Oracle post — Portsmouth, N.H., 1805-03-05 00:00:00, page 1

1 JUDGE CHASES ANSWER.
THIS respondent, in his proper person, comes in
to the said court and protesting that there is no high
crime or misdemeanor particularly alledged in
the said articles of impeachment, to which he is or
can be bound by law to make answer ; and saving to
himself now, and all times hereafter, all benefit of
exception to the insufficiency of thesaid articles and
each of them, and to the defects therein appearing
in point of law, or otherwise ; and protesting also,
that he ought not to be injured in any manner, by
/ any words, or by any want of form in this his an
swer ; he submits the following facts and observa
tions byway of answer to the said articles. ~
The first article relates to his supposed miscon
duct in the trial of John Fries, for treason, before
the Circuit Court of the United States at Philadel
phia, in April and May, 1804 ; & alledges that he
presided at that trial, and that “ unmindful of the
solemn duties of his office, and contrary to the sac
red obligation by which he stood bound to discharge
them faithfully and impartially, ajid without respect
to persons," he did then, “ in his judicial capacity
conduct himself in a manner highly arbitary, op
) pressive and unjust."
This general accusation, too vague in itself for re
ply, is supported by three specific charges of mis
conduct. .. ±
tit. "T n delivering an opinion In writing, cn the
question of law, on the construction of which the
defence of the accused materially depended : which
Opinion, it is alledged, tended “ to prejudice the
minds of the jury against the case of the said Jocn
Fries, the prisoner, before counsel had been lieaid
his favor." , , „ .., , ,
2d. "In restricting the counsel for the said
Fries from recurring to such English Authoi ities,
' as they beiieved apposite ; or from citing certain
statutes bf the United States, which they deemed
illustrative of the positions, upon waich they intends
ed to rest the defence of their client.
3d. “ In debarring the prisoner from his constitu
tional privilege of addressing the jury (through his
counsel on the law, as well as on the fact which was
to determine his guilt, dr innocence, and at the same
time endeavouring to wrest from the jury their in
di^mtuble right to hear argument, and determine
upon the question of law, as well as the question or
fact, involved in the verdict which they were re
quired to give."
This first article then concludes, that in conse
-1 ouence of this irregular conduct of this respondent,
^ the said John Fries was deprived of the right se
cured to him by the eighth article, amendatory oi the
Constitution ; and was condemned to death without
having been heard, by counsel in his defence.
By the eighth article amendatory to the Consti
tution, this respondent supposes is meant the sixth
• amendment to the Constitution of the United States;
which secures to the accuser!, in all criminal prose
cutions, the right to have the assistance of counsel
tor his defence.
In answer to these three charges, the respondent
admits that tlie Circuit Court of the United States,
for the district of Pennsylvania,:was held at Pbila>
delphia, in that district, in the months of April and
' May, in tlie year of our Lord, one thousand eight
hundred; at which court, John Fries, the person
named in the said first article, was brought to trial
on an indictment for treason against the United
States; and that this respondent then held a com
mission, as one of the associate Justices of the Su
preme Court of the United States ; by virtue of
which office, he did, pursuant to the laws of the
United States, preside at the above mentioned trial,
and was assisted therein by Richard Peters, Esq.
then, arid still District Judge of the United States,
for the district of Pennsylvania ; who as directed by
, the laws of the United States, sat as assistant Judge
at the said trial. „ ,
With respect to the opinion which is alledged to
have beendelivered by this respondent at the übove
mentfoned trial, he begs leave to lay before this hon
orable Court, the true state of that transaction, and
jo rail its attention to some facts and considerations,
by which his conduct on that subject will, he pre
sumes, be fully satisfied. . , o,
The Constitution of the United States, in the third
article, declares that “ treason against the United
States, shall consist only in levying tear against
them, or adhering to their enemies, giving them aid
and comfort." ,
By two acts of Congress, the first passed on the
third day of March, 1791, and the second on^ the
4 eighth day of May, 1792, a duty.was imposed on
spirits distilled within the United States, and on
stills ; and various provisions were made for its
collection.
In the year 1794, an insurrection took place in
four of the Western Counties of Pennsylvania with
A view of resisting, and preventing by force the ex,
\ autionof these two statutes; andat a Circuit Court
THE PORTSMOUTH ORACLE,
fa published every Saturday morning for the town
and vicinity, and
THE ORACLE POST
everv Tuesday morning for the Country by
William "and Daniel Treadwell,
at their Book and Stationary shop, opposite the
Court House, Portsmouth, NevhamfteMre.—
Terms 150 cents per annum, 50 cents paid in aci
tace-Pactually forwarded to all parts of this
btate and the District of Maine.
AS A
HIGH COURT OF IMPEACHMENT.
mHTG dav SAMUEL 'CHASE, one of the Ass,
^tic^ the Supreme Court of the U
hited States appeared, and put in his answer and
plea to the articles of Impeachment exhibited a
gainst him, by the House of Representatives
This answer was made at so great Lengthy
as to render a publication of the •whole
weekly paper, imfiractible.— Ue cannot, how
inclination, we have, that ^rea
ders should see how ably the Hon. J^dge defends
himself, against the highest charge ^edagatnst
him.—that ofhis conduct on the trial of Fries.—
That part we commence the publication of this day.
Vol. XVI.]
National Legislature.
IN SENATE.
OF ALL THE DISPOSITIONS AND HABITSWHICH LEAD TO POLITICAL PROSPERITY, R^LIGI^ AND MORALITY ARE INDISPENSABLE SUPPORTS. —WASHINGTON.
OD A ri* '? i>nc'T'
I^£^ fUIzJ-j^Lj Ji ^,^^3 1
of the United States, held at Philadelphia, for the
district of Pennsylvania, in the month of April, in
the year 1795, by William Patterson Esq. then one
of the Associate Justices of the Supreme Court of
the United States, and the above-mentioned Rich
ard Peters, then District Judge of the United States,
for the District of Pennsylvania, two persons who
had been concerned in the above named insurrec
tion namely, Philip Vigol and John Mitchel, were
indicted for treason, or levying war against the
United States, by resisting and preventing by force
the execution of the two last mentioned acts of Con
gress ; and were, after a full and solemn trial, con
victed on the indictments and sentenced to death.—
They were afterwards pardoned by Gorge Wash
ington then President of the United States.
In the first of these trials, that of Vigol, the de
fence of the prisoner was conducted by very able
counsel, one of whom, William Lewis, Esq. is the
same person who appeared as counsel fcr John Fries,
hi the trial now under cousida -ition. Nether t^at
learned gentleman,' nor his able colleague, then
thought proper to raise the question of law,"wheth
er resisting and preventing by armed force, the ex
ecution of a particular law of the' United States, be
a' levying of war against the United States," ac
cording to the true meaning of the constitution ? al
though a decision of this question in the negative,
must have acquitted the prisoner. But in the next
trial, that of Mitchell this question was raised on
the part of the prisoner, and was very fully and ably
discussed by his counsel and it was solemnly deter
mined by the court, both the judges concurring " that
to resist or prevent by armed force, the execution
of a particular law of the United States, is a levying
of war against the United States, and consequently
is treason, within the true meaning of the constitu
tion." The decision according to the best establish
ed principles of our jurisprudence became a prece
dent for all courts of equal or inferior jurisdiction ;
a precedent which although not absolutely obligato
ry, ought to be viewed with very great respect es
pecially by the court in which it was made, and
ought never to be departed from, but on the fullest
and clearest conviction of its incorrectness.
On the 9th of July, 1798, an act of congress was
passed, providing for a valuation, of lands and
dwelling houses, and an enumeration of slaves
throughout the United States ; and directing the ap
pointment of commissioners and assessors for carry
ing it into execution : And on the fourth day of July
in the same year a direct tax was laid by another
act of congress of that date on the lands, dwelling
bouses and slaves, so to be valued and enumerated.
In the months of February and March, A. D.
1799, an insurrection took place in the counties of
Bucks and Northampton, the State of Pennsylva
nia, for the purpose of resisting and preventing by
force, the execution of the two last mentioned acts of
congress, and particularly that for the valuation of
lands and dwelling houses. John Fries the person
mentioned in the article of impeachment now under
consideration was apprehended and committed to
prison, as one of the ring-leaders of this insurrec
tion ; and at a circuit court of the United States
held at Philadelphia, in and for the district of Penn
sylvania, in the month of April, A/D. 1799, he was
brought to trial for this offence, on an indictment
for treason, by levying a war against the United
States, before James Iredell, esq. then one of the as
sociate justices of the Supreme Court of the United
States, who presided in the same court, according
to law, and the above mentioned Richard Peters,
then district Judge of the United States, for the
district of Pennsylvania, who sat in the said
circuit court as assistant judge.
In this trial, which was conducted with great so
lemnity, and occupied nine days ; the prisoner was
assisted by Wm. Lewis and Alexander James Dal
las, esqrs. two very able and eminent councellors ;
the former of whom, Wm. Lewis, is the person
who assisted as above mentioned, in conducting the
defence of Vigol, on a similar indictment. These
gentlemen, finding that the facts alledged were ful
ly and undeniably proved, by a very minute and
elaborate examination of witnesses, thought proper'
to rest the case of the prisoner, on the question of
law which had been determined in the cases of Vi
gol and Mitchel abovementioned, and had then been
acquiesced in, but which they tho't proper again to
raise. They contended, " that to resist by force of
arms a particular law of the United States, does not
amount to levying war against the United States,
within the true meaning of the constitution, and
therefore it is not treason, but a riot only."' This
question they argued at great length, and with all
the force of their learning &; genius ; & after a very
full discussion at the bar, and the most mature de
liberation by the court, the learned and excellent
judge who then presided, and' who was no less dis
tinguised by his humanity and tenderness towards
persons tried before him; than by his extensive
knowledge and great talents as a lawer, pronounced
the opinion of himself and his colleague, “ that to
resist or prevent by force, the execution of a par
ticular law of the United States, does amount to
levying War against them, within the true meaning
of the constitution, and does therefore constitute the
crime of treason f' thereby adding the weight of a
nother aad more solemndecision, to the precedent
which had been established in the above mentioned
cases of Vigol and Mitchel.
Under this opinion of the court on the question of
law, the jury, having no doubt as to these facts,
found the said John Fries guilty of treason, on the a
bove mentioned indictment. But a new trial was
granted by the court, not by reason of any doubt as
to the correctness of the decission on the question of
law, but solely 011 the ground, as this respondent
has understood and believes, that one of the jurors
of the petit jury, after he was summoned, but be
fore he was sworn on the trial, had made some de
claration Unfavourable to the prisoner.
The yellow fever having appeared in Philadel
phia in the summer of the year 1799, the above
mentioned Richard Peters, then district judge of the
United States for the district of Pennsylvania, did
according to law appoint the next circuit court of
that district, to he held at Norris-Town therein :
Pursuant to which appointment, a circuit court was
held at Norris-Town aforesaid, in and for the said
district, on the 11th day of October in the last men
tioned year, before Bushrod Washington, Esq. then
one of the associate justices of the Supreme court of
the United States, and the above mentioned Richard
Peters; at which court no proceedings were had'
on the aforesaid indictment against Jonn Fries, be
cause, as this respondent hath been informed and
[ believes, the commission of the marshal of the said
# i
TUESDAY, MARCH' 5, 1805.
district had expired, before he had summoned the
jurors to attend at the s>id court, and had not been
renewed ; by reason of which no legal pannel ofju
rors couple formed.
Go U? Uth day of April, A. D. 1800, and from
that day anti! toe 2d day of May in the same year,
a circa?, dart of the United States was held at Phi
lade)hi in and for the district of Pennsylvania,
before tars respondent, then one of the associate
justices c{ the Supreme court of the United States,
and the .move mentioned Richard Peters, then di
striv judge of the United States for the district of
Pennsylvania. At this court, the indictment on
which the 'aid John Fries had been convicted as a
b<,ve me^doned, was quashed ex officio by William
Rawle, Esq. then attorney of the United States for
the dir riqt of Pennsylvania, and a new indictment
was by him preferred aganst the said John Fries,
for trr 1, of levying war against the United States,
bj re & t \nd preventing by force, in the manner
of vv.% ^jv/" eexception of the Jrcve mentioned
acts of Congress, for the valuation of lands and dwel
ling houses and the enumeration of slaves, and for
levying and collecting a direct tax. The indict
ment, of which a true copy, marked exibit No 1,
is herewith exhibited by this respondent, who prays
that it may be taken as pare of this his answer, be
ing found by the grand jury on the 16th day of April,
1800. The said John Fries was on the same day
arraigned thereon, and plead not guilty. William
Lewis and Alexander James Dallas, Esqrs. thesame
persons who had conducted his defence at his for
mer trial, were again at his request assinged by the
court as his councel ; and his trial was appointed
to be had, on Tuesday the 22d day of the lust men
tioned month of April.
After this indictment was found by the grand ju
ry, this respondent considered it with great care &
deliberation, and finding, from three overt acts of
treason which it charged, that the question of law
arising upon it, was the same question which had
already been decided twice in the same court, on
solemn arguments and deliberation, and once in
that very case, he considered the law as settled by
those decisions, with the correctness of which on
full consideration, he was entirely satisfied ; and by
the authority of which he should have deemed him
self bound, even had he regarded the question as
doubtful in itself. They are moreover in perfect
conformity with the uniform tenor of decisions in
the courts of England and Great-Britain, from the
revolution, in 1688, to the present time,which, in his
opinion, added greatly to their weight and authori
ty-
And surely he need not urge to this honorable
court, the correctness, the importance, and the ab
solute necessity of adhering to principles oflaw once
established, and of considering the law as finally set
tled, after repeated and solemn decissions by courts
of competent jurisdiction. A contrary principle
would unsettle the basis of our whole system of
jurisprudence,hitherto our safeguard and our boast ;
would reduce the law of the land, and subject tire
rights of the citizen, to the arbitary will, the pas
sions, or the caprice of the judge in each particular
case ; and would substitute the varying opinions of
various men, instead of that fixed, permanent rule,
in which the very essence of law consists. If this
respondent erred in regarding this point as settled,
by the repeated and solemn adjudications of his pre
decessors, in the same court and in the same
case ; if he erred in supposingthat a principle estab
lished by two solemn decisions, was obligatory upon
him, sitting in the same court where those decisions
had been made ; if he erred in believing that it
would be the highest presumption in him, to set up
his opinion and judgment over that of his colleague
who had twice decided the same question, and two
of his predecessors wholjustly rank among the ablest
judges 'that have ever adorned a court ; if in all
this he erred, it is an error of which he cannot be a
shamed, and which he trusts will not be deemed
criminal in the eyes of this honorable court, of his
country, or of that posterity by which he, his accu
sers, and his judges, must one day be judged.
Uuder the influence of these considerations, this
respondent drew up an opinion on the law, arising
from the overt acts stated in the said indictment,
which was conformable to the decissions before giv
en as above mentioned, and which he sent to his
colleague the said Richard Peters, for his consider
ation. That gentleman returned it to this respond
ent, with some amendments affecting the fond only,
but not in any manner touching the substance.
The opinion thus agreed to, this respondent
thought it proper to communicate to the prisoner's
"councel several reasons concured in favor of this
communication.„
In the first' place, this respondent considered him
self and the court, as bound by the authority of the
former decissions ; especially the last of them which
was on the same case. He considered the law as
settled, and had every reason to believe that his
colleague viewed it in the same light. It was not sug
gested, or understood that any new evidence was to
be offered : and he knew that if any should be of--
sered, which could vary the case, it would render
wholly inapplicable both the opinion and the former
' decisions on which it was founded. And he could
' not and did not suppose that the prisoner's councel
would be desirous of ^wasting very precious time,
in addressing to the court an useless argument, on
a point which that court held itself precluded from
deciding in their favor. He therefore conceived
that it would be rendering the councel a'service and
a favor, to apprise them before hand of the view
which the court had taken of the subject ; so as to
let them see in time, the necessity of endeavouring
to procure new testimony, which might vary the
case, and take it out of the authority of former de
cisions. ..A
Secondly. There were more than one hundred
causes then depending in the said court, as appears by
the exhibit marked No I,which this respondent prays
may be taken as part of this his answer. Many of
those causes had Trendy been subjected to great delay
and it was the peculiar duty of this respondent, as
presiding judge to take care, that as little time as
possible should be unnecessarily consumed, and that
every convenience and proper dispatch should be
given to the business of the citizens. He did believe
that an early communication of the court's opinion
might tend to the saving of time, and consequently
to trie dispatch of business.
Thirdly. As the court held itself bound by the
former decisions, and could not therefore alter its
opinion in consequence of any argument ; and as it
was the duty bf the court to charge the jury on the
law, in all cases submitted to their consideration, he
knew that this opinion must not only be made known
at some period or other of the trial, but must at the
end ct the trial be expressly delivered to the jury b,
him, in a charge from the bench ; and he could not
suppose, and cannot yet imagine, that an opinion^
which was to be thus solemnly given in charge to
the jury, at the close of the trial, could make any
additional impression on their minds, from the cir
cumstance of its being intimated to the counsel be>
fore the trial began, in the hearing of those who
might be afterwards sworn on the jury.
And lastly, it was then his opinion, and still is,
that it is the duty of every Court of this country, and
was liis duty on the trial now under consideration,•
to guard the Jury against erroneous impressions re- f
specting the laws of the land. He well knows, that
it is the right of Juries in criminal cases, to give a
general verdict for acquittal, which cannot be set
aside on account of its being contrary to law, and
that hence results the power of Juries, to decide on
the law ns well 3 on the facts, in all criminal cases.
This power he holds to be a sacred part of our le
gal privileges, which he never has attempted ; and
never will attempt to abridge or to obstruct. But he
also knows, that in the exercise of this power, it i<
the duty of the Jury to govern themselves by the
laws of the land, over which they have no dispen
sing power ; and their right to expect and receive
from the Court, all the assistance which it can give,
for rightly understanding the law. To withold thitf
assistance, in any manner whatever ; to forbear to
give; it in that way, which may be most effectual for
preserving the Jury from error and mistake ; would
be an abandonment or forgetfulness of duty, which
no Judge could justify to his conscience or to the
laws. In this case, therefore, where the question of
law arising on the indictment, had been finally set
tled by authoritative decisions, it was the duty of
the Court, and especially of this respendent as Pre
siding Judge, early to apprise the counsel and the ju
ry of these decisions, and their effect, so as to save
the former from the danger of making an improper
attempt to mislead, the ,ry in a matter of law, and
the jury from having their minds preoccupied by er^
roneous impressions.
It was for these reasons, that on the 22d day of
April, 1800, when the said John Fries was brought
into court, and placed in the prisoner's box for trial,
but before the petit jury was impanelled to try him,
this respondent informed the above mentioned Wil
liam Lewis, one of his counsel, the aforesaid Alex
ander James DaMas not being then in court, "that
the court had deliberately considered the indictment
against John Fries for treason, and the three sever
al overt acts of treason stated therein : That the
crime of treason was defined by the constitution of
the United States : That as the federal Legislature
had the power to make, alter, or repeal laws, so
the judiciary only had the power, and it was their
duty to declare, expound and interpret the constitu
tion and laws of the United States : That it was the
duty of the court, in all criminal cases to state to th©
petit jury, their opinion of the law arising on the
facts ; but the petit jury in all criminal cases, were
to decide both the law and the facts, on a considera
tion o£the whole case : That there must be some
constructive exposition of the terms used in the con
stitution, "levying war against the United States :"
—That the question, what acts amounted to levying
war against the United States, or the government
thereof, was a question of law, and had been decid
ed by Judges Patterson and Peters, in the cases of
Vigol and Mitchell, and by Judges Iredell and Pe
ters, in the case of John Fries, prisoner at the bar,
in April; 1799 : That Judge Peters remained of the
same opinion, which he had twice before delivered,
and he, this respondent, on long and great consider
ation, concurred in the opinion of Judges Patterson,
Iredell, and Peters: That to prevent unnecessary
delay, and to save time on the trial of John Fries,
and to prevent a delay of justice, in the great num
ber of the civil causes depending for trial at that;
term, the court had drawn up in writing their opin
ion of the law, arising on the overt acts, stated in
the indictment against Jonn Fries ; and had direct
ed David Caldwell, their clerk, to make out three
copies of their opinion, one to be delivered to the
Attorney of the district, one to the counsel for the
prisoner, and one to the Petit Jury, after they should
have been impannelled and heard the indictment
read to them by the clerk, and after the District
Attorney should have stated to them the law on the
overt acts alledged in the indictment, as it appear
ed to him."
And this respondent further saith, that the papec
marked exhibit No. 2, and herewith exhibited,
which he prays leave to make part of this his an
swer, is a true copy of the original opinion, drawn
up by him and concurred in by the said Richard
Peters, as above set forth, which original opinion is
now in the possession of this respondent, ready to be
produced to this honorable court. He may have
erred in forming this opinion, and in the time and
manner of making it known to the counsel for the
prisoners. If he erred in forming it, he erred iu
common with his colleague and with two of his pre
decessors ; and he presumes to hope that an error
which has never been deemed criminal in them will
not be imputed as a crime to him, who was led into
,it by their example and their authority. If he ere
red in the time and manner, of making known this
opinion, he feels a just confidence tliat when the rea
sons which he has alledged for his conduct, and b,
which it seeded to him to be fully justified, shall
come to be carefully weighed, they will be sufficient
to prove, if not that his conduct was perfectly regu
lar and correct, yet that he might sincerely have
considered it as right ; and that in a case where so
much doubt may exist, to have committed a mis
take, is not to have committed a crime.
And this respondent further answering insists,
that the opinion thus delivered to the prisoner'#
counsel ; viz. that "any insurrection'or rising of a
ny body of people within the United States, for the ,
purpose of resisting or preventing by force or vio
lence, under any pretence whatever, the execution
. of any.statute of the United States, for levying or
collecting taxes, or for any.other object of a gene
ral or national concern, is levying war areata,
After these observations, this respondent deliver
ed one of the abovementioned copies to the aforesaid
William Lewis, then attending as one of the prison
er's counsel ; who read part of it, and then laid it
down on the table before him. Some observations
were then made on the subject, by him and the a
bovementioned Alexander James Dallas, who had
then come into court ; but this respondent doth
not now recollect those observations, and cannot un
dertake to state them accurately.
[No. 25.