viceable to the British interest." The charge was contained in two distinct sentences. The respondent, says, that taken separately, they meant nothing; taken together, they meant a great deal. Yet the evidence of John, Taylor was refused, although, he was expected to prove the whole charge, according to the meaning of the defendant when he wrote it. He was expected to prove that Mr. Adams had been useful to the British interest in the manner meant by the author of the " Prospect Before Us." I will ask, this honorable court, whether it is proper for evidence to be rejected, because incapable of proving all the facts in the case? May not a witness be material, although he can only establish a particular point? As if a fact were prov en by one witness. would it be proper to admit testimony to strengthen that evidence although the person knew nothing of the facts: as for instance, to prove that he saw the parties together on that day. Suppose two witnesses were adduced to prove facts, and neither could prove all, according to the decisions of the respondent neither could be admitted to give evidence. The respondent in his answer. says, that the court have a right to compel counsel to reduce the questions which they meant to propound to their witness to writing, and that it has frequently been done. I do not intend to set up my judgment upon legal questions, in oppo. sition to the respondent's-but I can say without hesitation that it is not the practice in the state in which the case was tried. nog has counsel in Virginia. either before, or since the case of Callender, been compelled to reduce to writing any questions which they wished to propound to their witnesses and to submit those questions to the inspection of the Court. But the respondent has set up this curious defence That he went with a determination to convict and punish Callender, and therefore it was perfectly immaterial whether he could prove a part of the charges to be true or not if he could not prove the whole, and if but one of the twenty charges could be fixed upon him, he would be perfectly in the

power of the Court. What was this but prejudging the case, and a determination of the respondent to procure the conviction of the defendant. But it was

impossible for the court to know what John Taylor would prove. For ought they knew his evidence might have gone to the whole case, and produced from the jury a verdict of acquittal for the traverser. With respect to the counsel's having been compelled to reduce their questions to writing and submit them to the inspection of the court, it is believed by the Managers. to be a course of procedure unusual in courts of justice. I recollect to have been present at the famous trial of Logwood, where the Chief Justice of the U. States presided. It must be conceded that the U. States were as much interested in the conviction of so notorious an offender, as in that of any libeller whatever. Although evidence of the most questionable sort was brought forward on behalf of Logwood, nothing of that kind, took place. The witneses were all sworn in chief, and the weight of their testimony was left to the jury. The respondent also refused to postpone the trial of Callender, although an affilavit was filed stating the absence of material witnesses. The ground taken by the respondent in justification of this, is, that the witnesses lived in so dispersed a situation. that it would have been almost impossible to procure their attendance at the next court-this was a reason which ought to have operated forcibly in favor of a postponement of the trial, and goes to the conviction of the respondent. With regard to the rude and contemptuous expressions used by the respondent to the counsel for Callender, and the unusual manner in which he conducted himself. I will only refer the court to the testimony which will be offered in this case. But perhaps I shall be told that although such conduct is highly improper and unbecoming in a Judge, yet it is not an indictable offence, and therefore not sufficient cause for a removal from office. In answer to this, I will beg leave to observe, that this is not a case to be determined according to common law, but by the common sense, and common opinion of the world upon it. I do not know whether it would be deemed an indictable offence for a Judge to appear upon the Bench of Justice in a state of total intoxication and to use profane and obscene language, yet I presume it will not be denied that a Judge convicted of

The fifth article of impeachment, charges the respondent with having awarded a capias against the body of Callendar, contrary to the law of Virginia, which was recognised by the act of congress, passed in the year '89 for the establishment of the judicial system of the United States, as the rules of decision in the Federal courts. The defence stated by the respondent, embraces two points-the one that the law of Virginia was passed posterior to the acts of congress and therefore the latter could not have had reference to it ; and it was not a rule of decision. It will be necessary to inform some of this court that the acts of Virgina had by the authority undergone an amendment and revision, and the acts thus revised were published under the title of the revised code of the laws of Virginia in the year 1792, of course part of them bear date later than they were actually passed. The act in question did pass in the year '88, was anterior to the act of congress; and being law at the time the latter passed. it became a rule of decision for the Federal courts held in the state of Virginia.

(Mr. Randolph here read the law of Virginia.)

But the respondent states his ignorance of the law, and also that he did comply with it by issuing other proper process. We are prepared to prove that the other proper process mentioned in the law, has always been construed to mean a notice, to the party charged, to appear at the Dext court, and answer to the charges against him. But it has been said that this would be a notice to the party to abscond, and therefore avoid a punishment. In cases not capital, it would be much better for a state, in my opinion, that the offender should go away into voluntary punishment than to punish him, and suffer him to remain in the state.-It has never been the practice of Virginia, for an offence less than capital, to commit the offender to close custody. A capias has never been deemed the proper processand that awarded against the body of

Virginia, which was the rule of decision in that case. But the respondent says, that the counsel for the accused forbore to mention this law, and that he could not have been presumed to have known it. The counsel for the accused did cite this very act, not the section which relates to the point under consideration, but in support of their motion for a continuance of the trial, and of the right of the jury to assess the fine. They were told by the respondent that the court were not bound to notice that law, and that although it might be law in Virginia, when applied to their local regulations, but as applied to the courts of the United States, the construction was a wild one. Would it not then have been deemed folly in the extreme for the counsel for the accused to have brought the same act in order to support any other position which they might take. We are prepared to prove that unless this decision had been made by the court, that they were not bound to notice the law, that the law would have been cited.

manner, and we were allowed to use every means necessary to acquit him. The trial was before judges Iredell and Peters. He was convicted, and a new trial was granted, upon the ground that one of the jurors, after he had been summoned, but before he was sworn, had made use of expressions, hostile to Fries, and that he ought to be punished. This took place in the months of April and May in the year 1799. At the October sessions following, Mr. Dallas and myself attended at Norristown in expectation that the trial would come on, but it did not, owing to circumstances not necessary to be mentioned at this time. At the April term the proceedings on the first trial were stated by the district attorney, and a new indictment found. At this term Judge Chase presided and was assisted by judge Peters. On the morning of a certain day which I do not recollect precisely, when I entered the court, the judges were on the bench, whether the prisoner was then at the bar I do not recollect, but if he was not, he was soon placed there. The list of the petit jury were called over and many of them attended.

I will now relate as well as I can recollect the circumstances which took place relative to the trial, first premising, that altho' my memory is very good for a short time, yet after a lapse of time it is not very tenacious. I cannot therefore tell what part of the transactions took place on the first or on the second day, nor can I pretend to state the conversation literally, but I am certain I shall do it in substance. Judge Chase observed, that he had understood that at the former trial or trials (I do not recollect which) there had been a great waste of time by the counsel in making long speeches and in reading common law determinations relative to the doctrine of treason, and also English authorities both before and since their revolution, and also in reading several acts of Congress concerning offences less than treason, particularly the act commonly called the sedition law. He also mentioned that in order to remedy this, that he or they, (I do not recollect which) had made up an opinion on the law which he intended to deliver to the jury, and in or

der that the counsel on both sides might govern themselves accordingly, he or they had directed Mr. Caldwell, clerk of the court to make out three copies, one of them to be delivered to the District attorney, one to the counsel for the prisoner, and a third to be delivered to the jury as soon as the cause should have been either opened or gone through on the part of the prosecution. Mr. Dallas had not at that time come into court, and nothing had been said on the part of the prisoner.About this time the judge threw down one or more papers to the clerk of the court, but whether I saw them pass from the hand of one to that of the other, I know not. The clerk handed me the paper which was designed for the prisoner's counsel-if I took hold of it I am certain I did not read it. My impression is that I waved my hand, and used these words, "I will never suffer my hand to be corrupted with a prejudged opinion in any case, much less so in a capi tal one." If judge Peters made use of any expressions on the first day, I do not recollect it: Judge Chase when speaking of the cases cited from the common law authorities and the statutes of England previous to the revolution, and also of the acts of Congress, said he would not suffer them to be read again. I am sure of the first, and believe the prohibition extended also to the acts of Congress. I know he said that the acts of Congress had no relation to the subject. He also said that they were the judges of the law, and if they did not understand it, they were unworthy of their seats there, and if the prisoner's counsel had any thing to say, in order to shew that they were wrong, they must address themselves to the court and not to the jury. I made some observations on the subject, but I cannot say with precision what they were. I was struck with what had been said, and wished Mr. Dallas in court. I went out of the bar in order to see if I could find some person to send for him, when I saw him come into court. I met him and briefly related what had passed. He came forward and we were both impressed with the idea that as the court had made up their minds, it was not probable that they could be changed,