different. If it were so, who, that possesses the ordinary frailties of humanity, would undertake. in the judicial station to interpose between man and man. The law clearly is that a judge shall be presumed innocent until he is proved guilty, even when he decides against law; and that his errors shall be ascribed to the head, and not to the heart. This notice is due to the observation of an honora ble manager, which struck me with great surprise, that Mr. Basset's request to be excused from serving as a juror arose from his sentiments being known by the judge. This, however, does not appear from the evidence. It appears, on the contrary, that he was a stranger to judge Chase, and that he did not wish to be excused. But in this prosecution we are not only to hear much new and extraordinary doctrine; but we are likewise to hear statements of facls for which there is no foundation.

I will now proceed to the fourth article, which contains five distinct specifications of facts as fol

lows:

"That the conduct of the said Samuel Chase, was marked, during the whole course of the said trial, by manifest injustice, partiality and intemperance; viz.

"1. In compelling the prisoner's counsel to reduce to writing, and submit to the inspection of the court, for their admission, or rejection, all questions which the said counsel meant to propound to the above named John Taylor, the witness:

"2. In refusing to postpone the trial, although an affidavit was regularly filed, stating the absence of material witnesses on behalf of the accused; and although it was manifest, that, with the utmost diligence, the attendance of such witnesses could not have been procured at that term:

"3. In the use of unusual, rude, and contemptuous expressions towards the prisoner's counsel; and in falsely insinuating that they wished to excite the public fears and indignation, and to produce that insubordination to law, to which the conduct of the judge did, at the same time, manifestly tend :

4. In repeated and vexatious interruptions of the said counsel, on the part of the said judge, which, at length, induced them to abandon their cause and their client, who was thereupon convicted and condemned to fine and imprisonment :

5. In an indecent solicitude, manifested by the said Samuel Chase, for the conviction of the accused, unbecoming even a public prosecutor, but highly disgraceful to the character of a judge, as it was subversive of justice."

The word injustice in the preliminary part of the article must refer to Callender; the partiality charged must have been to the United States, I prèsume, and against Callender; the term intemperance is of such doubtful import, that I scarcely knew what to understand by it: It cannot be used as opposed to sobriety, as no one will charge the judge with a violation of this virtue. It may refer ́ to his conduct to counsel, and perhaps to Callender. This conduct is said to have been evinced, in the first place, "In compelling the prisoner's counsel to reduce to writing, and submit to the inspection of the court, for their admission, or rejection, all questions which the said counsel meant to propound, to the above named John Taylor, the witness."

If this was incorrect, I cannot perceive its injustice to Callender, nor its partiality or intem. perance. But did the conduct of the court in this instance, correspond with the law and the practice? I apprehend that it did. I understand it to be a

clear and admitted principle of law, that the court is the only competent tribunal to determine the competency, the admissibility, and the relevancy of evidence; when admitted, its credibility is the exclusive province of the jury. I have before stated the reasons which rendered it necessary in this case to know what col. Taylor could prove. To understand the object for which he was produced with greater certainty and precision, the judge ordered the questions, proposed to be put, to be previously reduced to writing. I am not sufficiently acquainted with the practice in the courts of Virginia to say this was not novel, but I may surely venture to affirm that there was nothing criminal in it. I know well that in different states there are different forms of practice. I can only say, that judge Chase, going from Maryland, where the practice does prevail, would naturally carry to Virginia the knowledge of the practice of the state from which he went. It is said that it is not the practice in Virginia, and one gentleman says he never heard of an instance of the kind. But I believe there are exceptions. I recollect, in the mandamus case, the counsel were called upon to reduce their questions to writing, and that the attorney general had a whole day allowed him to make up his mind on the propriety of answering the questions put to him. And yet in that case there was no disposition manifested to oppress ; the course was pursued, to determine the competency and relevancy of evidence. Need I go

further than the practice of this honorable court in this very case, in which there have been numerous instances of questions directed by the court to be reduced to writing. Have not you, Mr. President, from a knowledge derived from your extensive practice of the bar, or from an instantaneous exercise of right reason, in several instances, direct

ed questions to be reduced to writing? And has it not been seen that though counsel withdrew their objection, every member of the court possessed and exercised the right of requiring it to be done? No testimony, which is not legal, should be admitted to go to the jury, and what is legal testimo. ny, and the manner of determining it, must be decided by the court.

We have thus made it to appear that it is the practice to direct questions to be committed to writing in the courts of Maryland, in the supreme court of the United States, and in this court.Does not this abundantly justify the conduct of the respondent? But even admitting that conduct to have been improper, was it corrupt or criminal? What moral obligation did it violate? What statutory provision did it infringe? And is a man impeachable for that which violates no moral principle or legal provision? If so, this is the most dan. gerous doctrine ever advanced.

The second specification is in the following words:

"In refusing to postpone the trial, although an affidavit was regularly filed, stating the absence of material witnesses on behalf of the accused; and although it was manifest, that with the utmost diligence, the attendance of such witnesses could not have been procured, at that term."

This charge is grounded on the fact of a refusal to postpone the trial on an affidavit. That the court acted correctly in this instance will appear from this consideration, Nothing is more clear, than that under the common law, all applications for a continuance, on affidavit, are founded on the discretion of the court, Is it not wonderfully singular that there should have been an application founded on an affidavit, if the law of Virginia, as stated in the 6th article, applied to the case? One

thing is clear; either that the Attorney General and Mr. Hay had lost all recollection of the exist ence of this law of Virginia respecting continuances, or that they considered it inapplicable. For they would not otherwise have founded the application on an affidavit, They would have produced the law and have demanded a continuance. Did they do so? No. If then the law officer of the state and Mr. Hay both forgot that it existed, is it surprising that it should be unknown to Mr. Chase? If those gentlemen did recollect the existence of the law, they must surely have been of opinion that it did not apply to the case of Callender, or they would have saved themselves the trouble of filing an affidavit. It will however be shewn that it did not apply, and hence their application founded on affidavit.

I have stated that all applications for a continuance on affidavit are addressed to the discretion of the court. It is a great object of criminal justice that the punishment of the guilty should be certain, lenient and speedy. In the state of Maryland, where Judge Chase had so long presided or practised, it is the uniform practice to try offences the first term they are presented; it is also the practice in England unless particular reasons are assigned for delay. I was about to prove this; but as it is conceded I will not trouble the court with authorities. Judge Chase then, having no knowledge of the particular law of Virginia, had to recur to the affidavit. Was that a cause for the continuance of the trial? When a man is charged with a criminal offence, matter, which shall justify a continuance, must go to the whole of the charges, and not merely to a part of them. If he cannot defend some of the charges, he is to plead guilty to them, and pray a continuance of such of the charges as he can justify by evidence. This is an universal rule of justice