witnesses have declared that they never witnessed a similar procedure. I shall undertake to prove that judge Chase delivered his opinion in such a manner as tended to make an impression on the minds of the jury. Upon this point we have the testimony of Mr. Lewis an Mr. Dallas, but I do not intend to rely altogether on their evidence. The answer of the respondent is sufficient for my purpose. In the fourteenth page of the answer the judge declares, that he did irform Mr. Lewis that the court were of the same opinion concerning the law of treason, as had been before decided in the case of Vigol and Mitchell, and on the first trial of Fries." What was this but declaring that the acts charged against Eries amounted to treason? And this opinion was delivered in the presence of all the byestanders. The jury were informed that the opinion which the court intended to give, was the same which had been given before, when Fries was found guilty. The plain inference to be deduced from this declaration of the judge is, that the court had determined that Fries was guilty of treason. But it has been said that the court gave no opinion as to the facts. In answer to this, I will observe, that there was no dispute as to the facts, and the counsel have stated that they meant to rest their defence solely on the law; and the respondent in the twelfth page of his answer admits "that it was not suggested that any new evidence was to be offered," and the evidence was precisely the same as had been offered at the trial when Fries was found guilty. The respondent and his counsel have told us that the forming and delivering this opinion was intended as a service and a favor to the counsel for Fries, and to apprise them of the law and that they might seek new testimony: This could not possibly have been the reason which influenced the judge, because the opinion was delivered on the very day, when Fries was brought into court for his trial, and that was far from being a proper time for the counsel to seek new testimony. If the judge had been governed by any consideration of this kind, would be not have made an earlier communication to the counsel for Fries? But in the very same answer in which the judge rives this reason for delivering the opinion, he states "that it was not suggested that there was any new evidence,"

certainly then this excuse deserves the epithet which has been applied to it by one of the managers, it is "an unworthy evasion." No advantage could have resulted then to the counsel or their client, because no dispute existed as to the facts. Another reason assigned by the judge is, the great number of civil suits which were for trial at that term, and therefore that the time of the court ought not to have been wasted. If this were a reason, how was the time to be saved? The same arguments would have been used by the counsel to the jury, whether the court had made up their minds or not. The reasons assigned for the conduct of the judge are different and this court will decide whether they are correct or not. I wish not to say what were the motives which induced the judge to adopt such a novel and extraordinary procedure. It is not my office to impute improper motives, but in my opinion his conduct was highly improper. An impression has been attempted to be made on this court by asserting that the opinion delivered was correct, and that the arguments of Messrs. Lewis and Dallas could not have had any weight, because they would not have been correct. Sir, I do not agree with the judge and his counsel, that the opinion delivered in the case of Fries, with respect to the law of treason, was a correct opinion, nor can I believe that I shall suffer in reputation for this disagreement; and I will take the liberty of offering a few observations to shew, that there was nothing extravagant in the opinion, that the court was incorrect. The constitution declares “ that treason shall consist in levying war against the United States. The court said the terms "levying war," must receive a constructive exposition, in a legal manner.There are some authorities which consider this a question of law, while others deem it a question of fact. This, however, is not important. The court, in the case of Fries, considered it a question of law. I will here beg leave to refer to the opinion of a very eminent judge in Virginia, who is of a different opinion with the respondent on the law of treason. I shall read a passage from Tucker's edition of Blackstone, not to shew that the opinion of the court, in the case of Fries, was incorrect, but to shew that there was nothing extravagant in believing it so. [Here Mr. Nicholson read a passage from

the fourth vol. Tucker's Blackstone, page 11, on the subject of treason.] I have read this to shew that the opinion of judge Chase on the law of treason, is not the universal opinion; but that a judge of a very high standing doubts its correctness. The first instance of constructive treason in England, after the statute of Edward the first, was under the reign of Henry the eighth,, and the next in the reign of Elizabeth. In the reign of king Charles the second, while that eminent judge, sir Matthew Hale, was on the bench, a case occurred similar to the one of Fries. The case was reserved for the opinion of twelve judges, and they declared it to be treason, but sir Matthew Hale differed in opinion with them. His reasons are stated at large in Kelynge's reports. In the first trial of Fries, there was a declaration by the district attorney who prosecuted Fries, "that what in England was deemed a constructive levying of war, must in this country be deemed a direct levying of war." I ask then whether there was any thing extravagant in the wish of Mr. Lewis and Mr. Dallas, to address the jury on the law, after Sir Matthew Hale's doubting on it? So far from thinking them deserving of censure, I as an individual return them my thanks for their conduct, and I trust that on a similar occasion there will be found men bold enough to assert their rights and save the constitution. I trust that counsel will always in a case of treason insist upon going before the jury on the law, and endeavor to obtain an exposition of the constitution different from that which has been given to it. We have been told that it is the universal practice for courts to reduce their opinions to writing on the law, before counsel have been heard, and Kelynge is cited as an authority to shew that the judges in England met on a certain occasion to settle the law, before the trial of persons for treason. Let it be remembered, that this was immediately after the restoration of king Charles the second, and the persons who were to be tried were accused of the murder of his father. At that time no person was safe who would sing hosannas to the king, and manifest their zeal by the destruction of the enemies of his father. Surely then, a case which occurred at such a time, can form no precedent to excuse judge Chase. But

even were it proper, even had such a dicision been made at any other time, it would furnish no precedent for the conduct of judge Chase. It is true, that the judges in England did meet before the trial and determine the law, but they had modesty enough to keep their opinions to themselves, and did not disclose them to the jury, before counsel were heard. But judge Chase did deliver his opinion in open court, and in the presence of a number of the jury. This I have clearly proved by the answer of the judge. And he must have formed and delivered his rit opinion from a perfect knowledge of the facts, for the attorney-general of Maryland has said that judge Chase had the benefit of the notes of judge Peters and Mr. Rawle, and it was not suggested that any new evidence would be adduced.— I presume it will be unnecessary to dilate longer on the first specification, and will proceed to the second. It charges the judge "with restricting the counsel for Fries from recurring to such English authorities as they believed apposite; or from citing certain statutes of the United States which they deemed illustrative of the positions upon which they intended to rest the defence of their client." answer to this the gentleman who opened the defence observed, that the counsel on both sides were restricted, and therefore no partiality could be shewn. Sir, what was the restriction placed upon the attorney for the United States? I am at a loss to discover any, except that of being prevented from defending John Fries, and in this he was restricted by his oath of office. It could be no resriction to tell him the law was on his side. Mr. Lewis's testimony upon this point deserves more credit than Mr. Rawle's. Mr. Rawle took no notes on the first day, and was too much occupied in his official situation to pay much attention to what transpired. Mr. Lewis was a party concerned, and must have paid particular attention to what was said by the judge, and his evidence is corroborated by the answer of the judge. Mr. Rawle recollected nothing about any restriction with respect to the statutes of the United States, and he has stated one fact different from what is stated by the respon-\ dent. He stated, that the judge declared that one of the copies of the opinion was to be delivered to the jury, to take out

In

with them, whereas the judge states precisely as Mr. Lewis does, that the opinion was to be delivered to the jury after the opening of the case by the district attorney. I shall, therefore, consider that the testimony of Mr. Lewis, is entitled to more credit than the rest of the witnesses. Mr. Lewis stated that the court said, that the counsel should not read the statutes of the United States to the jury. Mr. Dallas stated, that after having been informed by Mr. Lewis of what had transpired, he went into court and mentioned to the judges what had been told him, and that it was not denied. I therefore shall take it for granted, that the counsel were restricted from citing the statutes of the United States, as well as decisions in England before the revolution. What was the reason that the counsel for Fries wiched to cite those English authorities? It is evident they wished to shew to the jury, that the construction which had been given in England to the terms "levying war," levying war," was given in the worst of times, and that the judges since the revolution, had considered themselves bound by the decisions prior to that period. They wished to read the statutes of the United States to shew, that congress did not consider that the offence with which Fries was charged, amounted to treason, and surely the congress of the United States had as much right to give a construction to the termslevying war," as the court had. We have been told that if the court conceived those authorities to have no connection with the case, they had a right to prevent their being read, and a distinction has been taken between the power and right of the jury to decide upon the law in criminal cases. This is novel to me. I always conceived that this right had never been denied to the jury. But if they have the power, and no law has been made to restrict it, most indubitably they have the right to decide questions of law as well as fact, in criminal cases. If a jury would be servile enough to adopt the opinion of the court when they believed it erroneous, and tamely surrender their right of deciding the law in criminal cases, they would deserve the punishment of attaint. This attempt to justify the conduct of the judge, bears some evidence of guilt. Gentlemen are afraid to rest the case on the facts. I hope, however, that the right of the jury to decide the

law in criminal cases, will never be deni ed: It is a right recognised by all the courts in England. Some instances have happened, where a new trial has been granted after a verdict of guilty, but there has been no instance where a new trial has been granted after a verdict of acquittal. The reason given for the restriction of the counsel is, that it saved time. How was this to be done? By preventing the reading of those authorities which the counsel deemed material to the defence of their client.

The third specification is, "that the judge debarred the prisoner of his constitutional right of addressing the jury (through his counsel) on the law as well as on the fact, and indeavoring to wrest from the jury, their indisputable right to hear argument and determine upon the question of law as well as the question of fact, involved in the verdict they were required to give." It is not contended that Mr. Chase debarred the counsel by any actual interference when they were about to address the jury, but that his conduct on the first day had that tendency. Mr. Lewis stated that the judge did say, that if the counsel conceived the opinion of the court to be erroneous, they must address their arguments to the court and not to the jury. And on the second day, when judge Chase told the counsel that they were at liberty to proceed and address the jury on the law, he added, that they must doit at the hazard of their reputation, and this was done in the presence of the jury. No doubt can exist but that the counsel were prevented from addressing the jury by the conduct of the judge, and no counsel would address a jury under similar cir cumstances. Mr. Lewis might well use the language which he did, and was per fectly justifiable in abandoning the cause of his client, because, after what had taken place, there was no hopes of rendering him any assistance by defending him, and the only chance of saving his life was to obtain a pardon from the president. It was said by one of the counsel, that the right of the jury to decide on the law, did not give them a dispensing power over it, and they were bound by the opinion of the court, if that opinion There can be no doubt of this. Neither the court nor jury have any right to dispense with the law. Fries, did not contend that the jury had

was correct.

The counsel for

this power. All they contended for was, that the jury should receive information upon the law. It has been asked what inducement a judge can have to act corruptly in this country, when they are independent. Sir, in England, the judiciary are as independent as in this country; it has been sacred for nearly one hundred years, and yet for the last twenty years, many instances have been pointed out, in which we find a strong leaning of the court against the prisoner. In Ireland, judicial independence is strongly fortified. What has been the conduct of judges in that country? We have seen Ireland bleeding at every pore, and trembling at every nerve. We see the judges there, always engaged on the side of the prosecution. Those judges might expect and receive the approbation of their government for such conduct, and that would be inducement for others to follow their example. It is our duty to prevent this evil fror growing in this country. Let us crush it in the bud, lest we be unable when it becomes a tree. I trust that this court will be of opinion, that judge Chase has been guilty of a misdemeanor in office, and that he will be convicted, and disqualified from holding any office under the United States.

I do not intend to make any observations on the rest of the articles of impeachment, but shall leave it to my two friends who are to follow me. I have in this important business been governed by a sense of duty, and I trust that this honorable court will be governed in the like

manner.

MR. RODNEY.

Mr. PRESIDENT. A spectacle as solemn as any heretofore witnessed now presents itself to our view. A man who has filled many of the most important public stations in our country, stands charged with the commission of criminal acts. On the one hand the reputation and character of a respectable individual is involved, on the other the most important privileges of the American people. A man who can behold this scene with indifference must be unworthy of society. The public anxiety must be manifest on so important a trial.

It is a trial embracing a number of transactions, and is more important than any which has transpired since the formation of our government. In acting as a manager of the house of representatives in support of the impeachment, I shall discharge my duty with extreme pain, but it has been a rule of my life never to suffer my private feelings to prevent me from discharging my duty. To this tribunal I look for a display of impartiality in this case, and I feel confident that this honorable court will suffer neither party nor personal. considerations to mingle themselves in this cause. The baneful spirit of party will not dare to approach these walls. In the whole proceedings of this trial, I have discovered that truth, and truth only, has been regarded, and after a fair and full investigation of the case, I shall acquiesce with chearfulness in the decision. In the course of my arguments, permit me to advert to some of the positions laid down by the learned counsel for the respondent. This court has been reminded that their judgment will be judged by posterity, and the respondent in his answer has gone farther, and appealed to the great searcher of hearts at the last day. Before this tribunal we all must appear, and I trust that more mercy will be shewn to the respondent, than was shewn by him to Fries. We have heard something like a complaint from my learned friend who opened the defence, that this impeachment had not been instituted sooner. Let it be remembered that although some of the acts with which the judge stands impeached, were committed several years ago, yet that others were committed but a short time since, and the impeachment was not instituted until found absolutely necessary. Was then the leniency of the honse of representatives a ground of reproach? I trust not. Although justice has a slow yet it has a certain step, and will always overtake her victims: And the house of representatives far from being deserving of censure for this prosecution, ought to receive credit for the pains which they have taken, to preserve the fountains of justice pure and unsullied and the thanks of the nation are justly due to my worthy friend near me (Mr. Randolph) for his bringing forward the investigation. We have heard some

observations with respect to the independency of the judiciary. I admit it to be essential, but I am afraid that the doctrine is attempted to be carried too far. We have been told that the only reply which could be made to the essentiality of the independence of the judiciary was some jargon about the sovereignty of the people. Sir, I cannot agree with my friend (Mr. Hopkinson) that the people are to care nothing about the actions of their agents, on the contrary, I believe they ought always to watch them. An observation was made by the gentleman who spoke yesterday (Mr. Harper) with respect to the change of parties. If the observation was made with reference to those in power, I do not conceive it to be correct. We have found the present ruling party unwilling to continue laws un. der which some of them while in the minority had been punished, and they are now attempting to preserve the streams of justice pure, by bringing before this bar a judge, who has been charged with oppression in office. It was contended by the attorney general of Maryland, that according to the authorities, no person could be impeached but for a high crime or a high misdemeanor, and that it must be such an offence as stamped infamy upon the officer. Let us without troubling the law books, advert to the constitution of our country. I think I shall be able to demonstrate from the language of that instrument, that it is not necessary that a judge should be guilty of an indictable of fence to render him impeachable, and I will go farther and shew that according to the gentleman's (Mr. Martin) own de finition, and taking up the book which he has cited, that the respondent has been guilty of more than one misdemeanor.

The first mention which is made in the conftitution about impeachment is in the third fection of the firft article, where it is faid, that "the fenate fhall have the fole power to try all impeachments." In the next claufe we find the punishment in cafes of impeachment limitted; it declares, that "judgment in cafes of impeachment, fhall not extend further than to removal from office and difqualification to hold and enjoy any office of honor, trufl or profit under the United States. But

the party convicted fhall nevertheless be liable and fubject to indictment, trial, judgment and púnishment, according to law." Upon the bafis of this lait article, a fuperftructure has been erected by the counfel, which I truft can eafily be demolished. It is contended that the framers of the conftitution were of opinion, that to ren der an offence impeachable, it must be indictable. Can this meaning be gathered from the words of the conftitution? To my mind it can not. In En gland the punishment in cafes of impeachment fupercedes all other modes, and a man can not be indicted after being impeached. But the framers of the conftitution, having limitted the punishment in cafes of impeachment, alfo enacted that the party might be afterwards indicted and punished, according to law, meaning where an indictment would lie, leaving therefore nothing to the difcretion of the court of impeachment as to the annexing any other punishment to removal and dif qualification. It was therefore absolutely neceffary that a clause should be inferted in the conftitution, providing that the party might "be indicted and punished according to law," because crimes might be committed by an offval and difqualification would be a ve cer of government, for which remory inadequate punishment. Let us proceed a little further on the conftitu. tion.

In the fourth fection of the fecond article, it is faid, "the prefident, vice-prefident, and all civil officers of the United States, fhall be removed from office on impeachment for and conviction of treafon, bribery, or other high crimes and mifdemeanors." Here the conftitution is imperative, and the officer must be removed upon convic tion of either of thofe offences. If we take the conftitution as one entire inflrument, the fyftem of impeachment will be found as little liable to objecti on as any other part of it. The conftitution alfo declares, that "the judg es both of the fupreme and inferior