thefe charges? Are they falfe, fcandalous and malicious, and published with intent to defame? It is for the jury to fay what was the intent of fuch imputations, and this is fufficiently obvious-the caufe must be tried-I am fworn to do jaltice between the United States and the prifoner at the bar. I do not dictate to you how you are to defend him, but you must de-' fend every man according to the law; and without intending any difrefpect to either of you, I must confine you to what I think the law." The marshal was then ordered to call. the jury. Mr. Nicholas.—We mean to challenge the array, and take every advantage which the laws of the country give us. In fupport of this doctrine, I will read a paffage from "trials per pais"-(here he read the paffage.) I believe there is tef. timony in court to prove that one of the jurors returned by the marshal, has expreffed fentiments hoftile to the traverfer. It is like a cafe stated in the books, where a verdict was fet afide, because a juryinan had previously faid, that the man accufed ought to be hanged; and in that cafe, on the fecord trial, every juryman was call. ed to fay, whether he had formed any opinion on the fubject or not? Judge Chafe. My conftruction of the law is quite the contrary. I have always feen triors fworn to decide thefe questions -How is this done in your country? Challenges for favor must be decided by triors-I fuppofe there must be triers Iworn. Mr. Nicholas.-I believe the books lay down this diftinction.-Challenges to the array are either principal challenges, or challenges for favor-caufes for principal challenges are always tried by the court; challenges for favor are always tried by triors. Judge Chafe.-Well Sir, your challenge is for favor, becaufe you ftate the juror to be unfavorable to the traverfer. Mr. Nicholas.-This book states it as a caufe of principal challenge. Judge Chafe.-Shew me that book, it is not the best authority-have you Coke upon Littleton in the houfe. If I had it We would fee the whole of the doctrine at Mace. I am perfuaded, that Coke upon Littleton ftates, that challenges for favor Coke upon Littleton being produced and the judge having examined it, obferved the cafe is clear. Principal challenges to the array, or the whole jury at once, is always for partiality in the fheriff, and not in the jurors. Mr. Nicholas admitted it, but fuggefted that the law might perhaps confider the return of a partial jur, as futficient to ground a challenge to the array, on the principle of partiality in the fheriff, and wifhed to know if he was correct in this idea of the law. Judge Chafe anfwered, "No Sir, the law is not fo. You must proceed regularly -You may bring in proof if you can, that any juror has delivered his opinion upon that cafe heretofore, or you may examine the juror himself upon oath to this effect. You may do either, but not both-and this alternative offered, you must confidér not as a ftrict right."The counfel chofe to rely on the jurors themselves. The first juror was sworn; and the judge put the following question to him: "Have you ever formed and delivered an opinion upon the charges contained in the indictment ?" The juror answered that he had never feen the indictment, nor heard it read. The judge then faid, he must be fworn in chief. Mr. Hay folicited permiffion to put a queftion to the juror before he was fworn in chief. The judge defired to know what fort of a question he meant to pur, and told him he must first hear the queftion; and if he thought it a proper one, it might be put.-Mr. Hay. The queftion which, with the permition of the court, I meant to have asked, is this, "Have you ever formed and delivered an opinion on the book entitied, The Profpect before Us, from which the charges in the indictment are extracted ?" Judge Chafe. That queftion is improper and you fhall not afk it-The only proper question is, "Have you ever forma ed and delivered an opinion upon this He must have delivered as well. charge." as formed the opinion. Sach a question as you propofe, would prevent the man from ever being tried-the whole country have heard the cafe, and very probably formed an opinion. You might mislead men by your ingenuity, and if you were indulged in putting the question, the traverfer might never be tried. He has answered that he never faw the indict. ment, nor heard it read, and if he has neither read or heard the charges, I am fure he cannot have formed or delivered an opinion on the fubject. Mr. Hay then expreffed a wish that the indictment might be read to him, becaufe perhaps when he heard and understood the charges, he would answer, that he had both formed and delivered an opinion upon them. The judge replied, that the court had already indulged him as far as they could. That the anfwer of the juryman was explicit that they could not go farther than they had gone-and that he ought to be fatisfied. The juryman was then fworn in chief, and the iffue was explained, that it must be proved that the traverfer wrote or published the book; that the charges were falfe, fcandalous and malicious, and that he wrote them with intent to defame, and that if he could prove the charges he must be acquitted. The fame question, "whether they had formed and delivered an opinion on the charges againft the traverfer;" was put by the judge to eight of the other jurymen fucceffively; before they were fworn in chief; and they all answered in the negative. The counsel for the traverfer faid, that it was unneceffary to put this question to the other three jurymen, and they were accordingly fworn in chief immediately. Perhaps it is not improper here to obferve, that the eighth juror anfwered when the previous queftion was put to him, that though he had never read or heard the charges in the indictment, and knew not what the traverfer had published, yet he had formed an unequivocal opinion, that fuch a book as "The Profpect before Us," was, came within the fedition law : But no objection was made to him, and he was fworn like the reft. [See page 48 of the EXHIBITS.] The profecutor then proceeded to prove the charges in the indictment, stated to be, * fcandalous and malicious libel. I shall not attempt, gentlemen of the jury; ta Here he read the fecond and third fections of the law commonly called the fedition law. The second section is in these words :-"That if any perfon fhail write, print, utter or publifh, or thall caufe or procure to be written, printed, uttered or published; or fhall knowingly and wilfully affift or aid in writing, printing, uttering or publishing any falle fcandalous and malicious writing or writings, against the government of the United States, or either house of congrefs of the United States, or the prefident of the United States, with intent to defame the faid government, or either houfe of the faid congrefs, or the faid prefident, or to bring them or either of them into contempt or difrepute, or to excite against them, or either or any of them, the hatred of the good people of the United States, or to tir up fedition within the United States, or to excite any unlawful combinations therein, or oppofing or reifting any law of the United States, of any act of the prefident of the United States, done in pursuance of any fuch laws or of the powers in him vested by the conftitution of the United States; of to refift, oppose or defeat any fuch law or act; or to aid, encourage or abet any hoftile defigns of any foreign nation against the United States, their people or government; then fuch perfon, being thereof convicted before any court of the United States, having jurisdiction thereof, fhall, be punished by a fine not exceeding twe thonfand dollars, and by imprisonment hot exceeding two years."-Upon this atute James Thompfon Callender is now indicted, and the indictment charges, that malicioufly defigning and intending to defame the prefident, he, James Thompson Callender, did publish the libel fet forth therein, with intent to bring him into contempt and difrepute, and to excite the hatred of the good people of the United States towards him. It will be for you, gentlemen of the jury, in this cafe to Cetermine whether the traverser has or has not been the publisher of this paper This point being afcertained, it will be for you to confider with what view and for what purpose, a paper, like this has been compofed and published. pledged not to inftitute à profécution a gainit him-of this he may be affured. The fubitance of the evidence was nearly as follows: The first witness called upon, was Mr. Wm. Duval-he faid that he faw Mr. Henry Banks have the book called. ** The Profpect Before Us-that Mr. Bank's gave day he faw Mr. Callender, who told hi that he must pay him a dollar for the book given him by Mr. Banks-that he dit then pay the dollar for it to Mr. Callender, and that the book, he believes, contained fome of the charges in the indictment. him the book to read-that the next Mr. Banks was then called-he deciat red, that fome time ago, he had become fubfcriber to the book enti led, “ The Profpect Before Us." and paid he mney at the time of fübfcription—that he lept the book to major Duval and sent to inform Mr. Callender that he might get the money for it of major Duval, anr! that he could get another copy for himfeit, another time-that he got from Mr. Callender the copy he delivered to major Duval-that he never heard the traverfer acknowledge that he was the author, but that his opinion upon the fubject was If you believe it to be a candid and fair difcuffion of conftitutional fubjects, of real grievances or of political opinions and principles generally, you will not conlider it to be a libel within the ftatute. If you believe the facts and allegations averred in the paper are true, you will confider that the traverfer hath defended himself according to the ftatute, but if, from internal evidence in the paper itself, you do not think fo, you do not believe it to be a candid evidence and fair difcuffionclear. of conftitutional fubjects, real grievances or political opinions and principles; and that it does not contain the truth in all parts, you must find the traverfer guilty. Mr. Neifen was about to introduce e vidence on the part of the United States, when Mr. Hay obferved, that he under. flood, that fome of the witneffes who were to be examined to prove the guilt of the accused, were the:nfelves in the estimation of the law, equally guilty; that they had printed, though they had not written the bel in question; he would therefore beg leave to make it known to those who were in any degree implicated, that they were not bound to accufe themfelves, and might withhold if they thought proper, fuch part of their evidence as had a tendency to criminate themselves. The judge replied, that he was correct in his statement-that every perfon concerned in the publication was protected by law, from compulfion to riminate himself, but he added, I fuprote if any of them give his evidence, hegaremment of the United States is The judge told him that his opinion was no evidence against the trax verfer. William Burton was het called-s faid that he purchafed fuch a book fro Mr. Pleafant's (who is a bookfeller as we!! as a printer)-that he paid the money to Mr. Pleasants and Mr. Callender was prefent. William A. Rind was next called...I' teftimony fubftantially was, that a copy of the book in question, then in court, belonged to him--That a confiderable time ago, Mr. Lyon applied to them to print the National Magazine that ther entered into contract for the purpose of printing 22 theets of that, or an equivalent in other work...that after a great part of the Magazine had been printed, it flopped, either for the want of paper or fome othe caufe.That Mr. L. then brought Profpect before Us"...that, they printet 4 or 5 half theets of it--that the pro fheets were fent to Mr. Callender ftet correction, and returned corrected in his hand writing...that Mr. Callender eng N The -corrected a proof fheet in a large room at the office---that Mr. Callender came once to hurry the work, and faid he would pay but that he confidered Mr. L. as pay-mafter...that at Mr. Dixon's office, Mr. Callender faid he would give him 20 copies if he read one through, as he was fure it would convert him---that a fmall part of the manufcript remained in his poffeffion, which he produced, then in court, and which he believed to be the hand writing of Mr. Callender---Being afked if he had ever feen Mr. Callender write, he faid he had...that Mr. Callender once took the debates in the house of affembly for them, The book and manufcript theets were then compared and found to correfpond...this occupied fome found to correfpond...this occupied fome time, and the judge took fome pains in examining and comparing them. Mr. Meriwether Jones was next called upon. The fubftance of whofe evidence was, that he had never read the book till after the prefentment was made, except a few paffages, and perhaps about 33 pages, that not a word of it was printed at his office, though he fold fome copies for the benefit of Mr. Callender, that he only poffeffed one copy (which he then fhewed) and which he declared he found where Mr. Callender generally kept his papers... that whenever he fold any of the books, Mr. Callender received the money...that he kept a memorandum of the money received, that he might know how much he owed him that he could not pofitively fay whether Mr. Callender was the author he of the book or not--- that he had never told him he was---though he had his opinion and belief on the fubject...that he had published propofals to print the book, and afterwards, that he had them for fale...but he did not recollect whether he published that he had them for fale for the benefit of Mr. Callender, though the fact was fo that the ftrongeft proof he had of Mr. Callender being the author, was a converfation he had with him, refpecting that part of the book, where fpeaking of Washington and Adams it ufes the term paltroons...Mr. Callender faid he alluded to fome who had received appointments from them, and not to themfelves. The next witnefs called was Thomas Nicholfon, who is alfo a printer ---His evidence was, that Mr. Callender had called at his houfe, to engage him to publish a part of the book---that he could not do it then---that he called on him the next day, accompanied by Mr. Meriwether Jones, for whom he was then engaged to print...that Mr. Jones told him, that he might fufpend his work, which he was then engaged in, to do Mr. Callender's -that he printed feven pages of the book, that Mr. Callender paid him for it; and he understood it was for his emolument. Then, Mr. John Dixon, alfo a printer, was called. He faid that he printed the greatest part of the book, (about 120 pages) at the request of Mr. Lyon, and that Mr. Callender corrected the proof fheets. Mr. James Lyon's evidence was in fubftance, that he did not know that Mr. Callender was the author of the book, but that he knew him to be the publisher of it, jointly with himfelf...and that he probably (but he did not recollect cer. tainly) had furnished Mr. Rind with the copy of the book...that Mr. Callender corrected the fheets from the press---that he never faw Mr. Callender writing, but fuppofed from having feen the manufcript, and fome writing which was (faid to be) written by him, that he wrote it. And then Mr. Samuel Pleasants, another printer, was called-He depofed, that he ftood that the books were fent to him had fold copies of this book---he under. from the book-binder, for Mr. Callender ...that he received both the money and the fubfcription papers for him, and paid him the money he received-that he fold perhaps an hundred copies. The oral teftimony of the United States being finished, the attorney for the United States was about to point to the jury, the paffages in "The Profpect Before Us,"correfponding with the charges in the indictment, when Mr. Hay objected to the introduction of that book. book cannot be adduced in evidence, in I conceive, faid Mr. Hay, that this fupport of the charges, ftated in the in dictment, Perhaps my ftating to the court, the reasons which have led me to among other things, the paffages com. If then it be the practice to recite in the indictment the name, to describe the title of the book, or 1 bel published; if this has been the invariable practice ever since the unhappy prosecution for libels took place in that country-I believe there is no doubt but the title of this book ought to have been stated in the indictment. I have learned to think with dif. fidence, but I am firmly persuaded, that the attorney for the United States cannot give a single case from the English books of a contrary practice ; and witha |