without which every other right is of no value, will be impaired, if not abfolutely defroyed. Juries are to decide according th the dictates of confcience and the laws of the country, and to control them would endanger the right of this moft invaluable mode of trial. I have understood that fome reliance would be placed on two decifions of the courts of this state, in which they determined two acts of our legiflature to be unconstitutional; but when we come to analize thefe decifions, they will not authorife the belief, that the jury have not the right contend for, they only prove that the judiciary can declare legislative acts to be unconftitutional; they do not prove that a jury may not have a fiajlar power.-Ia the cafe of Kamper vs. Haw kins, they refufed to carry into effect a law which gave the district courts a right to grant injunctions in certain cafes, be. caufe they thought it unconftitutional, and that the courts had no power to act, under the law that cafe did not turn on a relative view of the power and connection, of a court and jury; it was a queftion whether the courts would exercife, a particular jurifdiction and carry into ef. fect, that act, as practifed by the judges in chancery, but they never decided that a jury had not a right to determine on the conditutionality of a law, nor could a queftion about this right have arifen in thofe two cafes; the court faid that the judiciary were not bound to carry into effect an unconftitutional law. I do not deny the right of the court to determine the law, but I deny the right of the court to control the jury; though I have not bestowed a very particular attention an this fubject, I am perfectly convinced that the jury have the right I contend for; and confequently that counfel have a right to addrefs them on that fubject. The act of congrefs to which I have alluded, appears to have given to the jury the power of deciding on the law and the fact; and I truft, that when this whole queftion comes into confideration, the court will fuffer the counfel for the traTerfer to go on to fpeak to the jury, fubPa to the dilection of the court. P Mr. Hay rofe after Mr. Nichols cont cluded, and obferved, that he was prepa-. red to addrefs the court on the extent of the powers of the jury, in the cafe at bar. The arguments, faid he, which I fhall urge, I fhall addrefs to, the court, not withing to be heard by the jury, or to be attended to by the numerous auditory now prefent. A question of great ims portance depends on this decision; much of the public happiness, of the public peace,, of the public liberty, depends on the final decifion which thall be pronoun ced on this subject. I entertained doubts at first, but a calm and difpaffionate en. quiry, and the most tenperate reflection, have led me to believe and to say, that the jury have a right to determine every, quetion which is neceffary to determine; before fentence is pronounced upon the traverfer. I contend that the jury have a right to determine whether the writ ing charged in the indictment to be falfe, fcandalous and malicious, be a libel or not. If this question fhould be decided in the affirmative by the court, I shall endeavor to convince the jury, that it is not a libel, because there is no law in force. under the government of the United States, which defines what a libel is, or preferibes As punishment. It is an univerfal principle of law, that questions of law belong to the court, and that the decifion of facts belong to the jury; but a jury have a right to determine both law and fast in all cafes. Here judge Chafe aked Mr. Hay, whether he meant to extend his propofi tion to civil as well as criminal cafes, and told him, that if he did, the law was clearly otherwife. Mr. Hay anfwered, that he thought, the propofition univerfally true, but it was only neceffary for him to prove it to be true in cafes of a criminal nature. Judge Chafe again interrupted Mr. Hay, and briefly expreffed his opinion of the law. And then Mr. Hay folded up and put away his papers, feeming to decline any further argument. Judge Chafe requefted him to continue his argument, and added-pleafe to proceed, and be affured that you will not be interrupted by me.” Mr. Hay refused to proceed. Judge Chafe obferved, that though he thought it his duty to stop the counfel, when miflaking the law, yet he did not wish to interrupt them improperly; that there was no occafion to be captious; and concluded thus, "act as you please, fir." And after declaring that he withed the fentiments and opinion which he was about to deliver to be published and known to the world, he read an opinion thewing that the jury had not a right to determine on the conftitutionality of an act of congrefs. After the judge had pronounced this opinion he explained the iffue to the jury. He faid that the fact of publication must be proved, and it muft appear to be falfe, fcandalous and malicious. He then ftated, the length of time in which Mr. Adams had been in the service of his country, and the eminent fervices that he had rendered it, and added that he was extremely happy that Callender was not a native American. The jury then retired, and after an abfence of about two hours, they returned into court and pronounced a verdict of GUIL. TY. Q. When the fammons is iffued, when is it returnable? A. To the next court. Q. Have you ever known an instance when a party was ruled to trial at the first term ? A. I have known cafes of felony tried immediately after the prefentment was found. Q. Have you known any cafe less than felony fo tried? A. I never have. Q. Did you hear any offer, on the part of the court, to poftpone the trial of Callender? A. I came into court at the conclufion of the laft motion for a continuance, I therefore did not hear it. Q. Is it in the power of the court to iffue what procefs they please? A. I not only think it in the power, but I think it the duty of the court, to iffue what procefs they conceive to be moft proper. Q. In those two cafes which you have mentioned, was there any motion to continue the causes ? A. I do not recollect that there was. Q. In what manner were they proceeded David Robertfon erofs-examined by Mr. againft? Q. Did you fee any A. I did not obferve more. Q. Have you not for a long time been an attorney and alfo a profecutor? A. I have practiced law for more than fixteen years, and am profecutor in two districts, having criminal jurifdiction. Q. What is the mode of proceeding in eriminal cafes, not capital? A. Most of the mifdemeanors which are committed in those diftricts are affaults and batteries. The firft procefs is a fummons; and upon the return of that. if the party does not appear, then a capias iffues. I do not recollect but two cafes when imprifonment was the punishment and the parties were in court. One of them was a confpiracy to poifon and the other an attempt to burn a houfe, and both were panifhed with fine and imprisonment. A. The one was proceeded against by an information and the other by indict. ment.c The court then adjourned. MONDAY, February 18, 1805. William Marsball. Q. Have you ever known an inftance of a court's adjourning for more than from day to day? A. I have never known the circuit court to adjourn longer but once, and that was from a Tuesday to the Saturday following. The gentlemen of the bat were then engaged in the fuperior court in Richmond, and the adjournment took place to accommodate them. I have never known an inftance of an adjournment taking place and another court being held in the intermediate time. Questions by Mr. Harper. We have heard much of the political characters of a number of gentlemen; what was the political character of Mr. Nelfon, the attorney, at the time Callen. der was tried? A. He was oppofed to the then admin iftration. Q. Have you known inftances where the courts have decided, before judge Chafe went to Richmond, that the ftate laws, did not govern in the manner of affefling the fine? A. There had been two inftances of indictment before the trial of Callender, one before judge Iredell and the other before Juu Witfony and they both decided that the court would aßless the fine. Q. In what manner did they mention this? A. The jury were about to be fworn, and the ftate law was mentioned, but judge Wilfon immediately declared that it was the province of the court to affefs the fine. There was no verdict in this cafe, but there was, in the cafe in which judge Iredell prefided, a general verdict of guilty, but the judgment was afterwards arrested for fome detect in the indictment, Q. Did the counsel contend for the right of the jury to affefs the fine ? A. The point was mentioned by the counfel, but was not argued. Q. Are you not profecutor of the court held in Richmond? A. I am. Q Have you not known a capias to have iffued, in cafes of mifdemeanor, and the caufe tried at the firft term? A. I recollect a capias once to have iffued; but he caufe was not tried at the first term. I have repeatedly tried cafes of mifdemeanors at the first term. 9. Did you try any of them when a motion was made for a continuance ? A. Generally when a motion was made for a continuance I fuffered it to take place; but I never confidered it as a matter of right. QIs the court you fpeak of created by an act of the legillature ? A. It is. Q. Do you recollect an inftance where a motion was made for a continuance, and yet the cafe tried at the first term? A. I do, it was the cafe of a man whe was prefented for receiving a hogfhead of tobacco out of a dray driven by a negro, a motion was made for a continuance, but it was refused, and the jury fined him one hundred dollars, and the court fentenced him to be imprisoned for fix months. James Winchefter examined by Mr. Harper. Q Is it not the practice in Maryland to adjourn courts? A. It has been a conftant practice ever fince I have been acquainted with the courts for them to adjourn to any time they thought proper. I was a fhort time clerk to the circuit court of Maryland I was afterwards a member of the bar, and, fince the year 1798, have been district judge, and I have never heard their right to adjourn difputed. The ftate courts of Maryland are in the conftant pr ctice of adjourning. Q. Do they try caufes at the adjourned courts? A. Certainly they do; but I have no recollection of seeing a criminal tried at one of them. Q. Do you not know that judge Chafe once adjourned the court in Maryland and went to hold a court in Delaware? A. I think I recollect that he once did, Question by Mr. Key. Was there not an adjournment of the court from May to December? A. There was. Question by Mr. Randolph. Have you ever known any other of the judges of the circuit court to do this, except judge Chafe? A. I do not recollect. William Rawle examined by Mr. Harper. Q. Is it not the practice for the circuit courts to adjourn? A. The rt time I recollect the fubject to have been difcuffed was when Mr, Jay, the then chief justice, prefided. Some occafion produced a wifh for an adjourn ment. The judges called me up to the bench and requested me to examine whe ther they had the power to do it. I ac cordingly examined the act of congrefs, and told the court that in my opinion they had a right to adjourn, as the length of their feftion was not limited by law, and The next inftance that I remember, was both the judges were of the fame opinion.offence, for the attorney to fend up an indictment, and upon its being returned a true bill, a capias is ordered to issue upon the indictment. I have had occafion to make the point, but the courts have uni. verfally determined that under the words of the law, "other proper procefs," they had the power to award a capias. In the diftrict courts I have known a capias to iffue in the first inftance on an indictment, for an affault and battery. Question by Mr. Hopkinfon. Was it not contemplated to adjourn the court laft fummer until January ? A. It was contemplated, provided the fever fhould be in Philadelphia. Mr. Harper. Previous to our examining Edmund I. Lee examined by Mr. Harper. A. I have practiced law in Virginia not There Q. Has not the circuit of the district of Columbia, fitting in Alexandria, when the laws of Virginia are in force, determined that a capias was the proper procefs. A. The court did fo determiss Mr. Mafon, the profecutor, has uniformly flued a capias on all indictable offences. ་ Q. Is not a capias the only mode of arrest in Virginia ? A. I have never known any other. Q. Where did Mr. Nelfon, the late at torney, of the diftrict of Virginia, refide? A. He refided in York county. A. The next court. Q. Have you been much engaged in criminal profecutions ? A. Only in the county courts. Q. Did you ever hear of a bench warrant in Virginia ? ~ A. I never have. Q. Have you ever known a man to be taken up on a magistrate's warrant and held to bail ? exceed five dollars, a fummons if. fues. There are fome offaces which may be profecuted in the district courts where the penalty does not exceed 20 do!lars, there a fummons idues. There are fome proceeded against by way of infor mation, and there a fummons iffues; but in the courts in which I practice, I have never known a fummons to ißlue for the Gunning Bedford fworn and examined by appear and answer to an indict- A. I have in cafes of affault and bat. tery. Mr. Harper. Q. Judge Bedford, was you on the bench. with judge Chafe, at a circuit court held at New Cafle, in the state of Delaware, in A. I was prefent and fat as one of the judges on the 27th and 28th of June, 1800, at the circuit court held at New Cattle, at which court judge Chafe preded. Q. What were the circumftances which took place at the court? o'clock, whether there was any thing in them. Mr. Read replied that he would. Judge Chafe then told the grand jury that they must attend next morning at ten o'clock. They complained at not being difcharged and faid that it was a bufy feafon, but the judge faid that the bufinefs about which he had fpoken was important and he could not difcharge them Other bufinefs was then done and the court adjourned. On our way to our lodgings, I obferved to judge Chafe, "why my friend, I believe you do not know where you are, the people in this place are not well pleafed with the fedi tion law." Judge Chase replied, 66 my A. On the morning of the first day of the court, I believe, I arrived at New Caffle, about half an hour before judge Chafe. The court met, and the grand jury being charged by judge Chafe, retired to their room. After being there about half an hour, they returned into court, and being asked by the cleck whe-dear Bedford, no matter where we are or ther they had any prefentments or bills of among whom we are, we must do our duty." indictment, they answered in the negative. We went into court the next day and the The court then called upon the attorney grand jury after being called over retired to know whether he had any business to to their room. In about an hour they reLay before the grand jury, and the reply turned and obferved that they had made was that he had none. The grand jury no prefentment. Judge Chafe then asked then asked to be difcharged. Judge the attorney whether he had found any Chafe obferved that it was not ufual to thing in the file of papers, who replied difcharge the jury fo foon, and turning that he had found nothing except a piece round immediately to me, he faid, "Mr. against the judge himself. Judge Chafe Bedford, what is your ufual practice replied, "my fhoulders are broad enough here, with regard to difcharging grand and I can bear any thing against myself,' juries." I replied that it depended on but where there is a violation of the the bufinefs which they had to do. Judge laws, then will I interfere and have the Chafe then addreffed himself to the grand offender punished." The grand jury were jury and faid, but, gentlemen, I have then immediately difcharged. been informed that you have in this state a feditious printer who is in the conftant habit of abufing the government. His name is but perhaps I may do injury to the man by mentioning his name. Have you ever attended to this fubject?" The grand jury answered that they had not. Judge Chafe abferved that it was their duty to enquire, as he had given them the fedition law in charge, and if there was any truth in what had been told him it was their duty to enquire into it. Judge Chafe further obferved, that it was high time that thefe feditious printers fhould be corrected, that the happiness, honor and profperity of the country depended on it. He then asked the attorney whe. ther he could procure a file of the printer's papers. Some perfon at the bar obferved that he could. The judge then asked Mr. Read whether he would look over the file and fee, by the next morning at ten Q. Did judge Chafe fay any thing about a feditious temper being manifested in Delaware, among a certain defcription of people ? A. I have no recollection of any thing of that kind. I have turned my attention to the fubject ever fince I faw the depoi tion of Mr. Read, which was taken laft winter for the ufe of the houfe of repre. fentatives, but I cannot recollect any thing of it. The converfation which took place on the day of the tranfaction between judge Chafe and myself, makes me believe that I could never have heard thofe expreffions, becaufelif I had I fhould not have told him that I believed he did not know where he was, because those expreffions would have thewn that he did. I faw a publication in the Mirror of the Times," (the paper which had been examined by the attorney) on the fourth of July 1800, which contained a statement |