to opprefs all thole who came be him for trial who differed in poliz opinions with him. My first pofition is fupported by las eighth article amendatory of the c ftitution, which provides "that accufed fhall have the benef fel for his defence." Of w fit will counfel be when T delivered before they a what benefit can conti der are to be fubject to ** hase of the court? Acr trine of the ref dad nelit, he by it. Alt filed reft. ch as He was completed, the opinion had been of delivered, and the impreffions made on the minds of the jury; and the withdrawing of the opinion anfwered no. good purpose. As well might the judge ini- fay after having feattered fire brands the over the country, that he ought to be the forgiven, because he had withdrawn tice the inftrument that firft caufed the conals to flagration. y cone, that tted to h they > the juer. No he couni did not practice he relies e it to his I might in idge having - his he eyes, .t that he was when ountry, On this part of the fubject, the counfel felt as I feel, that after a folemn opinion had been delivered, in thehearing of the jury, that the 'offer made by the judge was a mere fineffe to give anf appearance of fairnefs in the tranfaction, when no good could refult from the offer to Fries. The counfel thought' it their duty to abandon the defence, becaufe the ground on which it refted was fnatched from under them by the court. And here let me notice, that when Mr. Lewis ftated that he conceived that their withdrawing from the defence of Fries would be an advantage to him, his grounds for fo thinking were, that they could be of no fervice in defending him after the conduct of the court, and that they had better reft on the application for mercy. I will now notice a ground taken by the judge in his anfwer, page 17, which is, that he cannot be impeached unless the offence be an indictable one. I will refer to the expofition which I attempted to give before in order to fhew that this is not correct, and in order to fhew that they are feperate and distinct offences. I will alfo refer to known and established authorities in England. In 2nd Bacon's abridgement, and Jacob's Law Dictionary, it will be found that the defence of the judge is not tenaobfervable. I have now finished my tion on the first article, and feeling much indifpofed. I fhall fit down, in order to fee whether the court will adjourn either for a fhort time, or until to-morrow. opinion. The scene was novel to all the bar-the whole audience witneffed a new fcere. The testimony further ftates, that the judge told the counfel that they must addrefs themselves on the law, to the court, and not to the jury. On this point, I confider the evidence of the counfel conclufive. For although the witnefies brought forward on the part of the refpondent do not recollect this, yet their want of recollection does not invalidate the teftimony of creditable witneffes. I must make a distinction between the credibility of witneffes; and the credit which ought to be attached to them on account of their relative fituation. The teftimony given by the counfel for Fries, is entitled to more weight than the teftimony of the other witneffes; becaufe being, interested in the cafe, they were more likely to obferve what paffed. On this ground, Mr. Lewis's evidence is unfhaken. He felt much interefted, and the tranfaction made a deep imprellion on his mind. Taking then his evidence as a fact not difputed, I ask whether the restrictions were not unknown to the laws and inconfiflent with the practice of the courts. All the witneffes declare this. Thefe refrictions were an entire prohibition of the counfel to fpeak. What were they to fpeak upon? The facts were admitted on all hands; a former trial had taken place and the facts were eftablished. The judge affigned counfal to the accufed, for what purpose I cannot devife. What were they to argue Were they to argue to the judge, that he was in an error? This was a mockery of juftice.The judge could not prefume, that the counfel would argue the cafe. The alignment of counfel mult have been a compliance with form and not for the perpofes of juftice. I fhail now notice an exertion made by the refpondent, to give a coloring to the object which the counfel for Fries, had in view, and which he must have known they had in view in reading decifions in England, on the law of treafon before the revolution. The judge ftates that he prefumes that common law authorities, could not throw any light on the law of treason. But Mr. Lewis ftates, that the object they had in view was not to fhew that the courts of the United States were bound by thofe decifions, but to fhew that the courts in England had fince the revolution confidered themfelves bound by the decifions before the revolution, and that as the attorney for the United States was fuffered to read the dicifions of the courts fince the revolution, they wished to fhew to what an extent conftructive treason had been carried before the revolution, and that thofe decifions had influence on the judges who made decifions after the revolution, and that therefore none of the decisions in England with regard to treason, were binding on the courts of the United States. This was an object of importance; but the counfel were deprived of this right, and they were alfo told that they must not cite the ftatutes of the United States, although fome of the witnesses have denied this, yet Mr. Lewis, ftates pofitively, that this was done. Is it then confidered to be the ufages of our courts, that the ftatutes of congrefs are not to be read in the courts, in order to show that what was charged to be treafon, was only fedition. This was a direct violation of the right of the prifoner and of the counfel. It then remains to fhew that the conduct of the judge could not fpring from any but corrupt motives and an intention to opprefs Fries. In fupport of this pofition, I beg leave to lay down as a rule, that when a man violates the laws of his country, improper motives must be prefumed, and it refts on him to thew the purity of motives either by evidence or by circumftances. The judge fays, that if he were mistaken in the law, he could not be confidered as liable to punishment. Sir, ignorance of the law cannot be offered as a julification. The known talents of the refpondent precludes the idea that he acted from ignorance. In the cafe of Fries, he had no precedent by which he could have acted. No inftance has been offered of a fimilar conduct. He relies upon the proceedings and opini on of the circuit court previous to the fecond trial of Fries. I ask why the refpondent did not follow the practice of the judges who fat in thofe trials to which he alludes? They certainly condemn him. The counfel all state, that at those trials they were permitted to cite all the authorities which they wifhed, and to argue the law to the jury as fully as they thought proper. No opinion was delivered before the counfel were heard. Why then did not judge Chafe conform to the practice in thofe decifions, on which he relies for a juftification? I leave it to his counfel to reconcile this. I might in this cafe infift that the judge having fuch high opinions before his eyes, he must have been confident that he was violating the laws of his country, when he acted in oppofition to thofe opinions. Let me merely obferve, that the judge must have had in view the conviction of Fries. The counfel were affigned merely for the fake of form. The day of trial was appointed. In the mean time, the judge makes up his opinion: the prifoner is called to the bar, not for trial, but to receive fentence; and the poor, friendless Fries, is without a trial, configned to the hands of the unrelenting executioner. Is this an impartial adminiftration of juftice? No fir, it is not, and I may fafely charge the judge with having wilfully violated the laws, and that it was done on account of his differing in political fentiments with Fries, and I call on this court to vindicate the rights of the people, and punish the violater of the laws. But it is infifted that the judge on the next day withdrew the opinion which he gave on the first day, and gave full liberty to the counsel to proceed with the defence. This permiflion came too late; the act was completed, the opinion had been. delivered, and the impreffions made on the minds of the jury; and the withdrawing of the opinion anfwered no good purpofe. As well might the judge fay after having fcattered fire brands over the country, that he ought to be forgiven, because he had withdrawn the inftrument that first caufed the conflagration. On this part of the fubject, the counfel felt as I feel, that after a folemn opinion had been delivered, in the earing of the jury, that the offer made by the judge was a mere fineffe to give anf appearance of fairnefs in the tranfac tion, when no good could refult from the offer to Fries. The counfel thought it their duty to abandon the defence, becaufe the ground on which it refted was fnatched from under them by the court. And here let me notice, that when Mr. Lewis ftated that he conceived that their withdrawing from the defence of Fries would be an advantage to him, his grounds for fo thinking were, that they could be of no fervice in defending him after the conduct of the court, and that they had better reft on the application for mercy. I will now notice a ground taken by the judge in his anfwer, page 17, which is, that he cannot be impeached unless the offence be an indictable one. I will refer to the expofition which I attempted to give before in order to fhew that this is not correct, and in order to fhew that they are feperate and diftinct of fences. I will alfo refer to known and established authorities in England. In 2nd Bacon's abridgement, and Jacob's Law Dictionary, it will be found that the defence of the judge is not tenable. I have now finifhed my obfervation on the first article, and feeling much indifpofed. I fhall fit down, in order to fee whether the court will adjourn either for a fhort time, or until to-morrow. The court adjourned for half an collect it; but it may have efcaped his hour. The court having again met, Mr. Early obferved that Mr. Campbell was fo much indifpofed, as to render it impoffible for him to proceed, and folicited until the next day to conclude his obfercations-after fome converfation, the court adjourned. THURSDAY, February 21. The court being called as ufual, Mr. Campbell, in continuation, Mr. Prefident, and Gentlemen of the I will now proceed to examine the fecond part of the accufation, which relates to the conduct of the judge at the trial of Callender. I fhall examine the articles in the order in which they took place, but in order to find out the motives of the judge, let us advert to his converfations previous to the trial. The intended profecution was firft talked of at Annapolis. There the judge is found with the book in his poffeffion, and declaring that he would puni Callender if there was an ho neft jury in the ftate of Virginia. This is proved by the teftimony of John Thompson Mafon, is uncontradicted and will not admit of a doubt. In the flage on his way to Richmond, we find the judge denouncing the defendant. After the indictment was found, the pannel of the jury is prcfented to him ; he enquires whether there are any creatures called democrats on it, and This is orders them to be ftruck off. proved by the teftimony of John Heath. His character is better known by fome of the members of this court than it is by me. If his integrity is good he cannot be mitaken. It is true, the maihal has fiated that he does not re memory. The fact must have exifted unless Mr. Heath told a wilful falfehood, and it fhewed a determination. in the judge to punish Callender. I will now examine the grounds of the refufal to continue the cafe upon the affidavit. When the defendant was called to the bar, to anfwer, he wifhed to have his cafe continued, and for that purpofe filed an affidavit, ftating the abfence of material witnesses. I fhall contend that this affidavit was fuflicient to continue the caufe. The defendant fwore that witneffes who were abfent, were material to his defence. On this fubject I will take the liberty of citing a fhort cafe on the subject of continuance.. It is from Fofter's Crown Law, page 2, where a special commiffion had iffued to the court to try perfons charged with the crime of high treafon, and upon an affidavit made that there were abfent witnesses who were material, the court granted. fufficient time for their appearance. (Here Mr. Campbell read the cafe) From this cafe it will appear, that in England an affidavit fimilar to the one filed in the cafe of Callender is deemed fufficient to continue the cause. But the affidavit of Callender was ftronger than the one reported in Fofter. Judge Chafe must therefore have acted contrary to the laws and known ufages of our country. But the judge in his anfwer, as if to aggravate the cafe, has introduced a train of fophiftical reafoning in order to fhew that the affidavit was not fufficient, inasmuch as it did not ftate that the witneffes could prove the truth of all the charges, and that therefore Callender must have been convicted. Can any principle. of law juftify the pofition, that the defendant, before he can entitle himfeli to a continuance, must prove to the ded on the book called the "Profpect before Us," and he therefore had formed an opinion against Callender, and did not ftand indifferent. But even admitting that the opinion must be delivered as well as formed, ftill Mr. Baffet was difqualified from ferving, for he did deliver the opinion which he had formed, in the prefence of the court, and was clearly as much a forming and delivering an opinion, as if they they had been done at the fame time. I fee no difference between the cafes. The reafon affigned by the judge for overruling the objection of Mr. Baffet was, that he had not formed and delivered an opinion upon the charges in the indictment. Once establish this doctrine, and (as the refpondent did) refufe to fuffer the indictment to be read to the jurors, and no juror can bet difqualified. In third Bacon's abridgement, page 756, it is exprefsly faid, judge, what he expected to prove to the jury? I hold that in ordinary cafes, it is fufficient to fhew that the witneffes are material and that their attendance can be procured. In the cafe of Callender the affidavit did fubftantially ftate, that the attendance of the witnefits could be procured at the next term. It stated their place of refidence, and that they could not be procured at that term, and it follows that he must have expected that they could attend at the next term. If the doctrine contended for by the judge is correct, the practice of continuing cafes will be difcretionary with the court, and instead of producing any falutary effect, it will be productive of nothing but injustice and oppreffion. Not once in ten thousand times would a defend. ant be able to have his cafe continued. The doctrine is dangerous to the liberties of the people. The refufal to continue the cafe, is to my mind, an evi-That if a juror has declared any opin dence of the fpirit by which the judge was actuated during the whole trial, which was to convict Callender; and he was determined to bear down all oppofition to this favorite object. I fhall now proceed to notice the fecond article of impeachment, which relates to the conduct of the judge in overruling the objection of Mr. Baffet the juror. In examining this article, I fhall endeavor to fhew that Baffet was an illegal juror on two grounds: firft becaufe he had made up an opinion and was not indifferent, and fecondly, that according to the queftion propounded by the judge himself, Mr. Baffet ought not to have been fworn on the jury. The evidence of Mr. Baflet was that he had feen extras which were faid to be taken from the "Profpect before Us," and had formed an unequivocal opinion that they came under the fedition law. Baffet clearly knew that the indictment against Callender was foun ion, or done any thing to make him not indifferent to the parties, it is a principle caufe of challenge.' In the cafe of Callender, the juror had made. up his mind, and had delivered his opinion, and yet was fworn on the ju. ry. If jurors are to be allowed to ferve after fuch acts as thefe, the boasted trial by jury, instead of being a fhield for innocence, will become an instrument of oppreffion. I have I think, clearly established the pofition, that Mr. Baffet was an incompetent juror; what excufe then can be offered for his objections being overruled? The judge fays, that all men had made up their opinions against fuch notorious offenders as Callender, and that had not the objections of Mr. Baffet been overruled, that it would have been impoffible to have obtained a jury. But, fir, there is a better reafon, which can be offered for the conduct of the refpondent. He had determined that Callender fhould be convicted, and knowing the character and poli |