway petitioners, it would be, he suspected, to do nothing in either case. All this tended to evince the propriety of adopting the resolution he had laid on the table to recede the territory to the States of Virginia and Maryland, who would then have competent powers to gratify both parties, if they deemed it expedient, of which he was convinced they were better judges than this, or any future Congress was ever likely to be.

The question on the committee rising was taken, and lost--only forty-three members voting in the affirmative.

Mr. MACON then proposed to amend the bill in such a way as to provide for regulating the ferries that might be established across the eastern part of the stream to the causeway, and applying the fund arising from the same for the purpose of keeping the causeway in repair.

Mr. LEWIS did not consider it useful to travel over the ground assumed on a former occasion, but would confine himself to state to the committee some information he had acquired since, in respect to the damage the Eastern Branch or the port of Alexandria was likely to sustain, as had been alleged. Before the year 1784, the channel on the western side was so shallow that vessels only of very ordinary burden could pass, while on the Maryland side vessels of great draught of water could easily pass up to Georgetown. The uncommon hard winter of 1783-’4 was followed in the spring by the greatest torrents ever known in the Potomac. The bodies of ice were of immense magnitude, and many of them lodged upon the island, and under the rocks of its bed, prizing with a force beyond all credibility: it tore the rocks asunder and pressed them over into the new channel, occasioning a rise of thirty or forty feet on the Georgetown shore. On the Virginia side the torrent also forced itself and deepened that channel, while it left a vast quantity of mud, rocks, and sand, in the eastern channel, which has been constantly accumulating since that period. The situation of the present bar is at the meeting of the two arms of the river, below the island, and does not permit the passage of vessels over it drawing more than twelve feet water. The consequence of this alteration in the bed of the river below the island has been to narrow the mouth of the Eastern Branch, but it had no effect upon the harbor of Alexandria. This may serve to explain what may be the effect of opening the old channel in the way proposed: it may operate to widen the mouth of the Eastern Branch harbor, but it cannot injure Alexandria.

Mr. CLARK.--When this bill was under consideration, some days past, I endeavored to show (and hope with satisfaction) that Congress had not the power of legislating on this subject. The ground I then assumed was, that Virginia had, by contract with the State of Maryland, before the cession to the United States, acquired the right of highway on the river Potomac, which she has never granted. It is now unnecessary to inquire into the reasons of this policy; it is sufficient for our present purpose to say it is the fact.

In retracing this subject, I find my arguments very much strengthened by examining the Articles of Agreement between the States of Maryland and Virginia, and this circumstance is the only inducement for my troubling the committee again. The sixth article of the Agreement declares that “the river Potomac shall be considered as a common highway for the purpose of navigation and commerce to the citizens of Virginia and Maryland, and of the United States, and all those in amity with them.” The eighth article declares that “all laws and regulations which may be necessary for preserving and keeping open the channel and navigation of the river shall be made with the mutual consent and approbation of both States.” If a doubt remained, therefore, it appears to me this must remove it, and time will be spent in vain to illustrate the subject.

Mr. NELSON did not expect that this point would have been brought up again, but since it had so happened, he felt a propriety, not to say a duty, in recapitulating also what he had urged before, and adding some further reasons to show that Congress had the right, and exclusive right, of jurisdiction over all that part of the river Potomac within the District of Columbia. The burden of the song appears to be this: that because the States of Maryland and Virginia entered into compact before the formation of the present constitution, by which it was agreed that the river should be considered a common highway, and as both possessed the right of way, it was a joint right, which, as they did not jointly convey the right, has never been ceded to the United States. Does the gentleman (Mr. CLARK) mean to say that the States of Virginia and Maryland had not the power of granting this joint right? If he does not assert this, or if he admits they had the power, we shall be able to demonstrate that they have granted it to Congress. After two States have made a division of a part of each of their particular property, cannot they mutually give to another the property they have thus acquired? Surely common sense cannot deny them the right so to do: if you cannot grant away a right, it is no right, for a right cannot be complete if it cannot be conveyed to another; the very idea of right implies the power of disposal. They say that Maryland had the exclusive right of navigating the river Potomac, and that she gave by compact a qualified property in that exclusive right to Virginia. Cannot Virginia convey this qualified right? If one holds a right to an estate for life or a term of years, is it not as competent for the party to convey such right, as it would be to convey an estate in fee simple? Whether the right be a special right, or a limited right, or of whatever nature it be, every man has a right to convey it to another, unless there be exceptions or reservations; but in the compact between Maryland and Virginia there are no reservations or stipulations that abridge or preclude a conveyance. Then he asked them to propound this case: Maryland has a common right with Virginia in the Potomac, and Maryland declares that she gives up all her right to ten miles square of her territory--the Potomac is a part--Virginia also says that, so far as she has a right, she gives it up also. Well, then, both States have given up their respective rights. Does not the relinquishment of their rights by both States produce the same effect as if it had been done by a joint instrument? Maryland, he asserted, had given up her right; no matter whether it was a real right or qualified right, she gave up all but what she had conveyed to Virginia, and Virginia has given up all she possessed.

Mr. J. RANDOLPH had hoped that the very perspicuous statement of his colleague, (Mr. CLARK) when the subject was last under consideration, had satisfied the most incredulous that Congress were not competent to pass the bill before them. Indeed, he had hoped that the bill would have been suffered to sleep through the rest of the session, and the House no more troubled on the subject. The reasoning of the gentleman last up was to his mind utterly fallacious and inconclusive. The district was not necessarily divided into two bodies politic, because of the intervening jurisdiction of Virginia over the Potomac. Did Massachusetts constitute two States, because its parts were completely separated by New Hampshire, through which you must necessarily pass to get into Maine from old Massachusetts, as it was called? For the purpose of division the mathematical line which marked the boundary between the two States of Maryland and Virginia was equivalent to the whole breadth of the Potomac. On the ground of natural right, Congress could not obstruct the navigation of the river. They could not do it without admitting the right of Virginia and Maryland to raise obstructions above and below. Those States had as good a claim to stop the passage of ships of the United States as Congress had to interrupt their bateaux. But gentlemen say they are not stopping the navigation, they are improving it. How? by damming up the best channel. Did not this justify any species of obstruction? It was only to term it an improvement, and every objection was silenced. Whatever might be the decision of the House, he trusted no member from Virginia would be found to concede her right over the Potomac. He hoped also that the subject would be suffered to remain at rest until the question of recession was decided; but, in whatever shape it should appear, he should always protest against it, as a violation of the rights of the State which he represented.

Mr. SLOAN would leave the dispute, as to the right of jurisdiction over the river, to be settled by those who were more competent to investigate law questions than he was himself. But, from what he had heard, he had brought his mind to this conclusion, that, whatever right Maryland possessed to the jurisdiction of the Potomac, Congress was now entitled to exercise. The gentleman from Virginia (Mr. J. RANDOLPH) has said that Congress has no right to obstruct the navigation. True; but it does not follow that Congress has no right to remove obstructions. He says, also, that we might stop both branches. Not so; it is intended to stop one only, in order to deepen the other, so as to render the navigation more useful and safe. The case before us has been occasioned by the act of God, or a great movement in nature; a great quantity of ice has been lodged, and tore up from the shore and the island the materials that form, perhaps, the base of this sand-bar, by which the navigation has been obstructed. Now, suppose another case, that this ice had pent up the whole body of the river, and compelled the waters to form themselves a channel for escape through the lower grounds of the Virginia side, and thereby have given a new course to the river; and it would not be the first time that ice had been the cause of changing the bed of a river.

Mr. ALSTON did not intend to consume much of the time of the committee in delivering his sentiments, as the discussion had already been protracted to a much greater length than he, at the first view of the subject, supposed it merited. It has been contended by several gentlemen that Congress have no power to legislate at all upon the subject of the navigation of the river Potomac. This really, to him, appeared to be a very extraordinary doctrine indeed. That because Virginia and Maryland had not jointly conveyed a common property, their conveyances separate, although including this very common property, was not obligatory, and did not convey to Congress exclusive legislation and jurisdiction over such part of the river as lay within the District of Columbia. He admitted that the river Potomac was a common highway, and ought ever to remain so, for the benefit not only of the people of Virginia and Maryland, but likewise for all the citizens of the United States choosing to navigate the same; and to do any act whereby the navigation would, in the slightest degree whatever, be obstructed, was more than we had a right or ought to do. But would it follow, in consequence, that we had no right to improve or benefit the navigation of the river? Most indubitably not. It was, in his mind, clear, from the information he had received, that, unless something was done for the benefit of the navigation of the river, an end would soon be put to Georgetown as a commercial spot. He believed it to be universally the case that the uniting of any two streams of nearly equal size produced a bar or shallow place just below their junction. If, then, the bar complained of, just below Mason’s Island, has been produced in consequence of the uniting of the two arms of the river, it seemed to him an inevitable consequence that, if one of them was dammed up, the channel would return to its former depth. Mr. A. could not see the force of an argument made use of by his colleague, the honorable Speaker, if he understood him correctly, to say that, if the dam contemplated should be effected, it would tend to injure the ferries established on the river. In what manner the erecting the dam from Mason’s Island to the Virginia shore could affect them, he was not able to discover, as the land on the Virginia shore, opposite the ferries, and the island, belong to the same person. He entertained no doubt but that the same privileges would extend to the island as were now enjoyed at the landing on the Virginia shore.

Mr. CLAIBORNE asked if the ten miles square, located and surveyed to the United States, included the river? He rather suspected that they had laid off ten miles square, exclusive of the river. If this were the case, Congress had assumed jurisdiction over more territory than they were constitutionally entitled to.

Mr. J. LEWIS.--My colleague has expressed a hope that no member from Virginia would be found to sanction a measure so hostile to the rights of that State. I lament extremely that I should, upon any occasion, differ in sentiment with that gentleman, and particularly upon this; but, because I am so unfortunate as not to agree with my colleague upon this question, I hope I shall not, on that account, be charged with an abandonment of the interests of Virginia. I am as tenacious of her rights as my honorable colleague, or any other Representative from that State, and I must, at the same time, be permitted to express my regret that any member from Virginia shall be found to oppose a measure so very interesting to a large portion of the citizens of that State.

Mr. MACON.--Although it may be a good rule, yet it is not a general one, that people are well satisfied when they do not complain; yet gentlemen, when they are sent here to legislate, must exercise their own judgment on the probable consequences. If all the people of the district were to say that this was a proper measure, he should still exercise his own opinion. The gentleman from Virginia (Mr. LEWIS) had narrated the history of this river, and informed us there was no impediment prior to 1784. He did not doubt the correctness of the statement; but he should have gone further, and informed us what was the population on the waters of the Potomac at that time, and what it is at present, and likely hereafter to be; because if such a mud bank was raised in the river when its banks had little or no cultivation, what was it likely to be when thickly settled, for every new farm and every additional cultivation, loosened the earth, which was swept away by every fresh, and the mud bank at the head of tide water would proportionally increase in magnitude. Such had been the case with the Rappahannock, and if it should turn out that these two rivers are in a similar situation, their trouble would be thrown away.

Mr. HOLLAND admitted that the quantity of mud would increase by cultivation; but if the channel is deepened by narrowing the river, the mud would descend lower and deposit itself in that part of the bed of the river where the channel was deeper. He had no doubt of the right of Congress to the exclusive legislation over the river, as well as over every other part of the district. He should therefore vote for the bill, believing that they had the right, and that the measure would be greatly beneficial to the commerce of the country.

On the question being about to be put, Mr. EPPES requested the Clerk to read the eighth article of the compact between Maryland and Virginia, which being done,

The question on striking out the first section was put and lost--forty members voting in the affirmative, and seventy-two against it.

The committee then rose and reported, and the House adjourned.

WEDNESDAY, December 12.

Another member, to wit: BENJAMIN HUGER, from South Carolina, appeared and took his seat in the House.

THURSDAY, December 13.

_Impressment of John Gregory._

The SPEAKER laid before the House a letter from John Gregory, a black man, alleging himself to be a native of Nansemond County, in the State of Virginia, dated on board of the British ship-of-war, called the Alcmene, the nineteenth of August in the present year, stating, that having lost his protection, and being shipwrecked in the British Channel, he has been impressed on board the said Alcmene, and detained there against his inclination; and praying that Congress will be pleased to take his case into consideration, and obtain his discharge from the British service.

The said letter was read, and, together with a certificate of the Consul and Agent of the United States at London, accompanying the same, ordered to be referred to the Secretary of State for information.

_Potomac River._

On the third reading of the bill for the erection of a dam or causeway from Mason’s Island to the western shore of the Potomac, the yeas and nays were called for by Mr. VARNUM.

Mr. DAWSON said: My absence from this House for some days past, occasioned by my bad health, has prevented my hearing the arguments which have been urged in favor of this bill, as well as those in opposition to it; presuming, however, that they had much affinity to those which were urged on its introduction, which, in my judgment, were conclusive in opposition and feeble in support, I must be permitted to express my astonishment that it has progressed so far, and that this House must now decide on its passage or rejection.

In this stage of the business, and under existing circumstances, I should not intrude a single observation, especially as I learn that the subject has been fully discussed, and various votes taken, did I not feel impelled by one consideration superior to all others; but, sir, whenever a proposition is made which goes to affect the interest and wantonly violates the rights of a State, one of whose Representatives I am, I hold it to be my bounden duty to rise in the opposition. Such is the bill in your hands, and under such influence do I now act. In my judgment that bill usurps a power, and attempts the exercise of a right, which the States of Maryland and Virginia never have, and I trust never will, relinquish to any government--a right essential to them as sovereign States, and the relinquishment of which will render them dependencies not only on the General Government, but upon any corporation within the District of Columbia.

In the course of this discussion, reference, no doubt, has been had to the deeds of cession from those two States to the General Government; I mean not again to bring them to their view, and mention them only for one purpose. I presume that in the construction of those articles, the same rules will be observed, the same principles will be adhered to, which are observed in the construction of the original compact, the constitution. I well know that in the construction of that instrument, two opinions have gone abroad in the United States, and have their zealous advocates: the one is, that the General Government possesses all powers which it shall deem necessary, and which are not expressly reserved to the States; to this doctrine I have never been a friend, and am surprised to find that it has so many advocates on this day who support that bill; the other is, “that all rights, powers, and jurisdictions, are reserved to the States, which are not expressly delegated to the General Government.” This is the doctrine which I have always advocated, and which I support on this day by opposing that bill. Admitting, sir, my first position to be true--that the same rules of construction must be used in the two cases which I have mentioned, I call upon gentlemen to show any express surrender of this right of jurisdiction, either by the State of Maryland or that of Virginia. None appears, and gentlemen must either adopt the extensive doctrine of _implication_ as one of their political tenets, or relinquish that bill. I will go further, sir, and declare it as my opinion, that the legislatures of those two States never could have intended the surrender of that jurisdiction. I was a member of the Legislature of Virginia at that time, and the idea was new to me until the last year, when the bridge proposition was brought forward. I appeal to the candor of the gentlemen of this committee, and call upon them to say whether it is reasonable to suppose that those two States, after taking uncommon pains to fix, and render secure for ever, to themselves and their friends, the navigation of this river; after uniting their efforts to open and improve it to a considerable distance above tide-water, would surrender the jurisdiction to any earthly power, thereby putting it in their power to impede it whenever they please? for, be it remembered, that if we have a right to throw up a dam in one place, we have a right to build a bridge in another; if to build a bridge, to draw an artificial line at any place, saying, “Thus far you shall go, and no further.”

For these reasons, I am convinced that the right has never been surrendered; that it never was intended; and that it never ought to be relinquished. Considering the objections which I have mentioned as sufficient to defeat the bill, I have forborne to examine into its expediency; whether it will prove advantageous to some of the district and injurious to others, I will not pretend to say. One thing, however, appears probable to me, that if, by the erection of this dam, the rapidity of the water opposite to Georgetown is increased, and thereby the sand and mud carried to a lower point and there deposited, that point may be at or near the Eastern Branch, which we have established as our navy yard, to which heavy vessels get with great difficulty, and from which they may be entirely excluded, should the effect which I apprehend take place. I submit this to the consideration of the friends of this establishment, which is not without its enemies already.

One more word and I am done. If we admit the right to erect a dam, we have the same to build a bridge; and if we grant the one for the accommodation of one part of the people of the district, I know not how we can refuse the other to the inhabitants of the other part. Let the friends of the present bill look to this; the division of this House on the last year, on that point, was very equal, and the admission of the right will certainly give it new friends.

On the passage of the bill the yeas and nays were 66 to 39.

_Resolved_, That the title be, “An act authorizing the corporation of Georgetown to make a dam or causeway from Mason’s Island to the western shore of the river Potomac.”

THURSDAY, December 27.

_Mrs. Amy Dardin._

A petition of Amy Dardin, of the county of Mecklenburg, in the State of Virginia, widow and administratrix of David Dardin, deceased, was presented to the House and read, praying compensation for the value of a stud horse, called Romulus, the property of the deceased, which was impressed into the service of the Southern Army, under the command of Major General Greene, by order of James Gunn, a Captain in a regiment of Continental cavalry, some time in the month of July, one thousand seven hundred and eighty-one.--Referred to the Committee of the whole House to whom was committed, on the sixth instant, the bill making farther provision for extinguishing the debts due from the United States.

_General Hazen._

An engrossed bill for the relief of the legal representatives of the late General Moses Hazen was read the third time; and, on the question that the same do pass, it was resolved in the affirmative--yeas 60, nays 38.

MONDAY, December 31.

_Post Road to New Orleans._

On a motion made and seconded that the House do come to the following resolutions:

1. _Resolved_, That a post road ought to be established from the City of Washington, on the most convenient and direct route, to pass through or near the Tuckabachee settlement to the Tombigbee settlement, in the Mississippi Territory, and from thence to the City of New Orleans.

2. _Resolved_, That the President of the United States be requested to cause to be laid before this House any documents, and give such other information as he may think proper, relative to opening a post road from the City of Washington to the City of New Orleans.

The first resolution being twice read, was, on a motion made, ordered to be referred to the Committee of the whole House, to whom was committed, on the seventh instant, a motion respecting “the establishment of a post road from Knoxville, in the State of Tennessee, to the settlements on the Tombigbee river, in the Mississippi Territory, and from thence to New Orleans; also, for the establishment of a post road from Georgia to the said settlement on the Tombigbee, to intersect the former road at the most convenient point between Knoxville and the Tombigbee.”

The second resolution being twice read, was, on the question put thereupon, agreed to by the House.

_Ordered_, That Mr. HOLLAND and Mr. G. W. CAMPBELL be appointed a committee to present the second resolution to the President of the United States.

_District of Columbia._

Mr. GREGG called up the resolutions for a recession of the District of Columbia to the States of Maryland and Virginia.

Mr. HUGER moved to postpone the same till this day week.

Mr. JACKSON moved to postpone them till the 31st December next.

Some desultory remarks were made, not touching the merits of the main question; at length the question was taken on postponing till 31st December, and lost, without a division.

On postponing till Monday next, the question was decided in the affirmative--59 for and 31 against it.

An engrossed bill to incorporate the Washington Building and Fire Insurance Company was about being read, when

Mr. GREGG expressed a wish that it might be postponed, and a speedy decision had on the question of recession. He understood this was the day fixed for that subject.

Mr. LEWIS observed that the motion for recession could have had no effect upon this bill, as it did not contemplate the recession of the City of Washington, but only of the other parts of the district.

Mr. STANFORD had intended to have called up the resolutions for recession, but he had just received a letter from a number of the inhabitants of the district, wishing a short delay. There were also absent from the House several members who had taken considerable interest in the subject. For these reasons, he did not intend to call up the resolutions for two or three days.

Mr. EARLY was averse to a postponement. He thought an early decision ought to be made, to quiet the minds and soothe the feelings of the inhabitants, who felt a deep interest in the decision. Indeed, the members themselves had had their feelings excited in no inconsiderable degree. He hoped if the gentleman who brought the resolutions forward should forbear to bring them up, some other gentleman would do it for him.

Mr. STANFORD was induced to let the subject rest a few days longer, on account of those very feelings, and interest, which pervaded the whole body of the people. He would also prefer a decision by a full House, rather than by such a thin one as now appeared.

Mr. EARLY did not think that a thin attendance by the members was a good argument for postponement. If it was expected that every member should attend, he feared the public business would progress very slowly; but if the subject was entered upon now, and the resolutions adopted, they would have to take the shape of a bill, and it would be many days before the subject was finally decided, by which time, no doubt, the absent gentlemen alluded to would arrive.

Mr. LYON said the bill that was moved to be postponed had nothing to do with the recession, as it was not proposed to recede the city.

Mr. GREGG knew that the resolutions excepted Washington City, but he hoped that if a part of the district was to be receded, there would be found a majority for receding the whole. He was against the recession altogether, and so he should be till the question was decided against him. The business had been so long before the House, that he could not see any reason for further delay.

On the question to postpone the bill for incorporating the Washington Building and Fire Insurance Company, there were 51 for it and 42 against it; and the bill was postponed accordingly,

The House then adjourned to Wednesday.

MONDAY, January 7, 1805.

_District of Columbia._

The House resolved itself into a Committee of the Whole, on a motion “to recede to the States of Virginia and Maryland, the jurisdiction of such parts of the Territory of Columbia as are without the limits of the city of Washington.”

Mr. STANFORD said it was his wish to make a few observations on the resolution now before the Committee, for the retrocession of that part of the District of Columbia which had been ceded to the United States by the State of Virginia, in support of the vote he should give--expecting that what was said on the first, would be generally applicable to the last resolution also. He begged leave, however, in the first place, to suggest that, in bringing forward the motion, he had not had any the least intention to take any step that should go to a removal of the government. He trusted no gentleman of the committee would entertain such an opinion of his views. Had such been his intention he would have preferred a direct motion to that effect.

As then both the resolutions together made but a single object--that of ceding back again to the respective States of Virginia and Maryland all the District of Columbia, except the city of Washington--he should, in the course of the discussion, consider it more incumbent on those adverse to the measure to show the original wisdom and utility of the provision in the constitution, than on its friends. It would be enough for them to show its present evil tendency, and that it was an encumbrance no way necessary or useful to the General Government.

Upon a former occasion some question had arisen, and might yet lie in the way of some gentlemen, whether Congress, having once accepted the cessions of the States, had now the power of recession. On that head he had not, himself, ever found reason to doubt. By the third section and fourth article of the constitution, “Congress has power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States;” and besides, the eighth section of the first article, which assigns to Congress the exclusive legislation over this district, in all cases whatsoever, does not appear to come short of such a power. Like authority is also given, in the same paragraph of the constitution, over all places purchased by the consent of the State in which the same shall be, “for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” Congress, thus possessing the right of disposal, had exercised that right by an act passed two sessions ago, authorizing the Secretary of the Navy to convey to the Salem Turnpike and Chelsea Bridge Companies a part of the navy yard at Boston. With it, will any one contend that jurisdiction did not also pass to the State of Massachusetts, whence it had been obtained? It certainly would by every fair and _bona fide_ view of the circumstances. If, for instance, murder should be committed on that part of the turnpike which was formerly a part of the navy yard, could it be contended that such murder was not punishable by the laws of Massachusetts; that the General Government was the only competent authority to punish? He hoped otherwise. A like discretionary power of cession was also exercised when Congress anticipated the ordinance, and transferred the jurisdiction to the people of the North-western Territory, which now forms the State of Ohio. It would be remembered that, at the time of the transfer, the United States held the exclusive jurisdiction of that territory.

But, said Mr. S., over and above the consideration that the District of Columbia is in no way necessary, and every way expensive, to the General Government--in fact, a kind of governmental nuisance that ought to be removed--there was another objection, still more serious with him, the people of the district were the merest subjects in their condition. If they held rights, they were not apparent to him in the constitution. He believed all they held were those of courtesy. In the constitution no immunity, no privilege, no political right, had been, in so many words, reserved to them. They had been specifically given away, consigned to the ideal convenience of the General Government, without a single specific reservation. This was not the case as to the people of the States. If he were told the people were content, and did not wish a change, that with him was a good reason why the motion should at once prevail. If twenty, or twenty-five thousand people had already become willing subjects, without wishing any share or control in their own affairs, such an example ought no longer to remain under our system of government, and he trusted would not. He concluded by expressing a hope that the resolutions might be adopted.

Mr. SMILIE rose in reply. He disclaimed any intention hostile to Washington remaining the seat of Government, and denied that the recession would have any influence upon it. Having elucidated the constitutionality of the measure, he exhibited in strong colors the degraded situation of the people of the district, and the dangers which might hereafter arise from a continuance of it.

Mr. DENNIS.--Mr. Chairman: As a resolution analogous in all its leading features to those now under consideration, was submitted to the consideration of a former Congress, by a gentleman from Massachusetts, (Mr. BACON,) and as that resolution was put at rest by a very decisive majority, I had not expected that its ghost would have risen up at so early a day to haunt the people of Columbia, or to interrupt the deliberations of this body. That the gentleman who has offered these resolutions has acted from the best lights of his own understanding, and has believed the object intended to be thereby effectuated is both within the pale of our constitutional authority, and politically expedient, it is not for me to question. To me, however, they appear unconstitutional and politically inexpedient, and I will moreover add, cruel, unjust, and tyrannical, in their operation on the people of this district.

In order to ascertain the extent of our power on the subject, we must resort to the eighth section of the first article of the constitution. Here we find that, amongst other powers therein enumerated, it is declared as follows: “That Congress shall have the power to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the General Government,” &c. This clause contemplates, first, a place to be acquired, lying at the time within the jurisdiction of some of the States, but which was to be put out of their control and within the exclusive jurisdiction of the General Government. This was to be done in order that a permanent seat might be established, which should not be liable to be changed by legislative caprice; and in order that the jurisdiction over the place in which its operations were to be conducted might be, like the Government itself, the property of the whole people of the Union, and free from the influence of any one of its component parts.

This appears to be as much a part of the constitution, that you should always have this federal district, as that there should be a Legislative, Executive, and Judiciary Department.

2d. It points out the manner in which this district shall be acquired, and the agents who are to be instrumental in the acquisition. The convention, on behalf of the people of the United States, who are the principals, appoint Congress the attorney in fact to receive the conveyance, and constitute the Legislatures of the States from whom the cession or conveyance is to be made similar agents to make it. The several agents have performed their respective offices, the district has been acquired in conformity with the authority given, the right to the property vested in the American people, and possession held of it by us, for their benefit for whose use it was acquired. All the power which was given as to the acquisition of the territory has been exhausted, and no other power remains but that of exercising over it exclusive legislation. To explain and illustrate this subject to the most ordinary capacity, let me compare the transaction to a case in common life. If I give a man a power of attorney to purchase for me a tract of land, in a

## particular district of country, of a specified quantity of acres, leaving

it to him to make the location, and he accordingly make a purchase, and I consent to the act, receive the conveyance, and take possession of it, can my agent afterwards make another choice, divest me of my right, and reconvey the property without my consent? No man will answer this question affirmatively; and yet it is clear there is a perfect similitude between the cases, and that Congress are agents acting in this case under a limited authority and confined in the exercise thereof to a specific object. That Congress are special agents, and not vested with a general power over every possible case, is manifest from the whole tenor of the constitution; and I will lay down in this instance a rule which has been generally recognized as the standard, by which to test the extent of constitutional authority in any given case. It is, that Congress can exercise no power on any subject but what is expressly delegated and specifically enumerated in the constitution, or necessary and incidental to the execution of the specified powers. What is their power in the present instance? To accept a cession and exercise over it exclusive legislation. Can you infer from hence a power of retrocession? To do so is at war with the amendment of the constitution, which declares that all powers not given to the General Government are retained by the States or the people respectively. Was not the power confined to the acceptance of the district directed to be procured for a specific purpose, and when so acquired, to continue an object over which Congress, as a permanent body, might always have it in their power to exercise exclusive jurisdiction? Can you then claim the power of reconveying the district and receiving one as often as your caprice may dictate, or of divesting your successors of the same control over this district which we may exercise ourselves? The power is not expressly delegated, nor is it a necessary power to carry into effect any power given; for it will not be contended, but we may exercise all our powers and perform all our duties, and still retain the jurisdiction over the district.

This district has been completely severed from Maryland and Virginia, and has been erected into two counties by the name of Washington and Alexandria, and forms, at this time, no more a part of the territorial limits of Maryland and Virginia, than of New Hampshire or Georgia; and you may by the same authority that you propose to reannex them to those States, unite them to Delaware or Jersey, and put the people, many of whom never were citizens of Maryland or Virginia, under the jurisdiction of the Emperor of Hayti.

But, Mr. Chairman, are the people of the territory unworthy of a moment’s consideration, and will their remonstrances against the measure be altogether disregarded? Let us take a retrospective view of the circumstances under which they were seduced from their parent State, and the manner in which they consented to dissever the civil and political bonds by which they were formerly connected. What induced them to alienate their native allegiance, and with a generous confidence to submit themselves to your authority? First, the constitution held out a pledge and formed the basis of the contract, involving a promise, that if the people living in the district of country which should be fixed upon for the seat of Government, would give up the rights possessed under the government of the States to which they belonged, they should for ever remain under the exclusive jurisdiction of Congress. By the act of Congress accepting the cession, the territory received is declared to be the place fixed on for the _permanent seat_ of the Government, and the States ceded for ever the jurisdiction of the persons and soil within the same to Congress, for the purpose of exercising therein exclusive legislation. Finally, you assume the government, establish your own systems, and annul those of the States. Confiding in the premises, they gave up the control of their persons, and some of them divided with you their property. They came to you with one consent, and hailed your arrival here as the most fortunate epoch in the annals of their country--and now, will you set them adrift without deigning to listen to their prayers?

This being the seat of Government, where all the representatives of the nation are collected, and who, from the responsibility which they owe to their respective constituents and to the whole people of the United States, are under every moral and political tie to do justice, and to protect the rights and interests of the people here; here every citizen of the district has access to every member, and he may personally communicate his wants, his wishes, and solicit his particular patronage of his interest; and instead of being confined, like a district of country in the remote parts of the Union, to a single member, who may not possess the talents to explain its interests to the legislative body, the citizen of this place may make a selection out of the whole of the members to whom he may choose to confide his application. Like the seat of Government in all other places, without having any actual representation, this district will have more than its equal share of influence, and its weight will always be felt more sensibly in the Legislative Councils of the nation than the remote parts of the Union. Our theoretical philosophers, however, not only contend that in order to make these people free and happy, we must force liberty upon them, whether they will have it or not, but that even with respect to the conveniency or inconveniency of being governed by this body and the States of Maryland and Virginia, they are incapable of judging for themselves.

But is there no conveniency resulting to them from having all their concerns brought within the narrow limits of ten miles square? Is there no conveniency in having their own courts of justice at their very doors, instead of travelling to Richmond and Annapolis? It is an old-fashioned idea perhaps, but it is one which very generally prevails, even at the present day, that to bring justice home to every man’s door, is a great political and civil blessing; and in this respect the people of this place enjoy an advantage which is unknown to any other people in the world.

The great advantages contemplated as likely to result from being represented in the Legislatures of Maryland and Virginia, and the powers of self-government which it is supposed may result from the measure, are merely ideal. What weight will the district on the Virginia side of the Potomac have in the large body of the Legislature of that State, when they will only form a part of the county of Fairfax, and have a share in choosing two members to the Assembly? The same question might be asked in relation to the district of country formerly comprehended in the counties of Prince George and Montgomery, in Maryland. They would be regarded with a jealous eye; a sort of aliens, who were forced, contrary to their remonstrance, to submit to their respective jurisdictions.

Mr. EARLY.--Mr. Chairman, the resolutions which we are now called upon to decide, possess a high degree of importance, not only from their object, and the consequences likely to result, but also from certain principles which have been contended for, as applying themselves to the subject. In the outset of the discussion we are met with objections upon constitutional principles against our right. We have been told by the people of this district, that we cannot recede the territory of which they are inhabitants without their consent; and the gentleman from Maryland (Mr. DENNIS) has told us to-day that the proposed recession cannot be made without the consent of the people of the whole United States.

It is certainly desirable that all questions of this nature should receive a solution from the principles and practice of our own governments, without having a resort to foreign sources. But much I fear that the condition of the District of Columbia is one of a nature so peculiar to itself, that no such solution can be found. For it is impossible to conceive that the principles of a government whose essence is right, should be found to apply to the situation of a people stripped of all right.

The proposition that the consent of the people of this district is necessary to give validity to an act of Congress, having for its object a recession of the territory, carries with it the resolution of itself. It proves too much. The same reason by which they maintain this proposition, would go to prove that their consent was necessary to give validity to any act of legislation over them. That Congress possess the power of exclusive legislation over them, cannot be denied. We exercise, and we are authorized so to do, a power over all their rights of life, liberty, and property. And there cannot be presented to my mind a greater absurdity than to say the consent of the people of Columbia is necessary to any act in relation to them, when they are stripped of all rights of self-government.

Mr. EPPES, with the gentleman from Pennsylvania, (Mr. SMILIE,) considered the question of receding the Territory of Columbia as entirely separate and distinct from a question to remove the seat of Government. He did not understand the particular connection between the two questions. He believed that the seat of Government would be as permanently fixed here if the jurisdiction of Congress extended only over the soil covered by its public buildings, as if it embraced any given number of square miles. All that the National Legislature wants here is accommodation. Assembled at this place for purposes of general legislation, the exercise of a local sovereignty over a few square miles is neither beneficial to the nation nor interesting to Congress. The right of legislating for persons around us, whose local interests we do not feel or understand, cannot attach to this spot the Representatives of the nation: the exercise of this power by Congress cannot attach to this spot the nation itself. The public convenience and interest fixed our Government within this territory; the public convenience and interest can alone continue it here. The permanent seat of our Government depends, not on the extent of our powers over the country around us, but on the will of the nation. Whatever might be the feelings of other gentlemen on this subject, he had no hesitation in declaring, that, although he was in favor of receding the Territory of Columbia, he should never feel himself authorized, as a Representative of Virginia, to vote for a removal of the seat of Government.

The committee now rose, reported progress, and had leave to sit again.

TUESDAY, January 8.

_The District of Columbia._

The House again resolved itself into a Committee of the Whole on a motion of the twenty-ninth of November last “to recede to the States of Virginia and Maryland the jurisdiction of such parts of the Territory of Columbia as are without the limits of the city of Washington.”

Mr. SOUTHARD.--Mr. Chairman, I should have contented myself with giving a silent vote on this question, had it not been for the strong impressions on my mind that more is intended than expressed in the resolutions now on the table. It is not two years since two resolutions were introduced to this House similar to those now under consideration, with this distinction, that _they_ went to include the city of Washington with the other parts of the district in the transfer to the States of Virginia and Maryland.

I believe it to be the object of some members not only to recede the branches of the district contained in these resolutions, but likewise the city. If the doctrine so strongly contended for, that Congress has a right to transfer or recede, be once established--take the first step, and you may as easily take the second. I have no desire to call in question the sincerity of the mover of these resolutions, nor of many who support them; yet there are others who wish a recession of the _whole_ territory.

This subject involves two questions: First, whether Congress has a constitutional power to make a retrocession of this district to the States of Virginia and Maryland; and secondly, whether it be good policy. As to the first, Mr. S. said, he had strong doubts on his mind, as to the rightful power of Congress to recede or transfer.

The members of the convention who framed the Constitution of the United States looked forward to a day when it would become necessary to fix a place which should become the permanent seat of the Government. By reference to the eighth section of the first article of the constitution, we see it clearly expressed that Congress shall have power “to exercise exclusive legislation in all cases whatsoever, over such district, not exceeding ten miles square, as may by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States.”

This article, with all others contained in that instrument, after publication for the consideration of the people of the United States, was adopted, and became a part of the constitution. In pursuance of this object, Congress, on the 16th of July, 1790, passed an act, entitled “the cession act,” in the words following, to wit:

“That a district of territory, not exceeding ten miles square, to be located as hereafter directed, on the river Potomac, at some place between the mouths of the Eastern branch and Conococheague, be, and the same is hereby accepted for the permanent seat of the Government of the United States.”

Congress accepted a cession of ten miles square for the express purpose, and on the express condition of exercising exclusive legislation and jurisdiction, and this, too, agreeably to the spirit and meaning of the constitution and law, thus forming a compact which Congress has no right to violate. All the States in their Legislative capacity, and the people of the United States, including the inhabitants of this territory, are bound by this compact, which compact is as strong as the constitution itself.

Mr. FINDLAY observed that, after what his colleague (Mr. SMILIE) and others had said in favor of the resolutions for a retrocession of the territory, exclusive of the city, he had not expected to hear any objection to the resolutions on arguments derived from the constitution; the resolutions for receding the territory to the States who had made the original cession might, he thought, have been fairly combated, on the ground of expediency; on this ground only did the resolutions before the committee rest. He gave the credit, however, to the gentlemen opposed to the resolutions, for their ingenuity in taking the most tenable ground, though not directly involved in the question, but he acknowledged it was indirectly connected with it. If we had not a right to retrocede, the Representatives of the United States undoubtedly might decline to exercise jurisdiction, for whatever the rights of the people were, the Legislature must be free to act or not to act. If this is not the case, it could not be a sovereign Legislature; Congress itself, in this case, would act by compulsion.

He said that, though a member of the ratifying convention of Pennsylvania, and of the Legislature of that State, and of Congress since that time, he did not remember ever to have heard it suggested that Congress was not vested with the same discretion in this case as in others, expressed in similar terms. He had, indeed, of late, heard several members say that Congress was obliged to establish a permanent seat, &c., but, in taking a review of the constitution, he found no such expressions. The word permanent was not in that instrument, nor any other expression that made it the duty of Congress to establish a permanent seat, more than to establish a permanent excise, direct tax, or bankrupt law. The word permanent, however, he found in an act of Congress, but certainly not authorized by the constitution; and this present Congress had equal power to make a retrocession as that Congress had to accept. He said it was not necessary to prove to the members of this committee that laws, in their nature, were not permanent, but changeable with circumstances, and that Congress had by the constitution equal powers with any other Congress. That, from the express words of the constitution investing this power in Congress, and from its analogy to the investiture of other powers, no argument could be drawn against the resolutions; that every argument of that kind he had heard was not taken from the words of the constitution, but from constructions given to it which he conceived the words would not bear, and which would have a ruinous effect applied to other powers expressed in similar words. That he did not consider himself bound by what other gentlemen fancied the constitution meant or intended, but by what it said.

Mr. F. said it had been frequently asked what more difficulty there was in legislating for ten miles square, than for the city alone. In answer to this, he asked those members to recollect how many applications had been made, how many laws have been passed, how many days have been occupied in legislating for other parts of the district than the city. He would ask what the people would lose by being receded to the States to which they formerly belonged, and what they gain by the members of Congress, who have no common interest with them, nor even acquaintance with them or their peculiar circumstances, and liable to be imposed on by every one with whom they converse, legislating for them? He said that it had not been made to appear that the people would suffer any loss by agreeing to the resolutions, and that, as it was indubitably evident that the public would gain advantage, he hoped they would be agreed to. He had early observed that there were nearly as many interfering interests in this ten miles square, as in the whole United States; the members of the committee would recollect that several of the most tedious debates, accompanied with the greatest irritation, that had taken place this session, arose from such subjects.

Mr. BOYD said, that, although some gentlemen had left the constitutionality of the proposed measure out of the question, he was not satisfied any more on that point than he was of its expediency. The constitution was to him the polar star by which his course through the sea of politics would be regulated. The constitution had been formed by a convention composed of delegates from the several States of the Union, and was afterwards adopted by State conventions, on behalf of themselves and the people. He had been a member of his State Legislature, when they passed a law ceding a part of their territory, well knowing that if Congress did accept it, by the constitution, they must and would exercise exclusive legislation over such district. He was well aware at that time of the consequence of accepting a district of territory not exceeding ten miles square, as laid down in the section so often alluded to; and he did believe that that consequence would be, that Congress must exercise exclusive legislation whenever they accepted the ceded district. The idea of recession was not taken up at that time. The States of Pennsylvania, Delaware, New Jersey, Maryland, and Virginia, made offers of cession under the terms of the constitution. A partial cession was accepted by Congress from Maryland and Virginia. If a new disposition is to be made of this district, he did not see why Congress might not convey it to any of those States which had proffered to comply with the constitutional suggestion, and receive from the same another territory in lieu thereof. This statement he made merely to show the absurdity of recession, as it had presented itself to his mind.

Mr. NELSON meant to lay his opinion before the committee, because it appeared to be the habit of members to assign reasons for voting, without expecting to make any impression upon others. He considered the present question of the greatest magnitude to the United States generally; and of peculiar importance to his immediate constituents. He thought he should be able to show, to the satisfaction of every member present, that the removal of the seat of Government, which would be the consequence of recession, was not only inexpedient, but also unconstitutional. If he was successful in making out his point, that it was unconstitutional, he presumed the question of expediency need not be argued; the measure would be set at rest, and not a member would be found to give it his support. But, if he should prove unfortunate in this respect, which however appeared to his mind as true as that two and two make four, he might have reference to the question of expediency.

Previous to an inquiry into the constitutionality of the proposed project, he would just observe that constitutions themselves were things of recent date. Before the American Revolution the word itself was never fully understood. Lexicographers who attempted to define it never could agree. There was no practice whereupon to try its meaning. No power on earth had a constitution before the American States. True, England has long boasted of possessing a constitution, and so satisfied were her statesmen and politicians of the reality of this imaginary being, that they have extolled it to the skies. The glorious Constitution of England, her pride, and the envy of the world! Fine words truly; but where is the thing itself to be found? Is it reduced to writing? No. Who has seen it? No man. Is it known to any man? If it be, no two agree as to what the boasted Constitution of Britain is. How different, how honorably different, is the American Constitution! With us it is reduced to writing. It is in every man’s hand; it is known to the whole world, and every citizen agrees in its true and legitimate meaning. He would take this opportunity of expressing his voice, and of holding up his hand in resisting the doctrine of construction and inference formerly set up, whereby the tenor and effect of that invaluable instrument was likely to be changed. He knew that artful and ingenious men might twist and turn, and make it, like the word republican, to mean any thing or nothing, as best suited their nefarious designs. But this declaration and these attacks upon the body of that sacred work, were introduced by insinuating and artful lawyers, aided by the villany of judges, and accepted by men employed in the administration of our public and most important national affairs.

He saw nothing to justify the present motion. Gentlemen had attempted to show, not only its policy, but also its constitutionality. He, however, could not discover any words on that paper that warranted the project in the most remote degree; perhaps it had escaped his search; but he rather suspected gentlemen relied more upon an inference than on either the letter or spirit of the instrument itself. But he here would repeat, that no man was authorized to infer or construe, from the constitution, any other thing than what the plain sense of plain words would justify.

Mr. ELMER said he agreed with the gentleman from Maryland who had just now been up, that the question before the committee is an important and weighty one; but it seems that it is not of itself sufficiently weighty for that gentleman’s shoulders, for he has loaded it with much extraneous matter. Had the gentleman proved to my satisfaction either of the positions which he promised to demonstrate, I would not have troubled the committee with any remarks on the subject, but would have joined him in voting against the resolutions on the table. But, unfortunately for me, I have, by everything that has been said, become more convinced of the constitutionality and expediency of carrying the resolutions into effect.

Mr. R. GRISWOLD said the object of the present motion was, he supposed, to make a permanent recession of the two parts of this district, one to Virginia, and the other to Maryland, retaining the city of Washington. If this was really the object, there could be no doubt but it went to operate a change of the seat of Government. This he would endeavor, in as few words as possible, to demonstrate. The eighth section of the first article authorizes Congress to assume the exclusive legislation over a district not exceeding ten miles square, &c. The States of Maryland and Virginia ceded a district of ten miles square, or any lesser quantity, and Congress accepted a part from each State, making one district, to become the seat of Government of the United States. From this statement, it is apparent that the territory, or district, of Columbia is the seat of Government, and not the city of Washington. If, then, you recede the territory, you recede the seat of Government, although you reserve the city of Washington. He asked, then, whether this did not substantially go to remove the seat of Government? After you have receded two parts of the district, can a district be said to remain? If it does not remain, your seat of Government is gone, and gentlemen are justified in connecting the idea of removal with that of recession. Indeed, he felt surprised at the declarations made by gentlemen on this floor, that the recession had no connection with removal, and if they thought it had, they would abandon the measure; yet, nevertheless, they give the resolutions their warmest support.

He was not prepared to say that Congress had no right to exercise the powers of recession and removal; but he did not think they were prepared to act upon those questions at the present day. He, however, acknowledged, that events might arise to make a removal necessary, but nothing of the kind had yet occurred. There were some inconveniences in residing here, but the members knew them, and they are lessening every day. If, however, gentlemen are not satisfied with the accommodation, and think that a justifiable ground for removal, they will vote for the motion, if they can get over the constitutional objections, which had considerable weight on his mind.

It was very clear to him, that the convention which framed the constitution intended and designed to establish a permanent seat of Government; that the constitution fully and effectually provides for that object. The circumstances which gave rise to the measure are too recent, and must be too fresh in the minds of the members of this committee, to render it necessary or useful for him to detail them at this time. Now, whether the convention accomplished the object they had in view, the constitution would decide; and whether the object had been accomplished by the cession of particular States and the acceptance of Congress, the laws will decide. But whether it is wise or expedient to destroy a work on which so much wisdom, time, and money had been expended, the gentlemen forming this committee will decide.

There were doubts entertained of the constitutionality of the measure of retrocession, and if gentlemen doubted, it would be much safer not to act on the subject than to risk the breach of the solemn obligations they had entered into at that table. He thought the weight of the argument on the expediency preponderated on the side he had advocated; and, from the most candid view of the subject, he was inclined to recommend the rejection of the resolutions; at all events, he should give them his decided negative.

Mr. CLARK.--The question before the committee is truly of considerable importance, not only as it respects the constitutionality but the policy of the measure. He was sorry he had not the talents requisite for a full and complete investigation of so great a subject. Bred to an occupation purely professional, he had been led more to the study of detail and practice, than to abstract theories; hence it was, that, engaged in that laborious pursuit, he had no time and less opportunity of studying the diversified objects of political science. Thus circumstanced, he approached this question with extreme diffidence and cautious circumspection; the infraction of the constitution was to him a source of alarm, and however great the object or brilliant the achievement, he stood appalled at the prostration of that constitution he had always held in an estimation that approached to reverence.

But, on reflection, he was convinced that Congress were not about to violate their oaths, as had been insinuated, by the adoption of the present motion. He considered them in the exercise of a legitimate authority, and he would endeavor, in a brief manner, to examine whether they had not complete constitutional power to make a retrocession. If he was capable of demonstrating this point, he trusted he need not go further. But, it was necessary he should, in order to ascertain whether the present was the proper time, and the resolutions the correct mode? In doing this he had no prejudice to gratify or caprice to indulge; a stranger to the place, a stranger to the people, he had no motive to

## action but the unbiased result of his own opinion.

He should not, however, look into the constitution for sections wherefrom to draw a constructive power on this head; he was not one of those that collected power from implication, and if the authority is not expressly given, he would not assume it. The eighth section of the first article gives to Congress the power of exercising the sole and exclusive legislation in all cases whatsoever.

What is the appropriate meaning of the word “exclusive” as here used? It implies more than the debarring and shutting out all other possible powers of legislation, and, when taken in connection with the after, and immediately following words of the paragraph, it vests the absolute and uncontrollable power in Congress, free from any restriction; there is no possible case in which it cannot legislate. The constitution declares Congress shall legislate in all cases whatsoever. But gentlemen say there is a case in which Congress cannot legislate. Aware of this absurdity, a distinction is attempted to be drawn between legislating for inhabitants of the district and for the district itself. But if it be established, as I think it has been, that Congress is here omnipotent, if you will allow me the expression, the conclusion in both cases (admitting the distinction, which can by no means be done) is the same; in one case, the retrocession will mean nothing more than a cessation from legislation, accompanied with a desire that it may be resumed by the States; in the other, it will be a complete transfer of the district. In this sense it must be considered; the very words go the whole of this length. It is given to Congress, and not to the people; it is a complete investiture, boundless and indefeasible; and this is a full answer to the argument of gentlemen that the power is held in trust and not absolute.

As to the expediency of retrocession, he would add a few words. When he took a view of this mighty ten miles square, he saw nothing pleasant--nothing political--to commend. He spoke of the inhabitants, whenever he had occasion to allude to them, with pity and compassion; and he most devoutly wished to see them placed, as Americans, in a condition more congenial to his own feelings, and the feelings of every true lover of civil and political freedom. The question in this point of view will be, Is it proper for Congress at this time to recede the parts of the district contemplated by the resolutions?

He should allude to the expense, in order to give an answer to that question--an expense enormous, indeed, yet every day increasing, and one which threatened to defeat every calculation made to ascertain its amount. The time of Congress is occupied day after day in trifling Legislative provisions for this or that particular spot, so inconsiderable in size or commercial importance as scarcely to furnish a speck in the map of the United States. But laying this circumstance out of sight, he would ask, Was Congress competent to legislate for the inhabitants of the district? He had hoped when he first came to Washington that they were, but experience had convinced him that they were not equal to the task. One day they received petitions to make certain provisions for the benefit of the people of the district, and Congress, with the best intentions and dispositions, went into the inquiry. After some progress made therein, a counter-petition is presented, and the House is suspended between two or more jarring interests. How much better, then, would it be to let these people have recourse to those Governments which understand their real views, and can adopt measures to ameliorate their condition! Congress is composed of materials too heterogeneous ever to do this with any tolerable satisfaction.

Mr. SLOAN.--My friend from Maryland (Mr. NELSON) has observed that it is customary for members to express their sentiments on subjects under discussion in the House--not that he expected to make one proselyte by his observations. I perfectly agree with him that there is no reason to believe that he has, for this plain reason: he has not adduced a single fact in support of his argument; but, after exploding all conclusions drawn from implication or construction, drew his own from nothing else.

But, Mr. Chairman, under sanction of the aforesaid custom, and also from a sense of duty, I beg the attention of this committee to some brief observations on this important subject. I consider it as altogether improper, unfair, and unjust to blend a subject under discussion with others not even contemplated, and to endeavor to influence the minds of members with predictions of certain events, yet in the womb of futurity, that may or may not come to pass. The end contemplated by the present resolutions is neither the removal of the seat of Government, nor to prevent Congress from exercising exclusive jurisdiction over any territory, but to reduce the present quantum. But, say the opposers of these resolutions, the proposed retrocession of a part of the territory is intended as an opening wedge, preparatory to a total retrocession and removal of the seat of Government.

Mr. Chairman, I do not pretend to a foreknowledge of any member’s thoughts before they are articulated in words; those who have this foreknowledge have a great advantage over other members who have it not; but I am free to declare that my opinion is quite the reverse--believing that the retrocession of that part of the territory contemplated by the resolutions now under consideration, would have a tendency to continue the seat of Government in this place.

But it has been asserted that we have no right to make the proposed retrocession, and from the dictatorial style of the resolutions of the town of Alexandria, and the positive assertions that we have heard on this floor that it was unconstitutional, oppressive, and tyrannical, I expected from the usual accuracy and correctness of the member who made those assertions, (Mr. DENNIS,) that he was in possession of documents to substantiate the fact; but, to my surprise, instead of such documents, he has adduced and principally relied on the constitution, in which there is not a single imperative sentence obligatory on Congress, either to receive a cession, or, when received, to continue exclusive jurisdiction over one foot of territory--the plain and unequivocal language of the constitution leaving it perfectly optional whether to receive, and, if received, whether to retain jurisdiction or not. Hence, I conceive that no legislative body can be justly charged with tyranny or oppression for altering or (if from experience it becomes necessary) disannulling their own acts--a contra-opinion I consider as altogether uncongenial to improvement, genuine liberty, and the inherent rights of man, and as such, I hope will ever be exploded in these United States.

WEDNESDAY, January 9.

_District of Columbia._

Mr. THATCHER was opposed to the motion for a recession, and he had heard only two reasons urged in favor of the measure; that the exercise of exclusive legislation by Congress over the District of Columbia was attended with an undue expense of the public money, and occupied so much of their time, that the business of the Union was interrupted and put to a stand by the interference of the local concerns of this place. This statement he did not believe to be perfectly correct; no doubt some of their time was taken up, but he would leave it to every gentleman to say, whether, if they had even more business before them than they had, there was not time enough to transact it. The House usually sat from eleven o’clock until three; but it must have been frequently observed, that the adjournment took place much earlier for want of business to employ them. But he was not an advocate for the present mode of conducting the business of the district; it would perhaps be a better way to give them a subordinate government, controllable by Congress; or a committee of Congress might be appointed for the purpose. He did not see that the complaint of too much legislation was well founded, in any thing that had taken place during the present session. If the little labor they had to perform was too great for them, what must the labor of their predecessors have been, who had passed all the laws in existence for the government of the district, and yet he had never heard any complaint made by them on the ground now taken; they knew that the constitution enjoined upon them the duty of exercising exclusive legislation over the ten miles square, and they performed it with patient attention.

His mind revolted at the idea of recession. Gentlemen had contended that the powers exercised over the people of Columbia were derogatory of, and inconsistent with the principles of free government. Yet, what does this motion for recession propose? Why, to transfer them and the territory away, in the manner practised in Russia, in the transfer of provinces or manors, transferring the vassals with the soil. This may be truly called derogatory to the principles of freedom. Nor is this all; for you do not transfer them merely without their consent, but in the face of their serious remonstrances against the transfer.

Mr. SMILIE advocated, and Messrs. HUGER and CLAIBORNE opposed the resolutions; when the question was taken on agreeing to the first resolution, for receding that part of the district formerly attached to Virginia, and passed in the negative--yeas 42, nays 62.

The question was then taken on the second resolution, for receding that part of the district, excepting the city of Washington, formerly attached to Maryland, and passed in the negative--yeas 42, nays 65.

The question was then taken by yeas and nays on agreeing to that part of the report which involved a disagreement to the first resolution, and carried affirmatively--yeas 87, nays 46, as follows:

YEAS.--Nathaniel Alexander, Simeon Baldwin, William Blackledge, Adam Boyd, Robert Brown, Joseph Bryan, George W. Campbell, John Campbell, Levi Casey, William Chamberlin, Martin Chittenden, Clifton Claggett, Thomas Claiborne, John Clopton, Frederick Conrad, Jacob Crowninshield, Manasseh Cutler, Richard Cutts, John Davenport, John Dennis, William Dickson, Thomas Dwight, John B. Earle, James Elliot, William Eustis, Calvin Goddard, Andrew Gregg, Gaylord Griswold, Roger Griswold, Seth Hastings, William Helms, David Holmes, David Hough, Benjamin Huger, Samuel Hunt, John G. Jackson, William Kennedy, Joseph Lewis, jun., Henry W. Livingston, Thomas Lowndes, John B. C. Lucas, Matthew Lyon, William McCreery, Nahum Mitchell, Thomas Moore, Roger Nelson, Anthony New, Thomas Newton, jun., Thomas Plater, Samuel D. Purviance, Thomas Sammons, Thomas Sanford, John Smith, Henry Southard, Joseph Stanton, William Stedman, James Stephenson, Samuel Taggart, Benjamin Tallmadge, Samuel Tenney, David Thomas, Philip R. Thompson, Abram Trigg, Philip Van Cortlandt, Isaac Van Horne, Peleg Wadsworth, Matthew Walton, Lemuel Williams, Marmaduke Williams, Richard Wynn, Joseph Winston, and Thomas Wynns.

NAYS.--Willis Alston, jun., Isaac Anderson, John Archer, George Michael Bedinger, Phanuel Bishop, John Boyle, William Butler, Christopher Clark, Matthew Clay, John Dawson, Peter Early, Ebenezer Elmer, John W. Eppes, William Findlay, John Fowler, Edwin Gray, John A. Hanna, Josiah Hasbrouck, Joseph Heister, John Hoge, James Holland, Walter Jones, Simon Larned, Michael Leib, Andrew McCord, David Meriwether, Nicholas R. Moore, Jeremiah Morrow, James Mott, Gideon Olin, Beriah Palmer, John Randolph, John Rea, of Pennsylvania, John Rhea, of Tennessee, Jacob Richards, Samuel Riker, Erastus Root, Ebenezer Seaver, James Sloan, John Smilie, Richard Stanford, John Stewart, Joseph B. Varnum, Daniel C. Verplanck, John Whitehill, and Alexander Wilson.

Mr. SMILIE moved to amend the second resolution by striking out the words “without the limits of the city of Washington,” so that the city as well as the other parts of the district might be receded.

Only twenty-one members rising in favor of this motion, it was lost.

The question was then taken by yeas and nays on agreeing to the report of the committee, involving a disagreement to the second resolution, and carried affirmatively--yeas 69, nays 39.

So the said motion was rejected.

The question was then taken on agreeing to the whole report of the committee, and carried--yeas 50, nays 28.

SATURDAY, January 12.

_Resolved_, That the Speaker address a letter to the Executive of the State of North Carolina, communicating information of the death of JAMES GILLESPIE, late a member of this House, in order that measures may be taken to supply any vacancy occasioned thereby in the Representation from that State.

TUESDAY, January 15.

_District of Columbia._

The bill to prohibit the exaction of bail upon certain suits within the District of Columbia was brought in engrossed, and read the third time.

The final passage of the bill was opposed by Mr. GODDARD, Mr. ROOT, and Mr. NELSON, and defended by Mr. NEWTON, as a proper measure to prevent the oppression of malignant creditors.

Mr. EPPES desired Mr. BECKLEY to read that part of the Constitution of the United States relative to the extent of the Judiciary power, and that part of the law establishing the Judicial authority of the District of Columbia, with a view of showing that the bill was not essentially necessary.

Mr. EARLY moved a recommitment of the bill to a select committee.

Mr. BEDINGER wished that the bill might go to a select committee, because he considered the principle a valuable one. He imagined, however, that the details were not altogether perfect. He felt concerned on this subject, on account of several of his constituents who had been tricked out of notes and bonds for lands in Kentucky, which had been advertised, and were no longer available against the drawers in that State; but, should it so happen that business called them to Washington, they might be extremely harassed for want of bail.

The reference was opposed by Mr. R. GRISWOLD, as he was against the principle of the bill altogether.

On the question to recommit it, it passed in the negative--ayes 44, noes 59.

The question was then taken on the passage of the bill, and it was lost, there being but thirty members who voted in its favor.

WEDNESDAY, January 16.

_Naval Appropriations._

The House again resolved itself into a Committee of the Whole, on the bill making appropriations for the support of Government for the year one thousand eight hundred and five.

Mr. J. RANDOLPH moved to fill the blank, in the clause providing for the expense of intercourse with the Barbary Powers, with $63,500, instead of the sum of $113,000, stated in the estimate for the current year. The difference ($50,000) would make a part of additional appropriations, for which he should move a distinct clause.--Motion carried.

Mr. R. then moved to add the following words: “for the contingent expenses of intercourse with the Barbary Powers ---- dollars.” He said, that he should be obliged to ask $150,000, in addition to the sum reserved out of the preceding appropriation, and of course to fill the blank with the words $200,000. This was rendered necessary because the Mediterranean fund, heretofore liable to this charge, had been subjected, on the motion of a gentleman from Connecticut, to the whole expense of the support of the Navy. He supposed that no difference of opinion could exist on the subject of enabling the Executive to make peace with Tripoli. He had no objection to any restriction which might be thought necessary to limit the application of the additional sum of $150,000, which he required, to the object for which it was intended. But as the words ransom, or tribute, had never been introduced into our statutes heretofore, he hoped they would not be admitted on this occasion.

Mr. R. GRISWOLD had no objection to making the appropriation required, or even a larger sum; for he was well convinced that the President ought to have funds as well as the authority to accomplish any object connected with the present subject, which he might wish to accomplish.

FRIDAY, January 18.

_Relief of Tax Collectors in New York._

A petition of John York, of Brookefield, in the county of Chenango, and State of New York, late collector of the taxes on lands, slaves, and dwelling-houses, for the eighty-third collection district within the said State, and now confined in the jail of said county, was presented to the House and read, praying relief in the case of a judgment awarded against the petitioner and execution issued thereon, for the sum of eight hundred dollars, including interest and cost of suit, for the payment of which the petitioner was compelled to apply a certain proportion of the proceeds of taxes collected by him in the capacity aforesaid.--Referred to Messrs. ROOT, GREGG, and HASTINGS; to examine and report their opinion thereupon to the House.

_District of Columbia._

DIVORCES.

Mr. DAWSON, from the committee appointed on the petition of Marcella Stanton, and others, reported a bill, entitled an act to authorize the Court of the District of Columbia to decree divorces in certain cases; which was read twice, and referred to a Committee of the Whole on Tuesday next.

Mr. DAWSON prefaced his motion, on this subject, when he introduced it in the manner following:

He observed that, after the decision which had taken place a few days ago, he had resolved not to meddle any further with the affairs of the District of Columbia, but to leave the inhabitants in the enjoyment of the blessings of that government which they seem to have chosen, and the principles of which were sanctioned by this House.

There was, however, one class of persons who claimed, in all situations, our particular attention; who had not made a surrender of their political rights; and, if they had been defrauded out of their natural ones, were anxious to regain them.

It would be remembered that, at the last session, a gentleman from Maryland, who had been absent for some time, and whom he rejoiced now to see in his place, (Mr. NICHOLSON,) presented a petition from a person in this district, praying for a divorce, and he two others for the same relief. These were referred to a select committee, and a bill reported, which remained among the unfinished business; as he learned that the situations and wishes of these unfortunate persons were still the same, he thought the subject ought again to be renewed.

_Emancipation in the District of Columbia._

Mr. SLOAN moved the following resolution:

_Resolved_, That, from and after the fourth of July, 1805, all blacks and people of color that shall be born within the District of Columbia, or whose mother shall be the property of any person residing within the said district, shall be free, the males at the age of ----, and the females at the age of ----.

The House proceeded to consider the said motion, and on the question that the same be referred to a Committee of the whole House, it passed in the negative--yeas 47, nays 65.

And then the main question being taken that the House do agree to the said motion as originally proposed, it passed in the negative--yeas 31, nays 77, as follows:

YEAS.--Isaac Anderson, John Archer, David Bard, Phanuel Bishop, Robert Brown, Clifton Claggett, Joseph Clay, James Elliot, Ebenezer Elmer, William Findlay, Gaylord Griswold, John A. Hanna, Josiah Hasbrouck, David Hough, Nehemiah Knight, Michael Leib, Andrew McCord, Nahum Mitchell, Beriah Palmer, John Rea of Pennsylvania, Jacob Richards, Erastus Root, Thomas Sammons, Ebenezer Seaver, James Sloan, John Smilie, Joseph Stanton, Isaac Van Horne, Joseph B. Varnum, Peleg Wadsworth, and John Whitehill.

NAYS.--Willis Alston, jr., Simeon Baldwin, George Michael Bedinger, William Blackledge, Adam Boyd, Joseph Bryan, William Butler, George W. Campbell, John Campbell, Levi Casey, Thomas Claiborne, Matthew Clay, John Clopton, Frederick Conrad, Jacob Crowninshield, Manasseh Cutler, John Davenport, John Dawson, John Dennis, William Dickson, John B. Earle, Peter Early, John W. Eppes, William Eustis, John Fowler, Calvin Goddard, Peterson Goodwyn, Thomas Griffin, Roger Griswold, Joseph Heister, William Helms, John Hoge, James Holland, Benjamin Huger, Samuel Hunt, Walter Jones, William Kennedy, Simon Larned, Joseph Lewis, jun., Henry W. Livingston, Thomas Lowndes, John B. C. Lucas, Matthew Lyon, William McCreery, David Meriwether, Nicholas R. Moore, Thomas Moore, James Mott, Roger Nelson, Anthony New, Thomas Newton, jun., Joseph H. Nicholson, Gideon Olin, John Randolph, John Rhea of Tennessee, Samuel Riker, Thomas Sanford, John Smith, Henry Southard, Richard Stanford, William Stedman, James Stephenson, John Stewart, Samuel Taggart, Samuel Tenney, Philip R. Thompson, George Tibbits, Abram Trigg, Philip Van Cortlandt, Killian K. Van Rensselaer, Daniel C. Verplanck, Matthew Walton, Marmaduke Williams, Alexander Wilson, Richard Wynn, Joseph Winston, and Thomas Wynns.

So the said motion was rejected.

MONDAY, January 21.

_Slavery in Territories._

A memorial of the people called Quakers, at their yearly meeting, held in the city of Philadelphia, in the month of December last, was presented to the House and read, praying that effectual measures may be adopted by Congress to prevent the introduction of slavery into any of the Territories of the United States.--Referred to the committee appointed on the twelfth of November last, on so much of the Message of the President of the United States as relates “to an amelioration of the form of government of the Territory of Louisiana.”

WEDNESDAY, January 23.

_Protection of Seamen._

The SPEAKER laid before the House a letter from the Secretary of State, accompanying statements and abstracts relative “to the number of American seamen who have been impressed or detained on board of the ships of war of any foreign nation; with the names of the persons impressed; the name of the ship or vessel by which they were impressed; the nation to which she belonged, and the time of the impressment; as also certain facts and circumstances relating to the same;” prepared in obedience to a resolution of this House of the thirty-first ultimo.

Mr. CROWNINSHIELD said, that the list of impressed seamen, furnished by the Secretary of State, exceeded in number any thing he had expected. He thought these impressments ought to be prevented, and that the subject demanded investigation. He had drafted a resolution, which he would submit to the House, having in view to connect this with another very important subject. Many gentlemen must have observed that some late proclamations had been issued by the Governors of the several British West India Islands, interdicting the American trade after May next. The proclamations bore date in October or November, and were to take effect in six months. It appeared to him that the British Government were determined to exclude us from their islands, upon the expectation that their own vessels would be competent to carry the necessary supplies. Mr. C. said we had a right to carry the productions of the United States in American bottoms, and he hoped we should never permit foreign ships to come to our ports and carry on an exclusive trade with any country whatever, where our vessels were not allowed the same privilege. His intention was to prevent the American carrying trade to the West Indies from falling into the hands of other nations. He would not exclude foreign vessels from our ports, but it was desirable that our own export trade should not be monopolized by foreigners. The subject was highly important to this country. Will the United States tamely submit to see some of its best citizens torn from their families and friends, without attempting something for their relief? Shall we see another country pursuing measures hostile to our commercial rights and make no effort to correct the mischief? The West India Islands depended on the United States for their ordinary supplies, and our vessels had usually carried a large proportion of their cargoes on American account; but it appeared now that we were to be shut out from this trade, and it was in future to be carried on in foreign vessels. An effectual remedy would be to prohibit the exportation of our productions in foreign bottoms to all ports of islands with which we were not permitted to have intercourse, and in order that the subject might undergo the examination which its importance demanded, he offered the following resolution:

_Resolved_, That the Committee of Commerce and Manufactures be instructed to inquire if any, and what, further provision be necessary for the protection of the commerce and seamen of the United States, and to inquire whether any foreign country has made any late regulations with a view to monopolize any branch of the American carrying trade, to the exclusive benefit of such foreign country, or which in their operation may be injurious to the agricultural or commercial interest of the United States; and also to inquire into the expediency of prohibiting the exportation from the United States of all goods and merchandise whatever in foreign ships bound to any port with which the vessels of the United States are not allowed communication, or where a free and unrestricted trade is not permitted in the productions of the United States, and that the committee be authorized to report by bill or otherwise.

Mr. RANDOLPH wished the resolution to lie for consideration a few days; he would mention Monday. The gentleman had said it was an important subject, and if he had no objection it would be as well to allow the resolution to remain unacted upon for a little time. It might be printed for the consideration of the House, and he rather supposed some alteration would be necessary in the form of the resolution.

Mr. CROWNINSHIELD replied that he was perfectly willing the resolution should lie for consideration, agreeably to the desire of the gentleman from Virginia, and he would consent to any reasonable delay; but he would not consent to its remaining unacted upon till a period so late as to preclude any measures from being adopted this session, because the proclamation would take effect in the month of May. He was not tenacious of forms, it was the substance of things he looked to, and he would with great pleasure agree to modify the resolution to any shape which the gentleman from Virginia might suggest.

A motion was made to refer the resolution to a Committee of the Whole for Monday next; which was agreed to, and the resolution ordered to be printed.

THURSDAY, January 24.

The SPEAKER laid before the House a letter from the Secretary of War, enclosing sundry documents relating to the case of William Scott, and James and John Pettigrew, stated to have been murdered and plundered by the Cherokee Indians, in pursuance of a resolution of this House of the twenty-second instant; which were read and referred to the Committee of the Whole, to whom is committed the report of the Committee of Claims on the petition of Alexander Scott, of the State of South Carolina, in behalf of himself and others.

_Navy Yards, &c._

Mr. EUSTIS moved the following resolution:

“_Resolved_, That it is expedient to provide by law for defraying the expense incident to fitting and preparing one of the navy yards belonging to the United States, and lying near the margin of the ocean, for the reception and repairing of such ships of war as are now at sea on their return to port, and such other ships or vessels of war as may hereafter return from their cruises or stations.”

Mr. EUSTIS said the resolution now submitted to the consideration of the House had grown out of an opinion which impressed itself on his mind, when he first beheld the whole naval force of the United States moored in the Eastern branch of the Potomac. He had ever considered the establishment of a navy yard in this city, as the principal naval arsenal, to be among the errors or misfortunes which had presided over many other arrangements respecting this city and territory. As the United States were at that time at peace with all the world, excepting the Dey of Algiers, as a small part of the force only was necessary to carry on this warfare, and as the ships had been actually hauled up at a considerable expense, there appeared to be no immediate necessity for incurring a further expense in their removal. Our maritime concerns have now experienced a change. We are at war with another of the Barbary Powers, and a greater number of ships have been necessarily taken into the service. We have at this time six frigates, and five or six smaller vessels on duty in the Mediterranean. After a certain time these ships must be relieved. Others must be sent out to take their stations. Those which return will require repairs; and in order to prepare for these contingencies it was proper that some one of the navy yards nearer to the ocean should be put in a condition to receive them. This was the object of the resolution. It was desirable that some place should be selected easy of access, where the water was deep, and in the neighborhood of some large maritime town, having large markets and magazines of the variety of articles required for repairing and fitting ships for sea, with the artizans employed in that business. It was not his intention to describe the advantages or disadvantages of one place or of another. The United States own six navy yards. The whole coast is before the Executive, and such a place will be selected as will combine the greatest number of advantages and best promote the public interests. To those who believed that ships of war could be repaired or fitted out with the same despatch, at the same expense, and with the same ease and convenience, at a place three hundred miles distant from the sea, as they could be in one of the ports lying on its margin, and possessing the advantages which had been stated, no reasoning could be applied which would change their opinions. The proposition was offered to the House to be decided by common sense and understanding. There was one objection which he had anticipated, and which had some weight in it. The business of the department would in that case be removed from the eye of the Government, and from the more immediate inspection and control of the intelligent and capable officer who directed its operations; this inconvenience would be balanced by the more ample means and resources which his agents would find in the large towns, and by which they would be enabled to carry his instructions more promptly into effect.

The motion was referred to a Committee of the Whole on Monday next.

FRIDAY, January 25.

_Mississippi Territory._

Mr. LATTIMORE presented a memorial from the Legislative Council and the House of Representatives of the Mississippi Territory, stating sundry grievances to which they were exposed by the act of Congress for the government of the same. They complain that a man is not qualified to vote unless he possess fifty acres of land, whereby those who hold houses and town lots, as well as respectable citizens of considerable personal estate, are disfranchised. The inequality of representation in the several counties to the number of inhabitants in each; the necessity of extending the powers and authorities of an additional judge lately furnished the Territory; the inconveniencies arising from the prescribed mode of the disposal of lands; the necessity of establishing a hospital at the Natchez; and, lastly, an increase of the salaries of the judges.

On motion, the memorial was referred to a select committee of five members.

TUESDAY, January 29.

Another member, to wit, OLIVER PHELPS, from New York, appeared, and took his seat in the House.

_Georgia Claims._

The House again went into Committee of the Whole on the Georgia claims.

After reading over the report of the Committee of Claims, which concludes with submitting the following resolution:

_Resolved_, That three Commissioners be authorized to receive propositions of compromise and settlement, from the several companies or persons having claims to public lands within the present limits of the Mississippi Territory, and finally to adjust and settle the same in such manner as in their opinion will conduce to the interest of the United States: _Provided_, That in such settlement the Commissioners shall not exceed the limits prescribed by the convention with the State of Georgia.

Mr. DANA moved that the committee rise and report the resolution.

Mr. J. RANDOLPH wished, before the committee rose, that the gentleman from Connecticut (Mr. DANA) would assign some reasons for the adoption of the resolution. No two things could be more opposite than the prefatory statement made by the Committee of Claims and the resolution which terminated the report. As there were no reasons assigned, he suspected the gentleman had kept them back with a view of surprising the House by their novelty; but he hoped the committee would not agree to the motion, unless some better cause was assigned for its adoption than had hitherto been made known.

Mr. DANA said the Committee of Claims, in the report now before the Committee of the Whole, had confined themselves to a statement of facts derived from the documents referred to them. He conceived it to be the business of the Committee of Claims to investigate the facts, and arrange them in such a manner as to free the House from the labor of detail; they had done this, and the report was a summary of all that passed in review before them. It was left to gentlemen to reason on the case according to their course of reflection. Whether the committee reasoned on the subject well or ill, he did not know that gentlemen were bound to follow them in their conclusion. Indeed, he apprehended that were the reasoning ever so energetic, it would not go to satisfy every gentleman. On a question like the present, he despaired of making it satisfactory to the gentleman who had asked for reasons. He was persuaded that gentleman could not be convinced by any argument the committee might have used, and it was idle to call upon them to perform impossibilities.

The question on the committee’s rising and reporting their agreement to the resolution was put, and carried--yeas 61, nays 50.

The SPEAKER having resumed the chair, Mr. VARNUM reported the foregoing resolution as agreed to.

Mr. BRYAN called for the reading of that rule of the House which restrains interested persons from voting.

The Clerk read the same, as follows:

“No member shall vote on any question in the event of which he is immediately and particularly interested; or in any other case where he was not present when the question was put.”

A motion was made to consider the report of the Committee of the Whole, and carried--yeas 64, nays 51.

Mr. CLARK moved a proviso as an amendment, declaring that no part of the five millions of acres reserved should go to compensate the claimants under the act of Georgia, passed in 1795.

Mr. J. RANDOLPH called the yeas and nays on the amendment.

Mr. DANA observed that the report on the table had been made on the application of persons claiming land under the act of 1795. The amendment, said he, is nothing more nor less than a denial to comply with the prayer of the petitioners, and whether it was not to all intents and purposes a substitute for the resolutions agreed to in the Committee of the Whole, he would leave to the Speaker. If it were decided to be a substitute, it could not be received, conformably to the rules of the House.

The SPEAKER said, the resolution reported from the Committee of the Whole was a general one, including all claims; the amendment went to limit and confine the resolution to a particular class, and, therefore, he conceived it to be in order.

Mr. J. RANDOLPH.--It must be manifest to the House that this discussion is forced upon those who are opposed to the report of the committee; that we are not prepared at this time to meet it. I am among those who hoped that some reasons would be assigned, if indeed reasons can be found, to warrant the step about to be taken. I did hope that, instead of a string of facts and statements which were already before the House, the committee would have given us something new in the shape of argument, justificatory of the resolution which they have recommended. But I have been disappointed. Nothing is offered either in the report itself, or in the debate, which throws a single gleam of light on the subject. I have

## particular reasons to deprecate a discussion at this time. I shall not

trouble the House by detailing them, but briefly state that I feel myself unequal to an immediate investigation of this question, as well from personal indisposition as from the pressure of other important business, which has left me but little leisure to attend to this. The few moments which I have been able to devote to it, have convinced me that much new and important matter remains to be brought to light. But no apology will be received: we are driven to a vote by an inflexible majority.

The objection taken by the gentleman from Connecticut, (Mr. DANA,) and the doubt which he raised on that point of order, respecting the amendment offered by my worthy colleague, (Mr. CLARK,) discloses his drift, and that of the Committee of Claims, whilst it proves the necessity of some such amendment to save citizens of the United States and their property from spoliation and plunder. The gentleman has stated truly that his object was to further the claim of the New England Mississippi Land Company. As I fear I shall have full occasion to exert my voice, I must beg that the memorial of the agents of that company may be read by the Clerk.

Mr. J. RANDOLPH then called for the reading of the act of Georgia of February, 1796, generally called the rescinding act; and he hoped they would have silence whilst the act was reading, as it was a very important one, and ought to influence the decision on the present subject.

The act was read in compliance with the request.

After it was finished, Mr. CLARK moved to adjourn.

On the division, there were 52 yeas, and 55 nays. So the motion was lost.

Mr. CLARK requested that the act of 1795, under which they derived their pretended titles, might be read.

Whilst the SPEAKER was reading the same, Mr. DANA rose and inquired whether it was necessary to read the whole of the law, or whether gentlemen would not be satisfied with the reading of such part of it as bore upon the present question.

Mr. J. RANDOLPH called the gentleman to order for interrupting the Speaker in his reading.

Mr. SPEAKER.--The objection ought to have been made (if at all) when the reading of the law was first called for.

The reading was continued to the end of the act--when,

Mr. J. CLAY moved that the House adjourn.

On a division, there were 53 yeas, and 60 nays. Motion lost.

Mr. J. RANDOLPH.--Perhaps it may be supposed, from the course which this business has taken, that the adversaries of the present measure indulge the expectation of being able to come forward, at a future day--not to this House, for that hope is desperate, but to the public, with a more matured opposition than it is in their power now to make. But past experience has shown them that this is one of those subjects which pollution has sanctified; that the hallowed mysteries of corruption are not to be profaned by the eye of public curiosity. No, sir, the orgies of Yazoo speculation are not to be laid open to the vulgar gaze. None but the initiated are permitted to behold the monstrous sacrifice of the best interests of the nation on the altars of corruption. When this abomination is to be practised we go into conclave. Do we apply to the press--that potent engine, the dread of tyrants and of villains, but the shield of freedom and of worth? No, sir, the press is gagged. On this subject we have a virtual sedition law--not with a specious title, but irresistible in its operation, which, in the language of a gentleman from Connecticut, (Mr. GRISWOLD,) goes directly to its object. The demon of speculation, at one sweep, has wrested from the nation their best, their only defence, and closed every avenue of information. But a day of retribution may yet come. If their rights are to be bartered away and their property squandered, the people must not, they shall not be kept in ignorance by whom, or for whom it is done.

We have often heard of party spirit--of caucuses as they are termed--to settle legislative questions, but never have I seen that spirit so visible as at this time. The out-of-door intrigue is too palpable to be disguised. When it was proposed to abolish a judiciary system reared in the last moments of an expiring Administration, the detested offspring of a midnight hour--when the question of repeal was before this House, it could not be taken up until midnight, in the third or fourth week of the discussion. When the great and good man who now fills, and who (whatever may be the wishes of our opponents) I hope and trust will long fill the Executive chair, not less to his own honor than to the happiness of his fellow-citizens; when he, sir, recommended the repeal of the internal taxes, delay succeeded delay, and discussion was followed by discussion, until patience itself was worn threadbare. But now, when public plunder is the order of the day, how are we treated? Driven into the Committee of the Whole, and out again in a breath, by an inflexible majority, exulting and stubborn in their strength, a decision must be had instanter. The advocates for the proposed measure feel that it will not bear a scrutiny. Hence this precipitancy. They wince from the touch of examination, and are willing to hurry through a painful and disgraceful discussion. But, it may be asked, why this tenacious adherence of certain gentlemen to each other on every other point connected with this subject? As if animated by one spirit, they perform all their evolutions with the most exact discipline, and march in a firm phalanx directly up to their object. Is it that men combined to effect some evil purpose, acting on previous pledge to each other, are ever more in unison than those who, seeking only to discover truth, obey the impulse of that conscience which God has placed in their bosoms? Such men do not stand compromitted. They will not stifle the suggestions of their own minds, and sacrifice their private opinions to the attainment of some common, perhaps some nefarious object.

Having given vent to that effusion of indignation which I feel, and which I trust I shall never fail to feel and to express on this detestable subject, permit me now to offer some crude and hasty remarks on the point in dispute. They will be directed chiefly to the claim of the New England Mississippi Land Company, whom we propose to debar (with all the other claimants under the act of 1795) from any benefit of the five millions of acres, reserved by our compact with Georgia, to satisfy such claims not specially provided for in that compact, as we might find worthy of recompense. I shall direct my observations more particularly to this claim, because it has been more insisted upon, and more zealously defended than any other. It is alleged by the memorialists, who style themselves the agents of that company, that they, and those whom they represent, were innocent purchasers; in other words, ignorant of the corruption and fraud by which the act from which their pretended title was derived, was passed. I am well aware that this fact is not material to the question of any legal or equitable title which they may set up; but as it has been made a pretext for exciting the compassion of the Legislature, I wish to examine into the ground upon which this allegation rests. Sir, when that act of stupendous villany was passed in 1795, attempting under the forms and semblance of law to rob unborn millions of their birthright and inheritance, and to convey to a band of unprincipled and flagitious men a territory more extensive, and beyond comparison more fertile than any State of this Union, it caused a sensation scarcely less violent than that produced by the passage of the stamp act, or the shutting up of the port at Boston, with this difference: when the port bill of Boston passed, her Southern brethren did not take advantage of the forms of law, by which a corrupt Legislature attempted to defraud her of the bounty of nature; they did not speculate on the necessities and wrongs of their abused and insulted countrymen. I repeat that this infamous act was succeeded by a general burst of indignation throughout the continent. This is matter of public notoriety, and those--I speak of men of education and intelligence, purchasers, too, of the very country in question--those who affect to have been ignorant of any such circumstance, I shall consider as guilty of gross and wilful prevarication. They offer indeed to virtue the only homage which she is ever likely to receive at their hands--the homage of their hypocrisy. They could not make an assertion within the limits of possibility less entitled to credit.

The agents of the New England Land Company are unfortunate in two points. They set out with a formal endeavor to prove that they are entitled to their proportion of fifty millions of acres of land, under the law of 1795, and this they make their plea to be admitted to a proportional share of five. If they really believed what they say, would they be willing to commute a good legal, or equitable claim, for one tenth of its value? Their memorial contains, moreover, a suggestion of falsehood. They aver that the reservation of five millions for satisfying claims not otherwise provided for, in our compact with Georgia, was especially intended for the benefit of the claimants under the act of 1795, and that we were pledged to satisfy them out of that reservation. Now, sir, turn to the sixth volume of your laws, and what is the fact? In the first place, so much of the reserved five millions as may be necessary, is appropriated specifically for satisfying claims derived from British grants not regranted by Spain; and as much of the residue as may be necessary is appropriated for compensating other claims, not recognized in our compact with Georgia. An appropriation for certain British grants specially, and for other claims generally, is falsely suggested to have been made for the especial benefit of the claimants of 1795; and the reservation of a power in the United States to quiet such claims as they should deem worthy of compensation, is perverted into an obligation to compensate a particular class of claims; into an acknowledgment that such claims are worthy of compensation. Can this House be inveigled by such barefaced effrontery? Sir, the act containing this appropriation clause was not brought to a third reading till the first of March. Our powers expired on the fourth: it was at the second session of the seventh Congress. It was in the power of those opposed to the corrupt claims of 1795 to have defeated the bill by a discussion. But, sir, they abstained on this ground. If the appropriation of the five millions had not been made at that session, the year within which, by our agreement with Georgia, it was to be made, if at all, would have expired before the meeting of the next Congress; and it was urged, by the friends of the bill, that there were several descriptions of claims to which no imputation of fraud could attach; that by making a general appropriation we secured to ourselves the power of recompensing such claims as, on examination, might be found worthy of it, whilst we pledged ourselves to no class of claimants whatever. But that if we should suffer the term specified, in our compact with Georgia, to elapse without making any appropriation, we should preclude ourselves from the ability to compensate any claims, not specially provided for, however just and reasonable we might find them, on investigation, to be. Under these circumstances, and I appeal to my excellent friend from Maryland, who brought it in, for the correctness of my statement, the opponents of the bill gave it no other opposition than a silent vote. And now, sir, we are told that we stand pledged, and that an appropriation for British grants not regranted by Spain, specially, and for such other claims against the State of Georgia, generally, as Congress should find quite worthy, was made for the especial benefit of a particular description of claimants, branded, too, with the deepest odium; who dare to talk to us of public faith, and appeal to the national honor!

The conclusion of the memorial is amusing enough. After having played over the farce, which was acted by the Yazoo Squad at the last session, affecting to believe that an appropriation has been made by the act of March 1803, for their especial benefit, they pray that Congress will be pleased to give them--what? that to which they assert they are entitled?--by no means--an eighth or tenth part of it--which said eighth or tenth part, if we may credit them, has been already appropriated to their use by law. From a knowledge of the memorialists, and those whom they represent, can you believe for a moment that, if they had the least faith in the volume of argument (I am sorry to profane the word) which they presented to the House to prove the goodness of their title, can you believe that under such impression they would accept a paltry compromise of two shillings in the pound--much less that, to obtain it, they would descend so low! Sir, when these men talk about public faith and national honor, they remind me of the appeals of the unprincipled gamester and veteran usurer to the honor of the thoughtless spendthrift, whilst in reality they are addressing themselves to his vices and his folly.

The first year that I had the honor of a seat in this House, an act was passed of a nature not altogether unlike the one now proposed. I allude to the case of the Connecticut Reserve, by which the nation were swindled out of some three or four millions of acres of land, which, like other bad titles, had fallen into the hands of innocent purchasers. When I advert to the applicants by whom we were then beset, I find that among them was one of the very persons who style themselves agents of the New England Mississippi Land Company, who seems to have an unfortunate knack at buying bad titles. His gigantic grasp embraces with one hand the shores of Lake Erie, and stretches with the other to the Bay of Mobile. Millions of acres are easily digested by such stomachs. Goaded by avarice, they buy only to sell, and sell only to buy. The retail trade of fraud and imposture yields too small and slow a profit to gratify their cupidity. They buy and sell corruption in the gross, and a few millions, more or less, is hardly felt in the account. The deeper the play, the greater their zest for the game, and the stake which is set upon their throw is nothing less than the patrimony of the people. Mr. Speaker, when I see the agency that has been employed on this occasion, I must own that it fills me with apprehension and alarm. This same agent is at the head of an executive department of our Government, subordinate indeed in rank and dignity, and in the ability required for its superintendence, but inferior to none in the influence attached to it. This officer, possessed of how many snug appointments and fat contracts, let the voluminous records on your table of the mere names and dates and sums declare; having an influence which is confined to no quarter of the country, but pervading every part of the Union; with offices in his gift amongst the most lucrative, and at the same time the least laborious, or responsible, under the Government, so tempting as to draw a member of the other House from his seat, and place him as a deputy at the feet of your applicant; this officer presents himself at your bar, at once a party and an advocate. Sir, when I see this tremendous patronage brought to bear upon us, I do confess that it strikes me with consternation and dismay. Is it come to this? Are heads of executive departments of the Government to be brought into this House, with all the influence and patronage attached to them, to extort from us now, what was refused at the last session of Congress? I hope not, sir. But if they are, and if the abominable villany practised upon, and by the Legislature of Georgia, in 1795, is now to be glossed over, I for one will ask what security they, by whom it shall be done, can offer for their reputations, better than can be given for the character of that Legislature? I will pin myself upon this text, and preach upon it as long as I have life. If no other reason can be adduced but a regard for our own fame, if it were only to rescue ourselves from this foul imputation, this weak and dishonorable compromise ought to receive a prompt and decisive rejection. Is the voice of patriotism lulled to rest, that we no longer hear the cry against an overbearing majority, determined to put down the constitution, and deaf to every proposition of compromise? Such were the dire forebodings to which we have been heretofore compelled to listen. But if the enmity of such men be formidable, their friendship is deadly destruction, their touch pollution.

Such men, I repeat it, are formidable as enemies, but their friendship is fraught with irresistible death. I fear indeed the “_Danaos et dona ferentes_.” But, after the law in question shall have passed, what security have you that the claimants will accede to your terms of compromise? that this is not a trap, to obtain from Congress something like a recognition of their title, to be hereafter used against us? Sir, with all our wisdom, I seriously doubt our ability to contend with the arts and designs of these claimants, if they can once entangle us in the net of our own legislation. Let the act of March, 1801, of which already they have made so dexterous a use, be remembered. They themselves have pointed out the course which we ought to pursue. They have told us, that so long as we refrain from legislating on this subject, their case is hopeless. Let us then persevere in a “wise and masterly inactivity.”[23]

The committee rose, and had leave to sit again, and the House adjourned.

WEDNESDAY, January 30.

On motion, it was

_Resolved_, That the President of the United States be requested to inform this House whether SAMUEL HAMMOND, a member of this House, has not accepted of an Executive appointment, and when?

_Ordered_, That Mr. BRYAN and Mr. EPPES be appointed a committee to present the foregoing resolution to the President of the United States.

_Georgia Claims._

The House resumed the consideration of the resolution reported yesterday from the Committee of the Whole on the Georgia Claims.

Mr. ELLIOT.--It cannot but be considered as a very fortunate circumstance, and one which cannot fail to have a favorable influence upon the final decision of this important question, that, since the delivery of the animated observations which yesterday so powerfully attracted the attention of the House, we have been afforded a few hours of tranquil retirement from the tempest of the forum, for the purpose, useful at all times, and peculiarly so at the present time, of calm reflection. To transfer ourselves in a moment from the flowery fields of fancy, to the rugged road of argument, to descend instantaneously from the elevated scenes of eloquence to the humble walks of common sense, requires an effort transcending ordinary powers. In claiming your attention, Mr. Speaker, for a greater portion of the day than I commonly occupy in debate upon this floor, I shall not address you in the style of compliment or ceremony. It is time to banish from these walls that idle frippery of ceremonious conversation, which is suited only to a new year’s compliment, or a birthday salutation, and to catch a little of the sturdy spirit of antiquity. A bold, a loud, an impressive appeal is made to the American people. In that appeal I fearlessly and most cordially unite. I regret, however, the existence of a precedent which at once justifies and demands these addresses to the people. Much as I wish to disseminate correct information, particularly on a subject which I believe is but imperfectly understood without these walls, except by interested persons, and convinced as I am that the subject is understood, and an opinion formed upon it, by every member of this House, I shall not so completely follow the example before us as to speak to the people in the first instance, but shall, as usual, direct my observations to the House.

I propose to examine, in a concise, and if it be in my power, in an argumentative manner, the following questions, which have a direct application to the amendment proposed by the gentleman from Virginia (Mr. CLARK) to the resolution under consideration, and which, at the same time, open to view the whole extent of the subject:

Did the State of Georgia, in the year 1795, possess a title to the territory in question?

Were the Legislature of Georgia, in 1795, invested with the constitutional power of making a sale of the territory, and did they make such sale to those from whom the present claimants derive their title or pretended title? And if such sale was made, what title or color of title did it convey?

Were the members of the Legislature of Georgia, in 1796, invested with the constitutional power of rescinding the acts of their predecessors in relation to such sale, and did they rescind them?

Were the claims or pretended claims of the present claimants in any manner recognized by the act of cession of the territory in question from Georgia to the United States? And,

Do justice and policy, or either justice or policy, require that the whole or any part of the five millions of acres, reserved by the act of cession from Georgia to the United States, for the purpose of satisfying claims of a certain description against Georgia, in reference to the said territory, should be appropriated for the purpose of satisfying the claims of the present claimants?

However extensive the outline which I have sketched of the subject, the survey will be a rapid one.

It is necessary that I should make one or two preliminary observations. I have uniformly been opposed to the doctrine which has been so powerfully advocated, that Congress is competent to make a legislative decision upon the validity or invalidity of the conflicting acts of Georgia. We possess no such powers. But as individuals we may express our opinions. Nor am I disposed to do any thing which shall have a tendency to impugn the title of the United States to this territory. Without deciding the question of title, my principal object is to show that the claimants are in possession of so strong a color of title, that it will be good policy to authorize a negotiation with them for the abandonment of their claim, especially as we have a prospect of obtaining that abandonment on their part, without going beyond the reservation in the act of cession, and of course without the actual expense of a single dollar to the United States.

Did the State of Georgia, in the year 1795, possess a title to the territory in question?

To answer this inquiry, it is only necessary to make one or two quotations from the articles of agreement and cession, entered into on the 24th of April, 1802, between the Commissioners of the United States and those of Georgia. In the first article, “the State of Georgia cedes to the United States all the right, title, and claim, which the said State has to the jurisdiction and soil of the lands situated within the boundaries of the United States south of the State of Tennessee,” &c. By the second article, “The United States accept the cession above mentioned, and on the condition therein expressed; and they cede to the State of Georgia whatever claim, right, or title, they may have to the jurisdiction or soil of any lands lying within the United States, and out of the proper boundaries of any other State, and situated south of the southern boundaries of the States of Tennessee, North Carolina, and east of the boundary line herein above described, at the eastern boundary of the territory ceded by Georgia to the United States.” Whatever claim or title the United States might previously have had to the territory, they thought proper, in 1802, to combine with it, and to fortify it, by that of Georgia; and surely we shall not do any act, or adopt any principle, tending to impair the title under which we now exercise jurisdiction over the territory.

Were the Legislature of Georgia, in 1795, invested with the constitutional power of making a sale of the territory, and did they make such sale to those from whom the present claimants derive their title or pretended title? And if such sale was made, what title or color of title did it convey?

In this age of political revolution and reformation, for I consider it an age of reformation as well as revolution, there are still certain principles and maxims, not merely venerable for their antiquity, but consecrated by their conformity to the common sense and reason of mankind, which are considered as universal in their application, and irresistible in their influence. Among these may be numbered the principles which attach to the government of every regularly-organized community; the power of pledging the public faith, and that of alienating the right of soil of the vacant territory of the nation. In every free government, there must exist the power of legislation, or of making laws; a distinct power, charged with the execution of the laws, and a judicial power. The union of these different powers in the same man or body of men, is the very essence of despotism. Thus in France, prior to the Revolution, it was a fundamental maxim of State that the King was the Legislator of the French Monarchy; and the power exercised in some instances by certain parliaments, of refusing to register the edicts of the monarch, however in practice it might operate as an obstruction to legislation, was in theory only a matter of form, or at most but a temporary check upon the executive power. In oligarchies the legislative power is vested in the rich and noble; and in aristocracies, in a few individuals who are presumed to be the wisest and the best in the community. In governments of the democratic form, this power resides in the great body of the people, and is exercised by themselves or their representatives. The base of the temple of American liberty is democracy, or the sovereignty of the people; representation and confederation are the principal pillars which support the great superstructure. As the State governments are unquestionably representative democracies, the General Government is a representative federal republic. In every government of the representative form, the representatives of the people are vested with power to pledge the public faith, and to alienate the vacant territory of the nation. Were the members of the Legislature of Georgia, in 1795, invested with this authority? Certainly it was within the sphere of those constitutional rights and powers, which had never been surrendered to the General Government. We have since recognized that authority by receiving a solemn deed of cession of the territory from a subsequent Legislature of Georgia, transferring to us not only the soil, but the right of jurisdiction. Was this authority exercised in 1795? In the act of the Legislature of that State of the 7th of January in that year, granting this territory to those from whom the present claimants derive their claims, certain lands are described, and it is enacted that those lands shall be sold to such and such persons, as tenants in common, and not as joint tenants. The land shall be sold, or, in other words, the right of soil shall be alienated. A proper distinction is taken between the _dominium utile_ and the _dominium directum_ of the civilians. No transfer was made of the right of jurisdiction, although such imaginary transfer forms a prominent article in the reasons assigned by the Legislature of 1796 for passing the rescinding act. From this view of the subject, whatever may be the present state of the question of legal title, who can doubt that the present claimants, honest purchasers from the original grantees, upon the faith of an independent State, and innocent of fraud, if fraud existed, possess such a color of title, such an equitable claim, as to render it prudent and politic to enter into a compromise with them upon reasonable terms?

Were the members of the Legislature of Georgia, in 1796, invested with the constitutional power of rescinding the acts of their predecessors in relation to such sale, and did they rescind them?

Congress is incompetent to the decision of this question. Nor is such decision necessary. I will, however, make one or two inquiries, and state one or two principles, which are applicable to the subject, which at the same time will go to strengthen the ground I have taken as to color of title in the claimants, and the policy of extinguishing their claims.

Can a legislature rescind a contract made by its predecessors?

Writers on national law make a distinction between laws which operate in the nature of contracts, and those which have no such operation. Every enlightened and reasonable man will subscribe to the opinion that a pledge of the public faith, given by the competent authority, ought to be irrevocable. Laws which pledge the faith of the community, which create contracts, which vest rights in individuals or in corporate bodies, it may safely be assumed as a general principle, are irrepealable. Laws of merely municipal operation are alterable or repealable at the pleasure of the existing legislature.

Can the judicial power declare a legislative act void, as having been passed by means of corruption?

Different opinions have existed in our country as to the right claimed by the judiciary, of deciding upon the constitutionality of laws. The better opinion seems to be, that from the nature of our Government, and the very terms of the constitution itself, by which that instrument is declared to be the supreme law of the land, the judges not only ought to exercise that power, but that they cannot avoid its exercise. If I am not mistaken, some gentlemen, who deny that the judges possess this right, are prepared to invest them with the more dangerous one of setting aside a legislative act on the ground of corruption. To admit that the judiciary may examine into the motives of the Legislature in passing laws, or that they may receive and decide upon evidence tending to prove corruption in the legislative body, would certainly be going much further than those have gone who have claimed for that department the right of deciding upon the constitutionality of laws. Suppose a trial of title between a person claiming under the act of Georgia, of 1795, and another claiming under the United States, and suppose evidence offered to the Court to prove the corruption of the Legislature of Georgia, in what a peculiar situation the judges would be placed? And would they listen for a moment to an application for the admission of such evidence? It may well be doubted. Do not then the present claimants possess a very strong color of title? Is it not prudent to extinguish claims of this description?

Were claims, or the pretended claims of the present claimants, in any manner recognized by the act of cession of the territory in question from Georgia to the United States? And,

Do justice and policy, or either justice or policy, require that the whole or any part of the five millions of acres, reserved by the act of cession from Georgia to the United States, for the purpose of satisfying claims of a certain description against Georgia, in reference to the said territory, should be appropriated for the purpose of satisfying the claims of the present claimants?

I have anticipated the principal arguments in favor of the equity of the claims, and the policy of a compromise with the claimants. The memorialists state that their claims were particularly contemplated by the Commissioners, both of the United States and of Georgia. They have offered us no evidence of this fact, and we are not to take it for granted. Indeed, I am far from thinking it my duty either to advocate or answer the pamphlet of the memorialists, and I shall make but this single allusion to it. Whatever may be its merits, it has had no influence upon my mind in forming my opinion. An examination of the official documents upon our tables will evince, however, that by a very strong implication, if not by express provision, these claims have been recognized, both by the act of cession, and by the law of Congress passed in consequence.

The gentleman from Virginia has expressed his surprise that the Chairman of the Committee of Claims had contented himself with reporting facts and principles, and that he has not adopted the novel procedure of reporting something tantamount to an elaborate speech in favor of the claims. As the speech of the gentleman from Virginia is unfortunately destitute of argument against the claims, and as it might be possible to deduce from it reasons in their favor, it might perhaps be proper for him to print it and annex it to the report, as a substitute for that which he thinks the chairman ought to have subjoined for the edification of the House. My feeble optics have been able to discover but one attempt at argument, which is in those observations which relate to the Message of the President, and the proceedings of Congress, on the act of Georgia, in 1795, and which, it is contended, were notice, to purchasers and to the world, of fraud. At that time, it was not suspected that fraud had been committed, and the reason for those proceedings was, that the United States possessed, or were supposed to possess, certain claims to the territory. There are certain subtile, sublimated, ethereal, heaven-descended geniuses, the soft and silken texture of whose minds would suffer infinite discomposure from the contact of that rude and knotty thing--an argument. That gentleman is not of this description. Too often have we witnessed his argumentative powers to entertain this idea. I regret that he has declaimed instead of reasoning upon this occasion, as I believe that argument, particularly upon important subjects, is more useful than mere declamation. From motives which I cannot develope, for I ascribe improper views to no one, the present is attempted to be made a party question. The people are told that the Capitol has become a scene of political and private iniquity, of fraud and federalism; that the majority, of their Representatives are committing a stupendous robbery upon the public patrimony, and their indignation is invoked upon the plunderers. What facts exist to justify these denunciations? Are we about to barter away the rights and interests of the people? Are we about to be guilty of a wanton waste of the public property? Are we guilty of political apostasy? No such thing. We are about to make arrangements for carrying into effect a solemn stipulation in the treaty with Georgia, and a solemn act of our predecessors, by devoting a part of the five millions of acres, specially reserved for that purpose, for which the United States never paid a cent, and never will pay a cent, to the extinguishment of the colorable claims of equitable claimants. Yet we are told that this act of equity, good faith, and good policy, is a stupendous crime, compared with which the flagitious acts of the former “unprincipled administration” dwindle into “petty larcenies.” I am a republican--a democratic republican. I was opposed to the general system of that administration. But I do not think it magnanimous, or honorable, malignantly to triumph over fallen foes. Nor do I dread the union of honest men. It can be dreadful only to the dishonest.

It is said that the circumstance that one of the great officers of the Government is numbered among the claimants, ought to scatter consternation through this House. It is unnecessary for me to undertake a vindication of the character of that gentleman. Does his office divest him of the common rights of a citizen? Does it deprive him of the right of petitioning the National Legislature? But his contracts are resorted to for the purpose of proving that he has extended his official influence within our walls. Unfortunate, indeed, is the application of this argument. By the report upon the table, it appears that three members are contractors, and we all see that two of them are opposed to the present claims.

Believing, Mr. Speaker, that this act of enormous robbery, this wanton dissipation of the public treasure, this abominable league between corruption and federalism, of which we hear so much, is neither more nor less than an act of just national policy; believing with the Secretary of State, the Secretary of the Treasury, and the late Attorney-General, that “the interest of the United States, the tranquillity of those who may hereafter inhabit that territory, and various equitable considerations, which may be urged in favor of most of the present claimants, render it expedient to enter into a compromise on reasonable terms;” and believing that this compromise ought to be delayed no longer, I shall give a decided vote in opposition to the proposed amendment, and in favor of the original resolution, as reported by the Committee of Claims.

Mr. LUCAS.--I am, sir, in favor of the amendment proposed to the report now under consideration. The unparalleled fraud which has been practised by the divers land companies styled purchasers, under the act, or pretended act, of Georgia of 1795, and by the Legislature that passed that act, have been fully noticed and exposed in the course of the debates which took place on the same subject, during the last session of Congress, and again during these two last days. This notorious fraud, odious as it is on the part of the land companies, is still much more so on the part of the members of the Legislature of Georgia, as their country had confided in them, and that themselves had pledged their faith under the obligation of an oath. But there are other instances of fraud and deception, materially affecting the purchase or claim in question, which have been solely practised by the land companies, and in which the Legislature of Georgia had no kind of participation. These charges cannot be resisted by the ordinary means of denial of facts, for they are supported upon authentic documents.

It ought to be observed that the four land companies who are original purchasers under the act of the Legislature of Georgia, passed on the 7th January, 1795, stated in their petition, containing their proposals to the Legislature to purchase certain lands belonging to the State of Georgia, that the land contained within the bounds which were described in their petition, amounted to 21,750,000 acres. It was evidently upon the faith of this statement, that the Legislature consented to sell that land for $500,000. However, it is now ascertained that the quantity of the land thus described amounts to 35,000,000 of acres, and the companies themselves compute it to be near 40,000,000. From this it appears evidently that the companies have deceived the Legislature by stating what was not true, that the contracts are legal and obligatory. The

## parties ought not only to have contracted with liberty of choice, but

they ought also to have contracted with a due knowledge of the matter, which was the object of the contract. This has not been the case here; the Legislature have sold twice as much land as they intended to sell, or, which is the same thing, they have sold it one time cheaper than it was their intention, and all this loss is the result of the false statement given by the land companies.

It is an incontrovertible maxim of law, that none ought to be benefited by his own wrongs; this maxim applies with a double force in a contract between the sovereign authority and private persons. The contract between the Legislature and the land companies having been entered into by the means of a statement which proves to be false, and which has been made by the parties that claim the benefit arising thereof, the contract becomes vitiated and of no effect.

Should this wrong not be sufficient to invalidate the contract, there is another wrong that would arise from it; by the act of 1795, a reserve was made of two millions of acres out of the several tracts sold to the Georgia land companies, for the use of such citizens of Georgia as chose to subscribe in the original terms of the purchase. The price paid by the citizens who did subscribe was two cents and one-third per acre, it being the price then supposed to have been paid by the companies, according to the statement originally made of the whole quantity of land contained in the purchase, which, as I have before said, proves to be very near double the land companies would receive from the citizens of Georgia, who clearly had a right to subscribe on the original terms; a price per acre nearly double to that which they themselves would have to pay, and thus have a profit on the citizens of Georgia for the difference in the quantity of acres contained in the purchase arising from the false statement; which reduces, with respect to the speculators, the actual price of the land to little more than one cent per acre, while it remains at two cents and one-third with respect to the citizens of Georgia. However great may have been the departure of the Legislature of Georgia from the interest of their constituents on this occasion, it appears evidently, that by the expression, “original term,” they understand that their citizens should subscribe, if they chose, to the amount of two millions, upon terms similar to those of the land companies. It appears evidently they did believe they were selling the land of the State at the rate of two cents and one-third per acre, whilst, in fact, they received but one cent and one-sixth, which, upon the whole, is a consideration merely nominal.

To the multiplicity of the radical defects with which the title of the companies claiming under the act of 1795 abound, the advocates of the claim of the New England Mississippi Land Company answer, that none of those who compose their company had any participation in the fraud; they are said to be _bona fide_ purchasers, perfectly ignorant of the fraud which may have been practised by those of whom they bought. They are represented in their memorial and vindication as plain farmers, mechanics, &c., who have made what they possess by the closest application and industry.

Sir, I stand among those who are the most ready to acknowledge that the inhabitants of New England are conspicuous for their industry; but I am likewise of opinion, that they are not less noted for their sagacity, in their attendance to their interest; and in the art of making good bargains, I view them as being fully competent to cope in dealings with the inhabitants of the Southern States. That they should not have heard of the notorious fraud which has taken place at the passing of the act of 1795, is a great cause of astonishment to me; that they should have made a purchase to the amount of eleven millions of acres, without making inquiries sufficient to discover what almost every body knew throughout the United States, if possible, increases my astonishment. For my part, having never thought of purchasing any land from the Georgia land companies, I made no inquiry about the acts of the Legislature of Georgia; yet the corruption was so flagrant, the fraud so notorious, that it reached my ears soon after it was passed. A gentleman from Virginia (Mr. RANDOLPH) has justly observed, yesterday, that the President of the United States had, in his address to the two Houses of Congress, at the beginning of the session of 1795, taken a most direct notice of the act of Georgia, passed in January of the same year, as tending to dangerous consequences. Certainly such solemn communications of the first Magistrate, at the beginning of a session, contain matters that are an object of national concern, and generally sought for. There is not a paper in the Union that omits publishing those communications. It would be possible, however, that this communication would have escaped the notice of plain industrious farmers, such as are able, perhaps, to purchase two or three hundred acres of land; but that a company of sober and discreet speculators, and of New England too, being about purchasing an immense quantity of land for a great sum of money, should be ignorant of what every body knows, and of what they ought to know sooner than any body else, is a circumstance too unaccountable and extraordinary for me to believe that it really exists. I should rather think that the speculators of New England, sober and discreet as they style themselves to be, found the bargain so good and so tempting, the means of pleading ignorance of fraud committed in the original purchase so easy, the means on the part of the State of Georgia, or its vendee, to prove the notice so difficult, that the sober and discreet speculators of New England thought it advisable to make a gambling bargain, expecting that the two extremities of the United States being engaged in the same speculation, they would combine their force and influence to press hard upon the centre, and save through the conflict their speculation, either in whole or in part. Other strong circumstances lead still more to believe, that the New England Company were well aware of the danger which did exist in making a purchase from the Georgia land companies; and that they were taking unusual risks upon themselves; this appears clearly from the face of their deeds; not only the covenant of warranty is special, instead of being general, but another extraordinary covenant is entered upon by which the Georgia Mississippi Company “is not liable to the refunding of any money in consequence of any defect in their title from the State of Georgia, if any such there should hereafter appear to be.” Was not such covenant smelling strongly of the fraud which the Georgia grant was impregnated with? Could the New England Company take more clearly every risk upon themselves? Could they more expressly preclude themselves from every remedy in law or equity in case of eviction?

Mr. BOYD.--The question before the House is not whether we are to do a good or an injury to the class of men who are denounced as a band of speculators; but it is whether we shall agree to or reject the amendment to the resolution offered yesterday to the House by a gentleman from Virginia, (Mr. CLARK.) Yesterday was taken up in reading the laws of Georgia, and of the United States, and various other papers, which have been long in the hands of the members, and which no doubt had been so attentively perused by them as to have rendered the reading at this day not indispensably requisite. Mr. B. said, that if papers were to be read for the instruction and edification of the members as to well-known facts, he thought it would have been of more consequence to have read the Declaration of Independence, and the Treaty of Peace of 1783, in which the independence of the United States was acknowledged by the only Power on earth who contended against it. We were then free, sovereign, and independent States, to all intents and purposes, and as sovereign States, each and every State in the Union had full power and authority to dispose of their lands to whom they pleased, and under what conditions they pleased. And if the State of Georgia, in the exercise of her sovereignty, have conveyed to the Mississippi Land Company the right of soil to the land in question, and that company have transferred the same to the New England Mississippi Land Company, the right is vested in them; unless we have arrived at that stage of political depravity that what was yesterday acknowledged as a right shall to-morrow be declared a wrong.

Mr. CLARK said he was still in favor of the amendment on the table, and which he yesterday had the honor of submitting. He did not wish it to be understood that the amendment was intended to give a preference to any description of claims under the different acts of the State of Georgia, and provided for by the general resolution, but intended it should meet directly those which have excited the most public attention, have been the most ardently pursued, the most zealously advocated, and attended with the most extraordinary circumstances. If the facts which have accompanied this monstrous business from its origin to the present moment were publicly known, or if it could be retraced through all its cunning and wily mazes, the claims would sink beneath the weight of honest indignation, and instead of now being urged before the Congress of the United States, would be gladly withdrawn from public view, and buried in perpetual silence. He peculiarly wished on this occasion a cool and temperate discussion, to divest ourselves of all feelings, either of improper compassion or prejudice, that equally tend to inflame the heart and mislead the judgment. It should be his humble province to endeavor a fair investigation of the naked question, disrobing it of those tinsel habiliments which have been artfully thrown around it for the purpose of concealing its real deformity.

The claims the amendment goes to reject, are derived by a pretended law of the State of Georgia, said to have been passed in the month of January, 1795. He would contend this law was absolutely void, _ab initio_, not only because the Legislature had no power to make such a law, but from the circumstances under which it was made. That the grantees under this law could have no title to the land, either legal or equitable; and that there have been no circumstances attending the subsequent sales, that place the sub-purchasers under superior equitable advantages. It will be particularly necessary, Mr. Speaker, to be attentive to dates; that of the law under which the claims are made, and generally known by the name of the “cession law,” has already been noticed. Let us now see how this law passed. It stands characterized by circumstances unparalleled in the annals of pollution--of which we have the most conclusive evidence before us. The whole State of Georgia has borne testimony to the fact, and it is now deposited in the archives of the Government, that a majority of the Assembly which passed the law were corrupted and bribed. Some had money given them; others, shares in the lands they were effecting the sale of. This is so universally admitted and detested, that the most enthusiastic friends of the present claimants cheerfully allow the original grantees had no titles, and he believed there was not one now before Congress with his claim. But it is contended the sub-purchasers had no notice of the fraud in the original contract, but are _bona fide_ purchasers for a good and valuable consideration actually paid. This he never could agree to. The evidence before him was the contrary, and he would here take a review of at least a part of that evidence, a great portion of which, no doubt, has been destroyed by the lapse of nine years, but a sufficiency remains when brought together, irresistibly to carry conviction to the mind of the most skeptical. The law itself is almost enough for this purpose. The simple object was to sell to four companies the vacant western land; but to delude the people and lull inquiry, it is called, “An act supplementary to an act, entitled ‘an act for appropriating a part of the unlocated territory of this State, and for the payment of the State troops, and for other purposes, and the protection and support of the frontier;’” and the same fascination is kept up through the enacting clauses, and it is the longest act in the statute book. It goes into a lengthy examination of the State title, of extinguishing the Indian title, and appropriating the money, directing it to be laid out in bank stock. Where, Mr. Speaker, will you find such a law as this? If the object of the Legislature had been correct, would there have been a necessity for clothing the law in such delusive colors? No, sir! fraud and infamy were to be cancelled, and the covering must be thick. They were, however, disappointed in their aim, for honesty and integrity had yet their residence in the State, and as soon as it was known, the whole country was feelingly alive to the abuse, and a general effervescence pervaded the public mind; this was manifested in the only possible way that remained. The Assembly had adjourned, not to meet again in a twelvemonth. Presentments of the grand juries, in almost all the counties of the State, were made in terms of bitter disapprobation of the law. It was also denounced in the public prints, from one end of the continent to the other. In the month of May, 1795, a convention was held in the State; the grand jury presentments, petitions, and remonstrances from all parts of the country were sent up; these were, by the convention, remitted to the next Legislature as the only competent authority to remedy so enormous an evil. In the month of February before, as has been so ably stated by my valued friend and colleague, (Mr. RANDOLPH,) had this subject been the substance of a communication of the President of the United States to Congress, and a resolution and a bill passed the House of Representatives on the subject. Shall I, after this, be told the sub-purchasers had no notice? Impossible; no historical event so notorious. But the evidence does not stop here. The Georgia Legislature again assembled in the month of November, 1795. The subject of this nefarious and wicked speculation, that covered the country with shame and disgrace, was taken up, and if a doubt had remained of the corruption, it was then removed by a number of affidavits proving incontestably the fact; and on the thirteenth day of February, 1796, a law was passed, not repealing the act of 1795, but with honest and laudable indignation declaring it null and void, as being bottomed upon fraud and perjury, and unveiling to the world the most flagitious conduct that ever disgraced a legislative assembly. It is there ascertained and declared, that the land had been sold for three hundred thousand dollars less than what had been offered for it, and the quantity of land much greater than it had been represented. The lands contained in the grants to the four companies were estimated at twenty-one millions of acres, which, at five hundred thousand dollars, the price given, is twelve and a half cents per acre; the real quantity is about thirty-five millions of acres; this reduces the price of the garden of the world to nearly one and one-third cents the acre. Take notice, Mr. Speaker, that the law of 1796 does not pretend to repeal the act of 1795, but proclaims, to every body, that to be void which was in reality so before, and with an honest zeal provides that the money which had been paid should be repaid to the purchaser. This annulling law was so precious to the people, it was a monument so honorable to the State, that when afterwards the citizens of that State arose in the majesty of their strength, resuming all those rights, and acted in convention, this very law was ingrafted in their constitution.

Mr. EUSTIS.--If the position taken by the gentleman from Virginia (Mr. CLARK) could be established, it would not in my opinion justify the amendment which he has proposed to the resolution under consideration; because the amendment renders the resolution null and void, and the resolution neither affirms nor admits the legal title. Still, I should be willing to rest the whole merits of the case on the single question, whether the claimants, at the time of making their purchases, had or had not a knowledge of the fraud? In the autumn of 1795, when the sales were generally made in New England, there was no knowledge or suspicion of fraud--the contracts were made in full confidence of the act of a sovereign and independent State--and I know they could have had no knowledge of any fraud in the Legislature of Georgia. We are told by the gentleman that there was “a great uproar throughout the State of Georgia.” Whatever might have been the nature or extent of this uproar, I am confident that a knowledge of it had not reached New England at the time the contracts were made. But the proof that there was no knowledge of any fraud depends not on the opinions or assertions of individuals--it is founded on a circumstance which removes all doubt on the subject--it is founded on the price which the purchasers paid for the land. They paid, as they have stated in their memorial, as much per acre for these lands as the State of Massachusetts had received, a few years before, for lands lying in the State of New York. And is it probable that the purchasers who have been represented by a gentleman from Pennsylvania as possessing so much sagacity, and looking so well to their own interests, would have paid or contracted to pay such a price, with a knowledge that the original grant had been fraudulently obtained?

THURSDAY, January 31.

_Georgia Claims._

The House resumed the consideration of the resolution reported the twenty-ninth instant, from the Committee of the Whole, on the Georgia Claims.

Mr. JACKSON.--Mr. Speaker, I rise with some degree of reluctance to address you on the present occasion, not because I fear to give publicity to my sentiments on the question before the House, but from the assurance that the length of time which this subject has occupied at the last, and during the present session of Congress, renders it most certain that no new view can be given; and more especially that the opinions already formed cannot be changed. I would not now have risen but for the wish that inasmuch as a most extraordinary course has been pursued, and a general denunciation of every man who dares to favor the report on your table has been made, my reasons may accompany my vote, and I am willing that they together may form the criterion by which my political existence shall be decided. The reluctance I felt in rising is somewhat removed by the reflection that the arguments urged on this floor are declared not intended to influence the judgment of this House, but to control the public mind, by an avowed appeal to the people of the United States. Let the appeal be fairly made, and I fearlessly await their decision. For that purpose, I deem it proper to offer my sentiments, in order that they may accompany those of my two colleagues who have preceded me. Sir, I am decidedly in favor of the report of the Committee of Claims, and of course opposed to the amendment under consideration. I do not on this occasion regret the absence of party spirit from these walls, which has been invoked by my colleague, (Mr. RANDOLPH.) That party spirit which has been the bane of all government; that party spirit which, disregarding all the forms of justice, tramples its most sacred laws under foot, and presides without check or control over questions relating solely to private property; or which was displayed in the conduct of Jeffries, who servilely prostrating his sacred functions to the purposes of ministerial vengeance, has justly excited the reproach and execration of posterity: and which, if cherished upon occasions like the present, will tend to demolish the fair fabric of our Republican Government. I will not admit that because a majority of this House are in favor of the claims, and desire a prompt decision without debate, it is evidence that “unprincipled men have acquired the ascendency, and knowing themselves to be in the commission of wrong they are silent.” Is my colleague aware of the extent of this doctrine? When unprincipled men, said he, acquire the ascendency, they act in concert and are silent--silence and concert, then, are to him proofs of corrupt motive. Is this always a correct position? Does the gentleman recollect that measures were adopted a few years past without discussion, by my political friends, in conjunction with him, who were _silent, and united_? I am unwilling to believe that such an inference can result from a union of sentiment. In some instances we are unanimous in our decision of questions, on which no debate takes place; but I have never thought this was proof of the prostration of principle; nor can I suppose that the gentleman himself thinks so; even now we adopt measures advocated by him, and are nevertheless told that to act in concert is proof of corruption. Having premised that the inferences made by the gentleman were not correct, I will proceed to the investigation of the question before the House, viz: Are the claims under the act of 1795, entitled to reference to commissioners for compromise and settlement, or are they not? My colleague (Mr. RANDOLPH) says the persons who obtained the land from the Legislature of Georgia were guilty of a most detestable fraud; and the present claimants, pretending to be innocent purchasers without notice of fraud, are a set of hypocrites, undeserving the attention of Congress, or the commiseration of mankind. In support of this assertion he has quoted the Message of the President of the United States, in 1795, to Congress, describing in terms of approbation the high character of its author--WASHINGTON--whose memory I revere, and whose name I will teach my children to lisp, and venerate as the father of American freedom, and who with Liberty were the two best gifts bestowed by Heaven upon our favored country! WASHINGTON, my colleague says, gave notice to the nation, and published the rape of unhallowed hands upon the property of the State of Georgia. But, sir, if we examine the Message, and the proceedings of Congress upon the occasion, it will be discovered that no knowledge of fraud in the transactions of the Legislature of 1795, was even known, or suspected; because, if any such information had been received, the known integrity of that virtuous man assures me, he would have communicated it; he would have opposed it with his best exertions, and give me leave to say, deprecated it as much as any man can.

Mr. FINDLAY said that he claimed the attention of the House for a short time; but from viewing the unusual turn some of the arguments had taken, and the nature of the subject, he found it a matter of some delicacy to know how to proceed. He was opposed to the amendment under debate, and in favor of the resolution, but he observed some members, with whom he had generally voted, and for whose talents he had a high esteem, and in whose integrity he had the utmost confidence, take the other side with such ardent zeal, and in a mode of argument so unusual in public bodies, that on observing this, he had hesitated and had voted in the last session for the postponement which took place. He had done this in hopes that the House would in this session meet the case in a temper more becoming their own dignity and the importance and delicacy of the subject.

He said he would begin with the Message of the President near the close of the session in February, in the year 1795, informing Congress of the two laws made in Georgia, one in December and the other in the month of February, 1795, (the same Message mentioned by the member from Virginia, Mr. RANDOLPH.) The Message was referred to a select committee, of which he had the honor of being a member, with other very intelligent members from both South and East, (Mr. NICHOLAS, Mr. AMES, &c.) It had long been the opinion of men well informed, that the title of Georgia to the extent of territory she claimed was doubtful, and that it was too great for any one State to possess in connection with the Federal Union. The old Congress frequently called on Georgia to make a cession of her unsettled territory, agreeably to the stipulations on which the Confederation was agreed to, but when Georgia did propose a cession, the terms on which it was made were rejected. Other States made cessions of lands to which they had no title, or else had appropriated the lands to individuals before the cession was made; so that, on the whole, but a small quantity of land unencumbered came to the benefit of the United States. But to return: the committee in February, 1795, examined the title of Georgia as far as they had information, the bounds not being certainly known; the unsettled territory of Georgia was believed to be larger than France or Germany, or any other European nation, except Russia, whose Asiatic dominions extend to the Pacific Ocean; hence they concluded that such an extent of territory possessed by one State, at the extremity of the United States, and bordering its whole length on the Spanish dominions, with which we were then in danger of a serious contest, it was the opinion of the committee that every proper means should be used to induce Georgia to cede, in a peaceable manner, a proportion of that territory; and, as a first step towards obtaining this object, the committee reported that the Attorney-General should examine the titles of the State of Georgia and of the lands claimed by the company from the law of 1795; and they further reported that the President should be authorized to obtain a cession from the State of Georgia of the whole or part of the territory.

It was not certainly known that there was a defect in the title of Georgia, but from the circumstances of the small extent of that colony at the beginning, and in various extensions by different royal proclamations, &c., the title of Georgia was held in doubt. It is well known that the State of Georgia at first was pitched into the State of South Carolina, which for a considerable time granted titles for land south of the State of Georgia, and one degree of latitude which the United States claimed from the definitive treaty with Britain, was yet in the possession of Spain; but this the members of Georgia considered also as within the jurisdiction of that State. This being the case, the committee thought it prudent to make no mention of the supposed defect of the title of Georgia. The committee, and particularly himself, suspected that different laws enacted by that State for the sale of land, and particularly the recent sale of 1795, were encouraged by their own suspicion of a defective title, but they knew nothing of the bribery and corruption assigned as a reason in the year following, for annulling the contract; therefore it was, that no notice to the contractors that Congress doubted the title of Georgia was given. There was no precedent in the United States of a contract authorized by a constitutional legislative act being declared null and void by a succeeding legislature. The power of decisions on frauds and corruptions, or the validity of titles being vested in the courts of justice in all civilized countries, such a decision could only be looked for from that department; but neither a judge who is stated to have been corrupted was impeached, nor any of the members indicted.

Mr. F. said, while the case was so situated, the New England purchasers, or long-legged speculators, did not, as his colleague (Mr. LUCAS) had said, go to Georgia, but the long-legged contractors or speculators of Georgia, went above a thousand miles to Massachusetts, an old, thick-settled country, the citizens of which needed land for their families, (a country which annually sent forth numerous emigrants, who generally purchased in large quantities and settled in large bodies together,) and sold the land at seven or eight times the original price, by which they gained near $1,000,000 advance. They went with the patents from the State of Georgia, and the law, and probably the constitution of that State, in their hands. This, alone, was sufficient to encourage purchasers among a people who needed land; but this was not all. The respectability of the characters of the settlers was such as would reasonably induce an opinion, that they could not themselves be deceived, and would not deceive others. Among these were a very respectable _judge of the Supreme Court of the United States_, who had been a member of the old Congress from almost its commencement till its dissolution, for as long a period as the State constitution would permit, and had been an efficient member of the Convention which prepared the Constitution of the United States, and several State conventions, and a gentleman who was then, and both before and after that time, a SENATOR of the United States, and many other very respectable characters--who, however, he acknowledged, had by that act forfeited the character they had formerly enjoyed, and yet, strange to tell, neither before nor after the annulling act, he could not call it a law, as no such law could be made under the Constitution of the United States. The sale was annulled; but the judge said to have been corrupted, nor the federal judge, was impeached, nor any of the members of whom it was testified that they had received bribes, or were sharers in the spoil, were indicted, but still enjoy the confidence, as much as they otherwise would have done, of that State. Not one of them was removed from office, or in any official manner consigned to infamy, by the courts of that respectable State, or by impeachment.

The lands sold at Boston were yet in possession of the Indian tribes, and the Indian war but lately extinguished, while, at the same time, the lands in Pennsylvania were sold, the first rate at one shilling and sixpence; the reputed second rate--but in fact equal if not superior in quality and situation--at one shilling the acre; and what remained unsold to the old settlements, at sixpence; and, in New York, still cheaper the acre; when the Georgia purchase, with all its disadvantages, is stated and admitted to have been sold, rough and smooth, good and bad, and of which a large proportion is allowed to be bad, at something above fifteen pence an acre on the amount reserved. Certainly such a speculation, if it was one, was such as he would not have had any share in, and therefore no proof of the superior cunning ascribed to them by his colleague and others.

Mr. F. said that, so far, the bargain and sale were fair and legal; whether it was a good bargain or a bad one, was the look-out of the purchasers; if it was a bad one Government would have given them no relief. Had nothing extraordinary, or out of the common road, taken place, he believed the attention of Congress would never have been called to the subject. Soon, however, after this contract was made, the Legislature of Georgia declared the contract, and the law under which it was made, to be void or annulled; and in a short time after, a convention of that respectable State disapproved of the constitutional act of the Legislature; but as long as we pay respect to constitutional obligations and the distribution of the powers of government, and as long as we respect the Federal Constitution, which expressly asserts that no _ex post facto_ law, or law impairing the obligation of contracts, shall be made, we must agree that one session of a legislature cannot annul the contracts made by the preceding session. If that could be done, the patent for his own plantation might also be set aside, for he acknowledged it is worth more now than the price that he paid for it. This doctrine had never been entertained even in the Revolutionary period. At that solemn period, all contracts were protected.

Mr. F. said that he cheerfully acknowledged that the amount of land sold under the law of Georgia of 1795, was so enormous as that, if that State had been a separate and wholly independent government, would have justified, in some degree, an agrarian law; and if the fraud and corruption attested by _ex parte_ testimony was true, would have justified the most exemplary punishment of those who suffered themselves to be corrupted, or who defrauded the commonwealth, and this would have proved a defect in the contract itself; but no such thing appears to have taken place. The judge, who is said to have received $13,000 for his vote, was not impeached, nor the members who are said to have given, or received bribes, indicted. It appears to have been so contrived that the State or citizens of Georgia, should suffer no loss--that the loss and reproach should be transferred to people at the greatest possible distance. He gave credit, however, to the Legislature of Georgia, which met in the year 1796, for making an extraordinary exertion to free themselves from an extraordinary evil. It was a laudable testimony against corruption and fraud, but no court of justice had yet, by deciding on it, acknowledged it to be law, and it was too slow for warning others at a distance against titles originating under the law of 1795.

The annulling law of 1796 had all the effect that any citizen, at that period, could have wished. Congress took possession of the government of the western parts of Georgia, the parts in which the lands in question lay, and erected a territorial government, without the consent of that State, and passed a law authorizing the President to enter into a negotiation with Georgia on the principles of compromise, for the right of soil. The compromise eventually succeeded, and an act of cession took place between the United States and the State of Georgia. In this act of cession, or convention, it was provided that the claims in the counties of Bourbon and Washington, bordering on the Mississippi river, &c., should be protected, and that five millions of acres, or part thereof, should, by the United States, be applied to satisfy, quiet, or compensate, the claims now before the House, and that if they were not so applied, they should revert to the State of Georgia.

On these conditions, Mr. F. said, did Georgia surrender her right of soil. Agreeably to these conditions were the Commissioners of the United States authorized to make and receive proposals, but the commissioners were not authorized to conclude the agreement, they did report to Congress, and in that report, they state that the claimants cannot, in their opinion, recover by law. This is well founded, because no action can be brought against the United States, nor, since the amendment made to the constitution respecting the suability of States, against a State. Therefore this fund, viz: the five millions of acres, set apart by the Convention of Georgia, to quiet, satisfy, or compensate these claims, must be either applied to that purpose, or revert to the State of Georgia, or the faith of the United States must be sacrificed.

Mr. F. said, that from this view of the subject, he had made up his mind to vote in favor of the report of the Committee of Claims. That he had not made up his mind lightly, that he had been prepossessed against it, but it becoming his duty to decide, he had thrown aside these prepossessions, and examined the case with all the coolness and deliberation of which he was capable, and would give his vote, as he had made up his mind, without consulting or relying on the opinions of others, for he was responsible only for his own opinion.

Mr. GREGG.--I rise, Mr. Speaker, to congratulate the House, on the question being at length brought within such narrow limits. The validity of the title appears to be nearly abandoned, and the advocates of the resolution seem now disposed to rest its defence almost entirely on the ground of expediency. For my own