Albert Beveridge - The Life of John Marshall, Volume 3 - Conflict and construction, 1800-1815

William Lewis, leading attorney for Fries, and one of the ablest members of the Philadelphia bar, 112 112 For sketch of Lewis see Wharton: State Trials , 32-33. was enraged. He looked upon the paper, flung it from him, declaring that "his hand never should be polluted by a prejudicated opinion," and withdrew from the case, although Chase tried to persuade him to "go on in any manner he liked." Alexander J. Dallas, the other counsel for Fries, also withdrew, and the terrified prisoner was left to defend himself. The court told him that the judges, personally, would see that justice was done him. Again Fries and his accomplices were convicted under the charge of the court. "In an aweful and affecting manner" 113 113 Independent Chronicle , Boston, May 12, 1800. Chase pronounced the sentence, which was that the condemned men should be "hanged by the neck until dead ." 114 114 Wharton: State Trials , 641 et seq.

The Republicans furiously assailed this conviction and sentence. President Adams pardoned Fries and his associates, to the disgust and resentment of the Federalist leaders. 115 115 See vol. ii, 429 et seq. of this work. On both sides the entire proceeding was made a political issue.

On the heels of this "repetition of outrage," as the Republicans promptly labeled the condemnation of Fries, trod the trial of James Thompson Callender for sedition, over which it was again the fate of the unlucky Chase to preside. The Prospect Before Us , written by Callender under the encouragement of Jefferson, 116 116 Jefferson to Mason, Oct. 11, 1798, Works : Ford, viii, 449-50; same to Callender, Sept. 6, 1799, ib. ix, 81-82; same to same, Oct. 6, 1799, ib. 83-84; Pickering to Higginson, Jan. 6, 1804, Pickering MSS. Mass. Hist. Soc. contained a characteristically vicious screed against Adams. His Administration had been "a tempest of malignant passions"; his system had been "a French war, an American navy, a large standing army, an additional load of taxes." He "was a professed aristocrat and he had proved faithful and serviceable to the British interest" by sending Marshall and his associates to France. In the President's speech to Congress, 117 117 War speech of Adams to Congress in 1798, see vol. ii, 351, of this work. "this hoary headed incendiary … bawls to arms! then to arms!"

Callender was indicted for libel under the Sedition Law.

Before Judge Chase started for Virginia, Luther Martin had given him a copy of Callender's pamphlet, with the offensive passages underscored. During a session of the National court at Annapolis, Chase, in a "jocular conversation," had said that he would take Callender's book with him to Richmond, and that, "if Virginia was not too depraved" to furnish a jury of respectable men, he would certainly punish Callender. He would teach the lawyers of Virginia the difference between the liberty and the licentiousness of the press. 118 118 Testimony of James Winchester ( Annals , 8th Cong. 2d Sess. 246-47); of Luther Martin ( ib. 245-46); and of John T. Mason ( ib. 216); see also Chase Trial , 63. On the road to Richmond, James Triplett boarded the stage that carried the avenging Justice of the Supreme Court. He told Chase that Callender had once been arrested in Virginia as a vagrant. "It is a pity," replied Chase, "that they had not hanged the rascal." 119 119 Testimony of James Triplett, Chase Trial , 44-45, and see Annals , 8th Cong. 2d Sess. 217-19.

But the people of Virginia, because of their hatred of the Sedition Law, were ardent champions of Callender. Richmond lawyers were hostile to Chase and were the bitter enemies of the statute which they knew he would enforce. Jefferson was anxious that Callender "should be substantially defended, whether in the first stages by public interference or private contributors." 120 120 Jefferson to Monroe, May 26, 1800, Works : Ford, ix, 136. By "public interference" Jefferson meant an appropriation by the Virginia Legislature. ( Ib. 137.)

One ambitious young attorney, George Hay, who seven years later was to act as prosecutor in the greatest trial at which John Marshall ever presided, 121 121 The trial of Aaron Burr, see infra , chaps. vi, vii, viii, and ix. volunteered to defend Callender, animated to this course by devotion to "the cause of the Constitution," in spite of the fact that he "despised" his adopted client. 122 122 See testimony of George Hay, Annals , 8th Cong. 2d Sess. 203; and see especially Luther Martin's comments thereon, infra , chap. iv. William Wirt was also inspired to offer his services in the interest of free speech. These Virginia attorneys would show this tyrant of the National Judiciary that the Virginia bar could not be borne down. 123 123 The public mind was well prepared for just such appeals as those that Hay and Wirt planned to make. For instance, the citizens of Caroline County subscribed more than one hundred dollars for Callender's use. The subscription paper, probably drawn by Colonel John Taylor, in whose hands the money was placed, declared that Callender "has a cause closely allied to the preservation of the Constitution, and to the freedom of public opinion; and that he ought to be comforted in his bonds." Callender was "a sufferer for those principles." Therefore, and "because also he is poor and has three infant children who live by his daily labor" the contributors freely gave the money "to be applied to the use of James T. Callender, and if he should die in prison, to the use of his children." ( Independent Chronicle , Boston, July 10, 1800.) Of all this the hot-spirited Chase was advised; and he resolved to forestall the passionate young defenders of liberty. He was as witty as he was fearless, and throughout the trial brought down on Hay and Wirt the laughter of the spectators.

But in the court-room there was one spectator who did not laugh. John Marshall, then Secretary of State, witnessed the proceedings 124 124 See infra , chap. iv. with grave misgivings.

Chase frequently interrupted the defendant's counsel. "What," said he, "must there be a departure from common sense to find out a construction favorable" to Callender? The Justice declared that a legal point which Hay attempted to make was "a wild notion." 125 125 Wharton: State Trials , 692. When a juror said that he had never seen the indictment or heard it read, Chase declared that of course he could not have formed or delivered an opinion on the charges; and then denied the request that the indictment be read for the information of the juror. Chase would not permit that eminent patriot and publicist, Colonel John Taylor of Caroline, to testify that part of Callender's statement was true; "No evidence is admissible," said the Justice, "that does not … justify the whole charge." 126 126 Ib. 696-98; and see testimony of Taylor, Chase Trial , 38-39.

William Wirt, in addressing the jury, was arguing that if the jury believed the Sedition Act to be unconstitutional, and yet found Callender guilty, they "would violate their oath." Chase ordered him to sit down. The jury had no right to pass upon the constitutionality of the law – "such a power would be extremely dangerous. Hear my words, I wish the world to know them." The Justice then read a long and very able opinion which he had carefully prepared in anticipation that this point would be raised by the defense. 127 127 Wharton: State Trials , 717-18. Chase's charge to the jury was an argument that the constitutionality of a law could not be determined by a jury, but belonged exclusively to the Judicial Department. For a brief précis of this opinion see chap. iii of this volume. Chase advanced most of the arguments used by Marshall in Marbury vs. Madison. After another interruption, in which Chase referred to Wirt as "the young gentleman " in a manner that vastly amused the audience, the discomfited lawyer, covered with confusion, abandoned the case.