particularly than has yet been done, the contents of the paper thus delivered, and shall produce the original paper itself. ed We shall then proceed to shew, that when the Respondent on the second day of the trial, told the counsel for Fries that they were at liberty to proceed in the defence, in their own way, without being restrained by any thing that had passon the preceding day, he did not accompany this permission with a menace of any kind, as the learned counsel themselves have supposed, and have stated in their testimony at this bar; but merely informed them that in conducting the defence, they would be subject to no restriction, except that which a regard to his own character ought to impose on every member of the bar: And from hence we shall shew, as applicable to other parts of the case, how little reliance is to be placed on the recollection of angry men, whatever may be their general title to belief. Proceeding then to the next great subject of accusation, the case of Callender, we shall prove that the copy of the Prospect before Us, which was seen in the possession of Judge Chase, was not marked or scored by him, or with any view to the prosecution of the author, but by a gentleman who had purchased the book for his own amusement, and in reading it had, according to his custom, scored the most remarkable passages, before he knew that the judge was to hold the court at Richmond, and afterwards gave it to him, for his amusement on the road. We shall then shew that the private conversation which took place at Annapolis between the Respondent and Mr. Mason, as given in evidence by the latter gentleman, was a mere jest, provoked and drawn forth by Mr. Mason himself; whose recollection of the affair we shall prove to be far less accurate than Following the judge then to Rich- As to the conversation stated by John Heath, to have taken place between the respondent and the then marshal of Virginia, relative to striking off from the pannel of jurors formed for the trial of Callender, "all those creatures called democrats," we shall shew, by the most unquestionable testimony, that no such conversation ever did take place, and that the witness who has stated it was utterly mistaken in all the circumstances which he has stated. We shall also prove that on the pannel of jurors which actually was formed for the trial of Callender, there were several persons well known to be of the same political opinions which he then supported; and, that if they were not sworn on the jury, it was because for some reason best known to themselves, they refused or neglected to attend. After establishing these preliminary points, we shall proceed to prove that the statement, given by the honourable managers, relative to John Basset's supposed objection to serving on the jury, is wholly incorrect that Basset made no objec tion, nor expressed any unwillingness to serve, but merely suggested a scruple of delicacy, which he supposed might disqualify him, and on which he wished for the direction of the court: That this scruple was not of such a nature as to constitute a legal disqualification; and that the question propounded to him and the other jurors, was the same which had been adopted on consideration in the case of Fries. On all these points we shall fully corroborate the testimony of Mr. Basset himself. With respect to the rejection of Col. Taylor's testimony, we shall prove that the respondent, after pronouncing the opinion of the court on that point, offered to state a case for the purpose of submitting the point to the consideration of all the judges of the supreme court, and to grant a new trial if their opinion should differ from his. From which we shall contend that he could not possibly have made this decision, admitting it to be erroneous, through any improper motive. We shall also prove that although the respondent did not consider himself authorized to grant a continuance in the case of Callender, for which no legal ground was shewn, he did offer to postpone the trial for, six weeks or more, in order to accommodate the traverser and his counsel, and also offered to grant them attachments for bringing in such of their witnesses as were within the reach of the court. As to the conduct of the respondent on this trial, we shall prove that it was marked throughout with a mildness and propriety, little to be expected after the incorrect and irri tating behaviour of some of the counsel: A further instance to shew how little attention is due to the statements of angry men, who come in the character of witnesses, to complain of their fancied wrongs. We shall, moreover, prove that on every legal question decided by the respondent, he consulted his colleague Judge Griffin, and merely delivered the opinion of the court; although in settling mere questions of order, he acted from himself, as his duty and authority as presiding judge required. And finally, we shall produce. a witness who attended the whole trial, and took down all the proceedings in short-hand; and who will present to the view of this honourable court, an accurate and authentic statement of all that passed. Proceeding then to the subject matter of the fifth and sixth articles, we shall prove that the judges of the Supreme Court of the United States, acting under the statute for establishing the judicial courts, have never considered the state laws as the rule of proceeding, in cases like that in question; that the provisions of the act of Congress relied on by the sixth article, have always been regarded by those judges as relating to rights acquired under the state laws, and not to process, in criminal cases under the statutes of the United States. That the practice in the state. courts of Virginia, under the state law relied on by the fifth article, has been to issue a capias, and not a summons, in cases of misdemeanors punishable by imprisonment, or to be tried on indictment, and to use a summons in those cases only where the offence was to be punished by fine, without imprisonment, and the offender was to be tried by the court in a summary way, without an indictment. And to shew that the recollection even of the most correc men, is not always to be relied we shall produce a record in which it appears, that the gentleman who has given his testimony with so much candor and propriety, and who, though still very young, has been nearly five years attorney general of Virginia, did himself, in his official vid.p.96. capacity, order a capias on a presentment, in a case not capital. Error, And finally to remove all shadow of doubt from this part of the case, we shall prove that when the presentment had been found against Callender, and the respondent was about to order process upon it, he enquired of Mr. Nelson the district attorney, what process was proper in such a case, and was informed by him that a capias was the proper process whereupon the capias actually issued was drawn up and is sued under the immediate direction of that officer; on whom, consequently, and not on the respondent, who had no better means of gaining information on such a point, the blame of the mistake, had one been committed, must have fallen. On the subject of the repondent's conduct at the circuit court, held at Newcastle, in 1800, which furnishes the matter of the seventh charge, we shall prove that the very improper and unbecoming expressions attributed to him, relative to "a highly seditious temper, manifested by a certain description of people in the state of Delaware, and especially in Newcastle county, and more particularly in the town of Wilmington, were never uttered by him; and that he neither said nor did any thing more than is admitted by him in his answer, and was, as we contend, required by his duty. We shall then proceed to the subject matter of the eighth article, the charge delivered by the respondent, in Baltimore; and there we shall produce a cloud of witnesses to shew that he uttered no such expressions concerning the present administration, their character, their mode of acquiring power, and their objects in its exercise, as are attributed to him by Mr. Montgomery; and that he neither mentioned the present administration, nor alluded to them, except so far as they might be implicated in his remarks on the effects likely, in his opinion to flow from the repeal of the judiciary act. I have no hesitation, Mr. President, in declaring, that if the respondent had utterred on such an occasion, such expressions as this witness has put into his mouth, such conduct, though not amounting to an impeachable offence, would have been highly improper, and deserving of severe reprehension. Hence we feel particularly solicitous to refute this accusation, and happily we have it most completely in our power: for we shall not only shew, that of the members who were present, and attended particularly to this charge, not one person, except Mr. Montgomery, heard these expressions; but we shall prove by various witnesses who were near to the respondent, and observed him particularly while delivering the charge, that he read it from a written paper, and delivered nothing but what he so read: and, to make refutation complete, we shall produce the paper itself, attested by the person who copied it, and those who heard it read, and shall submit it to the consideration of this honourable court, which will find in it no such expressions as are stated by Mr. Montgomery. Such, Mr. President, is the statement of what we expect to prove, and this statement we shall now proceed to substantiate by our testimony. Samuel Ewing, sworn, and examined by Mr. Hopkinson. QIs that paper in your hand writing? (producing one) A It is, except the conclufion of a particular paragraph. QAt what time did you make it ? A It was copied from a paper thrown down by the court on the bar table at the trial of Fries. In the afternoon of that day, while I was in the office of Mr. Lewis, with whom I then ftudied, Mr. Caldwell, the clerk of the court, called on and asked me for it, and I gave it to him, and I have never feen it fince until a few days ago. Q Was you in court the next day, and what took place ? A After I had been in court a few minutes, judge Chafe mentioned that the counfel were wrong as nothing which had fallen from the court as a reftriction--and afked the counfel whether they meant to go on. The converfation ended with a determination on their part not to proceed with the defence. Judge Chafe obferved, that after the court had explained their. minds on the law, that if the counfel til perfifted in citing cafes which were not law, they must do it at the risk of their le gal reputation. I did not underland this as a menace on the part of the judge. Edward J. Coale, sworn, and examined by Mr. Hopkinson. QIs that paper (shewing him one) in your hand writing? A It is. This is a copy of a paper given to me by judge Chafe, to copy for him, and was made previous to the trial of John Fries. I had read law in Baltimore under the direction of judge Chase, and when I refided in Philadelphia he occafionally fent for me to copy his opinions, while he held a court there. This paper was copied from one in the hand writing of judge Chale. Q What were the reafons affigned by the judge, when he gave you this to coPy? Mr. Nicholson. I object to that quef tion. I do prefume that the refpondent cannot give any converfation of his in evidence. Mr. Hopkinson. Declarations are al ways admitted to fhew the intent of the act. We have heard much of the quo animo of the judge and we will now to fhew it. Mr. Nicholson. Evidence may be given of declarations, which operate against the party making them, but not in his favor, unlefs made at the fame time. This I take to be the rule of law. Mr. Motin. I know that declarations themfelves cannot be given in evidence in favor of the party making them, but when the declarations accompany the aft it becomes a part of that act, and is proper to be given in evidence. Such is the cafe at prefent and I hope the question will be allowed to be put to the witnefs. Mr. Rodney. I conceive that no declarations of the party can be given in evidence in his favor. If that doctrine were correct, to what inconceivable mif chiefs would it lead us. The greate!f criminal, when indicted for any att, might offer his own declarations to fhew his intent to be pure. For myfelf I could with réfpondent in his defence, and I half that every latitude might be allowed the but when an objection is made to one by never object to any quellions being put ; an honorable manager, it becomes my duty to throw in my mite against the queition. Q Was the restriction, which was laid on the counfel at the trial of Fries, áp. plied to the counsel for the United States as well as the counfel for Fries? A I have no recollection of any other reftriction. I did conceive it laid on both, and that the counfel, on neither fides fhould attempt to mislead the jury. That the counsel for the United States fhould not cite cafes which deftroyed the falutary provifions of the flatute of William, as that of difpenfing with the neceffity of having two witnefles to prove an over act of treason, and that the counsel for the prifoner fhould not cite common law cafes concerning treafon. William Meredith, sworn. Mr. Hopkinson. Please to relate what came under your obfervation at the trial of Fries. Mr. Meredith. On the 22d day of April 1800, I went to the court houfe at a late hour. As I approached the house I met a number of perfons, and the impreffion on my mind was that the court had adjourned. But meeting none of the bar, I went into court and found it fit. ting. Soon after I went in, judge Chafe obferved that the court had confidered the overt acts charged in the indictment against Fries, and had made up their minds as to the conftitutional definition of treafon; and to prevent mistake, had caufed three copies of their opinion to be made out by their clerk-the paper was then thrown down on the table. I recol. lect that at this time judge Ghafe obferved, that the giving this opinion was not intended to prevent the counfel from argying the law. I felt a defire to take a copy of the paper but I had no opportunity of doing it. The court adjourned a fhort time after this. When I was at home an, application was made to me by Mr. Cald. well, the clerk, for the copy which he had heard I had taken, but I informed him that I did not take one. On the following day I was in court at the opening of it. John Fries was placed at the bar, and the judge enquired of the counfel whether they were ready to proceed with his trial. Mr. Lewis obferved that he declined acting any longer as counfel for the prifoner. Judge Chafe faid that the counsel were Then by the bleffing of God the court will be your counfel, and will do you as much juftice as thofe who were affigned you.' The trial then proceeded. I was was not there the whole time of it. |