USA > Virginia > A history of Virginia : from its discovery and settlement by Europeans to the present time. Vol. II > Part 24
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At this time there lived in Petersburg, one James Thompson Callender, whose name would merit no notice in history, had he not been the occasion of drawing forth one of her most instruc- tive lessons. He seems to have been a man in whose breast vindictive passion raged without control. He was not a native of America, but had for some time resided in Virginia, where his warmth of party feeling, and real talent, had pro- cured for him employment in various capacities. That he was degraded in character and in public
a Declaration of Independence in 1776.
374
LIBELLOUS PAMPHLET.
[CHAP. VI.
esteem, may be inferred from the fact that he was once apprehended under the Vagrant Law.ª But he was capable of expressing bitter thought in bitter words, and this made him a fit actor for the part he was to play in the contest between the two factions.
He wrote a pamphlet, which he entitled " The Prospect before Us," and caused it to be published in Richmond, on the 1st of February. Had he carefully studied to violate the letter and the spirit of the Sedition Law in as many points as possible, he could hardly have effected his object more com- pletely than by this pamphlet. It was an attack upon the administration, coarse, virulent, profligate. The author rioted in abuse ; and not content with assailing Mr. Adams, he sought to desecrate the tomb which had but just closed over the remains of Washington. That we may form a correct idea of this libel, it will be necessary to give extracts from it, although it would be more grateful to let it rest for ever in the oblivion of infamy to which it has been consigned.
He says, "the reign of Mr. Adams has hitherto been one continued tempest of malignant passions. As President, he has never opened his lips or lifted his pen, without threatening and scolding." " The grand object of his administration has been to ex- asperate the rage of contending parties, to calum- niate and destroy every man who differs from his opinions." "Mr. Adams has laboured, and with melancholy success, to break up the bonds of so-
ª James Triplett's testimony, Trial of Judge Chase, 44.
375
PROSPECT BEFORE US.
1800.]
cial affection, and under the ruins of confidence and friendship to extinguish the only beam of happi- ness that glimmers through the dark and despicable farce of life." He speaks of the " presidential sys- tem, that is, a French war, an American navy, a large standing army, an additional load of taxes, and all the other symptoms and consequences of debt and despotism;" "the same system of perse- cution has been extended all over the continent. Every person holding an office must either quit it, or think and vote exactly with Mr. Adams." " Adams and Washington have since been shaping a series of these paper-jobbers into judges and ambassadors. As their whole courage lies in want of shame, these poltroons, without risking a manly and intelligible defence of their own measures, raise an affected yelp against the corruption of the French Direc- tory, as if any corruption could be more venal, more notorious, more execrated than their own."ª He attributes to Mr. Adams measures used "for the sake of yoking us into an alliance with the British tyrant." " While such numbers of the effective agents of the Revolution languish in ob- scurity or shiver in want, ask Mr. Adams whether it was proper to heap so many myriads of dollars upon *; upon a paper-jobber, who, next
a I have copied all of these clauses passage " As their whole courage," verbatim from the MS. indictment, among the papers in U. S. v. Callen- der, in Office of the Federal Court, Richmond. See, also, Trial of Judge
&c., to apply not to Adams and Washington, but to the officers ap- pointed by them. Meriwether Jones's testimony in D. Robertson's report of Chase, 82-88. Before his own trial, the case. Trial of Judge Chase, 78. Callender said that he intended the
376
PROSPECT BEFORE US.
[CHAP. VI.
to Hamilton and himself, is perhaps the most de- tested character on the continent." He addresses the people: "You will choose between that man whose life is unspotted by a crime, and that man whose hands are reeking with the blood of the poor, friendless Connecticut sailor !ª I see the tear of indignation starting on your cheeks. You anti- cipate the name of John Adams!" "Mr. Adams has only completed the scene of ignominy which Mr. Washington began." Alluding to one of Mr. Adams's public letters, he says, "In that paper, with all the cowardly insolence arising from his assurance of personal safety, with all the fury, but without the propriety or sublimity of Homer's Achilles, this hoary-headed incendiary, this libeller . of the Governor of Virginia, bawls out, To arms ! then, to arms! It was floating upon the same bladder of popularity that Mr. Adams threatened to make this city the centrical point of a bonfire !"
We need not go farther. Enough has been given to show the character of "The Prospect before Us." Libellous as were the extracts copied into the papers of the day, they were exceeded by the general tenor of the pamphlet itself,' and it con- tained some assaults upon Washington, which are so infamous, that American types would now recoil from printing them. The time seemed to have come when the Sedition Law might take its course, sustained by the public conscience.
" To explain this allusion, see Amer. State Papers, 2d edition, of Judge Chase, 46. Boston, 1817, vol. iv. 302-307.
b John Basset's testimony, Trial
c Appendix to Trial, 55, 56.
377
JUDGE SAMUEL CHASE.
1800.]
Not long after its publication, Luther Martin of Maryland, found some copies for sale at Greenleaf's printing office, in New York, bought one, read it, un- derscored the striking passages, and carried it with him to Annapolis. Here he met Samuel Chase, one of the Associate Justices of the Supreme Court of the . United States. Judge Chase is well known as one of the immortal signers of the Declaration of Inde- pendence. He loved his country, and enjoyed the confidence of Washington, who appointed him to the bench of the Supreme Court in 1796. He was learned in the law, and indefatigable in his labours. His temper was quick, his will unbending. He was a thorough Federalist, and approved with all his heart of the measures of the administration. It may be that his political prepossessions were too strong, that they sometimes warped a judgment otherwise perfectly upright; but all the vigilance and energy of party zeal employed against him in his trial before the Senate of the United States, did not convict him of using his office to corrupt or to oppress.
He was soon to hold a Circuit Court for the United States in Richmond, and on receiving from Luther Martin the pamphlet of Callender, his at- tention was forcibly drawn to it. He said he would carry it with him, and that "if the Commonwealth of Virginia was not utterly depraved, or if a jury of honest men could be found there, he would punish Callender. He would teach the lawyers of Virginia the difference between the liberty and the
378
INDICTMENT AND TRIAL
[CHAP. VI.
licentiousness of the press."a These remarks may have been partly jocular, but they were accompa- nied by a firm resolve to carry his purpose into effect.
He arrived in Richmond, and on the 22d of May opened his court. He charged the grand jury specially as to the Sedition Law, and on Saturday, the 24th, they made a presentment of Callender for writing and publishing the libellous pamphlet. On this presentment, Thomas Nelson, the District Attorney, immediately drew an indictment in due form, which was sent to the grand jury, and found without delay. In the mean time the judge directed a capias to issue against the accused, and though this was a more rigorous process than was custo- mary in Virginia, in cases not capital, yet the Senate of the United States afterwards vindicated the court in using it.' The marshal went forth- with to Petersburg, and on the 27th returned, bringing in his custody the renowned author, greatly frightened, and not a little concerned at " the prospect before" him." He was admitted to bail, but preparations for his trial were commenced.
William Wirt, George Hay, and Philip Nor- borne Nicholas, volunteered to defend the accused ; the first had already become distinguished for those brilliant qualities which afterwards placed him among the best advocates of America; the second was a lawyer of high standing, ardent in tempera-
a Compare John Thompson Ma- b MS. papers in U. S. v. Callender; son with Judge Winchester, Trial, Trial, 42, 64, 268; Appen. 32. 43,63, 64.
c Trial of Judge Chase, 40, 64.
379
OF CALLENDER.
1800.]
ment, and honourable in bearing ; and the last was a brother of George and Wilson Carey Nicholas, and though very young, was the Attorney-General of Virginia.ª They appeared in court, and ear- nestly pressed for a continuance of the case, on the ground that Callender was not prepared for his defence, needed witnesses and documents, and that they needed preparation. But the Judge refused to continue ; he told them he would give them two weeks, a month, nay, six weeks, to procure their testimony.b He directed summonses to issue for Mr. Giles, General Mason, and John Taylor, all of whom Callender swore to be material witnesses for him. The process was all executed by the 2d day of June, but of the three witnesses summoned, only Colonel Taylor attended. By him the counsel for the defence proposed to prove the truth of certain of the allegations in the pamphlet, which were charged in the indictment, and thus, as to those . allegations, bring Callender within the protecting clause of the Sedition Law. But Judge Chase re- quired them to reduce their questions to writing, and because Colonel Taylor could not prove the truth of all the allegations of the pamphlet charged as libellous in the indictment, he refused to permit his evidence to go to the jury !" He even intimated that the counsel for the accused knew this evidence
a He is now Judge of the Superior Court of Law, for the Richmond Circuit.
b William Marshall's testimony, Trial, 65.
. c Trial, 34, 35, 42, 65, 67. At the time when this decision was made, Judge Cyrus Griffin was on the bench, and assented. He took his seat May 30th.
380
THE JURY SWORN.
[CHAP. VI.
to be inadmissible, and that their design was to affect and mislead the populace! It was in this part of the trial that Judge Chase's conduct was most reprehensible, and the vote of the Senate upon it, proved how much they disapproved it. He seemed afterwards conscious of the impropriety, and feebly proposed to the District Attorney that Colonel Taylor's evidence should be admitted, but Mr. Nelson, insisting that it was illegal, refused it."
When the marshal called a jury for the trial, he summoned several members of the Republican party, but, for various causes, they declined to serve, and the jury, as finally sworn, consisted en- tirely of Federalists.' Mr. Nicholas proposed to challenge " the array," (that is the whole jury,) on the ground that one juror had expressed an opinion adverse to the accused, and he supported his pro- position by authority ; but the Judge said chal- lenges to the array would only be for partiality in the sheriff or marshal, and that if they had any ob- jections, they must apply them to the jurors indivi- dually. When the first juror was called to the book, Judge Chase asked him, " Have you ever formed and delivered an opinion upon the charges contained in the indictment ?" Never having seen or heard the indictment, the man of course an- swered in the negative. Mr. Hay earnestly in- sisted that the proper question was, "Have you ever formed and delivered an opinion on the book entitled 'The Prospect before Us,' from which the charges
ª Trial, 39. b Ibid. 66, 67 ..
· Ibid. 40, 75.
381
JOHN BASSET.
1800.]
in the indictment are extracted ?" But the court said no, and the juror was sworn. The eighth juror who presented himself was John Basset: he was a friend of the administration, and a man of honour and delicacy ; he begged that he might be excused from serving, and said that though he had not seen or heard the indictment, yet he had seen in a newspaper what purported to be extracts from the " Prospect before Us," and if they were genuine, he had formed an unequivocal opinion that the pamphlet came under the Sedition Law.ª Never- theless, the Judge decided that he was a good juror, and he was sworn accordingly. In this proceeding the reader may fear that he detects an improper leaning against the accused on the part of Judge Chase. Yet his defence of the principles on which this part of his conduct was based is so conclusive, that it not merely satisfied a majority of the Senate, but has been adopted as law by a well-trained legal mind in Virginia.b
After the evidence for the prosecution was closed, Thomas Nelson, the District Attorney, addressed the jury. He belonged to the Republican party, yet he spared not Callender or his pamphlet. He opened the libellous passages, one after another, and disclosed the motives that suggested them with a clearness which forbade doubt in the minds of hearers. On the part of the defence, the evidence of Colonel Taylor being excluded, the counsel had
a Trial, 45, 46, 76.
b Answer and Pleas, Trial, Ap-
pen. 19-21 ; Vote, 268, and Conway
Robinson's Virginia Practice, iii. 164-166.
382
JUDGE CHASE AND WILLIAM WIRT. [CHAP. VI.
no resource but to address the jury on the general subject. And here a curious scene presented itself.
William Wirt rose first. He told the jury that the position of the defence was embarrassing, be- cause they were not fully prepared for trial. He then boldly took the ground that in a criminal case the jury were to decide both the law and the fact ; that they were therefore to consider the character of the Sedition Act; that that act was not lan, be- cause unconstitutional. At this point Judge Chase called out, "Take your seat sir ! if you please." Mr. Wirt complied. The Judge then said that the jury could not decide the constitutionality of the Sedition Law, and that it must not be argued for them, but for the court, and he read part of a long written opinion to the effect, that the province of the jury in a criminal case was to interpret a law in existence ; that the Sedition Law had been duly enacted and was in existence; that whether it accorded with the Constitution was a question to be decided exclusively by the Federal Judiciary ; that this was evident from the Constitution itself, and the laws of Congress providing for the judicial department ; and that to permit such a question to be decided by a "petit jury," would be highly im- prudent.ª Mr. Wirt again rose, and a sharp dia-
logue ensued. Mr. Wirt. " Since the jury have a right to consider the law, and since the Constitu- tion is law, the conclusion is certainly syllogistic, that the jury have a right to consider the Constitu- tion." Judge Chase. " A non sequitur, sir," (with
a Trial, 91; Judge Chase's Opin. Appen. 65-68.
383
1800.]
MR. NICHOLAS-MR. HAY.
a bow.) Mr. Wirt sat down, and did not rise again during the trial.
Whatever weight may be attributed to Judge Chase's opinion, it is difficult to evade the force of Mr. Wirt's argument on the subject. By an Act of Congress, the rules of proceeding in the State . Courts had been adopted, wherever they were ap- plicable, for the Federal Courts. The common law rule for criminal trials has long been recog- mised in Virginia. In favour of life and liberty, the jury may decide both law and fact, even against the most positive instruction from the bench. If they acquit, their verdict cannot be set aside or re- viewed by appeal. Therefore in truth they may decide the constitutionality of a law, for if they be- lieve an Act of Congress unconstitutional, they may acquit the accused, however plainly he may have violated it. If then, in fact, they may decide this question, why shall it not be argued before them ?
Mr. Nicholas followed Mr. Wirt, and notwith- standing the Judge's view, he pursued nearly the same course of argument, urging that the jury had a right to find a general verdict, and that therefore they must of necessity pass upon the constitution- ality of the law. ' He was sometimes interrupted, but was at last permitted to proceed to his conclu- sion. Mr. Hay spoke last for the defence ; he had already come in contact with the court with some violence, and neither had forgotten it. Mr. Hay said, " The arguments which I shall urge I shall address to the court, not wishing to be heard by
384
CONDUCT OF JUDGE CHASE. [CHAP. VI.
the jury, or to be attended to by the numerous audi- tory now present." But he had not proceeded far before the Judge interrupted him ; a colloquy en- sued, and when Mr. Hay resumed his argument, he was again interrupted. He immediately stopped, folded up his papers, and prepared to leave the court. The Judge called, urged him to proceed, and told him " there was no occasion to be cap- tious." The counsel for Callender all left the room and did not return.a
The conduct of Judge Chase to the three advo- cates who had volunteered to defend rather the Constitution than the accused, was made a special item of charge against him, in the 'ordeal through which he passed before the Senate of the United States. And there can be no doubt that his course was stern beyond propriety, and irritating beyond judicial politeness. But there was an amusing correspondence between his treatment of these several gentlemen, and their own peculiar traits and dispositions. In the words of the Apostle, the judge became "all things to all men." "To the logical Mr. Wirt, he was logical ; to the polite Mr. Nicholas, he was polite; to the zealous and perti- nacious Mr. Hay, he was warm and determined."b
When the argument before the jury was closed, Judge Chase read to them in full his opinion against their right to determine the constitution- ality of the Sedition Law. He then explained the case before them; told them the fact of publication
a Trial, 36, 41, 94.
b Charles Lee's argument, Trial,
172.
1800.]
CALLENDER CONVICTED.
385
must be proved, and that they must be satisfied the writing was "false, scandalous, and malicious." He spoke of Mr. Adams's long and faithful service to his country, and declared that he was rejoiced that Callender was not a native American. (June 3d.) The jury retired, carrying with them "The Prospect before Us," and in two hours they re- turned into court with a verdict of "Guilty."ª On the 4th of June, Callender was brought in, and the court pronounced sentence. He was to be fined two hundred dollars, to be imprisoned nine months, and to give security for his future good behaviour. He was immediately committed to the custody of the marshal, to be kept until the fine should be paid, and the security given.b
Thus, one of the laws which had excited the fears of Virginia, against which she protested in 1798, which she again deliberately condemned in 1799, and which she continued to the last to regard as unconstitutional, was carried into force upon her soil. We may readily suppose that party feeling ran high in Richmond, and that the events of the trial were not calculated to allay it. Yet there was so much that was really disgusting in Callender's pamphlet, and he was personally so little respected, that public sympathy did not make him its object. The law and its results were submitted to. No effort was made to arrest them by violence.
a MS. Order Book, Fed. Ct. 1800. Matthew Hawes, John Basset, Wil- The names of the jury were, " Ro- liam Mayo, James Hays, Henry S. Shore, and John Fryor," page 412. b Order Book, MS., page 413. bert Gamble, Bernard Markham, John Barrett, William Austin, Wil- liam Richardson, Thomas Tinsley,
VOL. II.
25
386
MR. JEFFERSON PRESIDENT. [CHAP. VI.
But as the elections of the fall approached, the Republicans of Virginia were ceaseless in their efforts. The sequel of the contest throughout the United States, is well known. Thomas Jefferson and Aaron Burr, received a majority of electoral votes over John Adams. But as Mr. Jefferson and Mr. Burr had precisely the same number of votes, and the Constitution did not then require voters to specify which candidate they wished to be Presi- dent, and which Vice-President, the election at last devolved upon the House of Representatives. Here the Federalists voted for Mr. Burr ; and not until after thirty-five ballots, and imminent danger of a dissolution of the Government, did some of the less inflexible give way, and thus secure the election of Mr. Jefferson.ª But the popular voice had been heard ; the people had declared against the Alien and Sedition Laws; the object of Vir- ginia was accomplished without either nullifying the law, or overturning the government. Not long after the success of the new administration became apparent, these unconstitutional acts were repealed. It was decided that America might be saved with- out making her President at once lawgiver, judge, and executioner, upon the alien ; and that sedition might be quelled without fettering the press, and proscribing opinions.
And yet, though the triumph of liberty, and that of law and order, had been achieved, and had gone hand and hand together, they had not been won without a sacrifice. Stormy passions had been
ª Jefferson's Letter to Madison, Works, iii. 453 ; Lincoln, 122.
387
GOOD AND EVIL.
1800.]
roused, which did not subside until they had rent asunder many ties ; characters had been assailed which were once regarded with a nation's reve- rence. Men had learned to think lightly of past services, when covered with present obloquy ; and minds once devout had been taught to listen with patience, and even with pleasure, to infidel philo- sophy. There had been evil in both parties, and there had been good wrought, not as the immediate object of either, but as the work of the Power that can bring light out of darkness, and order out of chaos. Virginia has little cause to wish renewed the scenes of a struggle which arrayed her noblest sons in battle against each other, and infused a bit- terness into her spirit that will, perhaps, in some measure, endure with her existence.
CHAPTER VII.
Internal interests of Virginia-Slaves-Insurrection headed by Gabriel- Happily defeated-Establishment of the Public Guard-Incipient steps for the sale of the glebe lands-Act of 1799-Its character explained- Memorials asking a sale of the glebes for the benefit of the public-Act passed for the purpose-Its leading provisions considered-Its effect and abuses-Constitutionality of the act disputed by the Protestant Episco- pal Church-Manchester Parish case-Death of Judge Pendleton-Ar- gument in the Court of Appeals-Court divided-Chancellor's decision that the law was constitutional, affirmed-Subsequent case-Chancellor Tucker-Court of Appeals, unanimous in sustaining the law-Complete establishment of religious liberty-Bank of Virginia chartered-Trial of Aaron Burr-Burning of the Richmond Theatre, in 1811-Late war with England-Virginia invaded-Admiral Cockburn-Mr. Jefferson's gun-boats-Heroic defence of Craney Island-Hampton attacked and taken-Horrible outrages there committed by the enemy-Excitement in Richmond-Preparations for defence-Withdrawal of the enemy -- Peace in 1815-University of Virginia-Its obligations to Mr. Jefferson -Its career-Members elected to a Convention to amend the Constitu- tion of the State-Their labours-Amended Constitution adopted-Vote -Conflict of sentiment between the East and West-Explained-The Southampton insurrection of slaves-Crushed-Excitement throughout the state-Legislature of 1831-32-Case of Johnson, Smith, and Gansey -Controversy between the Executive of Virginia and that of New York -Governor Seward's conduct-Virginia Inspection Law-Protest- Case of Curry-Resignation of Governor Gilmer-His death and cha- racter-Retrocession of Alexandria ratified in 1847.
WHILE the Commonwealth was watching the course of the Federal Government, her internal condition needed her care. And her true interest must always be identified with the progress of events within her own borders, for the federal
389
SLAVES.
1800.]
system is but the creature of state will, its object is the general good, and it is only interesting to the states so far as it enables their people to become prosperous and happy. No attention to govern- ment, either general or local, will compensate for the want of domestic peace, of diffused intelligence, of industrious habits, of virtuous dispositions, all of which elements are necessary to the real welfare of every nation.
Since the year 1620, Virginia had held a species of population which deeply affected her character, and spread its influence through every part of her society. It is believed, that at no time during the colonial period, were a majority of her white inha- bitants in favour of importing negro slaves; but the English government continued to sanction the trade, and English ships continued to bring Afri- cans to the Colony. And it is certain that in 1778, by a solemn act of lustration, Virginia cleansed herself from the guilt of her mother. She forbade that slaves should any longer be imported; and if her people had ever been responsible for their ad- mission, they were then justified in the eyes of Him who said to the penitent, "Go and sin no more !" But now the evil was fixed upon her; it is true, the number of slaves could not be aug- mented by importation, but it was liable to be swollen by the "irrepressible laws of human in- crease ;" and experience has shown that the absence of care, and the certainty of subsistence enjoyed by this class in Virginia, have made them propagate with more rapidity than the white population.
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