25 F. Cas. 239 | U.S. Circuit Court for the District of Virginia | 1800
—My construction of the law is quite the contrary. I have always seen triers sworn to decide these questions. How is this done in your country? Challenges for favour must be decided by triers. I suppose there must be triers sworn.
Mr. Nicholas.—I believe the books lay down this distinction. Challenges to the array are either principal challenges, or challenges for favour;—causes for principal challenges are always tried by the court; challenges for fa-vour are always tried by triers.
CHASE, Circuit Justice.—Well, sir, your challenge is for favour, because you state the juror to be unfavourable to the traverser.
.Mr. Nicholas.—This book states it as a cause of principal challenge.
CHASE, Circuit Justice.—Show me that book: it is not the best authority. Have you Coke upon Littleton in the house? If I had it we would see the whole doctrine at once. I am.persuaded that Coke upon Littleton states, that challenges for favour must be decided by triers. The oatlf of the triers is laid down there. Challenges to the array are for partiality in the sheriff.
Coke upon Littleton being produced, and the judge having examined it, observed, the case is dear. Principal challenges to the array, or the whole jury at once, are always for partiality in the sheriff, and not in the jurors.
Mr. Nicholas said, that the law might perhaps consider the return of a partial juror, as sufficient to ground a challenge to the array, on the principle of partiality in the sheriff, and wished to know if he was correct in this idea of the law.
CHASE, Circuit Justice.—No sir, the law is not so. You must proceed regularly. You may bring in proof if you can, that any juror has delivered his opinion upon that case heretofore; or you may examine the juror himself, upon oath, to this effect. You may do either, but not both; and this alternative offered, you must consider not as a strict right.
The counsel chose to rely on the jurors themselves.
The first juror was sworn, and the judge put the following question to him: “Have you ever formed and delivered an opinion upon the charges contained in the indictment?” The juror answered, that he had never seen the indictment, nor heard it read. The judge then said, he must be sworn in chief.
Mr. Hay asked permission to put a question to the juror before he was sworn in chief. The judge desired to know what sort of a question he meant to put, and told him he must first hear the question, and if he thought it a proper one, it might be put.
Mr. Hay.—The question which, with the permission of the court, I meant to have asked, is this: "Have you ever formed and delivered an opinion on the book entitled. ‘The Prospect Before Us,- from which the charges in the indictment are extracted?”
CHASE, Circuit Justice.—That question is. improper, and you shall not ask it. The only proper question is, “Have you ever formed and delivered an opinion upon this charge." He must have delivered as well as formed the opinion. Such a question as you propose, would prevent the man from ever being tried —the whole country have heard the case, and very probably, formed an opinion. You might mislead men by your ingenuity, and if you were indulged in putting the question, the traverser might never be tried. He has answered, that he never saw the indictment, nor heard it read, and if he has neither read nor heard the charges, I am sure he cannot have formed or delivered an opinion on the subject.
Mr. Hay then asked, that the indictment might be read to the juror, because, perhaps.
The judge replied, that the court had already indulged him as far as they could. That the answer of the juryman was explicit —that they could not go further than they had gone, and that he ought to be satisfied.
The juryman was then sworn in chief, and the issue was explained, that it must be proved that the traverser wrote or published the book—that the charges were false, scandalous and malicious, and that he wrote them with intent to defame, and that if he could prove the charges he must be acquitted. The same question, “whether they had formed and delivered an opinion on the charges against the traverser,” was put by the judge, to eight of the other jurymen successively, before they were sworn in chief, and they all answered in the negative.
The counsel for the traverser said, that it was unnecessary to put this question to the other three jurymen, and they were accordingly sworn in chief immediately. The eighth juror answered, when the previous question was put to him, that though he had never read or heard the charges in the indictment, and knew not what the traverser had published, yet he had formed an unequivocal opinion, that such a book as “The Prospect Before Us,” came within the sedition law. But no objection was made to him, and he was sworn like the rest.
The indictment was then read by the clerk.
Mr. Nelson, the district attorney, then said: I shall not attempt, gentlemen of the jury, to excite your passions or inflame your feelings. I shall endeavour to be cautious, and avoid uttering what ought not to be said, which may in any manner influence your judgment, upon your oath; for in that office which I hold, which is that of the people of United America, it is more than a common duty, to take care not to step beyond that line which leads to justice. To that state in which your passions shall be; to such feelings as you shall possess, after hearing the charge contained in the indictment, the evidence in support of it, and a fair statement and representation of the case, X shall leave and entrust the case. In the present state of the business, it will be proper for me to call your attention to the statute or act of congress, which relates" to this case.
Here Mr. Nelson read the second and third sections of the sedition law. [Lyon’s Case, Case No. 8,646, and note.]
Upon this statute James Thompson Callen-der is now indicted, and the indictment charges that, maliciously designing and intending to defame the president, he, James Thompson Callender, did publish the libel set forth therein, with intent to bring him into contempt and disrepute, and to excite the hatred of the good people of the United States towards him. It will be for you, gentlemen of the jury, in this case to determine whether the traverser has, or has not, been the publisher of this paper. This point being ascertained, it will be for you to consider with what view, and for what purpose, a paper like this has been composed and published. If you believe it to be a candid and fair discussion of constitutional subjects, of real grievances, or of political opinions and principles generally, you will not consider -it to be a libel within the statute. If you believe the facts and allegations averred in the paper are true, you will consider that the trav-erser hath defended himself according to the statute; but if, from internal evidence in the paper itself, you do not think so, you do not believe it to be a candid evidence and fair discussion of constitutional subjects, real grievances, or political opinions and principles, and that it does not contain the truth in all- parts, you must find the traverser guilty. You will take the paper into your room with you, and consider it coolly and dispassionately, free, and discharged from all that you may have heard abroad respecting it, and determine in your minds whether it be possible to give it any other construction than that which the indictment has ascribed to it. To me it seems impossible that the extremest ingenuity can show that it was written for any other purpose. However, gentlemen of the jury, to you I submit the calm examination of the paper, upon the paper itself, and this business as to the libel which, or such parts of which, as are charged in the indictment, I shall lay before you, after it shall be proven by witnesses, who will be produced to show that .Tames Thompson Callender, the traver-ser, did publish this paper; and, in laying it before you, I will make such observations as may seem to me proper and necessary to be made.
Mr. Hay understood that some of the witnesses who are to be examined to prove the guilt of the accused, were themselves, in the estimation of the law, equally guilty; that they have printed, though they had not written the libel in question. He would, therefore, beg leave to make it known to those who were in any degree implicated, that they are not bound to accuse themselves, and may withhold, if they think proper, such part of their evidence as has a tendency to crimi-nate themselves.
CHASE, Circuit Justice.—This is correct. Every person concerned in the publication is protected by law from compulsion to crimi-nate himself; but, I suppose, if any of them give his evidence, the government of the United States is pledged not to institute a prosecution against him. Ot this he may be assured.
Mr. Nelson then called Wm. Duval, who said that he saw Mr. Henry Banks have the book called “The Prospect Before Us”; that Mr. Banks gave him1 the book to read; that the next day he saw Mr. Callender, who told him that he must pay him a dollar for the book given him by Mr." Banks; that he did
Mr. Banks was then called.—He declared that, some time ago, he had become a subscriber to the book entitled “The Prospect Before Us," and paid the money at the time of subscription; that he lent the book to Major Duval, and sent to inform Mr. Callender, that he might get the money for it of Major Duval, and that he could get another copy himself another time; that he got from Mr. Callender the copy he delivered to Major Du-val; that he never heard the traverser acknowledge that he was the author, but that his opinion upon the. subject was clear.—The judge told him that his opinion was no evidence against the traverser.
' Wm. Burton was next called.—He said that he purchased such a book from Mr. Pleasants (who is a bookseller as well as a printer); that he paid the money to Mr. Pleasants, and Mr. Callender was present.
Wm. A. Bind was- next called.—His testimony substantially was, that a copy of the book in question, then in court, belonged to him; that, a considerable time ago, Mr. Lyon applied to them to print the National Magazine; that they entered into contract for the purpose of printing twenty-two sheets of that, or an equivalent in other work; that, after a great part of the magazine had been printed, it stopped, either for the want of paper or some other cause; that Mr. Lyon then brought' “The Prospect Before Us”; that they printed four or five half-sheets of it; that the proof-sheets were sent to Mr. Callender for correction, and returned corrected in his handwriting; that Mr. Callen-der once corrected a proof-sheet in. a large room at the office; that Mr. Callender came once to hurry the work, and said he would pay, but that he considered Mr. Lyon as paymaster; that, at Mr. Dixon’s office, Mr. Cal-lender said he would give him twenty copies if he would read one through, as he was sure it would convert him; that a small part of the manuscript remained in his possession, which he produced, then in court, and which he believed to be the handwriting of Mr. Cal-lender. Being asked if he had ever seen Mr. Callender write, he said he had; that Mr. Callender once took the debates in the house of assembly for them.
The book and manuscript sheets were then compared, and found to correspond; this occupied some time, and the judge took some pains in examining and comparing them.
Meriwether Jones said, that he had never read the book till after the presentment was made, except a few passages, and perhaps about thirty-three pages; that not a word of it was printed at his office, though he sold some of the copies for the benefit of Mr. Cal-lender; that he only possessed one copy (which he then showed), and which he declared he found where Mr. Callender generally kept his papers; that whenever he sold any of the books, Mr. Callender received the money; that he kept a memorandum of the money he received that he might know how much he owed him; that he could not positively say whether Mr. Callender was the author of the book or not; that he had never told him he was, though he had his opinion and belief on the subject; that he had published pro-posáis to print the book, and, afterwards, that he had them for sale, but he did not recollect whether he published that he had them for sale for the benefit of Mr. Callender, though ■’he fact was so; that the strongest proof he had of Mr. Callender being the author, was a conversation that he had with him respecting that part of the book where, speaking of Washington and Adams, it used the term poltroons; Mr. Callender said he alluded to some who had received appointments from them, and not to themselves.
Thos. Nicholson said, that Mr. Callender had called at his house to engage him to publish a part of the book; that he could not do it then; that he called on him the next day, accompanied by Mr. Meriwether Jones, for whom he was then engaged to print; that Mr. Jones told him that he might suspend his work, which he was then engaged in, to do Mr. Callender’s; that he printed seven pages of the book, that Mr. Callender paid him for it. and he understood it was for his emolument.
John Dixon said, that he printed the greatest part of the book (about 120 pages) at the . request of Mr. Lyon, and that Mr. Callender corrected the proof-sheet.
Jas. Lyon’s evidence was, that he did not know that Mr. Callender was the author of the book, but that he knew him to be the publisher of it, jointly with himself; and that he probably (but he did not recollect certainly) had furnished Mr. Bind with the copy of the book; that Mr. Callender corrected the sheets from the press; that he never saw Mr. Callender writing, but supposed, from having seen the manuscript, and some writing which was (said to be) written by him, that he wrote it.
Samuel Pleasants deposed, that he had sold copies of this book; he understood that the books were sent to him from the book-binder, for Mr. Callender; that he received both the money and the subscription papers for him, and paid him the money he received; that he sold, perhaps, a hundred copies.
The oral testimony of the United States being finished, the attorney for the United States was about to point to the jury the passages in “The Prospect Before Us” corresponding with the.charges in the indictment, when Mr. Hay objected to the introduction of that book.
I conceive, he said, that this book cannot be adduced in evidence, in support of the charges stated in the indictment. Perhaps my stating to the court the reasons which have led me to this conclusion, may subject me to the imputation which has- more than
Here CHASE, Circuit Justice, requested Air. Hay to point out these parts of the authorities referred'to, on which he relied to establish his doctrine.
Mr. Hay.—If the court will have a little patience I will find the places.
CHASE, Circuit Justice.—I will have a great deal.
Air. Hay.—The authorities I rely on are, Hawkins’ Pleas of the Crown (page 322), and Salkeld’s Reports (page 660). In this last book it is adjudged that when an indictment uses the words “secundum tenorem et effect-urn,” it binds the prosecutor to a literal recital; and any the least variance between the charge in the indictment and evidence offered to support it is fatal. The case I here refer to was an information for a libel: “In which libel were contained divers libel-lous matters secundum tenorem et effectum, and in setting forth a sentence of the libel, it was recited with the word ‘nor' instead of the word- ‘not,’ but the sense was not altered thereby. The defendant pleaded not guilty, and this appearing upon evidence, a special verdict was found, and the court held that the word ‘tenor,’ imports, a ‘true copy,’ and that the variance was fatal; for ‘not’ and ‘nor’ are different; different grammar, and different in sense; and Powys’ Justice held as to the point where literal omissions. &c. would be fatal: that where a letter omitted or changed makes another word, it is a fatal variance; otherwise where the word continues the same; and in the principal case no man would swear this to be a literal copy.” It appears from well established authorities that the words “in manner and form following,” do not bind the prosecutor to recite exactly, but the word “tenor” hath so strict a technical meaning, that it binds him to a literal copy. These principles certainly apply to the case before the court. The words
Here. CHASE, Circuit Justice, interrupted 31 r. Hay, and spoke to this effect: You are certainly mistaken in your statement of the law, as applied to the case now before the court. In the cases you mention there is really a variance- between the indictment and the evidence. Your objection is. that there is a variance between the thing charged in the indictment and the writing offered in evidence. But this case is very different; there is no variance. To ascertain this point I will state the indictment, and compare it with the law on which the prosecution is founded. The indictment charges, that the traverses, “maliciously intending to defame the president of the United States, and to bring him into contempt and disrepute, and to excite the hatred of the good people of the United States against him, did wickedly and maliciously write, print, utter and publish, a false, scandalous • and malicious writing, against the president of the United States, of the tenor and effect following, that is to say: ‘The reign of Mr. Adams has hitherto been one continued, tempest, &e.’ Now what is the law?. The act of congress provides among other things that, ‘if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, any false, scandalous and malicious writing or writings, against the government, or either house of the congress, or the president of the United States, with intent to defame the said government, or either house of congress, or the said president, or to bring them, or either or any of them, into contempt or disrepute, or to excite against them the hatred of the good people of the United States, &c.’ ” The indictment charges the defendant with publishing a false, scandalous and malicious writing against the president, and the law provides against the publication of false, scandalous and malicious writings against the president.—The offences stated in the indictment correspond with those expressed in the law; the question then is, whether the name of the book in which such false, scandalous and malicious writings are published, must be recited in an indictment against an offender? It brings it to this point—Is it necessary that the title of the publication should be examined before it can be ascertained that it comes within the law? Any false, scandalous and malicious writing published with intent to defame, is provided against by law, whatever may be its title or name, or whether it have any name or not. I know that eases can be produced where the title of the libel is recited in the indictment. I remember one ease where a man was indicted for publishing a libel called “The Nun in her Smock;” but it was not necessary to mention the title of the libel in that case, nor is it essential in any. Why is it necessary that every charge against a defendant should be explicit? It is that he may clearly comprehend it, and be prepared to make his defence: it is not necessary for this purpose to recite the name of the libel. The charge against the traverser is very explicit, and he well understands and is prepared to defend it;' but it is no censure on his counsel that they urge this argument in his favour. You argue further, on a supposition, that if a subsequent prosecution were to be instituted for the same offence, the verdict and judgment now to be rendered could not be pleaded in bar. It requires very little legal ability to demonstrate that the title need not be recited; and it is equally eásy to prove that the decision in this case may be pleaded in bar of any other prosecution for the same offence. The attorney for the United States must prove that the traverser did publish a false, scandalous and malicious writing, with intent to defame the president. This can be done without reciting the title; and if he supports by the evidence any entire charge—if he proves that the traverser did publish any false, scandalous and malicious writing, it will be sufficient to support the indictment as to that charge, but he must be acquitted of the other charges: and the charges of which he may be found guilty, can be easily compared to charges in any subsequent indictment. This is quite different from the cases where there is an actual variance between the paper charged, and the paper offered in evidence. I understand that difference to be, that where the prosecutor undertakes to say that certain precise words have been published, he must establish them; but when he states words of the tenor and effect following, he will only be obliged to prove the substance;
CHASE, Circuit Justice, then informed ' the attorney for the United 'States, who was about to rise.to prove the admissibility of the book as evidence, that it was unnecessary for him to make any reply, and there was no good reason to exclude it; that all
Mr. Nelson.—Although the paper is long and complicated, the testimony is not so. The testimony, as I stated to you before, is concise, plain, and correct. If there be a man who, now that he has heard that testimony, entertains a doubt whether this libel was published by the traverser, it will be useless for me to address him; if there be a man who doubts on that point, his mind must be imperviable to the traits of truth; his mind must be panoplied o’er with doubt, skepticism and prejudice. If no doubt remain on this point, the question first in order to be examined is decided: whether there be room for doubt, a summary review of the testimony will ascertain. Can there be a doubt —when all the witnesses have concurred in establishing this one point—that James Thompson Callender corrected the proof-sheets? Can there be a doubt, when those who sold the copies of the book have all said that they sold them for his benefit, and that he received the money? When it has been proved that he received the money from one purchaser himself, and that he paid for printing part of it—that part of the manuscript is in his own hand-writing—can there be any doubt?—And when, in addition to this, one witness declares that he knew him to be a joint publisher with himself, and another witness declared, that he explained the meaning of a certain term, supposed to be ambiguous in its application, is it possible to entertain any doubt? Thus stands the evidence as to the publication. It will be proper for me, gentlemen of the jury, to state to you what is a publication in point of law, as to writing or printing: that the direct or indirect circulation or emission of a libel, is a publication thereof, in law and in fact, has never been questioned in a court of law. If it appears to you that James Thompson Callender did not directly or indirectly emit or circulate this paper, then is he not the publisher thereof; if he be not the publisher directly nor indirectly thereof, then ought he to be acquitted: and if he be the publisher, and the intention thereof be not criminal, that is, if the matter therein contained be not false, scandalous and malicious, still ought he to be acquitted; but if he be the publisher, and the matter be libellous, that is, false, scandalous and malicious, the intention must be wicked and criminal, and you must find him guilty. For the questions you are to try, gentlemen of the jury, are: Was this paper published by the traverser? Was the intention criminal? that is, is the matter false,scandalous and malicious? The evidence which you have heard ascertains the first question, and an examination of the paper, or such parts of it as are laid in the indictment, will decide the second question. Whether your hearts are at ease—whether your passions are untouched—whether your feelings are unaffected, now that you have fully heard the charge, you best know. It remains only now for me, gentlemen of the jury, to call upon you, in the name of your country, whose interest you are to defend whilst you protect the rights of the individual. I call upon you in the name of your God, a portion of whose justice you are about to administer, and on your oaths, uninfluenced by favour, partiality, prejudice or affection, to discharge your duty to your God, to your country, and to yourselves.
Mere Mr. Nelson read the first charge in the indictment, and proceeded to comment at great length upon the libellous passages, sentence by sentence. I have told you . he closed by saying, and again repeat, that it is the peculiar privilege of every citizen of this happy country to place confidence in whom he pleases, and at the constitutional periods of making new elections, to withdraw his confidence from a former representative, and place his trust in another: and even expatiate on the virtues of the new candidate; but this does not warrant him to vilify, revile, and defame another individual, who is a candidate. Cannot a good thing be said of one individual, without saying black and damnable things of another? Is it necessary, in order to recommend one man to the presidential office, that you should charge another with bringing on his country war and beggary? The whole forms a perfect chain of malice, falsehood, and slander. Thus have I made, gentlemen of the jury, a calm, un-coloured statement of facts. I have not highly varnished, nor have said anything but what is consistent with truth. What impression the evidence or charge may have made on your minds, whether your feelings be affected, you and each of you know best. It remains only now for me, gentlemen of the jury, to remiud you, that you are not only to-protect the interests of your country, but to defend the rights of that individual; and in the name of God and of your country, I call upon you to discharge your duty to both and to yourselves.
The attorney for the United States having concluded, the counsel for the traverser introduced Colonel John -Taylor (of Carolina county) 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 he 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, by which he defeated every effort of those who were in favour of those beneficial measures which were well calculated to promote the happiness of their country.
Mr. Nicholas remarked, that the traverser was at least entitled to every indulgence which had been shown to the attorney for the United States; that this requisition had not been made of the attorney, when he introduced witnesses on behalf of the United States, nor was it according to the practice of the state courts; that he wished the witness to state all he knew that would apply to the defence of his client; that he did not know what the witness would precisely prove, but that if the court insisted upon it, he would furnish a statement of the questions which he should first propound, but requested . that he might not be considered as confined, in the examination of the witness, to the questions so stated.
CHASE, Circuit justice.—It is right to state the questions intended to be propounded to witnesses, in all cases, and the reason is extremely plain. Juries are only to hear legal evidence, and the court are the only judges of what is or is not legal evidence, to support the issue joined between the parties. To say that you will correct improper evidence, after it shall have been given, is improper, because illegal evidence, once heard, may make an undue impression, and, therefore, ought not to be heard at ail by the jury; and the attorney for the United States had, in opening the cause, stated the purpose for which he introduced the witnesses.
CHA SE, Circuit Justice, having received a statement of the questions meant to be put,
Mr. Nicholas suggested that it might be proper to prove one part of a specific charge by one witness, and another part by another, and thereby prove the charge.
CHASE, Circuit Justice, in answer, repeat ed some of his former arguments, and added. that the very argument suggested by the young gentleman who spoke last, convinced his mind that it would be improper to admit the testimony now offered to the court; that to admit evidence, which went to an argumentative establishment of the truth of a minute part of the charge by one witness, and another minute part by another witness, would be irregular, and subversive of every principle of law; that it had no relation to the issue; that it was a popular argument, calculated to deceive the people, but very incorrect.
Here GRIFFIN, District Judge, being called upon by CHASE, Circuit Justice, to deliver his opinion on the question before the court, declared that he concurred with his1 brother judge.
CHASE, Circuit Justice, then observed: This is a new doctrine, inculcated in Virginia. You have all along mistaken the law, and press your mistakes on the court. The United States must prove the publication, and the fallacy of it. When these things are done,
The counsel for the traverser again desired to be heard on the subject.
Mr. Hay spoke thus: The question before the court is, whether this evidence goes to prove the truth of the whole charge? The opinion given by the court I understand to be, that evidence cannot be produced by the traverser to prove the truth of a part of a charge; but if evidence could be adduced to prove the whole, then such evidence would be admissible. One specific charge is twofold; that the president is an aristocrat; and that he proved servicéable to the British interest. The evidence, we suppose, will support this charge; we wish to prove the truth of the whole charge if we can, though I do not know that it is in our power. The evidence, we have reason to believe, goes first to prove that he is an aristocrat, and secondly, that he did prove serviceaDle to the British. interest; if the testimony will in fact prove these two points, whatever may be the opinion of the court, I do not hesitate to say that, in my estimation, it will fully excuse and justify the traverser; if we can prove that the president has avowed aristoeratical sentiments in conversation, and that he did in reality prove faithful and serviceable to the British interest, the traverser must be acquitted of this charge. As to the first part, I .can prove by the words of Mr. Adams, published by himself, in his book called “A De-fence of the American Constitution,” that he thinks a government of three parts, a,king, lords, and commons, the best in the world.. Suppose, in addition to this, It could be proved that a law passed the house of representatives of the United States, to sequester British property; and suppose that one-half the senate of the United States were in fa-vour of it; and that the policy of passing the law was advocated by the best and wisest men in this country, who have the same pretensions to patriotism and virtue that Mr. Adams has, but that its passage was prevented by the casting vote of Mr. Adams as speaker of the senate, would not the traverser be justified as to this charge? Would it not demonstrate that he proved serviceable to the British interests? By the answers to the first and third questions we expect to prove both these points.
Here Mr. Nelson objected to the introduction of such testimony, as being altogether inadmissible; that gentlemen ought to reflect that, if such evidence as this was to be received, any other testimony, however irregular or improper, might also be admitted; and, particularly, that it would be a departure from the universal principle of law, which required the production of the best testimony which the nature of every case admitted, and that the journals and records of congress were the best evidence of what votes had been given on any subject discussed before that body.
CHASE, Circuit Justice, then addressed himself to Mr. Nelson thus: Being very much pressed, by the young gentlemen who defend the traverser, to admit this testimony, I was going to recommend to you to permit those questions to be put to the witness, though they are certainly irregular. 1 wish you could consent that they should be propounded.
Mr. Nelson declared that he did not feel himself at liberty to consent to such a aepur-ture from legal principles.
Mr. Wirt then rose and addressed the jury. —He premised that the situation of the defendant and his counsel was extremely embarrassing; that as Mr. Callender had been presented,- indicted, arrested and tried, during this term, he had not been able to procure the testimony essential to his defence, nor was his counsel prepared to defend him; and he insinuated that the conduct of the court was apparently precipitate, in not postponing the trial until the next term.
CHASE, Circuit Justice, told him he must not reflect on the court.
Mr. Wirt said, that his object was not to reflect on the court, but to apologize to the jury for the weakness of a defence which he was about to make.
After observing that his apology Included the very reflection he dénied, the court told him to proceed in his cause.
Mr. Wirt.—Gentlemen of the jury, I am prevented from explaining to you the causes which have conspired to weaken our defence, and it is no doubt right that I should be prevented, as the court have so decided. Permit me, then, gentlemen, to pass on abruptly to the law, under which we are indicted. You will find that a material part of your inquiry will relate to the powers of a jury over the subject committed to them, whether they have- the right to determine the law, as well as the fact. In Virginia, an act of the assembly has adopted the common law of England; that common law, therefore, possesses in this state all the energy of a legislative act. By an act of congress, the rules of proceedings in the federal courts, in the several states, are directed to conform to the rules of the'states in which such court may be in session; by that act of congress, it is therefore provided, that the practice of the courts of Virginia shall be observed in this court: to ascertain your power, therefore, as a jury, we have only to refer to the common law of England, which has been adopted in the laws of this state, and which defines the powers of juries in the state courts. By the common law of England, juries possess the power of considering and deciding the law as well as the fact, in every case which may come before them. I have no doubt but I shall receive the correction of the court, if I am
Here OBLASE, Circuit Justice-Take your seat, sir, if you please. If I understand you rightly, you offer an argument to the petit jury, to convince them that the statute of congress, entitled, “An act, &c.,” commonly called the “Sedition Law,” is contrary to the constitution of the United States and, therefore, void. Now I tell you that this is irregular and inadmissible; it is not competent to the jury to decide on this point; but if you address yourselves, gentlemen, to the court, they will with pleasure hear any reasons you may offer, to show that the jury have the right contended for. Since I came into the commonwealth, I understood that this question would be stirred, and that the power of a jury to determine the validity or nullity of a law would be urged. I have, therefore, deliberately considered the subject, and I am ready to explain my reasons for concluding that the petit jury have not a right to decide on the constitutionality of a law, and that such a power would be extremely dangerous. —Hear my words: I wish the world to know them,—my opinion is the result of mature reflection.
(Here the judge then read part of a long opinion, to show that the jury had not the right contended for; after which, he told the counsel for the traverser, that he would hear with pleasure any arguments which could be urged to show that he was mistaken.)
.Mr. Wirt.—I shall state to the court, in a few words, the reasons which have induced me to ascribe this right to the jury. They are sworn to give their verdict according to the evidence, and the law is evidence; ■ if the jury have no right to consider the law, how is it possible for them to render a general verdict? Suppose, for example, an indictment for murder—how can the jury pronounce a verdict of guilty, or not guilty, if they have not the right as well of ascertaining whether the facts have been committed, as whether they amount to a breach of law? This doctrine is too clearly established to require the aid of authorities.
CHASE, Circuit Justice.—No man will deny your law—we all know that juries have the right to decide the law, as well as the fact- and the constitution is the supreme law of the land, wiiich controls all laws which are repugnant to it.
Mr. Wirt.—Since, then, the jury have a right to consider the law, and since the constitution is law, the conclusion is certainly syllogistic, that the jury have a right to consider the constitution.
CHASE, Circuit Justice.—A non sequitur, sir.
Here Mr. Wirt sat down.
Mr. Nicholas then addressed the court. 1 am so much under the influence of duty that, though I am in the same situation with the gentleman who preceded me, and though the-court seem to be impressed with the opinion, that the jury have no right to determine on the constitutionality of an act of congress, yet, arduous as the task may be, 1 shall offer a few observations to show that they have this right. I intend to defend Mr. Callender by the establishment of two points. First, that a law contrary to the constitution is void; and, secondly, that the jury have a right to consider the law and the fact First, it seems to be admitted on all hands, that, when the legislature exercise a power not given them by the constitution, the judiciary will disregard their acts. The second point, that the jury have a right to decide the law and the fact, appears to me equally clear. In. the exercise of the power of determining law and fact, a jury cannot be controlled by the court. The court have a right to instruct the-jury, but the jury have a right to act as they think right; and if they find contrary to the directions of the court, and to the law of the case, the court may set aside their verdict and grant a new trial.
CHASE, Circuit Justice.—Courts do not claim the right of setting aside the verdict in criminal cases.
Mr. Nicholas.—From this right of the jury to consider law and fact in a general verdict, it seems to follow, that counsel ought to be-permitted to address a jury on the constitutionality of the law in question;—this leads-me back to my first position, that if an act of congress contravene the constitution of the-United States, a jury have a right to say that it is null, and that they will not give the efficacy of a law to an act which is void in itself ;- believing it to be contrary to the constitution, they will not convict any man of a violation of it: if this jury believed that the sedition act is not a law of the land, they cannot find the defendant guilty. The constitution secures to every man a fair and impartial trial by jury, in the district where the fact shall have been committed: and to preserve this-sacred right unimpaired, it should never be interfered with. If ever a precedent is established, that the court can control the jury so as to prevent them from finding a general verdict, their important right, without which every other right is of no value, will be impaired, if not absolutely destroyed. Juries are to decide according to the dictates of conscience and the laws of the country, and to control them would endanger the right of this most invaluable mode of trial. I have understood that some reliance would be placed on two decisions of the courts of this state, in which they determined two acts of our legislature to be unconstitutional; but when we come to analyze these decisions, they will not authorize the belief that the jury have not the
Mr. Hay rose, after Mr. Nicholas concluded, and observed that he was prepared to address the court on the extent of the powers of the jury in the case at bar. The arguments, said he, which I shall urge, 1 shall address to the court, not wishing to be heard by the jury, or to be attended to by the numerous auditory now present. A question of great importance depends on this decision; much of the public happiness, of the public peace, of the public liberty, depend on the final decision which shall be pronounced on this subject. I entertained doubts at •first; but a calm and dispassionate inquiry, and the most temperate investigation and reflection, have led me to believe and to say, that the jury have a right to determine every question which is necessary to determine, before sentence can be pronounced upon the traverser. I contend that the jury have a right to determine whether the writing charged in the indictment to be false, scandalous and malicious, be a libel or not. If this question should be decided in the affirmative by the court, I shall endeavour to convince the jury that it is not a libel,' because there is no law in force under the government of the United States, which defines what a libel is, or prescribes its punishment. It is a universal principle of law, that questions of law belong to the court, and that the decision of facts belongs to the jury; but a jury have a right to determine both law and fact in all cases;
Here Jiidge CHASE asked Mr. Hay whether he meant to extend his proposition to civil as well as criminal cases, and told him that if he did, the law was clearly otherwise.
Mr. Hay answered, that he thought the proposition universally true, but it was only necessary for him to prove it to be true in cases of a criminal nature.
Judge CHASE again interrupted Mr. Hay, and briefly expressed his opinion of the law. And then Mr. Hay folded up and put away his papers, seeming to decline any further argument.
Judge CHASE requested him to continue his argument, and added—“Please to proceed, and be assured that you will not be interrupted by me, say what you will.”
Mr. Hay refused to proceed.
Judge CHASE observed, that though he thought it his duty to stop the counsel when mistaking the law, yet he did not wish to interrupt them improperly; that there was no occasion to be captious; and concluded thus, “Act as you please, sir.”
Judge CHASE then proceeded.
These inquiries, on behalf of the government of the United States, and on the part of the traverser, are proper for, and within the jurisdiction and the terms of the oath of the petit jury, who have been sworn “that they will well and truly try the issue joined between the United States and the traverser at the bar, and a true verdict give according to their evidence.” The issue joined, therefore, is, whether the traverser is guilty of the several offences charged in the indictment; and to this issue no evidence is admissible (on the part of the government, or of the traverser) but what is pertinent or applicable to it. The petit jury, to discharge their duty, must first inquire, whether the traverser committed all or any of the facts alleged in the indictment to have been done by him, some time before the indictment. If they find that he did commit all or any of the said facts, their next inquiry is, whether the doing such facts have been made criminal and punishable by the statute of the United States, on which the traverser is indicted. For this purpose, they must peruse the statute, and carefully examine whether the facts charged and proved are within the provisions of it. If the words that create the offence are plain and intelligible, they must then determine whether the offence proved is of the species of criminality charged in the indictment; but if the -words are ambiguous or doubtful, all construction should be rejected. The statute, on which the traverser is indicted, enacts “that the jury who shall try the cause shall have a right to determine the law and the fact, tinder the direction of the court, as in other cases.” By this provision, I understand that a right is given to the jury to determine what the law is in the ease before them; and not to decide whether a statute of the United States produced to them, is a law or not, or whether it is void, under an opinion that it is unconstitutional. that is. contrary to the constitution of the United States. I admit that the" jury are to compare the statute with the facts proved, and then to decide whether the acts done are prohibited by the law; and whether they amount to the offence described in the indictment. This power the jury necessarily possesses, in order to enable them to decide on the guilt or innocence of the person accused. It is one thing to decide what the law is, on the facts proved, and another and a very different thing, to determine that the statute produced is no law. To decide what the law is on the facts, is an admission that the law exists. If there be no law in the case, there can be no comparison between it and the facts; and it is unnecessary to establish facts before it is ascertained that there is a law to punish the commission of them.
The existence of the law is a previous inquiry, and the inquiry into facts is altogether unnecessary, if there is no law to which the facts can apply.- By this right to decide what the law is in any case arising under the statute, I cannot conceive that a right is given to the petit jury to determine whether the statute (under which they claim this right) is constitutional or not. To determine the validity of the statute, the constitution of the United States must necessarily be resorted to and considered, and its provisions inquired into. It must be determined whether the statute alleged to be void, because contrary to the constitution, is prohibited by it expressly, or by necessary implication. Was it ever intended, by the framers of the constitution, or by the people of America, that it should ever be submitted to the examination of a jury, to decide what restrictions are expressly or impliedly imposed by it on the national legislature? I cannot possibly believe that congress intended, by the statute, to grant a right to a petit jury to declare a statute void. The man who maintains this position must have a most contemptible opinion of the understanding of that body; but I believe the defect lies with himself. If any one can be so weak in intellect as to entertain this opinion of congress, he must give up the exercise of the power, when he is informed that congress had no authority to vest it in any body whatsoever; because, by the constitution, (as I will hereafter show,) this right is expressly granted to the judicial power of the United States, and is recognized by congress by a perpetual statute. If the statute should be held void by a jury, it would seem that they could not claim a right to such decision under an act that they themselves consider as mere waste paper. Their right must, therefore, be derived from some other source.
It appears to me that all the rights, powers, and duties of the petit jury, sworn in this cause, can only be derived from the constitution, or statutes of the United States made agreeably to it; or from some statute of this commonwealth not contrary to the federal constitution or statutes of congress; or from the common law. which was adopted by the federal constitution in the case of trials by jury in criminal cases. It never was pretended, as I ever heard, before this time, that a petit jury in England (from whence
No citizen of knowledge and information, unless under the influence of passion or prejudice, will believe, without very strong and Indubitable proof, that congress will, intentionally, make any law in violation of the federal constitution, and their sacred trust. I admit that the constitution contemplates that congress may, from inattention or error in judgment, pass a law prohibited by the constitution; and, therefore, it has provided a peaceable, safe, and adequate remedy. If such a case should happen, the mode of redress is pointed out in the constitution, and no other mode can be adopted without a manifest infraction of it. Every man must admit that the power of deciding the constitutionality of any law of the United States, or of any particular state, is one of the greatest and most important powers the people could grant. Such power is restrictive of the legislative power of the Union, and also of the several states; not absolute and unlimited, but confined to such cases only where the law in question shall clearly appear to have been prohibited by the federal constitution, and not in any doubtful case. On referring to the ninth section of the first article of the constitution, there may be seen many restrictions imposed on the powers of the national legislature, and also on the powers of the several state legislatures. Among the special exceptions to their authority, is the power to make ex post facto laws, to lay any capitation, or other direct tax, unless in proportion to the census; to lay any tax or duty on articles exported from any state, &c. &e. It should be remembered that the judicial power of the United States is co-existent, co-extensive, and co-ordinate with, and altogether independent of, the federal legist lature, or the executive. By the sixth article of the constitution, among other things, it is declared that the constitution shall be the supreme law of the land. By the third article, it is established “that the judicial power of the United States shall be vested in one supreme court, and in such other inferior courts as congress may from time to time ordain and establish; and that the judicial power shall extend to all cases in law and equity, arising under the constitution and laws of the United States.”
Among the cases which may arise under the constitution, are all the restrictions on the authority of congress, and of the state legislatures. It is very clear, that the present case arises under the constitution, and also under a law of the United States, and therefore it is the very ease to which the constitution declares the judicial powers of the United States shall extend. It is incontrovertible that the constitution is the supreme law, and therefore, it must be the rule by which the federal and state judges are bound to regulate their decisions. By the sixth article of the constitution, it is provided (among other things) that all members of congress, and of the several state legislatures, and all judicial officers of the United States, and of the several states, shall be bound by an oath or affirmation to support the constitution. By this provision, I understand that every person, so sworn or affirmed, promises that he will preserve the constitution as established, and the distribution of powers thereby granted; and that he will not assent to any amendment or alteration thereof, but in the mode prescribed in the fifth article; and that he will not consent to any usurpation by any one branch of the legislature upon the other, or upon the executive, or by the executive upon either branch, or by any department or officer of government, of the power granted to another; or that the power granted to either shall be exercised by others. I also understand by this engagement, that the person taking it, promises also that he will oppose by his example, argument, advice, and persuasion, and by all other means in his power, force only excepted, any design, advice or attempt to impair or destroy the constitution. If this exposition of this solemn obligation is substantially correct, I cannot believe that any person having the same understanding of it, will maintain that a petit jury can rightfully exercise the power granted by the constitution to the federal judiciary.
From these considerations I draw this conclusion, that the judicial power of the United States is the only proper and competent ‘authority to decide whether any statute made by congress (or any of the state legislatures) is contrary to, or in violation of, the federal constitution. That this was the opinion of
The decision of courts of justice will not be influenced by political and local principles, and prejudices. If inferior courts commit error, it may be rectified; but if juries make mistakes, there can be no revision or control over their verdicts, and therefore, there can be no mode to obtain uniformity in their decisions. Besides, petit juries are under no obligation by the terms of their oath, to decide the constitutionality of any law; their determination, therefore, will be extra judicial. I should also imagine, that no jury would wish to have a right to determine such great, important, and difficult questions; and I hope no jury can be found, who will exercise the power desired over the statutes of congress, against the opinion of the federal courts.
I have consulted with my brother, Judge GRIFFIN, and I now deliver the opinion of the court, “That the petit jury have no right to decide on the constitutionality of the statute on which the traverser is indicted; and that, if the jury should exercise that power, they would thereby usurp the authority entrusted by the constitution of the United States to this court.” Governed by this opinion, the court will not allow the counsel for the traverser to argue before the petit jury, that they have a right to decide on the constitutionality of the statute, on which the traverser stands indicted. If the counsel for the traverser had offered sufficient arguments to the court, to show that the petit jury had this right, the court, on being convinced that the opinion delivered was erroneous, would have changed it; for they hold it a much greater reproach for a judge to continue in his error, than to retract. The gentlemen of the profession know, that questions have sometimes occurred in the state courts, whether acts of assembly had expired, or had been repealed; but no one will say that such questions were ever submitted to a jury. If the constitution of the United States had not given to the judiciary a right
Judge CHASE concluded with observing, that, if he knew himself, the opinion he had delivered and the reasons offered in its support, flowed not from political motives, or reasons of state, with which he had no concern, and which he conceived never ought to enter courts of justice; but from a deliberate conviction of what the constitution and the law of the land required. “I hold myself equally bound,” said he, “to support the rights of the jury, as the rights of the court.” I consider it of the greatest consequence to the administration of justice, that the powers of the court, and the powers of the petit jury, should be kept distinct and separate. I have uniformly delivered the opinion, “that the petit jury have a right to decide the law as well as the fact, in criminal cases;” but it never entered into my mind that they, therefore, had a right to determine the constitutionality of any statute of the United States. It is my duty to execute the laws of the United States with justice and impartiality, with firmness and decision, and I will en-deavour to' discharge this duty with the assistance of the Fountain of Wisdom, and the Giver of all human reason and- understanding.
After two hours, the jury returned with a verdict of guilty, upon which the court sentenced the traverser to a fine of two hundred dollars, and an imprisonment of nine months.
NOTE I. The- tempest which this trial excited can now hardly be understood. The papers, for the first time in our history, were crammed with detailed reports, in which evidence and speeches were given at large. Virginia was in a flame: for even before the trial, affidavits were circulated in which it was stated that upon starting for Richmond, Judge Chase had publicly announced that “he would teach the lawyers 1 in Virginia the difference between the liberty and the licentiousness of the press” (see Chase’s Trial, 43); and that he had told the marshal “not to put any of those creatures called Democrats on the jury” (Id. 44). In his usual coarse jocularity, he had likened himself to a schoolmaster, who, breaking into the chamber of a few unruly boys, was about to reduce their notions of their own importance by a little wholesome chastisement: and his auditors roared at the picture of the burly judge, stretching in turn the representatives of the Virginia chivalry over his knee, and then sending them off one by one, cured by the same vigorous application. Judge Chase’s peculiar recklessness of manner during the trial, can only be explained on the principle that, possessed with this notion, he was determined to do all that he could do, to humiliate and degrade the spirited bar which was called around him. He had hardly entered into the court house, before he saw that the most distinguished lawyers even in that most distinguished body had been pitched upon to conduct the defence: and he could not but feel that the crowd with which the room was filled, was attracted much more by the struggle to take place between the court and the counsel, than that between the prosecution and the prisoner. He thought it was better to settle the matter at once; and'it must be confessed that the slap he gave Mr. Nicholas and Mr. Hay at the outset—something so far beyond anything they had ever calculated on as possible in judicial warfare—completely deprived those two eminent lawyers of their self possession. He had them down, and soon after adding Mr. Wirt to their number—whom he called a “young man,” telling him to sit down, though that most courteous and eloquent counsel was then nearly middle aged, a widower, with a family of children— he proceeded to tuck them under his elbow, and at his leisure to apply to them that correction which he had promised. How richly he did so, the trial in the text amply shows. But not only all Virginia, but the profession throughout tbe country, was stung to the quick. The Philadelphia bar, as has been already noticed, was aroused by a similar invasion of its prerogative; and for a long time counsel declined to appear before the judge who had thus violated, as they alleged, the decorum of his office. At the very moment a determination was avowed to obtain an impeachment, and at last, in January, 1804, Mr. Randolph rose in the house of representatives, and made the long-expected charges. At another period, it will probably be necessary to con-aider at large this memorable trial: and in the preliminary notes to this work, an outline or Judge Chase’s life has been given in which the general character of the proceeding is noticed. At present it is enough to consider its relation to the present case. Five articles of tbe impeachment were based on Callender’s trial, and of these the fate was as follows: Art. II. Misconduct in refusing to overrule the objection to John Bassett, as a juror. Guilty, 10; not guilty, 24. Art. III. Misconduct in refusing to permit Mr. Taylor to be examined. Guilty, 18: not guilty, 16. Art. IV. Rude, contemptuous, and indecent conduct during the trial. Guilty. 18; not guilty, 16. Art. V. Misconduct in issuing bench warrant, instead of summons. Guilty, none; not guilty, 34.' Art. VI. Misconduct in refusing continuance. Guilty. 4; not guilty, 30. On the third and fourth articles nothing but Judge Chase’s age, and the peculiar party sympathies of the senate, saved him, as was conceded at the time, from a conviction by the requisite majority of two-thirds. The fourth article, It is true, rested on the abuse of a discretionary power, not susceptible, perhaps, of exact legal measurement: but the rejection of Mr. Taylor’s testimony, on which the second article bung, was a palpable and unprecedented violation of the law of evidence. Mr. Tayior was offered to prove the truth of one of the several allegations in the alleged libellous article; tbe sedition act provided that the defendant should be permitted to give the truth in evidence; Judge Chase refused to allow Mr. Taylor to be examined, because it was no defence to justify part of the libellous matter; it was necessary that there should be a justification of the whole. In other words, a witness was rejected, who proved a material part of the defendant’s case, simply because the particular witness was uot able to prove the whole of it. Callender himself, like all the other subjects of the sedition law, was a foreigner, and was as depraved in morals as he was malignant in temper. “He seemed to have been a man,” says Mr. Harrison, the accomplished historian of Virginia (2 Hist. Va. 373). “in whose heart vindictive passion raged without control.” The “Prospect Before Us,” from which the libellous matter in the text was extracted, is now. as it was then by all honourable minds, surrendered to infamy, and the only regret is, that a creature so contemptible should have been temporarily honoured by the fires of a martyrdom like that which the present trial inflicted. Mr.
The following letters of Mr. Jefferson are here of some interest:
Mr. Jefferson to Mr. Monroe.
(3 Jeff. Corres. 503.)
“Washington. July 15th, 1802. Dear Sir:— Your favour of the 7th has been duly received. I am really mortified at the base ingratitude of Callender. It presents human nature in a hideous form. It gives me concern, because I perceive that relief, which was afforded him on mere motives of charity, may be viewed under the aspect of employing him as a writer. When ‘The Political Progress of Britain’ first appeared in this country, it was in a periodical publication called the Bee, where I saw it. I was speaking of it in terms of strong approbation to a friend in Philadelphia, when he asked me if I knew that the author was there in the city, a fugitive from prosecution on account of that work, and in want of employ for his subsistence. This was the first of my learning that Callender was the author of the work. I considered him as a man of science fled from persecution, and assured my friend of my readiness to do whatever I could to serve him. It was long after this, before I saw him; probably not till 1798. He had in the mean time written a second part of the ‘Political Progress,’ much inferior to the first, and his ‘History of the United States.’ In 1798, I think, I was applied to by Mr. Leiper to contribute to his relief. I did so. In 1799. I think, S. T. Mason applied for him. I contributed again. He had by this time paid me two personal visits. When he fled in a panic from Philadelphia to General Mason’s, he wrote to me that he was a fugitive in want of employ, wished to know if he could get into a counting house or school, in my neighborhood, or that of Richmond; that he had materials for a volume, and if he could get as much money as would buy the paper, the profit of the sale would be all his own. I availed myself of this pretext to cover a mere charity, by desiring him to consider me a subscriber for as many copies of his book as the money enclosed ($50) amounted to: but to send me two copies only, as the others might lay until called for. But I discouraged his coming into my neighborhood. His first writings here had fallen far short of his original ‘Political Progress,’ and the scurrilities of his subsequent ones began evidently to do mischief. As to myself, no man wished more to see his pen stopped; but I still considered him as a proper object of benevolence. The succeed- ■ ing year he again wanted money to buy paper for another volume. I made his letter, as before, the occasion of giving him another fifty dollars. He considers these as proofs of my approbation of his writings, when they were mere charities, yielded under a strong conviction that he was injuring us by these writings. It is known to many that the sums given him were such, and even smaller than I was in the habit of giving to others in distress, of the Federal as well as the Republican party, without attention to political principles. Soon after I was elected to the government, Callender came on here, wishing to be made postmaster of Richmond. I knew him to be totally unfit for it. and however ready I was to aid him with my own charities (and I then gave him fifty dollars), I did not think the public offices were confided to me to give away as charities. He took it in mortal offence, and from that moment has been hauling off to his former enemies, the Federalists. Besides the letter I wrote him in answer to the one from General Mason’s, I wrote him another containing answers to two questions he addressed me. 1st. Whether Mr. Jay received salary as chief justice and envoy at the same time? and, 2d. Something relative to the expenses of an embassy to Constantinople. I think these were the only letters I ever wrote him. in answer to volumes he was perpetually writing to me. This is the true state of what has passed between him and me. I do not know that it can be used without committing me in controversy, as it were, with one • too little respected by the public to merit that notice. I leave to your judgment what use can be made of these facts.”
Mr. Jefferson to Mrs. Adams.
(4 Jeff. Corres. 23.)
“Washington, July 22d. 1804. Dear Madam: —Your favour of the 1st instant was duly received, and I would not again have intruded on you, but to rectify certain facts which seem not to have been presented to you under their true aspect. My charities to Callender are considered as rewards for his calumnies. As early, I think, as 1796, I was told in Philadelphia that Callen-der, the author of the ‘Political Progress of Britain,’ was in that city, a fugitive from persecution, having written that book, and in distress. I had read and approved the book; I considered him as a man of genius, unjustly persecuted.' I knew nothing of his private character, and immediately expressed my readiness to contribute to his relief, and to serve him. It was a considerable time after that, on application from a person who thought of him as I did, I contributed to his relief, and afterwards repeated the contribution. Himself I did not see till long after, nor ever more than two or three times. When he first began to write, he told some useful truths in his coarse way; but nobody sooner disapproved of his writing than I did, or wished more that he should .be silent. My charities to hnn were no more meant as encouragements to his scurrilities, than those I gave to the beggar at my door, are meant as rewards for the vices of his life, and to make them chargeable to myself. In truth, they would have been greater to him, had he never written a word, after the work for which he fled from Britain. With re
' [NOTE 2. Subsequently, upon the trial of the impeachment of Mr. Justice Chase, before the senate of the Cuited States, the second article charged 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 Callen-der was convicted.
[Basset had expressed no wish to be excused, provided there would be no impropriety in his being sworn, but from a delicate scruple he informed the court, that he had seen in the newspapers, extracts said to be taken from “The Prospect Before Us:” that he had no knowledge whether they were truly extracted, but if they were and the context did not explain away the apparent meaning of the extracts, he had made up his opinion uneoinivooallv thnt their author came within the provisions of the sedition law.]
This position, notwithstanding the boisterous way in which it is laid down, is incorrect. There must be always at common law an exact recital of the alleged libellous matter, unless in the indictment itself the pleader excuses himself from so doing on the ground of the destruction of the instrument, or its possession by the defendant. See the authorities collected in Whart. Prec. of Ind. 545. “Tenor and effect” exacts a literal recital. Ford v. Bennett, cited 1 Ld. Raym. 415; Rex v. Bear, 2 Salk. 417. At the same time, Mr. Hay’s position, that the title must be set out, is not sustained by the authorities. though it is clear that in knocking it down, Judge Chase knocked down nearly the whole law of libels besides.
Ques. 1st. Did you ever hear Mr. Adams express any opinion favourable to monarchy and aristocracy: and what were they? Ques. 2d. Did you ever hear Mr. Adams, whilst vice president. express his disapprobation of the funding system? Ques. 3d. Do you know whether Mr. Adams did not, in the year 1794, vote against the sequestration law, and the bill for suspending commercial intercourse with Great Britain?
“This charge was taken from the manuscript copy from which the judge read, the rest of the proceedings being taken in shorthand.”
[From 1 Chase’s Tr. p. 200.]
