cation-that I had formed no opinion with relation to the extracts being correct. I also informed the court, that I had formed no opinion with refpect to Callender's being the author of the book or on the charges in the indict ment. The court determined that I was a proper juror and I was accordingly fworn on the jury. After the evidence and pleadings were gone through, we retired to our room to confult on our verdict and chofe Mr. Bernard Mackham our foreman. The book was then produced, and I informed the jury, that I had never feen it before, and wished to have it read through; a number of the jury appear ed to difagree to this, but I faid that I would have it read, because the other parts of it might explain the paffages in the indictment. In confequence of this the book was read through, and we were in our room about two hours, when we returned into court and delivered our verdict, finding the traverfer guilty. With respect to the trial, I will ftate a circumftance which made a ftrong impreflion on my mind. Judge Chafe addrefling himself to the counsel for the traverfer said, that when his country made him a judge, they impofed on him the folemn obligation of an oath to execute the laws. That he conceived his opinion to be legal but that he might be in an error and therefore the questions might be all reduced to writing in order that a fuperior tribunal might correct the errors if any should exift.

John Baffet, cross-examined by Mr. Randolph.

Q. You have faid that you have ftated to the court, that you had seen extracts in a newfpaper, which were faid to be from the "Prospect before Us." After reading the book, did thofe extracts appear to be faithfully taken ?

A. I thought the book more libellous than the extracts, but I have no recollection of the extracts more than

Q. Were any of thofe paffages contained in the indictment?

A. I do not recollect.

Q. How did you know that the charges in the indictment, were extracted from the "Prospect before Us"? A. It was a fubject of general notoriety.

Q. Did you not believe that the extracts which you had feen, were taken from the "Prospect before Us"?

A. I had none but newspaper authority for it, however, I firmly believed after feeing the book, that the extracts were taken from it.

Question by Mr. Bayard, one of the court.

Q. What was the general conduct of the judge to the counfel, and the counfel to the judge, during the whole courfe of the trial?

A. I think it proper to obferve, that the impreffions made on the witneffes of the tranfaction, will caufe them to give a different relation to it from each other.

To me the judge appeared to conduct himself with decifion, but without feverity, he was at times facetious, but not farcastical, and he appeared to with that if Callender fhould be guilty, that he fhould be punifhed; if innocent, that he should be acquitted. It appeared to me that the defence which the counsel for Callender attempted to make, was the conflitutionality of the law, and that they had no hopes of faving him except on this ground; and when the judge determined that the law was conftitutional, and that they fhould not addrefs their arguments to the jury on that point, they became extremely mortified. They confider ed that they had a right to go on, and had the cause much at heart, and were continually mentioning this point in their argument. Whenever they advanced this pofition, the judge interrupted them, and informed them that the jury had not the power to decide on the conftitutionality of a law, and that they must not argue it to them; their perfevering in this appeared to be the reafon why they were fo often interrupted by the judge.

Question by the Prefident. When you informed the court that you had formed an opinion on the extracts, did you inform them that you had delivered it alfo ?

A. I did not, for I had delivered the opinion to no perfon.

Queftion by Mr. Rodney. Did you not deliver the opinion to the court, before you were fworn on the jury?

A. It was before I was fworn in chief.

The court then adjourned.

THURSDAY, February 14. The court having met as ufual. Mr. Harper, faid that he had a request to make fimilar to the one made yesterday-it was that Edmond Randolph, efq. might be examined on be

half of the refpondent, and discharg ed.

Mr. Randolph, obferved that the managers did not object.

Edmond Randolph, favorn.

Mr. Harper. Will you please to relate what came under your obfervation, at the trial of Callender.

Mr. Randolph. I was prefent fome little part of the trial of Callender, but was abfent the greater part of it.

Q. What was the general conduct of the court and the counfel, in your sense of it?

A. The answer which I have already given, is an answer to that question. I was abfent a great part of the time, and am not a judge. I left court while a part of the lengthy indictment was reading, and when I returned, the counfel were folding up their papers and retiring from the bar.

Q. Was you in court during the previous motions that were made?

A. I was after the indictment was found. I recollect feeing either the clerk or the attorney, handing up a paper to the court, and upon asking what it was, I was informed that it was a warrant for the apprehenfion of Callender. I was not prefent when the motion for a continuance was made.

Q. What was the demeanor of the court when you were prefent?

A. I cannot commit myself on any ftatement, if my opinion fhall be allowed as evidence, I am ready to give it, I faw nothing that ftruck me as remarkable in the conduct of the court, I faw nothing which conveyed to my mind the idea of corruption in the judge.

Q. What do you mean by corrup

tion?

ty.

A. An intention to opprefs the par

George Read fworn.

Mr. Randolph. You are called to ftate what took place at a circuit court held at New Castle in the ftate of De.

taware, in June 1800, at which Mr. Chafe prefided.

Mr. Read. Several years have elapfed fince the tranfaction took place, and I may not state the language used on that occafion; I fhall however ftate the fubftance. The tranfaction of which I am called to give evidence took place at a feffion of the circuit court held at New Caftle in the ftate of Delaware, in the month of June 1800. At that court Samuel Chafe, one of the affociate juftices of the fupreme court of the United States, prefided, and Gunning Bedford, district judge of the diftrict of Delaware, was affociated with him. Mr. Chafe, as was the usual practice, delivered a charge to the grand jury on the first day of the term, and they retired to their room. After remaining there fome time, they returned into court, and upon the queftions being afked them by the clerk, whether they had found any prefentments or bills of indictment, they answered in the negative. Upon receiving this anfwer, judge Chafe obferved as nearly as I can recollect, that he had been informed that a highly feditious temper had manifefted itself among a certain defcription of people in Delaware, particularly in New Caftle county, and more efpecially in the town of Wilmington, where lived a moft feditious printer, unrestrained by any principle of virtue, and regardless of focial order; that the name of this printer was, but here the judge paufed and faid, "but perhaps it may be affuming too much to mention his name, but it becomes your duty, gentlemen, to enquire into it." Several of the grand jury then made a request to the court to be difcharged, and affigned for a reafon that fome of them were farmers, and that it was the time of harveft. The judge obferved, that the bufinefs to which he had called their attention was of a most urgent and preffing nature, and that he could not difcharge them until the next day, when further

information would be given them or the fubject to which he had referred them. The judge then addrefling himself to me as the attorney of the diftrict,asked whether I had any criminal charge to prefer. I replied that none had come to my knowledge, and that I believed none would accrue; but certainly faid the judge to me," you might make fome discoveries, by making proper researches, have you not fome perfons in this state who have been libelling the government, or the adminiftration of the government of the United States." I am told fir, (continued the judge) that there is a printer in the town of Wilmington, who publithes a most scurrilous paper; have you not two printers in that town?" I told him that I believed there was. The judge replied, "one of them is the feditious one; I think it a part of my duty and he fhall be taken notice of-and it is your duty Mr. attorney to examine into affairs of this nature. The times require that this feditious temper of the prefs fhould be difcouraged and fuppreffed. Can you not procure a file of this printer's papers, and between this and to-morrow morning ascertain whether he has not been guilty of libelling the government. This must be done. I think it is your duty.” I was rather difpleafed at this, and mentioned to the court that I believed I was acquainted with the duties of my office, and was willing to discharge them. I mentioned, that I was not in the practice of hunting up offences, that I had not a file of the printers papers, but that if a file was procured me, I had no objection to examine them, and communicate with the grand jury on the fubject. The judge faid, he was fatisfied with that, and obferved, that he could not discharge the grand jury, but they must attend the next day, at the ufual hour. The judge then directed that a file of the papers fhould be procured for me, and thefe I underftood to be the papers ftiled, "The

Mirror of the Times, and General Advertiser.". By whom thofe papers were procured I do not recollect. I examined them in a curfory manner, because I was frequently interrupted during the day, and I did not discover any libellous matter coming within the provifions of the fedition act. On the next morning when the court met, I fent the file of papers to the grand jury, believing it to be the wifh of the judge. At the request of the grand jury I wait ed on them in their room-on my entering I was addreffed by the foreman, and my attention was directed to a publication in the "Mirror," reflecting or the character and conduct of judge Chafe. He obferved there had been a difference of opinion among the jury, whether it was an indictable offence or not. I informed the jury, that the publication did not come under the fedition law, and was only a libel punishable at common law; and that judge Chafe himself had determined in the cafe of the United States against Worrell, for an attempt to bribe Mr. Coxe, the commiffioner of the revenue-that the circuit courts of the United States had no cognisance of offences committed at common law, and that therefore, they could not prefent the printer for that publication. Nothing further paffed in the room. The bundle of papers were brought into court and laid on the table. Judge Chafe afked me what had been done. I then fubmitted to judge Chafe the conversation which I had with the jury, and the obfervations that I had made to them, in which he acquiefced, and the affair was passed over in an affable and polite manner on the part of judge Chafe.

Q. Do you recollect to whom judge Chafe addreffed himself when he requested that a file of the papers might be procured?

A. I do not recollect.

James Lea, Affirmed.

Mr. Rodney. Will you pleafe to relate whe ther you were fummoned by the marshal of Delaware, and served as a grand juror at May term 1800, and what took place at that time.

Mr. Lea. I was summoned by the marshal and did ferve as a grand juror at that term. After receiving the charge from judge Chafe we retired to our room, and there being no bufinefs before us, we returned into court. The ufual queftion was then put to us by the court, and answered in the negative. After fome time, judge Chafe informed us, that he had been informed, that a feditious temper had manifefted itself among a certain defeription of people in New-Caftic county, and particularly in Wilmington, at which place lived a feditious printer who edited a paper called, the "Mirror of the Times and General Advertifer," and was continually in the habit of abufing the prefident, and it was our duty to enquire into it. He faid, that he could not difcharge us on that day, and that we must make diligent enquiry into the fubject which he had mentioned. Several of the jury informed him, that they had bufinefs of an urgent nature, and wished to be discharged. The judge replied,

that the business which he had mentioned was of an important nature, and that he could not

discharge us until the next day. Some conver fation then paffed between him and Mr. Read, which I do not recollect, and we were dif charged until the next day. We returned to court the next day, and having been called over by the clerk we retired to our room. A file of the papers was produced and examined, we found nothing feditious in it, except fomething written againft judge Chafe, which the attorney when being fent for, informed us, did not come under the fedition law. We returned into court and fome converfation enfued between the judge and the attorney, and we were then discharged. Q. Are you certain that judge Chafe mentioned the title of the paper? A. I recollect it perfectly.

James Lea, cross-examined by Mr. Martin. Q. How long was the jury up in their room on the first day?

A. About an hour, on the fecond day longer. Q. At what time does your harvest commence in Delaware?

A. It was our hay-harveft, which commences in the month of June.

Queftion by Mr. Nicholson.

Q. Is your hay-harveft confidered an important one? A. It certainly is. John Crow, forn-examined by Mr. Rodney. Q. Was you prefent at the circuit court held at New-Caftle, in June 1800.

A. I was not in court on the first day. On the fecond day I was in court. While I was there, the judges asked the attorney whether or not the grand jury had found any thing in a file of papers which was lying on the table, worthy of prefentment. The attorney answered, that they had found nothing but a piece againft the judge himfelf. The judge replied that that could not be taken notice of, and fhortly after he discharged the jury.

John Montgomery fworn.

Mr. Randolph. You are called to give evidence concerning a charge delivered by Mr. Chafe to a grand jury at Baltimore, in May 1803.

Mr. Montgomery. It will not be expected that I fhall detail the charge mentioned by the manager just sat down, in the language in which it was delivered by judge Chafe. It was delivered at May term, 1803. I was not a member of the bar, but being prefent, I took a chair near the judge, by the fide of judge Dorfey. The judge addreffed the grand jury, and it appeared to be from a written paper which he had before him; he proceeded on in the ufual manner, to give in charge to the jury the various duties to be performed by them. After he had finished this part, he mentioned, that he would give fome few obfervations to them before they retired; that they flowed from a wifh for the welfare of the com

munity. He ftated, that it was important that the people fhould be truly informed at that crifis, that falfehood was more eafily diffeminated than truth, and that the latter was attended to with reluctance against popular prejudice. I cannot pretend to ftate the fentiments of the judge in the order in which they were delivered, but I can ftate the fubftance. The judge faid, that the prefent adminiftration was weak, relaxed, and not adequate to the discharge of their functions, and that their acts flowed not from a wifh for the happiness of the people, but for a continuance in unfairly acquired power; thofe laft words made a strong impreffion on my mind. When the judge called the attention of the jury, I was prepared to fomething extraordinary from him, for I had heard his farewell addrefs to the grand jury at Annapolis. The judge flated, that a violation of the conftitution had taken place, by the paffage of the act of congrefs which repealed the judiciary fyftem, and removed the fixteen judges from office, and that congrefs had made a violent attack upon the independence of the judiciary. The judge alfo found fault with the law which had been paffed by the legislature of Maryland in the year 1801, which went to remove the diftrict judges of Maryland; he faid, thefe acts were a fevere blow against the independency of the judiciary. He faid, that fince the year 1776 he had been an advocate for a republican form of government, that it was his with that freemen fhould be reprefented by perfons elected by men who had an intereft with, a property in, and an attachment to the community. I believe he quoted the language of the bill of rights, he found fault with the law which had paffed the legiflature of Maryland, which is ftiled, the univerfal fuffrage law; and faid, that this alfo affected the independence of the judiciary, and I think, he explained it in this manner-that every free white male citizen under the law, poffeffing the qualifications of age and refidence, although he should not have an intereft, or property, or an attachment to the community, being fuffered to

choose their legiflators, and the judici ary being dependent on the legislature for their falary and continuance in office, few men of character and abilities would accept the appointment of judges on fuch tenures. He stated, that these measures were deftructive of the happiness and welfare of the community, that they would have a tendency to fink the government into a mobocracy, the worst of all poffible governments; he ftated, that the framers of the conftitution of Maryland were men. of patriotism and ability, and that the names of tome of them were on the journals of congrefs, and on the journals of the convention of Maryland, that ratifi

He

ed the constitution of the United States. And that the fons of fome of those men were the chief fupporters of thefe deftructive meafures. He flated, that where there were equal laws and equal rights there was freedom, but where the adminiftration of laws was partial and not certain, the people were not free and that we were approaching to that ftate of things. mentioned, that there was but one act remaining to be done, which was the law which had paffed the legiflature of Maryland to change the conftitution, and which was to be approved or rejected by the fucceeding legiflature, which went to abolith the two fuperior courts of Maryland, and then there would be nothing in the conftitution worthy of care or prefervation. At the conclufion of his charge, the judge called on the grand jury to paufe, and when they returned home, to ufe their utmost endeavors to prevent thefe impending evils and fave their country; that the people had been mified by mifreprefentation, falfehood, art and cunning. That by correcting thefe errors, the threatened evils might be averted. I have read the answer of judge Chafe, and will take this opportunity of ftating a fact contradictory of a part of it. It is where the judge fays, that at the fucceeding legiflature of Maryland, the law for abolishing the two fuperior courts of Maryland was abandoned by common confent. It is true, that the law was abandoned by common confent, but not