Norfolk Gazette And Publick Ledger

From the National Intelligencer.

In the Senate of the United States.

Wednesday, February 20.

HIGH COURT OF IMPEACHMENT

The United States vs. Samuel Chase

(Mr. Campbell's Speech continued from the Ledger of Friday.)

In examining the first article, I shall rely upon the following positions:

First, that under the eighth article amendatory of the constitution of the United States, (referred to in this article of the impeachment) which secures to the defendant in all criminal prosecutions the assistance of counsel, he is thereby entitled to the right of such counsel being heard in his defence by the court, before a decision be made and declared against him on the law arising on his case, and also, that such counsel should exercise their professional rights in making his defence, according to the known and established laws and usages of the nation, free from any arbitrary controul or restriction whatever.

Secondly, that in the trial of Fries for treason, the Judge did, by delivering an opinion in writing on the law arising in the case, before counsel were permitted to be heard in his defence, effectually deprive the defendant of any benefit from the assistance of counsel.

Thirdly, that he imposed on the counsel engaged for the defendant, arbitrary restrictions and controul, in the exercise of their professional rights, unknown to, and unauthorised by the laws and usages of the nation, which compelled them to relinquish the defence of the prisoner.

Fourthly, I will then insist that this conduct was such a flagrant violation of his duty, as could only spring from corrupt motives, and a disposition to oppress those who became the objects of his resentment.

With regard to the first position, that counsel ought to be permitted to be heard for a defendant before a decision should be declared against him, and also that the counsel ought to be protected in the exercise of their professional rights, according to the usages and practice of courts; it appears to me substantially supported by the constitutional provision already noticed, securing to the defendant the assistance of counsel, and to be a necessary consequence of that provision; and essential, in order to give it effect. For in the first place, as to the law, of what use would the assistance of counsel be to the defendant, if a decision of the law arising in his case should be deliberately made by the court, committed to writing to give it more solemnity and effect, and delivered, or made known, before such counsel were permitted to be heard in his defence? What hopes could the counsel entertain of being able to convince a court, that an opinion thus deliberately formed, and solemnly made known, was incorrect and ought not to have been given? Surely if the right to the assistance of counsel, secured to a defendant, means any thing, it must mean that he should have an opportunity through his counsel, to make his case known to the court, to explain the law arising thereon, and shew, as far as it could be done, that according to the true construction of the law applying to his case, or under which he is charged, he is not subject to its penalties, before their opinion be declared on the subject, while the mind of the court is unbiassed, open to conviction, and capable of duly weighing the arguments that may be advanced on either side.

But when an opinion is deliberately declared, or made known, against a defendant before he is permitted to be heard by counsel, his case is prejudged, the character of the court is committed in a very great degree to support such opinion, the arguments of counsel cannot be expected to be heard by such a court, with impartiality and fairness, that go to prove such opinion to be erroneous; and under such circumstances, the aid of counsel is a mere name without a benefit; a form without substance. But again, if such counsel were subject to the arbitrary controul and restriction of a court, of every capricious and irritable judge; if they were not protected in the performance of their professional duties, so long as they acted within the laws of their country and the known usages and practice of courts, of what use would their assistance be to the accused, or what substantial aid could they afford him in making his defence? The counsel would have no rule to direct them in shaping their client's defence. When they had prepared to examine his cause in the manner heretofore usual in courts, and upon grounds which they conceived most likely to establish his innocence and procure his acquittal, they might be stopped at the very threshold of the defence; surprised with a new and unheard of mode of proceeding; presented with a digested and formal opinion upon the very points they intended to contest; and informed that in the remarks they might be permitted to make to the court, to shew that such opinion was not correct, they must confine themselves in their endeavours to establish the doctrine they might advance, to the producing of authorities of a certain description; and must not extend their researches after decisions, on similar cases, beyond certain prescribed limits, as to the time and kind of decisions. Under such circumstances no counsel could render any substantial service to the accused; none would be found to submit to the tyranny of such practice.

Further it is conceived an universal rule of construction, that when a right is secured to any person, by a law, the means of acquiring the benefit of that right are thereby also secured him. The constitution secures to the defendant in all criminal cases the assistance of counsel in his defence; the only means by which the benefits of that right can be obtained by such defendant, it is conceived, must be permitting counsel to be heard in his behalf, before his case is decided against him and by protecting such counsel in the due performance of their professional duties. These rights are secured to counsel for the benefit of those for whom they are concerned, and whose interests they advocate; and not for their own advantage. And here it may be proper to observe, that though counsel may be considered in some respects as officers of the court, and in a certain degree subject to their controul and direction, yet it is certain, while they act within the line of their duty, and the known sphere of their action as counsel, their rights are as sacred as those of the court; and they are, in performing their professional duty, in a certain sense, as independent of the court, as the court is of them.

The second position proposed to be established and relied upon, to wit, that the judge did, in the trial of Fries for treason, by delivering an opinion in writing on the law arising in the case, before counsel was permitted to be heard in his defence, effectually deprive the defendant of any benefit from the assistance of counsel, is in part a deduction from the preceding position and supported by it. The fact of the judge's delivering an opinion in writing, in this case, against the defendant, previous to permitting counsel to be heard in his defence, is admitted by the judge in his answer, and is also established beyond a doubt by the evidence of Messrs. Lewis, Dallas, Tilghman, and indeed of all the witnesses on the subject. No difference exists in the evidence of the different witnesses with regard to the written opinion being delivered before the cause was heard. The statement briefly is, that after the court met, the jury were called and many of them answered and appeared; the prisoner was (Mr. Lewis believes) in court; the counsel assigned the prisoner, had not all got to the bar; when the judge handed down, or threw on the clerk's table, several papers, each containing the opinion of the court on the law that was to decide the defendant's fate: one of these copies the judge said, was to be given to the counsel for the defendant, one to the attorney for the United States, and one to be delivered to the jury before they retired on the case. Some of the gentlemen about the bar began to copy these papers; Mr. Lewis one of the counsel for the defendant, refused to receive or read it, declaring his hand should never be tainted by reading a prejudged opinion in any case, but especially in a capital one. The papers were subject to publick inspection; the jurymen then might, and probably did, read the opinion. Thus the formal opinion of the court on the law being made known to the jury before the case was heard, would bias their minds against the defendant, and render an impartial inquiry into his case next to impossible. The counsel had no hopes of changing an opinion thus deliberately and beforehand made up, and stamped with the solemnity of a written sentence; the judge by deciding the law seemed to have decided the fact also, as he must have assumed them as proved, in order to found his opinion upon them; and indeed the answer states that no doubt existed with regard to the facts, or evidence, in the case, on either side; the jury would, therefore, consider such opinion as a decision of the whole case, and would be prepared, so far as they could be influenced by the judge, to pronounce the defendant guilty, before they heard the cause examined, or even a syllable of the evidence. In a case thus situated, how could the defendant be said to enjoy the benefit of the assistance of counsel; when the whole case was decided before counsel was permitted to be heard: and no ground left for them to occupy. This mode of proceeding, adopted by the judge, was, therefore, a direct violation of the constitutional right secured to the defendant, of having the assistance of counsel in all criminal prosecutions; for it cannot be pretended that to hear counsel after the cause was substantially decided, would be complying with the true intent and meaning of the constitution; for this would render the provision totally futile and useless, and would be calculated only to deceive unfortunate defendants, who might place reliance upon it.

The judge, in delivering this opinion, introduced a mode of proceeding new and before unknown in our jurisprudence; and contrary to the known and established usages and practice of the courts in our country; all the legal characters that have been examined as witnesses on both sides, and most of the witnesses to this article were legal characters, prove the fact, that no such practice ever did exist in this country; not one solitary case can be adduced of a similar proceeding by a judge, either in this country or in that from which we have taken most of our laws and usages. The writers on the laws of England afford no instance of this kind; and it was left for judge Chase to introduce this extraordinary and before unheard of mode of administering justice.

But it is insisted on, by the judge in his answer, that the opinion was a correct one, as to the law of treason, supported by former decisions, and therefore, that there would be no harm in making it known, at the time and in the manner he did; that it could not mislead the jury, but would guard them against being imposed upon by the ingenuity of counsel. Though this reasoning may appear plausible at first view, it will be found, upon examination, to be fallacious, tending to establish a dangerous doctrine, that would in principle go the whole length of justifying a judge, for dispensing with the intervention of a jury altogether in trials for crimes. If a judge may give a solemn opinion against a defendant in a criminal case, without permitting counsel to be heard in his behalf, when the party is entitled of right to the assistance of counsel, and then justify such conduct by shewing that the opinion itself was correct, and must have been delivered by him in some stage of the trial; why may he not pass sentence of execution upon a criminal without the verdict or intervention of a jury? And, when charged with this conduct as unconstitutional and illegal, justify himself by shewing that the sentence he passed was a correct one, that the facts in the case were notorious and admitted on all hands, that the law was clear and had been established by former decisions that could not be shaken, and that, therefore, the intervention of a jury could be of no service to the defendant, as they must find him guilty; and that as he would have to declare the same sentence he had pronounced, after their verdict should have been rendered, it could do no harm to pronounce it without such verdict, as it could not do an injury to pass a correct sentence at any time. This reasoning would be of the same kind with that advanced by the judge in the case before you, to justify himself in delivering a written opinion, before the cause was heard, or the defendant permitted to make his defence by counsel: for if in the one case it would be a violation of the constitutional right of a trial by jury, secured to defendants in criminal prosecution; so in the other case it would be equally a violation of the constitutional right secured to defendants of having the assistance of counsel in their defence.—The reasoning, therefore, of the judge, if it proved any thing, would prove too much, it would virtually destroy the most valuable provisions in our constitution for the protection of the rights and liberties of the citizen; and authorize a judge or court at pleasure to dispense with constitutional restrictions, when they found it convenient so to do.

But in the present investigation, the correctness or incorrectness of the written opinion delivered by the judge, is not in question; this opinion is not charged to be in itself incorrect or erroneous, but the offence charged is in the manner and time of delivering it; the attempt therefore by the judge to justify his conduct, by insisting that the opinion delivered was correct and authorized by former decisions, is a mere evasion of the real charge alleged in the impeachment, and an exertion to prove what was not denied or put in question. It cannot, therefore, in fact aid the accused, or make his case better than it would be if such opinion had been evidently erroneous; but it is not intended, in this place, to admit the correctness of the opinion delivered by the judge in writing, by not going into the discussion of it; but this discussion of the opinion is omitted here, because its correctness or incorrectness is irrelevant to the present question, and, therefore, unnecessary to be discussed.

I will now proceed to consider the third position stated, to wit, that the judge did impose on the counsel engaged on behalf of Fries, arbitrary restrictions and controul, in the exercise of their professional rights, unknown to,
and unauthorized by the laws and usages of the nation. In support of this part of the charge there is the evidence of Mr. Lewis, who states that when the judge delivered the written opinion in the manner already noticed, he observed that, on the former trials, there had been a great waste of time, by counsel making long speeches to the jury on the law as well as on the fact, and stated his disapprobation of their having been permitted to read certain statutes of the United States, relating to crimes less than treason, which he or the court declared they would not suffer to be read again, and that cases at common law, or under the statute law of England, previous to the English revolution, had nothing to do with the question, and that they would not suffer them to be read; that they had made up their mind on the law. This is in substance the evidence of Mr. Lewis on this point; and it is strongly supported by that of Mr. Dallas, who, though he was not present when this statement was made by the judge, yet corroborates the truth of it by the statement he made to the court afterwards on the same day, as made to him by Mr. Lewis, and by the circumstances that took place in consequence thereof. Mr. Dallas also states that the judge said, as he thinks on the next day, that in arguing upon the law the counsel must address the court alone and not the jury. The evidence of Messrs. Rawle and Tilghman, support most of these facts in substance, except as to the judge refusing to permit the statutes of the United States to be cited, and differ only as to the time at which the judge made these declarations; these facts, therefore, are supported by evidence that cannot be shaken; and were the evidence given by Mr. Lewis and Mr. Dallas different from that given by Messrs. Tilghman, Rawle, and others, more weight and credit ought to be given to the evidence of the former gentlemen than to that of the latter, though all may be men of equal integrity and veracity; for there is a material distinction between the credit due to witnesses as men of integrity and veracity, and the weight or credit that ought to be given to their evidence as containing a correct and full statement of facts: two may be of equal credibility in society, and equally tenacious of deposing the truth; yet the evidence of the one, as to a particular transaction, may deserve much more weight and credit than that of the other, in consequence of his possessing better means of information, and being so circumstanced as to feel more interest in, and receive stronger impressions from, the facts that may have taken place. So in the question before us, Mr. Lewis and Mr. Dallas felt the strongest interest in the transaction that took place; their rights as counsel were invaded, and the impressions they received were strong, and not easily effaced. Mr. Lewis had the most correct means of information: his attention was arrested by the paper containing the opinion being handed or offered to him; the statement of the judge containing the restrictions already stated, immediately followed, to which he attended; he could not, therefore, possibly be mistaken: and the impression, so strongly made by so extraordinary a transaction, could not be erased from his memory. This was not the case with Messrs. Rawle and Tilghman: for tho' Mr. Rawle was concerned for the prosecution, he states that he was much engaged with other business; the opinion delivered was also in favour of his side of the question, and of course the affair was not likely to excite so much the interest of those gentlemen, or make so deep an impression on their minds. The evidence, therefore, of Mr. Lewis and Mr. Dallas, may be considered as a correct statement of this transaction. These restrictions, therefore, imposed upon the counsel, of not citing such authorities as were usually permitted to be used, and not arguing the law to the jury, are unauthorized by the laws of our country, and contrary to the usages and practice of our courts of justice; and in the case in question, amounted to a prohibition to argue the cause in any possible way that could be of the least service to the defendant. That these restrictions were unauthorized by the practice in our courts, is established by the evidence of every witness that has been examined this point, who declare that no such restrictions had ever been imposed on counsel concerned in criminal cases, in any courts with which they had been acquainted, and particularly by the practice of the circuit court of the United States, in the same state, in the trial of the same cause before, and in other similar trials, when the utmost latitude was given to the counsel in making their defence. This was, therefore, a direct and arbitrary innovation on the known and established modes of proceeding in courts of justice in criminal cases, and an unwarrantable attack on the privileges secured to defendants by the constitution and laws of the country. That judges are not authorised to substitute their own arbitrary will in place of law, and to dispense at pleasure, with the established rules or proceeding in the tribunals of justice is proved by every principle of reason and of law. To shew that this position has been expressly recognised by law writers, and legal decisions for ages, I will refer the court to 2d Bac. ab. (new edition) page 97, where it is declared that judges are to determine according to the known law and ancient customs of the realm; and to 4 Com. Dig. 418, where it is stated that judges ought to act conformably to law and not according to discretion. Those authorities, when we consider the country from which they come, and the times in which they were written, strongly mark the limits that ought to circumscribe the conduct of the judge. And shall the judges in our country assume greater latitude in their proceedings than those of England, and depart at pleasure from what are known to be the customs of the country? I should presume not. But the judge states in his answer, that decisions at common law, and before the revolution in England, could throw no light on the doctrine of treason here, but might mislead the jury; and therefore ought not to be admitted to be read, not being law; and he wades into the dark ages of the history of England, when the judges were corrupt and under the influence of the crown. This reasoning of the judge is evidently an evasion of the point in question. The object of the counsel for Fries, in wishing to cite those authorities, both at common law and under the statute of Edward the third, was not to shew by them what the construction of the words of our constitution with regard to treason ought to be; but to shew first, the absurd and ridiculous length to which those decisions had gone, in determining what acts amounted to treason there, and then to prove that since the English revolution, the judges in England considered themselves bound by cases decided before the revolution, and that as the decisions on treason in England, since their revolution, were bottomed upon those cases before the revolution, they ought not to govern the courts in this country, in giving a construction, in order to determine what acts amounted to treason. This was evidently the object of the counsel, and it is proved to have been so stated by them, by the evidence of Mr. Lewis, Mr. Dallas, and Mr. Rawle. There was, therefore, no ground for the pretence the judge makes for refusing these authorities to be introduced. It is admitted by the answer that the jury have the right to decide upon the law as well as upon the fact; and if it were denied, it could be shewn by clear and undoubted authorities, of ancient and modern times. From what motives, therefore, and under what plausible pretence, could the judge refuse to permit the law to be argued before the jury? How could they decide upon it properly, without hearing it discussed? And with what colour of reasoning can the judge say that the jury have the right to decide the law, and yet that they have not the right to hear it argued and explained by counsel? Does not this shew the greatest absurdity, and prove that the accused must have had some object in view, that he did not chuse to avow, and that would not bear examination? In this case there was no dispute about the facts; the answer states, that they were admitted on both sides. The judge makes up his opinion upon the law commits it to writing, and makes it known as the opinion of the court, before the jury are impanneled in the case. For what purpose was counsel assigned to the defendant? What remained for the counsel to examine or contest, when the facts were admitted and the law decided by the court? Would not the assistance of counsel, under such circumstances, be to the defendant a mere phantom, a name without substance? Was not the assignment of counsel, in this case, and with such views as the judge must have had, an useless ceremony, an empty compliance with form, a mere mock of justice? The clear inference from the whole transaction must be, that the judge was determined the defendant should derive no benefit from the assistance of counsel, and only affected to permit them to argue the facts to the jury, because he knew they were not disputed, even by the defendant himself. It must, therefore, be a fair inference that the defendant was deprived of the assistance of counsel, by the unwarrantable, illegal, and unauthorized restrictions imposed upon them in the performance of their professional duties by the judge. It remains, on this part of the subject, to shew that this conduct of the Judge was such a flagrant violation of his duty, as could only spring from corrupt motives, and a disposition to oppress those who became the objects of his resentment. I lay it down as a settled rule of decision, that when a man violates a law, or commits a manifest breach of his duty, an evil intent, or corrupt motive must be presumed, to have actuated his conduct; as to know the law, and every officer or judge to understand his duty; and if the party will undertake to excuse himself, for misconduct, on the score of pure motives, and unintentional errour, it is incumbent on him to make the same appear by satisfactory and incontestible evidence. In some instances, erroneous conduct may be explained, excused, or palliated, by the weakness or ignorance of the delinquent, and the circumstances that attend the case. But in this whole transaction, what marks of innocence, or pure motives, are to be discovered? What excuse to be offered for the conduct of the accused? Ignorance of the law cannot be relied upon as forming a ground of excuse. The legal talents, long experience, and distinguished abilities of the Judge, are too well known to admit of such a plea. It was no new and difficult case, wherein he might be easily mistaken. There were no former precedents to lead him astray. The proceeding was entirely new, and of his own invention; a total deviation from all former practice, and a manifest innovation upon the established usages in our courts of justice. The whole bar were agitated by the proceeding; counsel of near thirty years practice felt embarrassed and astonished at it. The common sense of the whole audience appeared shocked at the transaction, as being altogether new and extraordinary. The accused, in his answer, states, that he relied upon the decisions of the circuit courts, wherein judges Iredell and Patterson presided, with regard to the law of treason, as forming a precedent from which he would not even dare to depart. Why did he not consider himself equally bound by the practice they adopted in criminal cases? They gave the utmost latitude to counsel in making their defence to the jury, both on the law and the fact, did not restrict them as to the authorities they should cite, and delivered no opinion until the case was heard. Judge Chase reversed the whole of this mode of proceeding. What good reason can be given for his adhering to their opinion in the one instance, and totally departing from their practice and example in the other? No excuse can be formed for this conduct. This is the strongest possible evidence of corrupt motives, of partiality, and a determined design to overleap all former rules of proceeding, to oppress the unfortunate defendant, that was arraigned at his bar for trial. The whole course of the Judge's conduct in this transaction goes to establish the same spirit of oppression. Counsel are assigned the defendant, merely for the sake of form, and, as it were, to mock him in his misfortunes. The day of trial arrives. In the mean time the Judge makes up his opinion on the law arising in the case, and, to add solemnity to the act, commits it to writing. There is no doubt, no dispute as to the facts. The prisoner is brought to the bar. Not a voice is permitted to plead his cause, until the solemn sentence of his legal conviction is made known; and thereby the avenues of his defence, that might lead to his acquittal, for ever closed. Here let us pause a moment, and behold the unfortunate, and, in the language of his able counsel, the poor Fries, trembling before his condemning Judge; stript of the aid of counsel, his only and forlorn hope; the fatal fiat of his condemnation pronounced in the solemn language of a written opinion; and thus friendless, and unprotected, and unheard, about to be consigned to the hand of the relentless executioner! Let us view this spectacle, and then let me ask, if this can be considered an impartial administration of justice. I might here charge the accused with having knowingly and wilfully trampled on the laws of his country, and overleaped the bounds of legal justice, to oppress a friendless individual brought before him for trial. I might call upon this honourable court, to vindicate the character of insulted justice, and demonstrate to the American people, that when their rights and liberties are invaded, even though under the sacred sanction of judicial authority, this high tribunal will always be found ready and willing to avenge their wrongs and protect their interest. But it is alleged by the Judge, that the offensive written opinion, that had been made known, was withdrawn, and that next day full latitude was offered to the counsel to argue both the law and the facts to the Jury. This was a fallacious offer; it came too late to be of service to the defendant, or excuse the Judge. The act on his part was done; the offence was complete; and it was only the sternness of the counsel that made him retract. The impression had been made on the minds of the Jury, that could not be erased-the flame had been kindled by the fire-brands he had scattered, which could not be extinguished by withdrawing the instruments that occasioned it. The experiment was as dangerous as it was novel, and can only be ascribed to the same spirit of oppression and political intolerance, that will be found to distinguish the whole conduct of the Judge in his judicial career, during these transactions. The respondent further insists, in his answer, that he cannot be impeached, except for some offence for which he may be indicted at law. This position cannot be supported by any fair construction of the provision in the constitution on this subject. It has already been attempted to be shewn in the view taken of this constitutional provision, that in order to support an impeachment, it is not necessary to shew that the offence charged is an indictable one, but only that it is a breach and violation of official duty; and I conceive that this is the only construction that can be adopted to give consistency to the constitution; to the mode of proceeding adopted under it in cases of impeachment; to reconcile with justice the nature of the judgment that must be rendered upon conviction, and to avoid the palpable absurdity that would follow a different construction, of punishing a man twice for the same offence. To the exposition already given of this provision in the constitution, I beg leave to refer the court as controverting the position here relied upon by the Judge. But I would here further observe, in support of this doctrine, that according to the laws of England, a Judge of a court of record is not accountable by indictment, for any thing done in open court, in his judicial capacity; and that he may plead to an action brought against him, for any such act, that he did it, (that is, what he was charged with) as a Judge of record; and it would be a good justification. In support of this doctrine the court are referred to II. Bac. ab. (new ed.) page 97--II. Hawk, 123--Jac. Law Dictionary, (new ed.) verbum Judges. It appears from the same authorities, that the Judges in England, are accountable in parliament only, for opinions delivered by them in court; and are not, for such opinions, to be questioned before any other tribunal. This is the great protection and security that Judges of courts of record have, that they are accountable for their official conduct only to the legislature; and are punishable at law only for such acts as would be indictable offences, independent of their official characters. This view of the subject renders the Judges, so far as regards their Judicial conduct, independent of all tribunals except the legislature; and is certainly better calculated to preserve the independence and dignity of the Judges, than that contended for in the answer. I cannot, therefore, entertain a reasonable doubt, that the true intent and meaning of the constitution will support this doctrine; and that it will be sanctioned by the opinion of this honourable court.