Chief Justice Marshall. He had been present at the Callender trial and was called to testify as to Judge Chase's manner to the counsel. He stated facts only, declining to express any opinions. It is evident that he did not regard his colleague as a model judge, and, while unwilling to publicly condemn him, was in no way pleased that his turbulent disposition and factional temper had involved the court in an ugly dispute at a time when the utmost caution was necessary to its firm establishment.

The accused appeared in person and stood at the bar, until, at his request, a seat was furnished him. Benjamin Butler tried, without success, to prevail upon his colleagues in the conduct of the impeachment of Andrew Johnson to follow this precedent, and compel the personal appearance of the President.

The figure of Judge Chase alone would make the scene an impressive one. He was then in his sixty-fifth year; had been in active life for forty-five years, beginning the practice of law at twenty. He was of commanding figure, with a resonant voice and a repute for eloquence second to few of his day.

He was one of the earliest Sons of Liberty; a member of the Continental Congress from Maryland, in the stormiest period, and made a personal canvass of the colony to obtain authority to sign the Declaration of Independence. He was the political ruler of his community, and held at one and the same time two of the highest judgeships of his State.

Appointed to the Supreme Bench by Washington in 1796, in the year 1800 so concerned was he that Adams should be again elected that he left the Bench without a quorum to canvass Maryland against Jefferson.

The will and temper of the man were strong and imperious. Of himself he said he could never move but that there was a mob at his heels. Luther Martin admitted that he had more of the "fortiter in re" than of the "suaviter in modo;" was to be likened rather to Lord Thurlow than to Lord Chesterfield; and excused to the New England Senators his speaking of Callender as a damned" rascal, upon the plea that the word could not

be considered very offensive even in the mouth of a judge south of the Susquehanna.

A few personal anecdotes will not be without interest. One of the first measures advocated by him, cut in two the salary of his father, then an Episcopal minister. Some time after, in company with other young men, he compelled certain old "malcontents," among them his father, to swear allegiance to the new government. They used vigorous English in those days. After Chase's adventure in opposition to the stamp act, the mayor and council of Annapolis published an address in which they sought to acquaint the public with what manner of man he was, saying, "He is a busy, restless incendiary, a ring-leader of mobs, a foul-mouthed and inflaming son of discord and faction; a common disturber of public tranquillity, and a promoter of the lawless excesses of the mutitude." This brought an equally vigorous response from young Chase: "Was it a mob who destroyed in effigy our stamp distributor? Was it a mob who assembled here from the different counties of the province and indignantly opened the public offices? Whatever vanity may whisper in your ear or that pride and arrogance may suggest, which are natural to despicable tools of power, emerged from obscurity and basking in proprietary sunshine, you must confess them to be your superiors; men of reputation and merit, who are mentioned with respect while you are named with contempt; pointed out and hissed at as "Fruges consumere nati."

While in Congress he was instrumental in having a wagonload of Quakers carted from Philadelphia to Virginia, in dead of winter, simply, as they alleged, because they would not illuminate their houses and conform to such vain practices and outward marks of rejoicing.

At the height of the English-French rivalry, he went to dine at Mrs. Bingham's. Seated next to her at the table, he observed his plate surrounded by French dishes. Asked what he would have, he requested "a beefsteak, Madam, or a piece of roast beef;" and finally arose from the table, saying, " There, Madam,

I have made a very sensible dinner, but no thanks to your French cook."

In his old age he said to his son-in-law, "Yes, you are young and may be a Democrat, but for an old man to be a Democrat, he must first be a fool."

Mr. Justice Chase did not deliver many opinions as a member of the Supreme Court. During most of his term of service Marshall was Chief Justice. An examination of the first six volumes of Cranch shows that in every case but one Marshall delivered the opinion of the court.

An exception to this statement must be made of cases in which the Chief Justice did not vote.

In the early history of the court the practice was established that a judge who presided at the circuit, should not, except in case of equal division, vote in the same cause on its hearing in the appellate tribunal. In these cases it is worthy of notice that Marshall saying nothing, every other judge on the bench, hearing the case, delivered an opinion.

But Judge Chase found occasion in his earlier service to pronounce three judgments of great moment. In Calder v. Bull (3 Dall. 386), he established the doctrine, never shaken, that the provision in the constitution prohibiting ex post facto laws applies only to retrospective legislation of a criminal nature.

In Ware v. Hylton (3 Dall. 199), he held that it was competent for this nation by treaty to set aside a law passed by one of the States.

In Hylton v. United States (3 Dall. 171), he decided that direct taxes, within the meaning of the Constitution, embraced only capitation taxes and taxes on land. This doctrine was only overturned in 1894, in the decision of the income tax cases.

But perhaps his most important and far-reaching opinion was one at circuit, which first established that the United States has no common law.

In recalling the trial of Judge Chase it must be remembered.

that there was never at any time the slightest stigma upon his judicial or personal integrity. There were eight articles of impeachment, the fourth of which had five specifications. Four occasions of offense were stated.

Passing by one accusation that was absolutely frivolous, although ten Senators voted guilty upon it, I come to the three which were most considered.

The first of these related to the trial of John Fries for treason. The second, to the trial of Callender for seditious libel; and the last, to the delivery of a political oration in an address to a grand jury.

In the latter part of the last century Congress passed an internal revenue law, and the enforcement of it required the services of the militia. The same was true of the enforcement of another law, fixing a tax on land. A woman in Western Pennsylvania, observing a man standing in front of her house counting the windows, threw a bucket of hot water on him. From this and other incidents certain persons assembled armed bodies to resist these laws. Among other was John Fries, a sort of traveling fakir, of ready tongue and turbulent disposition, who was arrested and indicted for treason. He was tried before Judges Iredell and Peters, and condemned to die. A new trial was granted him, and his case then came on before Judges Chase and Peters. On the morning the case was called in Philadelphia, Judge Chase handed down to the clerk three copies of a paper, stating that he had fully considered the law of the case and had reduced his opinion to writing, one copy being designed for the United States Attorney, one for the prisoner's counsel and one for the jury. Judge Peters, the District Judge, advised against this course, saying that the bar would take "the stud," and so it happened. Mr. Lewis, one of the prisoner's counsel, waved his hands and said, "I will never suffer my hands to be corrupted with a prejudged opinion in any case, much less so in a capital one; " Dallas, the other counsel, coming in, joined Lewis in the statement that as the facts were not in dispute and as the court had prejudged the law they would refuse to continue as counsel.

The next morning Judge Chase offered to withdraw the opinion and allow counsel to take their own course. But Lewis and Dallas having got the court " in a fix," refused to proceed, and, on their advice, Fries declined any other counsel. They admitted their purpose in this was to make the way easy to a pardon. The result was Fries had no representative, and was condemned to die. Adams pardoned him, but against the strong remonstrance of Hamilton.

It will be sufficient for my purpose to say that the whole of the burden of the complaint against Judge Chase in this transaction was his forming in advance an opinion on the law of the case, and at first declining to allow counsel to combat that opinion to the jury, by reading certain statutes deemed by him not relevant, and citing to the jury certain English cases deemed by him misleading.

The impression that a lawyer had the right to argue not only the facts but the law of a criminal case to the jury, and to persuade them to disregard the opinion of the court, was certainly very strong at that day.

In Fries' case the facts were beyond dispute. Judge Iredell had, upon the former trial, delivered an opinion upon the constitutional definition of treason, holding that "levying war could consist of actual assemblage and use of armed force with the purpose of resisting the execution of an act of Congress. Judge Paterson, sitting in another case in the same court, had pronounced a judgment of similar purport; and yet the counsel for Fries were here insisting upon being allowed to argue to the jury that this definition of treason was not a correct one, and to prove this by citations from English cases, and by reading acts of Congress elaimed to be illustrative of their views.

The Supreme Court has only within the last few years set to rest this notion, holding, in the case of Sparf v. United States (156 U. S. 51), that the jury are bound in all cases to take the law from the court-Mr. Justice Gray, on that occasion, reading a most elaborate dissent.