that the fedition law was unconftitutional, and fhould therefore find the traverser not guilty, let the evidence be what it might. He requested me to interfere with the marshal, and obtain his difcharge. I fpoke to the marshal and informed him of Col. Harvie's having made up his mind, and that of courfe he was an improper person to serve on the jury. The marshal replied, that Col. Harvie muft apply to the court, because he had determined to conduct hinfeif in fuch a manner as to prevent fufpicion of prejudice against Cal. lender. I applied to the court for Col. Harvie's difcharge, on the ground of his being high fheriff of Henrico county, Whofe court was then fitting; upon this ground he was discharged. other reafon to Q. Did ftate any you the court, why he ought to be dif charged? A. I ftated none other. John Marshall cross-examined by Mr. Q. Was you prefent at the trial of A. I was. Q Did you fee any thing unufual in the mode of conducting that trial? A. There were feveral circumstanees which do not always occur in trials, both on the part of the bench and bar. Q. Were the interruptions of counfel more frequent than usual? A. The counfel for Callender wifhed to bring before the jury the queftion of the conftitutionality of the law. This the court determined to be improper, and whenever the counfel attempted to argue it before the jury, they were stopped. After being ftopped on that point, an ar gument was commenced on the part of Mr. Hay, to prove to the judge, that he was not correct in the opinion which he had given. Immediately on his cominencement the judge ftopped him, and told him that what he faid was not law. Some converfation enfued between them; and Mr. Hay left the bar. Q. Did thofe interruptions take place only when the counfel attempted to argue the conftitutionality of the law, or did A. It began early and progreffed with the cafe, but I do not recollect the caufe of it. Q. Is it ufual for judges to hear coun. fel on a point which they have decided? A. It is ufual for a judge, if he believes a cafe clear, to fhorten the argument; but if the counfel express a defire to be heard, it is a piece of decorum to hear them. Q. Is it the practice in the circuit courts for the judges to adjourn the court for a length of time, and hold a court at a different place, then come back and re-open the court? A. I only know the practice in those courts where I have been, and I have never known it to be the cafe. Q. Has it ever been the practice to com pel the counfel to reduce questions to writing, and fubunit them to the court? A. It depends on the circumftances of the cafe. If doubts are fuggefted as to the propriety of the queftion, the judges will do right to have it reduced to writingEut uniefs there is fome particular reafon for it, I have never known counfel com. pelled to reduce their questions to writing. I have never known questions reduced to writing in the first instance. Q. Did you ever, in a criminal profecution, know the teftimony of a witness to be rejected, becaufe he was unable to prove all the defence? A I never have. Questions by Mr. Harper. Did not judge Chase make an offer to pottpone the trial? A. I recollect that fome queftion was made before the trial, The counfel for Callender were of opinion that they ought to have had until the fucceeding term, as they had filed an affidavit ftating the abfence of a number of witnefes. At that time a poftponement took place for a few days, which appeared fufficient to obtain the attendance of the witneffes that lived in Virginia. There was an obfervation. on the part of the judge that the counsel fhould have time to prepare for trial. I think he said they might have a month. Q. You have been asked whether it is the practice for courts to adjourn-have not the courts the power to do it? A. I have never turned my attention to the act of Congrefs on the fubject. Quefion by the Prefident. Do you recollect any inftance where the conduct of judge Chafe was tyrannical and oppreffive, during the trial of Callender? A. I have ftated the conduct of the judge, and the court will be able to judge whether it was tyrannical or oppreffive. When Mr. Hay was about to retire, the judge defired him to go on and affured him that he would not be again interrupted. Question by Mr. Worthington. Is it ufual in Virginia to try cafes fimilar to that of Callender at the fame term the prefentment is made? A. My practice was never extenfive in criminal cafes; I believe, however, it is not ufual. Question by Mr. Randolph. Did you hear the judge apply the epithet of" young gentleman"! to either of the counsel? A. I think I heard him apply it to Mr. Wirt. A. I was not in court when Callender was brought there. I was prefent when an application was made for a continuance and overruled. Q. Do you recollect an offer made by judge Chafe to poftpone the trial ? A. Judge Chafe informed the courfel that he could not continue the cause, but that if they would fix any time, when they fuppofed they would be ready, he would poftpone the trial until that time. He obferved that he would postpone it for a fortnight, for a month, and I am not certain but he added that he would poft. pone it for fix weeks. John A. Chevalier fworn-examined by Mr. Harper. Q. Was you prefent at the trial of Cal. lender ? A. I was in court during a part of the trial. Q. Did you hear a motion made by the counfel for a continuance of the caufe ? A. I did not. Q. Did you hear an offer on the part of Q. How old do you fuppofe Mr. Wirt the court to poftpone the caufe. was at that time? A. I fuppofe he was about thirty. Q. Was he a married man or a widower? A. He was a widower, A. I do not recollect. John A, Chevalier-crofs examined by Mr. Randolph. Q. How long have you been in Ame. rica? A. About twenty years. Q. Have you been much in the habit of attending courts of justice? A. I have not. Q. Did you obferve any thing unusual at the trial of Callender? A. I did not, Robert Gamble Sworn-examined by Mr. Q. Was you prefent at the trial of Cal- A, I was prefent when the motion was made for a continuance. The judge ob. ferved that the caufe could not be continued, but that he would poftpone it for a month or even fix weeks, or as long as the term would admit, Philip Gooch, worn-examined by Mr. Q. Was you prefent at the trial of Cal. lender in Richmond? Did you hear the converfation between the court and Mr. Baffet, relative to Baffet's ferving on the jury, and what I was it? A. Mr. Baffet faid that he had feen extracts in a newspaper which were faid to be taken from the Profpect Before Us," and that he had formed an opinion that whoever was the author, he came under the fedition law. Judge Chafe afked whether he had made up his mind on the charges in the indictment, to which Mr. Bas et replied that he had not, and he was directed to be fworn on the jury. I did not know what the charges were myfelf, but I did fuppofe that they were for a viplation of the fedition law, and that was the general opinion. Q. Did Mr. Baffet mention to the court that he wished to be excufed from serving on the jury? A. He merely fuggefted the impreffions made on his mind as a fcruple of delicacy. Robert Gamble-cross examined by Mr. Q. At the time when you informed the court that you had not formed and delivered an opinion upon the charges in the indictment," had you ever heard it read A. I had never seen the indictment, por heard it read. Q. Had you made up your mind as to the book called the Profpect Before Us? A. I had never feen the Profpect. Q. You were prefent when the court offered to poftpone the trial; upon what day was this offer made? A. I do not recoll:&, A. I was prefent a part of the time.— did not hear what was going forward until the jury were called. Q. Did you go there for the purpose of hearing the trial ? A. I, had never feen a circuit in feffion, and I was anxious to hear the trial of Callender, and for those purposes I went to court. Q. What did you obferve on the trial? A. When Mr. Baffet fuggefted to the court fome question whether he was a fit períon to ferve on the jury, the court decided, that he muft not only have formed, but delivered his opinion alfo, and judge Chafe proceeded to give fome reasons for it, but at the same time he consulted with the affociate judge. I fat near them and could hear their confultation. Baffet was then fworn on the jury. Mr. Nelfon the profecutor, then opened the cafe, and informed the jury that he should be able to prove the publication; he then went on and examined the teftimony. ter this the counfel for the traverfer called colonel John Taylor as a witnefs. After he was fworn an objection was made to his teftimony, and judge Chafe declared it inadmiffible. When he made this determination he confulted with judge Grif fin, who declared himself to be of the fame opinion. Judge Chafe then obferv. ed that the counfel were men of talents and knew the evidence to be inadmisible, and they wished to alarm the people. He then turned to Mr. Nelfon and faid, "I with you Af. jury. Mr. Nelfon replied that he could would fuffer the evidence to go to the not. Judge Chase asked him a second time, and he faid he wished he could, but that it was contrary to law. Mr. Wirt opened the cafe on the part of the traverfer, and faid fomething about the court's prohibit ing them. Judge Chafe interrupted him and told him that he muft not reflect on the court, and he made an apology. Mr. Wirt endeavored to fhew the jury that the fedition law was unconftitutional, but the court told him that he had no right to argue that queftion before the jury. Mr. Wirt went on and the judge ftopped him. Mr. Wirt faid "I am going on." Judge Chafe faid, "No fir, I am going on," and told him to fit down. The judge then delivered a long opinion, and faid that the jury were to judge of the law as well as the fact, but not of rhe conftitutionality Vef the law. Mr. Wirt faid that if the jury had a right to judge of the law, and the conftitution was the fupreme law, it followed that the jury had a right to de cide on the conftitutionality of the law. Judge Chafe replied that it was a non fequitur, and made a bow, and Mr. Wirt fat down. This produced a confiderable degree of merriment. Mr. Nicholas then rofe and fpoke, and I believe he was not interrupted by the judge. Mr. Hay then followed and was interrupted two or three times by the judge. Mr. Hay then folded up his papers to retire, when judge Chafe faid, "fince you are fo captious, go on and fay what you pleafe;" but Mr. Hay declined going on and retired from the Bar. Q. Did Mr. Wirt appear hurt when he fat down? A. I thought he did. David Robertfon fworn-examined by Mr Q. Was you in court at the trial of A. I came into court when Mr. Hay made his laft motion for a continuance, I took down, for my own amufement, the proceedings in fhort hand. I have compared the short hand notes with the printed statement, which was published at the requeft of fome of my friends, and to which I will refer. [Here Mr. Robertfon read his statement as follows:] The fubftance of Mr. Hay's conclufion was That a poftponement of the trial till the witneffes were prefent, and counfel prepared to defend the traverfer, was effential to juftice-that this delay was of great importance to the traverfer, as not only his little property, but his liberty, was at ftake; that as to the United States, an immediate trial could be of no confequence--that the government of the U. States must forever rest on the affections and opinions of a virtuous and enlightened people:-That, ftanding on this bafis, thofe who adminiftered it, could never be affected by the abufe and declamation of an infignificant and friendless foreigner. Mr. Nicholas then made a few obfervations-We conceive that the testimony of Mr. Giles is extremely important; he will prove, as Mr. Callender has ftated in his affidavit, that Mr. Adams, the Prefident, wifhed that the executive had Q: Was the manner of judge Chafe to power to control the public will. the counfel rude? A. When he told them that they knew the law to be contrary to what they faid, I thought the expreffion rude, because it implied a breach of duty. Q. Did not judge Griffin concur in all the opinions delivered by judge Chafe? A. I thought he did. This teftimony, when compared with the books of the prefident, will fubftantiate the charges in the hook written by Mr. Callender. It will go strongly to a confirmation of the charges in difpute; it goes directly to that part of the indict. ment, where he is charged with having faid, that the prefident is a profeffed arifIt has been fated, that as there tocrat. are nineteen charges in the indictment against the traverfer, though we prove eighteen of them to be true, yet he must Q. What were the words which judge be found guilty, because we do not prove Chafe made ufe of when he told Mr. Wirt to fit down? the truth of the nineteenth-but how is it poffible for us to defend ourselves, or A. They were "please to fit down, how can we be prepared for trial, if the Sir." witnefs, by whom we can prove that particular charge, be abfent?-If the court think, that, in order to justify ourfelves, we must prove the whole libel to be true, and it fhall appear, that teftimo. ny to prove a particular charge is wanting, the court will afford us an opportu nity of adducing it. I conceive, with fubmiffion, that the former judgment of the court, in particularly poftponing the trial, admitted the evidence of Mr. Giles to be material, and that his perfonal attendance would be effential to justice. Here judge Chafe informed Mr. Ni. cholas, that he had not apprehended the opinion of the court rightly, and that al. though on the application of the counfel for the traverfer, the court had given them the choice of poftponement of the trial till to-day instead of a few hours; yet it was not meant by that indulgence either to declare the teftimony of Mr. Giles material, or to poftpone the trial till another term, on account of his abfence. Mr. Nicholas then urged once more the neceffity of poftponing the trial till Mr. Giles could attend: the queftion, faid he, on a motion for a continuance is, can the testimony of the abfent witness fubftantiate the defence, or the point in iffue? How can it be done, if the witness be not prefent? When a witnefs, to prove the truth of a particular charge, is abfent, I truft the court will give us time to avail ourfelves of his evidence, and will not precipitate a trial, when a trial will not demonstrate that the decision is right for if the defendant be found guilty when his witnelles are abfent, and counfel unprepared, the verdict will not fatisfy the public mind of his guilt. Here judge Chafe ftopped Mr. Nicholas, and addreffed the counfel for Mr. Callender thus: "It is wholly improper to go back to the former motion--Gentlemen, you mif. apprehend the intention of the court, in poftponing the caufe till to-day-you ought to confine yourfelves to the prefent motion. Two reafons are affigned for poft. poning the trial: the firft, that Mr. Giles is abfen, and it is inferred that the court, by not ruling a trial before, admitted his evidence io be material-the court did not enter into the question whether it be material of not. It appeared that he was within a little difance of this place, and the caufe was fufpended till Monday, that Mr. Giles might be fummoned before that day to attend. On Monday you asked for a poftponement of the trial for a few hours, and it was flated that perhaps he might come in the courfe of the day. Instead of a few hours, you had choice of continuing it till to-day. Mr. Giles has been fummoned, and does not attend--regularly you ought to take out an attachment against him for not attending, after having been ferved with the fubpœna, and apprifed, that his evidence was required by the traverfer: there is no reafon to believe he will be here during the term of the court-you do not expect him. It fuch of the trial, it must be evident that this excufes as thefe authorife a poftponement caufe will never be tried. It is not neceffary to fay whether Mr. Giles, if prefent, could be fworn or not, because the traverfer is not entitled,' on general prin. ciples, to a continuance. Another reafefs the fine, it is effential that the traverfer fon affigned is, that as the jury are to af fhould have the privilege of adducing tef timony to mitigate it. This may be the practice in your own state courts-your own court will be governed by your own larvs ; but it does not apply to the federal courtsis a mistaken idea: they have nothing to the jury are not to regulate the fine. do with it. But it is ftated that the counfel are unprepared to defend the traverser : you fhew yourselves to be men of ability, and there is no difficulty in the caufe; but you fay that you are not ready to difcufs the difference between fact and opinion: that the charges in the indictment are merely opinion, and not facts falfely afferted. Muft there be a departure from common sense, to find out a conftruction favorable to the traverfer?-This conftruction admits the publication but denies its criminality. If the traverfer certainly published that defamatory paper, read it and confider it. Can any man of you fay, that the prefi dent is a deteftable and criminal man? The traverfer charges him with being a murdererer and a thief, a defpot and a ty rant !-will you call a man a murderer and a thief, and excufe yourself by faying it is but mere opinion, or that you heard fo? Any falfehood, however palpable and wicked, may be justified by this fpecies of argument. The queftion here is. with what intent the traverfer published It |