even then it was only the memorandum of the "opinion" of a single judge, not even the " opinion" of the full court. The memorandum is contained in Kelyng's Book, which Lord Campbell calls "a folio volume of decisions in criminal cases, which are of no value whatever, except to make us laugh at some of the silly egotisms with which they abound." On such authority in 1816 would even a Massachusetts court, with a judge who was a kindly man in private, dash away the life of a fellow-creature, with such mockery of law! But, Gentlemen, the jury at that time did not slumber; they set the matter right, and did justice spite of Judge Kelyng and his "law." They made nothing of the judge's charge! Gentlemen of the Jury, I will now mention some cases of gross injustice perpetrated by the Federal Courts of the United States. The tenth article of amendments to the Constitution provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People." The Constitution itself confers no Common Law Jurisdiction on the Government. Neither the People nor their Representatives had ever decreed the Common Law of England to be a part of the law of the United States. Yet, spite of the absence of positive enactment and the express words of the above amendment to the Constitution, the Supreme Court at once assumed this jurisdiction. In 1799, Chief Justice Ellsworth said, "the Common Law of this country remains the same as it was before the Revolution; "2 and proceeded on that supposition to exercise the powers of English Judges of Common Law, undertaking to punish men for offences which no Act of Congress forbid. You see at once what monstrous tyranny would follow from that usurpation. Had the English Common Law power of punishing for "seditious libel," for example, been allowed to the Federal court, Gentlemen, you know too well what would follow. But this monstrous assumption was presently brought to an ignominious end; and strange as it may appear, by one of the judges of the court itself. Samuel Chase of Maryland, one of the signers of the Declaration of Independence, had been an Anti-Federalist and a strong State-Right's man, as such insisting on a strict construction of the Constitution. Singular as it may appear he was made a Judge in 1796, and what is yet more surprising, in 1798, declared "the United States as a Federal govern 1 2 Campbell, Judges, 406. * Wharton, State Trials, 653. See too Virginia Resolutions (Richmond, 1850), Preface, xiii. et seq.; Virginia Resolutions by Madison, and his Report thereon; Kentucky Resolutions by Jefferson, in 4 Eliot's Debates (1836). FRIES'S TRIAL FOR TREASON. 115 ment, had no Common Law," and thus ended this claim.1 But tyranny did not end; nay, he himself, a man of uncommon powers and legal attainments, became a most atrocious example of Judicial despotism. 1. In 1791 a direct tax was levied by Act of Congress on all lands and houses; excise officers were to ascertain their value. The "Alien and Sedition Laws" were also passed the same year. The execution of the law relative to the direct tax was resisted in Northampton county, Penn., and some prisoners rescued from an officer of the United States. The President, Mr. Adams, issued his proclamation. In 1799 John Fries was arrested on the charge of treason. The overt act alleged was resistance to that one special law of Congress. Judge Iredell charged the Grand-Jury, "You have heard the government as grossly abused as if it had been guilty of the vilest tyranny." Had he read the private correspondence of the Cabinet, he might have found other specimens of "abuse." He defended both the Alien and Sedition Laws. They were "constitutional" and "proper." 2 Mr. Fries was indicted for treason. The Judiciary Act of Congress of 1789 provides that "in cases punishable with death the trial shall be had in the county where the offence was committed; or when that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence." The offence was. committed in Northampton county, and he was indicted and brought to trial in Philadelphia county, nor could the court be induced to comply with the statute! The government laid down the law and constructed treason with the usual ingenuity of officials working by the job. Judge Kelyng's loose opinion that an attack on a brothel was high treason, was cited by Mr. Rawle, the District Attorney, as good law. What "in England is called constructive levying of war, in this country must be called direct levying of war." Judge Peters charged that though force was necessary to constitute the crime of treason, yet "the quantum of force is immaterial," of course it may be wielding a wheat straw, or a word, I suppose. "The doctrine of constructive treason has produced much real mischief in another country" [England]. "The greater part of the objections to it are irrelevant here." Fries was found guilty. His counsel moved for a new trial, on the ground that before the trial one of the jurors had declared, "Fries ought to be hung;" "I myself shall be in danger unless we hang 1 Wharton, 197; 3 Dallas, 384; see 5 Hildreth, 230. 2 See a defence of them in 2 Gibbs's Administration, 74, 78; also 162. them all;" that the jurors were irregularly drawn, and the trial was not held in the county where the offence was committed. Judge Iredell ruled that it was "a high contempt at this time to call for a renewal of an argument whereon a solemn, decisive opinion was delivered." Judge Peters declared the juror had "said no more than all friends to the laws and the government were warranted in thinking and saying." Yet a new trial was granted. The new trial was held before Judge Chase, who had, as Mr. Wharton says, a "singular instinct for tumults which scents it at a distance . . . and irresistibly impels a participation in it," "moving perpetually with a mob at his heels." Yet "apart from his criminal jurisdiction he was reckoned a wise and impartial judge, a master of the Common Law, and a thorough and indefatigable administrator of public functions." "It was this despotic ardor of temperament ... which made him, when a young man, employ with resolute audacity the engine of popular revolt, and which led him when older, and when in possession of that power against which he had so steadily warred, to wield with the same vigor the sword of constituted authority."1 Gentlemen, he was like many that this Honorable Court perhaps have known, who were privateering Democrats in 1812, and Kidnapping Whigs in 1850. To him we are indebted for the invalu able decision that the United States courts have no Common Law jurisdiction. At this new trial he treated the defendants' counsel in such a manner that they abandoned the case, and left the Prisoner without defence. The District Attorney, taking his law from Kelyng and similar servants of British despots, laid it down that treason "may consist in assembling together in numbers, and by actual force, or by terror, opposing any particular law;" "Force need not be used to manifest this spirit of rebellion." "Even if the matter made a grievance of was illegal, the demolition of it in this way was, nevertheless, treason," "a rising with intent by force to prevent the execution of a law preventing the marshal executing his warrants, and preventing the other officers . . amounted to levying war." "In short an opposition to the acts of Congress in whole or in part [that is to any one law]. . . . either by collecting numbers, or by a display of force ... which should operate. . . . either throughout the United States, or in any part thereof to procure a repeal or a suspension of the law. . . . this offence he considered to be strictly treason." Judge Chase laid it down as law not to be questioned in his court, "that any rising of any body of the people to attain by force any object of a great public nature is a levying of war: ... 1 1 4 Hildreth, 571; 1 Gibbs, 300; 2 Gibbs, 419. ... ALIEN AND SEDITION LAWS. ... 117 “any such . . . rising to resist . . . the execution of any statutes of United States. . . or for any other object of a general nature or national concern, under any pretence as that the statute was unjust or unconstitutional is a levying war; " "any force will constitute the crime of levying war." ... ... If that be law, then an old negro woman who, with a dishcloth, frightens officer Butman away from kidnapping her granddaughter in Southac street, does thereby levy war against the United States and commits the crime of treason. The jury, overborne by the assumptions of the judge, or ignorant of their duties and their rights, allowed this tyrannical court to have its way, surrendered the necks of the people, and brought in a verdict of guilty. Judge Chase made an insolent address to the prisoner and sentenced him to death. But Mr. Adams, with a remarkable degree of justice, gave him a full pardon, and drew down upon himself thereby the wrath of his cabinet.1 2. In 1788 Mathew Lyon, a native of Ireland, a Revolutionary soldier, a member of congress, and editor of a newspaper in Vermont, was brought to trial under the Sedition Law, for a false, malicious, and seditious libel. He had published in his newspaper a somewhat severe attack on the Federalists then in power. The article, alleged to be "seditious," was a letter written and mailed at the seat of government seven days before, and published nine days after, the passage of the Sedition Law itself. It was as much a political trial, Gentlemen, as this purely political. Judge Patterson- United States Circuit Judge of Vermont-charged that the jury had nothing whatever to do with the constitutionality of the Sedition Law. "Congress has said that the author and publisher of seditious libels is to be punished." "The only question you are to determine is ... Did Mr. Lyon publish the writing? . . . Did he do so seditiously, with the intent of making odious or contemptible the President and government, and bringing them both into disrepute ?" Mr. Lyon was found guilty, and punished by a fine of $1,000 and imprisonment for four months. The "Seditious Libel" would now be thought a quite moderate Editorial or "Letter from our Correspondent." His imprisonment was enforced with such rigor that his constituents threatened to tear down the jail, which he prevented.2 3. In 1799 Thomas Cooper, a native of England, residing at Northumberland, Pennsylvania, published a handbill reflecting severely on the conduct of President Adams. He was prosecuted by an In 1 Wheaton, 458; 9 Adams's Works, 57; 2 Gibbs, 360; 5 Hildreth, 366; Chase's Trial, 18. 2 Wharton, 333; 4 Jefferson's Works (1853), 262. formation ex officio, in the Circuit Court for Pennsylvania, and brought to trial before Judge Chase, already referred to, charged with a "false, scandalous, and malicious attack" on the President. Mr. Chase charged the jury, " A Republican government can only be destroyed in two ways: the introduction of luxury, or the licentiousness of the press. This latter is the more slow, but most sure and certain means of bringing about the destruction of the government." He made a fierce and violent harangue, arguing the case against the defendant with the spirit which has since become so notorious in the United States courts in that State. The pliant jury found Mr. Cooper guilty, and he was fined $400 and sent to jail for six months. He subse quently became a judge in Pennsylvania, as conspicuous for judicial tyranny as Mr. Chase himself, and was removed by Address of the Legislature from his seat, but afterwards went to South Carolina where he became Professor at her college, and a famous nullifier in 1830.1 4. In 1799, or 1800, Mr. Callender, a native of England, then residing at Richmond, in Virginia - a base and mean fellow, as his whole history proved, depraved in morals and malignant in temper — published a pamphlet called "The Prospect before us," full of the common abuse of Mr. Adams and his administration. He was indicted for a false, malicious, and seditious libel, and brought to trial before Judge Chase who pressed the Sedition Law with inquisitorial energy and executed it with intolerant rigor.2 As he started for Richmond to hold the trial, he declared "he would teach the lawyers in Virginia the difference between the liberty and the licentiousness of the press." He told the marshal "not to put any of those creatures called Democrats on the jury," — it does not appear that he had his own Brotherin-Law on it however;-" he likened himself to a schoolmaster who was to turn the unruly boys of the Virginia courts over his knee and give them a little wholesome chastisement." Some of the ablest lawyers in Virginia were engaged for the defence. But they could not secure any decent regard to the common forms of law, or to the claims of justice. He would not grant the delay always usual in such cases, and indispensable to the defence. He refused to allow the defendants' counsel to examine their most important witness, and allowed them to put none but written questions approved of by him! The defendant was not allowed to prove the truth of any statements, alleged to be libellous, by establishing the truth of one part through one witness and of another through a different one. He would not allow him to argue to the jury that the law was unconstitutional. "We all know that juries have the right to decide the law as well as the fact, and the Constitution is the 1 1 Wharton, 659. 2 Wharton, 45, 688; Chase's Trial, 33; 4 Jefferson, 445, 447. |