pily found himself but too much at home. Attaching himself with characteristic energy to the Adamsite, as it was called, instead of the Hamiltonian wing of the party, he not only became the personal adherent, but the political partisan of the President. The democratic papers diverted themselves with the scene presented by the latter, when, on a visit to Baltimore, being taken to church by the former, in broad sunshine, under the protection of a huge umbrellaan article then not of recognised use in fine weather-and the spectacle was likened to a Mollah carrying to the temple the Bengal Chief on whom he was attendant. The bar was shocked by the spectacle of a judge of the Supreme Court canvassing the country on the eve of a presidential election with such eclat that at his final harrangue at Elk Ridge, nearly all Maryland was congregated to listen to a stump speech "two hours long."* But these extra-judicial diversions, singular as they were, were but of little significance compared with the unhappy exhibitions of party zeal of which the bench was made the scene. The former may perhaps have benefitted Mr. Adams: the latter completed his fall. "That most unpolitic law," as the sedition act was called by one of the most sagacious friends of the administration, was pressed by Judge Chase with inquisitorial energy, and executed with intolerant vigour. The memorable impeachment which cast so dark a shade over his closing years-when at last "old" he felt the weariness of years without their torpor-developed with painful minuteness the activity with which, during the brief parenthesis of that troubled era, he carried with him to Philadelphia, to Wilmington, and to Richmond, in the one hand the statute itself, in the other the paper to which in the exercise of an unconstitutional prejudication, he conceived that statute to apply. With what tenacity he pursued the judgment thus formed, with what severity he executed it, with what arbitrary energy, in these and in the cotemporaneous cases of the Northampton insurgents, he administered the criminal law, have already been noticed; and while, perhaps, to another volume may be deferred the consideration of that solemn trial in which, in the presence of the Senate of the United States, these errors were canvassed, it is sufficient now to point to them as pregnant illustrations of the perils in which partisan judges involve not only public justice, but the bench itself.t But however oppressive may have been Judge Chase's proceedings on the criminal side of the court, it is some relief to admit, that with the exception of occasional brushes with the bar, his civil duties were discharged with learning, fairness, and ability. His decisions, even when professional opinion was most strongly set against him, were always acquiesced in as judicious and impartial.‡ His arbitrariness was that rather of the temper than • Aurora, Aug. 1, 1800. See 2 Gibbs' Wol., 419. † See, for a notice of Judge Chase's proceedings in Fries' case, post, 612; in Callender's case, 689, and in Cooper's case, 664. Several anecdotes have been handed down to show, that his bluntness of manner was not put on for the public alone. Mrs. Bingham, at whose house during her husband's sena. torship, all the luxuries which wealth could purchase, and all the talent which luxuries could tempt, were collected, is said at one time to have seated Judge Chase next to her at dinner, and in the midst of a forest of French dishes. This was during Mr. Adams' ascendency, when the judge was in full feather, perhaps with the vacant chief justiceship in his view, and when he was not disposed in any way to give up his own opinion, to what he considered to be the follies which a voluptuous taste had imported from a mad transatlantic republic. "A beef-steak, Madam, or a piece of roast beef;" and at last, when the foreign commodities had been pushed away, and the American staple had been finally consumed, he left the amazed table with the exclamation, “There, madam, I bave made a sensible dinner, but no thanks to your French cook!" Sullivan's Familiar Letters, 224, n. Examine for instance, the judgment in M'Donough v. Dannery, 3 Dal. 188, which, though marked with the same coarseness of style which distinguish his criminal charges, can be singled out for exact learning and solid sense. The same qualities, though in a less eminent degree, may be observed in his opinions in Bass v. Tingley, 4, Dal. 357, and with a single re of the understanding, for while on the one hand he was ever ready to assert authority, on the other he was singularly averse to assume jurisdiction. Thus, as has been noticed, at the very time when his invasions upon the rights of counsel and parties were keeping the profession in an uproar, he declared, in the teeth of the expressed opinions of every member of the court, that the federal judiciary had no cognizance of a common law prosecution; and soon afterwards, he announced that he could not see on what authority the Supreme Court could pronounce an act of Congress unconstitutional. It would be unjust, however, to confine to Judge Chase the imputation of having, in order to increase the political importance of the judge, abandoned the organic prerogatives of the judiciary. It was not the least of the vices. with which the early construction of the Constitution was infected, that the judiciary, so far from being regarded as a separate estate, of equal dignity with its sisters, did not hesitate to desert its own sovereign functions for the purpose of entering into their service. At the very outset, Mr. Jay held at the same time, the offices of Chief Justice and Secretary of State, for nearly six months;† and afterwards, while retaining the chief justiceship, did not scruple to undertake the mission to England, which kept him from the bench from April 19, 1794, to June 29, 1795, when at last he resigned, not because he thought the two offices incompatible, but because he was elected to a third, that of Governor of New York.‡ On Feb. 27, 1799, Mr. Ellsworth, then Chief Justice, was commissioned as Minister Plenipotentiary to France, holding on to the chief justiceship until October 1800, and resigning then only on the ground of ill-health. On January 20, 1800, Mr. Marshall, then Secretary of State, was nominated as Chief Justice, presided during the whole of February term in the Supreme Court, and only left the secretaryship on March 4, 1801, on the incoming of Mr. Jefferson, discharging in the meantime the duties of the two offices concurrently, on the same day issuing reports in the one capacity, and delivering judgments in the other. To these cases the precedent of the English chancellor was scarcely in point, as he possessed no criminal jurisdiction; and in the only instances in England where a common law judge has blended judicial with ministerial duties, professional as well as public opinion has now. determined that a great error was committed, and that few things could be so improper as for the executive who directs a prosecution, to become the judge who enforces it. With us objections still stronger exist. The judges, and eminently so those of the Federal Supreme Court, are not only the construers of all laws, whether established by treaty or legislation, but the arbiters of their constitutionality; and to commit to them the office of interpreting the laws which they themselves make, or of making the laws they themselves interpret, is a consolidation of power inconsistent with the genius of a government whose great felicity it is that it is the government of reciprocal checks. But the mischief did not stop here. A judge who becomes a statesman, is in some danger of becoming a partisan, and, though neither of the three eminent men who first took the disease received it in its worst type, yet in those of their associates to whom they communicated it, it raged with malign vivacity. At the beginning of August, 1800, Judge Chase left the bench to stump the State of Maryland on behalf of the existing administration, and the servation, Cooper v. Telfair, 4 Dal. 14. But after Mr. Adams' fall, his spirits drooped, and though he continued as indefatigable as before in the details of his office, he fell off both in the number and the tone of his opinions. By the impeachment his proud spirit seemed finally broken, and though when on the circuit he completed the business of the term with scrupulous exactness, he remained on the supreme bench a silent judge. Cooper v. Telfair, 4 Dal. 14. Ibid., 356; 2 Ibid., 256. II Lon. Law Mag., 336; 1 Town. Life of Judges, 334. t1 Jay's Life, 275. result was that the court, the Chief Justice being then on the French mission, was left for a whole term without a quorum. There was not a charge to a grand jury which was not at the same time a party harangue, differing in the several cases, it is true, in intensity, but the same in design; and even the guilt of a criminal was sometimes tested as much by the dogmas of the politician as the rules of the judge.* The State courts, of course, did not hesitate to follow this august example. Of six presidential electors chosen that year in New Hampshire, three were members of the Supreme Judicial Court, and one of them thought proper to select the opening of a term as the occasion for the personal castigation of a political opponent. In Vermont, one of the county judges became so strongly impregnated with what Mr. Ames might have called the French effluvium, as to sit on the bench in a liberty cap. In Massachusetts, the chief justice, in a charge to a grand jury, denounced "the French system-mongers, from the quintumvirate of Paris to the Vice President and minority of Congress, as apostles of atheism and anarchy, bloodshed and plunder." In New York, Judge Cooper broke up an election by threatening to commit anybody who challenged voters favourable to his own way of thinking, and even Chancellor Livingston sullied his brilliant name by a system of political agitation so daring as to gain the motto which afterwards clung to the capable and ambitious family of which he was the head: Rem, facias rem, Si possis recte, si non, quoque modo, rem. That the same vice ran through the New Jersey courts appears from a very able pamphlet, now extinct, published by a learned jurist of that State; and even the fine judicial parts of the first Chief Justice of Pennsylvania were marred by a partisanship as undisguised as it was efficient. It is not necessary to go further South, to show that the courts of the States did not hesitate to adopt in its fullest development, the system of politico-judicialism promulgated by the supreme bench of the Union. Since these days, fifty years have now passed, in the first twenty of which the federal judges had to struggle against an administration embittered by their personal onslaughts, and a majority irritated by their political encroachments. When Mr. Jefferson came in, the political consequence of the court seemed • See post, 458, 636, 670, 712. Boston Sentinel, Oct. 17th, 1798, cited in 2 Life of Gerry, 296. 1 Ham. Polit. Hist., 77. "Eumenes, &c., being a collection of papers written for the purpose of showing the evils and omissions of the Constitution of New Jersey. Trenton, 1799.” Judge Addison, one of the most enlightened judges of the day, and certainly in Pennsylvania, in the first rank of the judiciary in point of learning and legal sense, delivered to the grand jury of Crawford county, in October sessions, 1800, just in time for the election, a charge which was from beginning to end, a stump speech on behalf of the then administration. The opposition he attacked most vigorously, declaring “such men disgrace the name of republicans, by exclusively assuming it. In their clothing they are ravening wolves." By intimating that some of "these disinterested, pure republicans, who had nothing in view but the public good," were "without regard to character or qualification, incessantly solicit ing appointments to every office within their reach," he so exasperated Judge Brackenridge -a democratic judge, who had just before been oddly enough put by Governor M Kean on the Supreme Court, as an apology for Chief Justice Shippen, who, though a capital lawyer, was an ultra-federalist-that Judge Brackenridge came out in a Pittsburg paper, called the "Tree of Liberty," with a letter to Judge Addison, in which he said: "It astonishes me, and is a strong proof of the love of order and respect for the laws among the people, that under a sense of that groundless and degrading libel, they were not fired with sudden indignation, and did not drag you from your seat, and tread you under foot." (Portfolio, May 16, 1801.) This was bad enough; but Judge Addison improved on it by holding it a misdemeanour at com. mon law, punishable with fine and imprisonment, to erect a liberty pole; (Pa. vs. Morrisson, Add. Rep., 274 :) and Judge Brackenridge, by publishing a book on the Tristram Shandy model, so political in its tone, and so outlandish in its style as to strike both profession and people aghast. over. With its secular dignities destroyed, and its secular possessions confiscated, it was ordered, like a disgraced bishop of feudal days, to betake itself to its own diocese, and no longer to meddle in affairs of state. One part was lopped off by the repeal of the Judiciary Act of 1800, and there seemed no slight prospect that the whole would fall next. In the meantime, the court, devoting itself solely to the discharge of its constitutional duties, began to exhibit a power which, in the palmiest days of executive favour it had never shown. Contining itself, under the guidance of the pure and intrepid jurist, who then controlled its course, within its constitutional limits, it soon began to develope those sovereign prerogatives which to it as a co-equal branch of the government, had been entrusted. The judicial veto, the existence of which in its political prosperity it had scarcely hinted, was now applied with equal firmness and vigour to both the executive and legislative departments. The high function of declaring an act void, because it disagrees with the Constitution, which had laid dormant down to 1800, was now boldly exercised as a part of the ordinary jurisdiction of the court. In 1793, the collected bench, aided by the whole strength of Washington and his then undivided cabinet, could not procure the conviction of a flagrant state culprit, though it was notorious that his discharge would expose to defeat the whole foreign policy of the government. In 1807, a jury, under the direction of the Chief Justice, acquitted on purely technical ground, a criminal about whose guilt they entertained no manner of doubt, and to effect whose conviction popular and executive influences were strained to their highest tension.† In 1797, a brigade of militia was necessary, to enable the marshal to execute process in Pennsylvania; in 1809, the same officer, in the face of the militia. of the same State called out to resist him, went quietly through his functions, armed only by the precept of that most fearless and spotless of judges, Judge Washington; and in a few months afterwards, the officer by whom that militia was commanded was brought into the federal court, and there convicted by a jury of the vicinage "of obstructing, resisting, and opposing" the execution of the process of the United States § This great change is not without its lesson. It has taught us that to the judiciary, as to the church, political consequence is moral peril; and that though, while occupying its own territory, its authority is sovereign and its edicts supreme, the moment it oversteps the boundaries by which that territory is confined-the moment it canvasses for popular honour or executive favours-that moment the magic of its power is gone, and it loses for itself those princely attributes with which it is by the Constitution invested, and for the community those high conservative sanctions by which that Constitution is to be preserved. • Post, 88. † 2 Burr's Trial, 446.-"Why did you not tell Judge Marshall that the people of Ame rica demanded a conviction?" "Tell him that!' said Mr. Wirt, "I would as soon have gone to Herschel, and told him that the people of America insisted that the moon had horns, as a reason why he should draw her with them." ‡ Post, 459.—A few years before he had been locked up, and forced to promise under pain of death to execute no further process west of the mountains. Post, 113. "A report of the whole trial of General Michael Bright and others, before Judge Washington," &c., Philadelphia, 1809. TRIAL OF GIDEON HENFIELD, FOR ILLEGALLY ENLISTING IN A FRENCH PRIVATEER. IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE PENNSYLVANIA DISTRICT. PHILADELPHIA, 1793.* A CHARGE delivered by the Honourable John Jay, Esquire, Chief Justice of the United States, to the Grand Jury impannelled for the Court of the United States, holden for the Middle Circuit in the District of Virginia, at the Capitol in the City of Richmond, on the 22d day of May, 1793. GENTLEMEN OF THE GRAND JURY: THAT citizens and nations should use their own as not to injure others, is an ancient and excellent maxim; and is one of those plain precepts of common justice, which it is the interest of all, and the duty of each to obey, and that not only in the use they may make of their property, but also of their liberty, their power and other blessings of every kind. To restrain men from violating the rights of society and of one another; and impartially to give security and protection to all, are among the most important objects of a free government. I say a free government, because in those that are not free, these objects being in certain respects secondary to others are less regarded, and less perfectly provided for. Where the conduct of the citizens is regulated by the laws made by themselves and for their common benefit, and This prosecution, which has been referred to frequently in the subsequent reports as the earliest case on the subject of the common law jurisdiction of the Federal courts, and which was considered of so much importance by General Washington, as to justify a special meeting of Congress, and by Mr. Jefferson as to require a distinct explanation to the British government, is now for the first time reported. The charges of Chief Justice Jay and Judge Wilson, it is true, were printed by the government for the purpose of explaining abroad the position of the United States, but they have never yet been presented to the professional eye. Fortunately, however, among the papers of the late Mr. Rawle, who, as District Attorney, conducted the prosecution; and those of Mr. Duponceau, who, with Mr. Sergeant and Mr. Ingersoll, were counsel for the defence, the editor has been enabled to discover notes |