the refpondent, the pannel of jurors fumanoned for the trial of Callender, and had heard the refpondent tell the marshal, to Strike off all the creatures called democrats," it is perfectly certain that no jury had been fummoned; that the marshal had not taken Callender; that it was perfectly uncertain whether he would be taken; and that no fuch circumstance as Heath related to Mr. Holmes, could poffibly have taken place. For this flat contradiction of their witnefs, we are in debted to the honorable managers, and we tender them our thanks. They have fur. nished us, by the teftimony of the fame refpectable witness, with another contra. diction of minor importance, but not undeferving of notice. Heath fays that he made this communication to Mr. Holmes in the morning. Mr. Holmes ftates, as his ftrong belief, that it was made in the evening. So much for the teftimony of Mr. John Heath; which I leave, without further remark, where it has been placed by Mr. David Mead Randolph, Mr. William Marshall, and Mr. Holmes; and proceed to confider the tranfactions at New.Caftle in Delaware, which form the matter of the feventh charge. And here three queftions prefent them felves for examination. What was the refpondent's conduct on that occafion? How far was that conduct conformable to duty and propriety? What were the motives from which it proceeded?-On all the previous articles, the fame divifion of the matter prefented itfelf to the mind; but the two firft grounds were fully occupied by my learned colleagues. What remained for me, belonged almoft entire ly to the third divifion. Here, and on the eighth charge, being deprived of their able affiftance, it is incumbent on ime to confider the fubject, under each of thefe three points of view. As to the conduct of the refpondent, he admits in fubftance that he did, on the first day of the court, decline to difcharge the grand jury, on their requeft; did ftate to them fome information which he had received, refpecting a feditious printer in the town of Wilmington, who was faid to be in the habit of violating the act of congrefs called the fedition law; and did inform them that it was their duty to enquire into that affair. He alfo admits that he requefted the diftrict attorney to affift them with his advice, in making this enquiry. But he denies that he did utter thofe expreffions, relative to a fedi. tious temper in the ftate of Delaware, or any part of it, with which he is charged. That he uttered thofe expreffions is fworn by Mr. George Read, the dif trict atrorney of Delaware, and Mr. Lee, one of the grand jurors. Four witneffes on the contrary, equally refpectable and equally intelligent with Mr. Read and Mr. Lee, have depofed that they were prefent, that they attended particularly to what paffed, and that they heard no fuch expreffions. Firft judge Bedford, who fat by the fide of the refpondent at that time, who must have heard all that was faid, and who appears to have remarked particularly what the refpondent faid, on the fubject of feditious publications: for he afterwards told him, that he had ufed expreffions which would give offence. Yet judge Bedford did not hear any fuch expreffions, as are stated by Mr. Reed and Mr. Lee. Next Mr. Vandyke, the attorney general of the ftate of Dela ware; a gentleman of high character, whofe manner of delivering his teftimony, proves him to be very capable of accurate obfervation. He attended in court at this time, and was attentive to the proceedings; but he heard nothing of these remarkable expreffions. Then Mr. Hamilton, who attended the court as an affiftant to his father the marshal, fat near the judges, liftened to the converfation between the refpondent and the jury, but heard nothing of thefe remarkable expreffions. And fourthly Mr. Hall, who was in conrt during the whole time, paid particular attention to what paffed, but heard nothing of this feditious temper in the ftate of Delaware, and particularly in the county of New-Caftle, and more ef pecially in the town of Wilmington. On Mr. Moore fo much ftrefs cannot be laid, as on the former witneffes, because he was not patticularly attentive to what paffed on the first day. Leaving him, however, out of the cafe, we have four witneffes against two; and those four witnef. fes were fo fituated, that they must have heard thofe expreffions had they been uttered, and muft have remarked them.Judge Bedford did remark expreffions far Jefs ftrong, which he was apprehenfive But there is another piece of evidence, When this mafs of evidence ftands oppofed to Mr. Reed and Mr. Lee, can we hefitate to pronounce that they have stated what never took place? I am far from intending to charge them with intentional departure from truth. No doubt they understood in this manner fomething that was faid. But it is plain that there muft be a mistake fomewhere. Their teftimony cannot be reconciled with that of the four witneffes for the refpondent; or of the printer, which, under the circumftances of this cafe, is fronger than all the reft; and it is much more probable that two men hould be mistaken than four; and that all the fix fhould be mistaken, than that this printer fhould have been uninformed of, or fhould have omitted to notice, thofe expreffions, if they had been ufed by the refpondent. Thefe expreffions indeed contain nothing criminal. To ufe them would not have been an impeachable offence: but it would have been an act of great indecorum and impropriety. It was the duty of the judge to charge the grand jury, and to point their attention to any fpecific offences against the laws of the United States, which had come within his knowledge or information: but to ut ter indifcriminate abuse against a whole ftate or county, to charge the people of it generally with a feditious temper, would have been equally extra-judicial hope, will be admitted as an apology, and unbecoming. This confideration, we for occupying fo much time in the refu ation of a charge, which in every other point of view is manifeftly frivolous and futile. our honorable client, from the imputation of impropriety as well as of guilt. We wish to refcue the conduct of on merely negative teftimony, to difprove It may perhaps be replied, that we rely thefe expreffions, while pofitive teftimony is adduced to prove them. But whether teftimony ought to be regarded a pofitive tion of the witneffes, and the circumftances or merely negative, depends on the fitua of the cafe. When a man fwears that he did not fee a tranfaction, which might it, his teftimony is merely negative, and well have taken place without his feeing can have no weight against that of a wit nefs, who fwears that he did fee the tranf action. But when it is of fuch a nature that it could not poffibly, or within the bounds of reasonable probability, have tak en place, without being feen by the perfon who fwears that he did not fee it, the tef timony of fuch perfon then affumes the character, and poffeffes the weight, of pofitive teftimony. It is the fame as if he had fworn pofitively, that no fuch tranf action did take place. If, for inftance, a witnefs were to fwear, that he faw a man ftanding with his hat on, during the whole of this trial, in the open space on the floor between the prefident and; me and every other perfon prefent were to fwear, as they no doubt would, that they had feen no fuch perfon: furely no man in his fenfes would put this on the footing of mere negative teftimony, and contend that the first witnefs was to be believed against all the others! And where is the difference between the two cafes? It confifts, I anfwer, folely in the number of witnesses; for it is as impoffible that thofe expreffions fhould have been uttered by the refpondent, without being heard by judge Beford, Mr. Vandyke, Mr. Hamilton, and the perfons who gave information to the printer, as that a man fhould ftand for an hour with his hat on, in the middle of this floor without being obferved by the audience, We are, therefore, warranted in laying thefe expreffions out of the cafe; and then to what does it amount? There was a law of the United States, for the punishment of feditious libels, which the refpondent, as judge of the circuit court for Delaware, was bound to enforce in that diftrict. On his way to the court he receives information, that certain habitual violations of this law are committed, within the district. This information is given to him, as appears from the teftimony of Mr. Hall, by a juftice of the peace for that district, whofe duty it was to attend to fuch offences, and to take all legal fteps for bringing the offenders to juftice. The information, derived from this official and authentic fource, the refpondent communicates to the grand jury; obferving to them that it was their duty to enquire into the matter, and that they must remain in feffion one day more, for that purpofe. He goes further. He réquefts, or, if the honorable managers will have it fo, he orders, the diftrict attorney to affist them with his advice in making this enquiry; and directs a file of the newspapers, fuppofed to contain thefe libellous publications, to be procured and laid before them. This is the "head and front of his offending." And will the honotable managers be pleafed to point out the rule or principle of law, that was vi. olated by thefe acts? Will they be fo good as to inform us, whether it was not the duty of the grand jury, to enquire concething offences within the diftrict, and of the judge to give in charge to them, all fuch offences as had come to his knowledge? Suppofe that inftead of a breach of the fedition law, a piracy had taken place on the high feas, and nformation had been given to the judge, that the pirates were lurking in the diftrict of Delaware, would it not have been his duty to ftate this information to the grand jury, and to direct them to enquire concerning the offence? And I again call on the honorable gentlemen, as I had occafion to do in a former part of the cafe, to inform us by what authority and what criterion, a judge is to diftinguish fome offences from others, to profecute fome, and let others, as far as depends on him, efcape with impunity. The honorable gentleman who opened the cafe on the part of the profecution, aditted diftinctly, in his opening fpeech, that a judge may properly be zealous and active, in the execution of the criminal law generally; and he beftowed very high, and probably very juft, encomiums on a judge of Virginia, whom he represents as thus zealous and active. But it is zeal and activity in the execution of this particular law, that he imputes as a crime to the refpondent. But if this zeal and activity in the rea fpondent, be not confined to this particu lar law, of which there is not the leaft proof or pretence; how, I afk, can it be an offence, according to the principle of the honorable gentleman? Surely each particular law is a part of the whole body of law. How, will the Honorable gentle. man be pleafed to inform us, is it poff ble to be zealous and active as to the whole, without being fo as to each of the parts? Will he inform us how the laws can be executed except by parts; and whether it ever did or could happen, that they were all violated at once. There is, however, a more ferious objection to this principle, which, if it be correct, goes to inveft the judiciary with a power infinitely more formidable and a larming, than has ever yet been contended for, in this, or, as far as I know, in any country. In what part of our conftitution, or of our fyftem of jurifprudence, have the ho norable gentlemen found this difpenfing power of the judges, over a part of the laws? Was not the fedition act, while it continued in force, a law of the land ?— Were the courts of juftice to neglect its execution, because it had been opposed by a political party in the legislature, or was difagreeable to a portion of the people ?Are the honorable gentlemen willing to be tried by this their principle? Let them, before they anfwer in the affirmative, examine how far it will carry them. We now have circuit courts, and affociate judges to hold them. We now have, and probably always fhall have, parties in con grefs and in the country. Itis very pof fible that laws may be paffed, which will be highly disagreeable to one of those parties. Are gentlemen prepared to fay, that the judges may difpenfe with the execution of all laws, which they fuppofe to be of this defeription? If gentlemen find this principle intolerable and abfurd, when applied to laws paffed by themfelves, will they ftill infift on its application to fuch, as were heretofore paffed against their opinion? Or will they contend that the queftion, whether a perfon fhall be punished for the violation of a law, thall depend on the popularity or unpopularity of the law, in the particular diftrict where the of. fence is committed? Is a judge, appointed to hold a criminal court, to enquire from the people of the diftrict, or from popular leaders, what laws he thall execute? Ought he to take his information on this fubject from political parties, inftead of the ftatute book? Would this be living under equal laws, equally impartially and fteadily administered? And do not fuch laws fo ad. ministered, conftitute the very effence and definition of free government? On principle then, even the principle admitted by the honorable gentleman himfelf, who opened the profecution, the conduct of the refpondent, in directing the attention of the grand jury to this offence, is ftrictly juftifiable. But it does not reft on principle alone. It is ftrongly fupported by precedent, both in England and this country. In the Lawyers' Magazine, an authentic collection of legal proceedings and adjudications, vol. 3, page 333, we find a charge delivered to a grand jury by Chief Baron Perryn, in which he calls their attention to certain particular offences. In page 384, of the fame book, we find Lord Loughborough calling the attention of a grand jury, to particular offences. In the fifth vol. of the fame work, page 199, there appears a charge of Judge Afhhurt, in which he directs the attention of the grand jury to certain feditious printers. And in the report of Hardy's trial, we fee the celebrated judge Eyre, as illuftrious for his justice humanity and love of liberty, as for his profound knowledge of the law, and his great talents as a judge, directing the attention of a grand jury to a particu lar offence. Paffing from England to this country, we find judge Iredell, whofe example has fo often been held up for imitation, direct. ing the attention of the grand jury, in a very particular and emphatical manner, to ahe particular cafe of the Northampton infurgents. This took place at the circuit court at which thofe infurgents were to be tried; and the charge was delivered to the fame grand jury, which found the first indictment against John Fries. And we have another authority more directly in point, because it occured in the cafe of a fuppofed libellous publication. It is alfo furnished by a judge of great legal reputation and talents, whom I truft the honorable gentleman will hot confider as inimi. cal to liberty, or difpofed to judicial oppreffion. I mean Mr. McKean, formerly chief juftice and now governor of Pennfylvania. In a charge delivered to a grand jury of the city and county of Philadelphia, on the 27th of November, 1797, after a very elaborate and luminous expofition of the law relative to libels, he informs them that a certain printer in that city, meaning Cobbett, the publisher of Porcupine's Ga zette, was and long had been in the habit of offending against this law, by the pub lication of fcandalous and malicious libels; that he had interfered, and endeavored to arreft the progrefs of this offender, by binding him over to be of the good beha viour; that the printer, in contempt of his recognizance, and in defiance of the authority of the law, perfifted in his mifchiev ous courfe ; and that the duty of arrefting him now devolved on the grand jury, by whom alone the ftrong corrections appear. ing to be neceffary, could be applied.The expreffions used by this learned and a ble judge, are ftrong and remarkable. I will take the liberty of presenting him to the court in his own drefs. (Here Mr. Harper read the charge from Claypole's Gazette of Nov. 28th or 29th, 1797) It will be remarked that the printer in this cafe, had not been bound over to appear at the court, and answer for a libel; but had beeu bound in a recognizance to be of good behavior, which he was fuppofed to have violated by publishing further libels. On this recognizance a civil action had been brought; and the grand jury, who had nothing to do with the recognizance, nor any information before them, were thus called upon to apply a further cor rective, by prefenting the offender. It is impoffible that a cafe fhould be more exactly in point. Indeed it goes much farther, than the conduct of the re fpondent at New-Caftle. I am far from condemning, or calling In question, the conduct of the late chief juftice of Pennsylvania, in this inftance. But I contend that the same act which has Been confidered as proper in him, ought not to be imputed as a crime to my honorable client. Thus we fee that the conduct of the refpondent, in this inftance, was ftrictly correct, whether it be tefted by principle or precedent. If this could be doubted, if it were even admitted that he acted in correctly, it would ftill be clear that he acted from proper motives; that his error was a mere error of judgment; and con fequently cannot be the ground of a conviction on impeachment. Had he been confcious of improper intentions, how eafy was it for him to ac complish his object, without appearing in the business! When Dr. M Mecken, from whom, as Mr. Hall tells us, the re. fpondent received the information, men-, tioned thefe publications to him, it would have been cafy to requeft that gentleman to give the information to the grand jo. ry. Dr. M Mecken no doubt would have complied with the request; the grand jury would have obtained the informa. tion; the printer, had it appeared proper to them, would have been profecuted; and the refpondent would have attained his end, without in the leaft expofing himfelf to view. Would he not have acted thus, had he been conscious of improper defigns? With criminal plans of oppref. fion in his mind, would he not have fought concealment, where it was fo easily practifed, and could in no degree have impeded his projects? Undoubtedly he would. Nothing but a confciousness of upright views could have induced him, in fuch circumstances, to act this frank and open part. In judging of mens motives it is mate fial allo, to liften to their private converfations, addreffed at the time, to those in whom they have confidence. In fuch converfations the hearts of the most cau. tious are apt to expand, and the most hid. den views are fometimes difclofed. What was the refpondent's reply to judge Bed ford, when that gentleman cenfured him for acting imprudently, in recommending I in that part of the country, an enquiry in to offences against the fedition law? "My dear Bedford," to ufe the beautiful lan guage of the refpondent, as repeated by the witnefs; 63 my dear Bedford, no mat ter where we are, nor among whom we are, we must do our duty." This, fir, is the language of the heart; not of a cor rupt heart, filled with plans of oppreffion and violence, but of a heart manly up. right and honorable. It bears the intrin fic character, and the ftamp, of fincerity and truth. It is a frank and unftudied avowal of motives, made to a confidential friend, in an unfufpecting moment; and it is of more a: ail than volumes of tefti. mony, to fhew the real impreffions under which he acted. Remember, too, how readily, and in what good humour, the refpondent gave up this point, and acquiefed in the opinion of the grand jury and the district attorney, when they declared that they had found nothing libellous in the papers. Having acted from a fenfe of duty, in calling the attention of the grand jury to the fubject, he was content with having difcharged his duty, and prefied the matter no further. But had he acted from a vindictive fpirit of oppreffion, or any other improper mo. tive, inducing to wish for the profe. cution the printer; would he fo readi ly have defifted? The file of papers was within his reach. We who have examin ed it, know that he might have found in it libellous matter enough. And would he not have examined it? Would he not have pointed out the libellous paffages to the grand jury? Would he not have feng them out again, with ftronger injunctions to do their duty? Do oppreffors fo readily abandon their projects, when the accom plishment is fo much in their power? No fir. This conduct in the refpondent is than that fenfe of dut, under which it is utterly inconfiftent, with any other motive manifeft that he acted throughout. We come now, Mr. Prefident, to the eighth charge; under which I find myff again obliged to perform the difagreeable talk, of contrafting evidence, and controverting the teftimony of a witnefs for the profecution. This witness, Mr. Montgomery, has attributed to the refpondent |