Question by Mr. Hopkinson.

Did not Judge Chafe take particular pains to inform Fries of his right to challenge and cross-examine the witnesses, and reminded not to ask any question that might criminate himself?

A. I thought Judge Chafe's promife to Fries very well, to wit: That of being his counfel. He appeared to take uncommon pains to prevent Fries from aking any queftion that might criminate himfelf, and to remind him of his right to challenge and examining the witneses produced on the part of the United States.

Luther Martin Sworn.

Mr. Harper. Will you pleafe to flate whether and at what time you furaifhed judge Chafe with the "Prospect Before Us," and whether there was not a number of passages fcored in it by yourself.

Mr. Martin. I was in New York du ring the sitting of the circuit court there: While I was sitting at the bar, I obferved in a newspaper that the "Prospect Before Us" was advertised to be fold at Greenleaf's printing office. Having never feen it, I went to the office and purchafed a couple of them. Judge Washing ton was then holding the court at New York, and informed me that he had never feen the book, and I offered him one of mine; but he fent his fervant and purchafed one. I then read the book, and as in my usual custom scored whatever pass ges I thought remarkable, either for merit or demerit, and in this cafe I fcored a

number of them. At that time I did not know that judge Chafe was to hold a court at Richmond, nor were the pafsages fco. red with any intention to be used in a profecution. There were pafsages fcored which could not have been used in the in. dictment, because I fcored all those which reflected on the character of General Washington. When I returned home and found judge Chale was going to Richmond, I gave him the book and obferved that he might amufe himself with it on the road, and afterwards make what ufe of it he pleased. I did detest the book.

Q book?

Was your
A It was on the title page of it.

name written in the

James Winchefter fworn.

Mr. Harper. Judge Winchefter, will you pleafe to ftate whether you were not in Annapolis, in company with Judge Chafe and Mr. Mafon, when a converfation took place relative to the "Profpec Before Us," and what was the nature of that converfation.

Mr. Winchefer. I attended in May, 1800, at Annapolis, as a diftrict judge, and held the circuit court there in con. junction with judge Chafe. I think on the last day of the term, a man by the name of Saunders was fentenced to be whipped, for breaking open a letter in the post-office. When he was taken out of court to receive his fentence, a crowd gathered at the door and prevented the paffage of the court out of it. I do not remember what perfons remained in court. While the judges remained on their feats, Mr. Mafon came up and addreffed himfelf to judge Chafe. After fuch a lapfe of time my recollection must be very imperfect, and I shall ufe my own language ia ftating what I recollect. I think the converfation took place in this way. Judge Chafe had delivered what has been called his farewell charge to the grand jury.— Mr. Mafon obferved, "Well. judge, what do you call this charge? Is it a moral, a political, a religious or a judicial one?" Judge Chafe replied that he be lieved that it was a little of all. I think Mr. Mafon informed the judge that be would not deliver fuch fentiments in VirChafe thought he meant to fay that he ginia It appeared to me that judge

would be afraid, and he faid that he would not only deliver fuch fentiments, but would execute the law as he declared it. The converfation then turned on the fubject of the book called the "Profpect Before Us," and it was fpoken of as a book written by Callender. The converfation which paffed concerning it I do not recol lect more than this, that I have a ftrong impreffion that judge Chafe faid that Mr. Martin had given him the book, and that he fhould take it with him to Richmond. I heard the teftimony given in a few days ago by Mr. Mafon, and my teftimony cor refponds with his in this particular, that the whole converfation was of a jocular nature; but I do not remember particular

expreffious that he does; foch as the judge's obferving, that if the ftate of Vir. ginia was not wholly depraved, or if there were an honest jury to be found in it, that he would punish Callender. But my attention was not directed to the whole of the converfation which took place, and thofe expreflions might have been ufed by judge Chafe without my hearing them.

William Marshall fworn:

owing to him, but did not expect to receive more of it than what he owed, fo that he did not conceive himself worth any thing. Judge Chafe asked whether he could procure bail in the fum of two hun dred dollars. The reply was in the af firmative, and a recognizance entered into

Chafe obferved, that perhaps Callender might have fome application to make to the court. I do not recollect whether the gentleman who afterwards appeared for Callender were then in court; if they were, they faid nothing. Mr. Merewether Jones informed the court, that Cal. lender was not prepared to make any application, but that one would be made the next day. Judge Chase asked if Callender could give bail. The reply of Mr. Jones was, that he could in a moderate fum.Mr. Harper. Please to relate to this Judge Chafe then afked Callender what he honorable court, at what time you faw was worth, who replied that he was ajudge Chafe, after his arrival in Rich-bout equal. The judge did not appear to mond, and what took place at the trial of understand him, and asked what he meant by it. Callender faid that he had no proCallender. perty, and that he owed about two hunMr. Marshall. On the 21st of May,dred dollars. That he had more than that judge Chafe arrived in Richmond. Imme. diately after his arrival I waited on him, and he asked me (being the clerk of the court) concerning the fate of the docket, and I gave him information concerning it. On the 22d of May the court met, and judge Chafe charged the grand jury. On Saturday, the 24th, they returned with a prefentment againft James Thompfon Cal lender as the author of a book called the "Profpect Before U." I believe that the grand jury, had prepared the prefentment before the court opened, and as foon as it opened they made it. As foon as I had read the prefentment, the marfaal carried the jury back to their chamber, and the attorney went to prepare the indictment. There was fome converfation between judge Chafe and the attorney, and then judge Chafe enquired what was the procefs proper to be iffued on the prefentment, Mr. Nelfon anfwered, that he fuppofed a eapias was, Judge Chafe faid fomething about a bench warrant, which was unknown to us. Judge Chafe then obferved, that all three of us, muft draw a form of arreft, and the one which he most approved of fhould be used. I finified mine firt, and the judge approved of it and ordered me to put the feal of the court to it and deliver it to the marshal, which I did. On Saturday evening the grand jury bro't in the indictment. Judge Chafe formed the court from the 22d to the 29th of May inclufive, alone on the 30th judge Grif fin arrived. On the 27th the marshal brought Mr. Callender into court in cuf tody. A chair was handed to him, and he remained in court. In the evening judge

Callender in the fum of two hundred dollars. and two fureties in the fum of one hundred dollars each. On the 28th an ap plication was made to the court, by Mr. Hay, for a continuance of the caufe. He stated to the court that he was not well acquainted with the practice in the cir cuit courts, but that he had prepared a general affidavit, flating, that the traverser was not prepared for trial on account of the abfence of material witneffes. Judge Chafe told him that he had better file a fpecial affidavit, and might take until the next day to prepare it. He also observed that it was neceffary for the traverser to plead to the indictment, before any motion for a continuance could be made, as he might plead guilty. Mr. Hay affured the court that that would not be the plea.Callender was however arraigned and plead not guilty, and nothing further was faid on the fubject on that day. On the 29th Mr. Hay produced his fpecial affida vit. The affidavit fated that a variety of witneffes were abfent, who were material to the defence of the traverfer—that there were a number of written documents and alfo a book written by Mr. Adams entitled, An Efay on the Canon and Fendal Laws," which were alfo neceflary for his defence and without which he could not

fafely go to trial; he therefore moved fo

in the capitol and brought down Coke up: on Littleton. Judge Cha'e looked at it and decided that the pannel fhould not be quafhed. When the jury had all anfwered, the counsel propofed to propound aqueftion to them, I do not recollect what it was. Judge Chafe obferved that he would propound the proper question to them, and he asked them the following question: "Have you formed and delivered an opinion on the charges in the indictment." The answer of the first juror was that he did not know what the indictment was. Eight or nine jurors anfwered in the fame manner, and the counfel declared it unneceffary to put it to the fubfequent ones. I cannot state all the circumftances of the trial. Colonel Tayler's evidence was rejected.

Questions by Mr. Harper.

Did any converfation take place be, tween judge Chafe and yourself relative to the fummoning of the jury, and did not judge Chafe express a with that Mr. Giles might be on the jury?

circuit court on the 29th May. When his Anfaver. Mr. Giles was a juror in the name was called over to record the ver

a cantinuance. Judge Chafe obferved that every perfon indicted for publishing a libel & intending to prove the truth of his affertions by documents, ought always to have thofe documents in his poffeffion. That the affidavit was not fufficient to procure a continuance, but that they fhould have time to procure the attendance of their witneffes. He faid that the court would laft for two weeks, but that would not be fufficient, he would give them a month: "Nay gentlemen (faid he) " I will give you fix weeks." I cannot remain here fix weeks, because I am bound to hold a court in Delaware, but I will go to Delaware and hold the court, and return here in fix weeks and try Callender. In the courfe of Mr. Hay's obfervations he faid that he was not prepared to inveftigate the law and the facts, when judge Chafe made the offer which I have mentioned; I do not recollect that any reply was made. Judge Chafe then obferved that the trial fhould come on at fuch a time, as the witneffes who lived in Virginia could have time to attend, and afked the marshal concerning the refidence of Mr. Giles and General Mafon, and whether he had any deputies in court who could be fent after them.The reply was that a deputy marthal was there, who could go after them immediwas Mr. Giles the celebrated member of ately. Judge Chafe then directed me to Congrefs; I told him that it was. iffue fummonfes for the witneffes, return that evening I was at the lodgings of the able on Monday the fecond of June. I ac- judge, and he asked me whether Mr. Giles cordingly iffued fubpoenas for general Ma- would remain in Richmond until the trial fon, Mr. Giles and colonel Taylor. The of Callender. I informed him that I exmarthal was directed to ufe all expedition,pected he would not. and on Monday the fubpoenas were all re-that Mr. Giles should be on the jury, and pected he would not. He faid he withed turned execu ed, with the memorandums when they were done. On Monday morn-him to drop a hint to the marthal, that it added, that if his fituation would permit ing colonel Taylor appeared in court; the would be to fummon a jury to try Callenothers did not. A poftponement was asked by the counsel for Callender for two hours, litical friends, but that it would be improder, compofed entirely of Callender's poin hopes that Mr. Giles would arrive.Judge Chafe informed them that they per for him to interfere. might have a poftponement until the next day, which was taken. On Tuesday morning a motion was again made, founded on the affidavit for a continuance.Judge Griffin was then in court, having come in on the 30th of May. The motion was argued at length and received the fame deciñon it had before, and the marhal was ordered to call the jury-twelve jurors appeared when called. Some objection was made to the pannel of the jury. Authority was called for, and I went up

dict, judge Chafe asked me whether that

On

Q. Was you at any time at the lodgings of Judge Chafe, when Mr. Heath was there, and what paffed at that time?

A. Judge Chafe was a total ftranger in Richmond, and afked me to call on him as often as I paffibly could. I generally went every evening after the court rofe, and I believe I went every morning and accom panied him to court. One day, about ten o'clock, I went to his lodgings, and found Mr. Heath there, who was either at the door, or in the paffage, in the act of leav

+

ing the houfe. I am not pofitive whether
Mr. Randolph, the marshal, was with me;
but my opinion is, that he was. I am po.
fitive that he went with the judge and
myfelf to court on that day; becaufe I
recollect expreffing my furprife to him at
finding Mr. Heath there, and asked him
how judge Chafe, who was a stranger in
Richmond, could be acquainted with Mr.
Heath.

was it not customary for the circuit judges to change?

A. It was.

Q. Who prefided at the next term after the trial of Callender? A. Judge Patterson.

Questions by Mr. Randolph.

You fay you are not certain that the marshal accompanied you to the lodgings Q. You fay that Mr. Heath was in the of Mr. Chafe when you faw Mr. Heath act of leaving the room? there; are you certain that he accompa

A. He was either out of the room, or pied you and the judge to the court? in the act of coming out,

Q. Did any converfation take place between judge Chafe and the marshal, concerning the fummoning of the jury, while

Mr. Heath was there?

A. There was not one word took place while Mr. Heath was there, and none of that kind ever took place in my prefence.

Q. When the witneffes who were fummoned did not attend, did not judge Chafe

offer to iffue attachments?

A. He did, returnable immediately.
Q. Did not judge Griffin concur with
judge Chase in all his opinions ?

A. I fat near the judges, and frequent-
ly heard them in a low converfation, but
I recollect nothing diftinctly, except when
Mr. Baffet was directed to be fworn on
the jury, judge Chafe afked him "whe
ther he had formed and delivered an opi-
nion on the charges in the indictment"
to which Mr. Baffet replied in the nega
tive. Judge Cafe then obferved to Mr.
Griffin, that this was fimilar to a murder
That a man might make up his mind as
to what conftituted murder; but that if
he did not apply it to the particular cafe,
that he was a competent juror; and then
directed Mr. Baffet to be fworn, to which
judge Griffin affented.

Q. Did this precede the decifion?

A. I can't fay with certainty. Judge Griffin was confulted as to the rejection of colonel Taylor's testimony, and I undertood him to affent to all the acts of the

court.

William Marshall erofs examined.
Questions by Mr. Nicholson.

At the time when Callender was tried,

A. I am pofitive.

Q. You mentioned that the judge expreffed a wish that the jury to try Callender fhould be of a certain political defcription; did you mention that to the marshal?

A. I never did.

who tried Callender, were oppofed to him Q. Do you not know that all the jury in political fentiments ?

A. I believe they all were.

Q. Did the capias which iffued againft Callender, iffue before the bill was found. A. It did.

Q. In the courfe of the trial, were not the interruptions of counsel more frequent than you have ever feen at any other trial? A. I have rarely feen a trial where the interruptions were fo frequent. Q. Do you recollect any safe?

A. I recollect a cafe where judge Ire dell prefided, when the interruptions were more frequent.

Q. Did you fee any thing difrespectful on the part of the counsel ?

A. The counsel for the traverfer appeared to be in a great ftate of irritation, and there appeared as much decifion on the part of the court as I have ever wit

neffed.

Q. Was there much warmth difplayed? A. There was; but I am unable to say who commenced it.

Question by Mr. Martin. What produced the interruptions of the counfel ?

A. I cannot give a diftinct answer to