day, as well as the high personal esteem it procured him, which made the opposition leaders for some time look upon him as the most probable because the most available candidate of the federalists for the fourth Presidential term in case Mr. Adams could be got off the course. A meeting of the moderate federalists was even said to have been held in the fall of 1800 at Dunwoodie's tavern-the spot of many a caucus of the gentlemen of that turn of politics-in which it was determined in case Mr. Adams should withdraw, a thing in the then division of the party to be desired rather than advised, that Mr. Ellsworth, then in France, should be taken up in his stead. But to the immediate friends of Mr. Hamilton this step was distasteful. It implied the declination, not the rejection of Mr. Adams, and besides this, in the selection of a successor, General Pinckney, whose military tastes and personal habits were supposed to tend to an energetic and splendid government, and whose party attachments were of the strongest character, far better accorded with their views than the frugal and unostentatious Connecticut judge, who had not yet learned that a democrat was out of the pale of social sympathy, or that unless the people could be propped up by shoulderstraps and braces, they would lose their capacity of standing erect. This distrust became more decided when it was discovered that Mr. Ellsworth, then at the head of the French mission, was giving his cordial aid to the negotiation of a treaty with the "regicide" republic. The diseased tone of feeling then existing is by nothing so pointedly shown as by the fact, that Mr. Ellsworth's participation in a treaty which was afterwards unanimously ratified by the Senate-through which, as has been noticed, as late as the second administration of Jackson, claims were made good against the French government was considered by some of the soberest of his party friends, who had seen him only a few months before in the full possession of his manly and well-poised intellect, to be only explained by the hypothesis of intervening imbecility. "You will read the treaty which was signed by France with astonishment," says Mr. Wolcott to Mr. Pickering in a letter dated December 28, 1800.* "I can account for it only on the supposition that the vigour of Mr. Ellsworth's mind has been enfeebled by sickness." The peculiar good sense and moderation of sentiment, of which this treaty was one of the results, and which, in the opinion of the opposition, would have made Mr. Ellsworth by far the strongest candidate for them to contend against, was the great difficulty which, in the mind of the ultra federalists, stood in his way.

How far the joinder of an embassy, or indeed of any political employment, with the judicial office, is reconcileable with the Constitution, will be presently noticed; but whatever may now be the opinion entertained on that delicate question, it is due to Mr. Ellsworth to acknowledge that the mission was sent to him without any previous acquaintance on his part with the President's intention, that it was backed by a unanimous confirmation from the Senate, that it was pressed upon him by the united sentiment of the whole country, and that his acceptance of it, even in connection with his chief justiceship, was justified by the illustrious precedent of Chief Justice Jay.. A suggestion on his part, in fact, of a resignation of his judicial office, was met by both the dominant party and the opposition, with decided resistance, for nowhere, as it was said, even by the most fervent of the democratic organs, could a chief justice be found by whom the dignity and impartiality of the bench would be so well maintained. But in October 1800, when communicating to the President the successful result of the negotiation, he found himself obliged to end his judicial tenure with his diplomatic career.† "Sufferings at sea," he says in a cotemporaneous letter to Mr. Wolcott, "and in a winter's journey through Spain, gave me an obstinate gravel, which, by wounding the kidneys, has † 2 Gibbs' Wol., 434.

* 2 Gibbs' Wol., 461.

drawn and fixed my wandering gout to those parts. My pains are constant, and at times excruciating; they do not permit me to embark for America at this late season of the year, nor if there, would they permit me to discharge my judicial functions. I have therefore sent my resignation as chief justice, and shall, after spending a few weeks in England, retire for winter quarters to the south of France."

But the distressing malady with which Mr. Ellsworth was afflicted spent its force upon his frame, and rather added to, than diminished the keenness and vigour of his intellect. Such, indeed, has been the usual effect of gout, the mind playing with redoubled brilliancy over the tortured body, very much in the same way as the flame of the chemist multiplies in intensity as the decomposition of the elements from which it issues, proceeds. Those last wonderful speeches of Lord Chatham, the like of which the world has never seen for their condensed brilliancy, passion and power, were made from a frame swathed in flannel, and from lips tinged with the meadow saffron.

Mr. Ellsworth, on his visit to England, was taken to a seat on the King's Bench, where Lord Kenyon-then rapidly approaching the close of his long tenure, and in the last year of that old-fashioned green coat which Mr. Erskine declared had been bought nearly a quarter of a century before-was sitting with Judge Le Blanc and Judge Grose. It was, as is said, during the train of arguments which are reported in the beginning of the first volume of Mr. East, that the American Chief Justice visited Westminster Hall. The famous case of Rex versus Waddington was then before the Court, in which all the leaders of the bar were retained, and at the inception of which a scuffle is said to have taken place, near Mr. Garrow's chambers, between the emissaries of the two contending interests, each seeking to be the first at the door of that eminent advocate. Mr. Law led off for the defendants in the proceeding in arrest of judgment, and was followed by Mr. Erskine, Mr. Garrow, and Mr. Scott. Notwithstanding Mr. Jay's previous appearance at the Court of St. James, and the cotemporaneous presence there of Mr. King, the fame of their accomplishments had not reached the King's Bench, whose precincts they had probably never invaded; and it was, consequently, with great curiosity that the elder lawyers, whose notions of America had been derived from the kidnapping cases which were the only precipitate cast on the reports of the privy council by the current of colonial litigation, spied out the American Chief Justice. Mr. Ellsworth's simple but dignified carriage, so much like, as is said, those of his successor on the bench, were in happy contrast to the awkwardness of the English Chief Justice; and as soon as it was discovered that, though his worn and marked features bore a stamp which had not then become familiar to the English eye, he was neither an Indian nor a Jacobin, two things regarded as equally beyond the limit of civilized sympathy, he was surrounded by a knot of lawyers curious to know how the common law stood transplanting. Still the obscurity which hung about the history of the American Republic, could not but produce some confusion; and it was with this view of the supposed Creolishness of the American people-a hybrid between the Englishman and the Indian, mingling the distinctive powers of each without that power of perpetuating them, which the old philosophers thought only belonged to unmixed races-that Judge Grose, with an air, it is said, of grave delicacy, enquired whether the obstruction of the course of descent had not turned fee simples into life estates. Perhaps to the same uncertainty may be traced the question which Mr. Garrow is said to have addressed to the American Judge, "Pray, Chief Justice, in what cases do the half-blood in America take by descent?''*

On his return to America, Mr. Ellsworth, then in his fifty-sixth year, retired

* 3 Amer. Law. Mag., 266.—See generally Am. Register for 1807, p. 97.

to his farm at the little town of Windsor, where by the side of the Connecticut, in the midst of his family, he sought for the repose which his racked frame needed. In retirement, however, in the strict sense of the word, he remained but a little while. Elected shortly afterwards to the State Council, neither the sense of approaching age, nor the dignity of the high offices which he had held, interfered to prevent his accepting the new duties which the will of the Commonwealth assigned to him; and as a member of that body, and ex-officio, one of the Court of Errors and Appeals, he continued with at least equal energy to display that remarkable intellect which in the Senate, and on the Bench had been alike distinguished for its guileless simplicity, and its commanding power. When, in 1808, the State Constitution was remodeled, he received the appointment of Chief Justice, an office which he was about to assume when a fresh attack of disease convinced him, that even if his days were prolonged, they would thenceforward be incapable of labour. Still, however, engaged in discharging his duties as a member of the Legislature, he continued to give his unabated attention to the affairs of the State, until the end of Nov. 1807, almost immediately after his return from the session then shortly before held at New Haven, he was seized with symptoms of peculiar violence under which he gradually sunk, and on the 26th of the month expired.

Mr. Ellsworth's State opinions are to be found in Kirby's and Root's Reports, and those delivered by him in the Federal Supreme Court, in Dallas. Though by no means an easy writer, sharing in this respect the peculiarity of almost every great judge whom the common law has known, his judicial efforts, clear, simple, succinct, and logical, admirably contrast with the turgid dissertations of Judge Wilson, and the coarse harangues of Judge Chase. As a judge, he should be spoken of with peculiar reverence, for the whole of our federal system was made by him. In other countries, the courts date their origin from days unknown, and the only merit which each successive artizan can boast, is the remodeling of the interior, the adding of an outhouse, or the putting on a fresh coat of paint. But, by Mr. Ellsworth the whole edifice, organization, jurisdiction and process, was built as it stands now. In Mr. Adams' time, it is true, the dominant party-perhaps thinking that the expanding litigation would require new accommodations, perhaps with a desire to establish in one department, at least, a spot of secure retirement-stuck on a wing of collateral tribunals, which in Mr. Jefferson's time were swept away. It is no small tribute to the compactness and strength of the original structure, that neither in the building or in the removal of the additions which were thus made, were its walls shattered, or its foundation loosened.

It would hardly be right, after dwelling so long on Mr. Ellsworth's public character, to pass over what, after all, was the secret of the peculiar affection and confidence with which he was everywhere regarded. Almost in his boyhood, he joined the Congregational Church, and though the austerities which, perhaps, in the little Connecticut towns, attach to that denomination, were softened by a liberal collegiate education, and by his early and general intercourse with the world, he never ceased to regulate himself, in public and private life, by the spirit of the summary which the wisest of all lips has given of the ten commandments. There was a simple-hearted, frank, but delicate regard for the feelings and interests of others, which sprang from a principle, and not from policy, and which, joined to a great simplicity of manner

The careless stillness of a thinking mind
Self-occupied, to which all outward things
Are like an idle matter-

gave him that peculiar engagingness, which in days of great license, enabled him to enjoy honour without envy, and patronage without discontent. But it is to Judge Chase, beyond all his brethren on the bench, that the

attention of the readers of the following trials will be directed. He had that singular instinct for tumult which scents it at a distance from whence it is imperceptible to other eyes, and irresistibly impels a participation in it. The brief history of the sedition law was to him one uninterrupted progress of assizes. In Philadelphia, after having convicted Cooper, he succeeded in raising so great an insurrection at the bar, that its leaders refused to appear before him. Proceeding to Wilmington, his first announcement to the grand jury was that" there was a seditious printer within the State, in the habit of libeling the government of the United States," whom he pointed out to them as a fit subject of prosecution; and then hurrying to Richmond, with Callender's "Prospect Before Us" in his pocket, he proclaimed in advance his determination. to root up a weed so rank, and to make Richmond, in the heart of the disaffection, witness the operation.* Almost every one of the political trials of that most disordered period was marked by his presence, and with such melancholy effect did he identify himself with the "corporal punishment," as it was called, with which the press was then visited, that with scarcely a defence from the newspapers on one side, his name was met with a howl of indignation from those of the other. Once, at least, he was threatened by a mob; several times the court rooms where his "exercises" were conducted, became scenes of uproar; and he drew such discredit upon himself as to provoke an impeachment, from the consequences of which he escaped only through the narrow strait between a bare majority, and a majority of twothirds, and brought such odium upon the court, as to work a repeal of whatever about it was repealable, and to involve the rest in a degree of unpopularity from which it was only slowly relieved by the stern public and private virtues of its new chief. And yet he was a man of personally amiable disposition, a good lawyer, possessed of a robust and clear intellect, industrious, intrepid, and firm. On such a character, so closely connected with this volume, perhaps a digression of more than usual length may be permitted.

Samuel Chase was born in 1741, in Somerset county, Maryland, in that small though not unpretending peninsula, known by the name of the "Eastern Shore," a district in which fifty years ago, were collected many of the oldest and proudest families which the colonial system had produced, and where still are to be seen not unfrequently, the stately mansions, which once in the midst of the richest soil then known on the Atlantic coast, abounded in the best cheer and the most profuse hospitality. The son of a clergyman, he received a thorough classical education, and on his father's removal at an early age to Baltimore, then a mere village, he found himself ready to enter into practice with the advantages of a commanding person, a sweet but sonorous voice, and an intrepidity of temper, which made no flight either of speech or of action too bold for him to attempt. To Annapolis, however, as the metropolitan town, were his feet soon turned; and there, through the large business and the small number of lawyers, he found himself at once a leader. In the colonial legislature, of which he soon became a member, his vehement temper manifested itself, not only by his ardent republicanism, but by what his biographer somewhat gently calls his "uncourtly bearing" to the "court" party. Even the tumultuous scenes of the colonial assembly, on which a mob was in daily attendance in the lobbies, did not satisfy his impetuosity; for on one occasion, in company with a band of the "sons of liberty" as they were styled, he participated in an attack upon the public offices, which ended in the destruction of the stamps, which, under the suicidal stamp act of 1774, had been collected at the seat of government. To the first Continental Congress he was a delegate, and continuing in that illustrious body till 1788, he took a part in its proceedings, which on several occasions gave him full play.

• See post, 718.

† 9 Biog. of Signers, 190.

To the Declaration of Independence his name was attached, he having, to his great credit, worked with restless energy and final success to lift from the Maryland delegation the instructions which for so long kept them from assenting to that great measure; and hardly was the tie sundered with the mother country, before in connection with Dr. Franklin and Mr. Carroll, he was placed on that bold but fruitless mission, which was projected for the dismemberment of the Canadas. A series of commercial engagements followed, several of which, in the heats which succeeded, were frequently raked up as party engines, and one of which, under the name of the "cow-tail" contract, was a fertile subject for declamation, but in none of which, as afterwards fully developed, he can justly be said to have exceeded the bounds of legitimate speculation; and though a vote passed the Maryland legislature, providing, that no one "engaged in commerce" should be sent to the Continental Congress, under which he was temporarily excluded, an attempt made, under the auspices of General Cadwalader, to impeach him in the Maryland House of Delegates, signally failed. That the confidence of his own State remained unimpaired, is shown by the fact, that hardly had peace been settled, before he was sent by the Legislature to England, to conduct for it there a claim involving both a large amount of money, as well as considerations of delicate political interest. On his return, he was first appointed Chief Justice of a Criminal Court, then just organized in Baltimore, and in 1791, was commissioned as Chief Justice of the General Court, positions which, however inconsistent, he continued to hold until a joint resolution passed both Houses, declaring the juncture of the two offices unconstitutional. Perhaps, however, this procedure was accelerated by a tumult-not unlike that which in a more exalted sphere, it was his misfortune to excite in the course of which he was presented by a grand jury, and as a sequel to which, an effort to remove him was lost in the House of Delegates, by a vote of 41 to 20.

But stormy as was his tenure as a State judge, it must be recollected that he sat during stormy times, and though it was his misfortune, as it was said, "to be moving perpetually with a mob at his heels," a suite from which even the judicial office could not separate him, he trusted with general success to his fearlessness to extricate himself from the disorders which his imprudence fomented. Apart from his criminal jurisdiction, a dowry which was destined to be his curse through his long and eventful life, he was reckoned a wise and impartial judge, a master of the common law, and a thorough and indefatigable administrator of his public functions. Perhaps it was in this view of his character, that Washington, in Jan. 27, 1796, nominated him to a seat on the Supreme Federal Bench. That the appointment was unsatisfactory, at least to a respectable section of the President's advisers, appears from a letter from the elder Mr. Wolcott, written a few days afterwards. "I knew Samuel Chase, and to you I will say that I have but an unworthy opinion of him. The character of the government will depend upon that of its officers. To respect a man because he is of a party, and to gratify them, will always be found false policy."

Judge Chase's politics, in fact, which, to do him justice, he never had kept in the back ground, had been, at the beginning of the Revolution, of so vigorously democratical a character, as to shock the steady temper of the New England statesmen, as much as his ardent centralism at the period of his nomination, ran athwart of their sturdy republicanism. "Yes sir," he said to his son-in-law a short time before his death, "you are a Democrat,

See a notice by Judge Chase of his pecuniary transactions, in Virginia Examiner for July 15, 1800, and reply thereto in Aurora, for August 6, 1800. † 9 Biog. of Signers, 233. 11 Sparks' Wash., 107, 240. § 1 Gibbs' Wol., 300.