the legiflature has given to it an implied fanction; and for that legiflature to punish it now by way of impeachment, would be to convert into a crime, by an ex poft facto proceeding, an act which when it was done and at all times before, they had themselves virtually declared to be innocent. Such conduct would be utterly fubverfive of the fundamental principles on which free government refts; and would form a precedent for the most fanguinary and arbitrary perfecutions, under the forms of law. Nor can the incorrectnefs of the political opinions thus expreffed, have any influence in deciding on the guilt or innocence of a judge's conduct in expreffing them. For if he should be confidered as guilty or innocent, according to the fuppofed correctnefs or incorrectnefs of the opinion, thus expreffed by him, it would follow, that error in political opinion, however honeftly entertained, might be a crime; and that a party in power might, under this pretext, deftroy any judge, who might happen in a charge to a grand jury, to fay fomething capable of being conftrued by them, into a political opinion adverse to their own system. There might be fome pretence for faying, that for a judge to utter feditious fentiments, with intent to excite fedition, would be an impeachable offence: although fuch a doctrine would be liable to the moft dangerous abuses; and is hoftile to the fundamental principles of our conftitution, and to the best established maxims of our criminal jurifprudence. But admitting this doctrine to be correct, it cannot be denied that the feditious intention must be proved clearly, either by the moft neceffary implication from the words themfelves, or by fome overt acts of a feditious nature connected with them. In the prefent cafe no fuch acts are alledged, but the proof of a feditious intent must reft on the words themselves. By this rule this refpondent is willing to be judged. Let the opinions which he delivered be examined; and if the members of this honorable court can lay their hands on their hearts, in the presence of God, and fay that thefe opinions are not only erroneous but feditious alfo ; and carry with them internal evidence of an intention in this refpondent to excite . fedition, fedition, either against the state or general government, he is content to be found guilty. In making this examination, let it be borne in mind, that to oppofe a depending measure, by endeavoring to convince the public that it is improper, and ought not to be adopted; or to promote the repeal of a law already paft, by endeavoring to convince the public that it ought to be repealed, and that fuch men ought to be elected to the legislature as will repeal it; to attempt in fine, the correction of public measures, by ar guments tending to fhew their improper nature, or deftructive tendency; never has been or can be confidered as fedition, in any country, where the principles of law and liberty are refpected; but is the proper and ufual exercise of that right of opinion and fpeech, which conftitutes the diftinguishing feature of free government. The abufe of this privilege, by writing and publishing as facts, malicious falfehoods, with intent to defame, is punishable as libellous, in the courts having jurisdiction of fuch offences; where the truth or falfehood of the facts alledged, and the malice or correctnefs of the intention, form the criterion of guilt and innocence. But the character of libellous, much lefs of feditious, has never been applied to the expreffion of opinions concerning the tendency of public meafures, or to arguments urged for the purpose of oppofing them, or of effecting their repeal. To apply the doctrine of fedition or of libels to fuch cafes, would inftantly deftroy all liberty of speech, fubvert the main pillars of free government, and convert the tribunals of juftice into engines of party vengeance. To condemn a public meafure, therefore, as pernicious in its tendency; to use argu ments for proving it to be fo; and to endeavor by these means to prevent its adoption, if flill depending, or to procure its repeal in a regular and conftitutional way, if it be already adopted; can never be confidered as fedition, or in any way illegal. The firft opinion expreffed to the grand jury on the occafion in queftion, by this refpondent, was that "the late alteration of the federal judiciary, by the abo lition of the office of the fixteen circuit judges; and the recent change in our ftate conftitution, by cftablishing univerfal univerfal fuffrage; and the further alteration that was then contemplated in our ftate judiciary, if adopted;" would, in the judgment of this refpondent, "take away all fecurity for property and perfonal liberty." That is, "these three measures, if the laft of them, which is ftill depending, fhould be adopted, will, in my opinion, form a fyftem whofe pernicious tendency must be, to take away the fecurity for our property and our perfonal liberty," which we have hitherto derived from the falutary restrictions, laid by the authors of our conftitution on the right of fuffrage, and from the prefent conftitution of our courts of juftice." What is this but an argument to perfuade the people of Maryland to reject the alterations in their ftate judiciary which were then propofed; which this refpondent as a citizen of that ftate had a right to oppofe; and the adoption of which depended on a legislature then to be chofen? If this be fedition, then will it be impoffible to exprefs an opinion oppofite to the views of the ruling party of the moment, or to oppose any of their measures by argument, without becoming fubject to fuch punishment as they may think proper to inflict. The next opinion is, that "the independence of the national judiciary was already fhaken to its foundation, and that the virtue of the people alone could reftore it." In other words, "The act of Congress for repealing the late circuit court law, and vacating thereby the offices of the judges, has fhaken to its foundation the independence of the national judiciary, and nothing but a change in the reprefentation of Congrefs, which the return of the people to correct fentiments alone can effect, will be fufficient to produce a repeal of this act, and thereby restore to its former vigor, the part of the fede-ral conftitution, which has been thus impaired." This is the obvious meaning of the expreffion; and it amounts to nothing more than an argument in favor of that change, which this refpondent then thought and ftill thinks to be very defirable; an argument the force of which as a patriot he might feel, and which as a free man he had a right to advance. The next opinion is, that "the independence of the judges of the fate of Maryland, would be entirely deftroyed 634245 Froyed if the bill for abolishing the two fupreme courts hould be ratified by the next general affembly." This opinion, however incorrect it may be, feems to have been adopted by the people of Maryland, to whom this argument against the bill in queftion was addreffed: for at the next feffion of the legislature this bill, which went to change entirely the conftitutional tenure of judicial office in the ftate, and to render the fubfiftence of the judges dependent on the legiflature, and their continuance in office on the executive, was abandoned by common confent. All the other opinions expreffed by this refpondent, as above mentioned, bear the fame character with thofe already confidered. They are arguments addreffed to. the people of Maryland, for the purpofe of diffuading them from the adoption of a meafure then depending; and of inducing them, if poffible, to restore to its original ftate, that part of their conftitution relating to the right of fuffrage, by a repeal of the law, which had been made for its alteration. Such were the objects of this refpondent in delivering thofe opinions, and he contends that they were fair, proper, and legal objects, and that he had a right to purfue them in this way: a right fanctioned by the univerfal practice of this country, and by the acquiefcence of its various legislative authorities. Such, he contends, is the true and obvious meaning of the opinions which he delivered, and which he believes to be correct. It is not now neceffary to inquire into their correctnefs; but, if incorrect, he denies that they contain any thing feditious, or any evidence of thofe improper intentions which are imputed to him by this article of impeachment. He denies that in delivering them to the grand jury, he committed any offence, infringed any law, or did any thing unufual or heretofore confidered in this country as improper or unbecoming in a judge. If this article of impeachment can be fuftained on thefe grounds, the liberty of fpeech on national concerns, and the tenure of the judicial office under the government of the United States, muft hereafter depend on the arbitrary will of the House of Reprefentatives and the Senate, to be declared on impeachment, after the acts are done, which it may at any time sme Le thought neceffary to treat as high crimes and wilemeanors. And the faid Samuel Chafe, for plea to the faid eighth article of impeachment, faith, that he is not guilty of any high crime and mifdemeanor, as in and by the faid eighth article is alledged against him, and this he prays. may be inquired of by this honorable court, in such manner as law and justice shall seem to them to require. This refpondent has now laid before this honorable. court, as well as the time allowed him would permit, all the circumftances of his cafe, with an humble truft in Providence, and a confciousness that he has difcharged all his official duties with juftice and impartiality, to the beft of his knowledge and abilities; and, that intentionally he hath committed no crime or misdemeanor, or any violation of the conftitution or laws of his country. Confiding in the impartiality, independence and integ rity of his judges, and that they will patiently hear, and confcientiously determine this cafe, without being influenced by the fpirit of party, by popular prejudice, or po litical motives, he cheerfully fubmits himself to their Secifen. fit fhall appear to this honorable court, from the evidence produced, that he hath acted in his judicial character with wilful injuftice or partiality, he doth not with any favor; but expects that the whole extent of the punishment permitted in the conftitution will be inflicted upon him. If any part of his official conduct fhall appear to this Lonorable court, ftricti juris, to have been illegal, or to have proceeded from ignorance or error in judgment; or Dany part of his conduct fhall appear, although not illeml, to have been irregular or improper, but not to have ftown from a depravity of heart, or any unworthy motive, he feels confident that this court will make allowance for the imperfections and frailties incidental to He is fatisfied, that every member of this tribunal wilferve the principles of humanity and juftice, and wirefume him innocent, until his guilt fhall be estabHic by legal and credible witneffes, and will be gov*ned in his decifion, by the moral and Chriftian rule of rendering |