of the judge; that he was there but once, which was in the morning, a little before the time when the court ufually met; that he remained about half an hour; and that no perfon was prefent, except the judge the marshal and himself.

William Marthal declares, that in the morning he called on the judge, according to his cuftom, a little before the meeting of the court; that when he entered the room, Heath had left it, or was in the act of leaving it, and immediately went a way; and that the judge did not fay one word in his hearing, which it was poffible for Heath to hear. Thus far he speaks pofitively. He adds that he firmly believes, but cannot pofitively affert, that the marshal, David Mead Randolph, went with him to the judge's lodgings, and left them with him; and that they both together attended the judge to the court-houfe, His reafons for this belief are, that he has a ftrong impreffion of the facts on his mind, though not a perfect recollection; that it was his daily cuftom to call on the judge in the morning, on his way to the courthoufe; that in going from his own houfe to the lodgings of the judge, he paffed by or near the office of the marshal, who ufual ly accompanied him, in order to attend the judge to court; and that he perfectly recollects a converfat ion between himself and the marshal, on the way from the judge's lodgings to the court-houfe, in which he remarked to the marshal, the circumtance of having feen Heath with the judge. This converfation with Mr. Randolph, Mr. Marshal perfectly recollects, and that it took place on the way from the judge's lodgings to the court-houfe; and he very naturally infers from it, that they left the judge's lodgings at the fame time: As the other circumftances which he has ftated, induced him to believe, with equal probability, that they went there to, gether.

If they went together, then is Mr. Marshall alfo in pofitive contradiction with Mr. Heath. The only way in which they can be reconciled, is to fuppofe that Mr. Randolph went there without Mr. Mar fhall, and had before that gentleman's ar rival, the converfation which is related by Mr. Heath. It could not have been af terwards; for Heath went away as Mar. mall entered, and did not return. He has

faid that he was there but snee; and that when he left the judge, he went immedi ately on the Hill, and related the converfation. That Randolph and Marshall went together, is in the highest degree probable, not only from Marshall's belief of the fact, and the ftrong impreffion of it remaining on his mind; but alfo from the circumstances which he has ftated, If they went toge ther, then it is clear, if Marshall tells the truth, that Heath left the room as they entered it; that no converfation could have taken place between Randolph and the judge, in the hearing of Heath, with out being heard by Marshall alfo; and that none in fact did take place. Confe. quently it is manifeft, that unless we believe, contrary to all probability, and to the belief and ftrong impreffions of Marshell himself, that Randolph went to the judge's lodgings before him, we must ad mit that his teftimony, as well as that of Randolph, is in direct contradiction with the teftimony of Heath.

To this double contradiction we muft add, the extreme improbability of the fact itself. A judge having a defign to pack a jury, for the purpofe of procuring the conviction of a perfon, whofe fuppofed offence was intimately connected with the political struggle, in which the country was then fo warmly engaged; about to execute, this defign at the place where the profecution had excited the greatest irrita, tion; furrounded on all fides, and watched at every moment, by thofe whom he knew to have most zealously efpoufed the caufe of the fuppofed offender; and entering into a corrupt combination with the marshal, for the purpofe of carrying this criminal defign into effect; a judge in thefe circumftances and with thefe views, develope his plans to a perfect ftranger; whom, if he had known any thing of him, he mus have known to be perfectly devoted, to the political friends and fupporters of the perfon accufed!! Sir, the thing is impos fible. The judge moft have been a fool, as well as a knave, to act in this mapner, Confpiracy, fir, feeks darkness, and not light. Its plots are formed in fecret cor ners. Its communications are wrapt up in cyphers, or conveyed in cautious whif pers. Had the refpondent intended to hold fuch a converfation with the marshal, he would have waited till Heath was gone, would then have drawn his accomplice inte

one of thofe dark hiding places which confpirators love, and there would have muttered his corrupt orders. If the words which Heath reiates had been spoken, the fingle circumftance that they were fpoken openly in his prefence, would be fufficient to prove that they were nothing more tnan a foolish jeft, devoid alike of criminal intent and ferious meaning,

It is indeed poffible, that Heath may have heard the refpondent utter fome inconfiderate jeft, about democrats on the jury, which his zeal led him to mistake, for a direction to the marshal to strike them off. I am defirous of fuppofing that fomething of this fort may have happened: for I can fee no other way of relieving this man, from the imputation of wilful falfe fwearing; which it would be most painful to fee fixed on any perfon, and especially on one who has filled an honorable ftation, under the government of his country,

Before I quit the fubject of Heath's tef timony, let me be permitted, Mr. Prefident, to ask why, if it was believed, it was not taken a year ago, when witneffes were convened from all parts of the continent, and the teftimony was collected on which thefe articles of impeachment were founded? It must have been well known at that time; for he has declared that he mentioned the fact to Hugh Holmes, Merewether Jones, and fome others, as foon as it happened; and to a great many perfons afterwards. Had this teftimony then been taken, and prefented to the pub. lic with the reft of the evidence, we might have been prepared to contradict or explain it. I will ask, why the honorable managers have not fummoned fome of thofe perfons, to whom this story was related by Heath, and who might have corroborated or refuted his teftimony? Thofe perfons were fully within their reach. Nay the minutes of this court fhew, that Mr. Hugh Holmes has actually been fummoned; and, if I am rightly informed, he has at tended for three days paft. Why is he not produced? I will not undertake to account for this omiffion; but I will say, that if Heath's teftimony was believed, it ought to have been taken at firft, fo as to give us an opportunity of inveftigating it fully; and that it appears probable, that the managers would have adduced the witneffes who were certainly in their reach, to cor,

roborate Heath, did they not apprehend a contradiction instead of a corroboration,

So much for the proofs adduced, of a previous corrupt intention in the refpondent, to procure the conviction of Callen. der. Weak as they are in themselves, and broken by the oppofing teftimony, let us complete their overthrow, by bringing against them the proofs which the evidence exhibits, of a difpofition full of juftice and humanity. It is written that by their fruits ye fhall know them." Let us then look to the fruits. Let us examine the conduct of the refpondent towards Callen. der, throughout the trial; and enquire whether it bears the marks of a difpofition to opprefs.

And, first, let us oppofe converfation to converfation the converfation with Wil

liam Marshall about the jury, to those with Mr. Mafon and Mr. Triplett. William Marshall has informed us that the judge, having heard the name of Mr. Giles mentioned in court, enquired if that was the celebrated Mr. Giles, member of Con! grefs; that he afterwards afked the wit nefs, whether it was probable that Mr. Giles would remain in Richmond, till the trial of Callender; and afterwards added, that he fhould with Mr. Giles to be on that jury; and indeed, if it were proper for him to give any intimation to the mat. fhal refpecting the jury, would requeft him to compofe it entirely of perfons, wha agreed with Callender in political opinions. What is to be inferred from this converfa. tion? That he wished to convict Callender? No. But that as he knew the cafe to have excited ftrong party feelings, he wifhed the perfon accufed to have a trial which would filence clamor, and preclude all fufpicion of improper views; fo that a conviction, fhould one take place, being free from the imputation of party ven geance, might operate more ftrongly as an example, to check the licentioufnefs of the prefs. Surely this motive was humane towards the party accufed, and highly pa triotic as it refpected the public.

When Callender was taken, the refpon dent, inftead of committing him immedi ately to prifon, as he might have done, there to wait till bail fhould be offered, manifefted the utmost readiness to let him go out and fearch for bail, and an anxious

folicitude that he fhould find it. Inftead of demanding bail in a large fum, one two or three thousand dollars for inftance, which it was in his power to do, he de. manded only what Callender himfelf de clared he could give: and bail was actually taken, in the very moderate fum of two hundred dollars.

After the counsel for Callender had been moft properly over-ruled, on legal grounds, in their attempts to obtain a continuance ; the refpondent being obliged to refuse the continuance, for which no fufficient ground was laid, humanely offered to poftpone the trial, for weeks and months, for the accommodation of the traverfer and his counfel. When this was refufed, he poft, poned it from day to day, as long as they defired, to give the witneffes who were within reach an opportunity of coming in;

and offered to iffue attachments for thofe

who did not appear, which would have induced neceffarily a further delay,

And, lastly, when Callender was con, 'victed, and thus placed completely within the power of the court, the respondent instead of going to the utmost verge of the law, in the severity of punishment, fined him only one-tenth of the sum, and imprisoned him for but little more than a third of the time, which the law allowed. The sum limited by the law was two thousand dollars; and the fine imposed was two hundred. The term of imprisonment which the law allowed was two years; and the time fixed by the court was nine months.

Are these, Mr. President, the fruits of a disposition oppressive and corrupt? Again I say if this be oppression, God grant that I and mine may never be otherwise oppressed!

It is urged against the refpondent, under the fecond charge, that he refufed to let the indictment be read to the jury, when it was requested by Callender's counfel. Why did they with the indictment to be read? It was, they tell us, for the purpofe of making known to John Baffet and the other jurors, before they were fworn, the nature of the charges; and thereby enabling them to declare whether they food indifferent, or had made up and expreffed an opinion, as to the matter in jue, But John Baffet has informed us,

that when the queftion whether he had formed and expreffed an opinion was put to him, he was perfectly apprized of the nature of the charges, and knew that Cal lender was indicted under the fedition law, for printing and publishing "The Profpect Before Us." As to the other jurors, it is in evidence, that before the question was plained to them fully the fubject and propounded to them, the refpondent exobject of the profecution, and the nature of the iffues which they were called upon where would have been the ufe, of reading to try. Where then was the neceffity, the indictment? It could have informed before; and the other jurors of that John Baffet of that only which he knew which the refpondent explained to them, much better than they could have underftood it, by merely hearing a long indictment read in court. The object of the counfel, they fay, and certainly the only proper object, was to inform the jury. The judge took a shorter and much more effectual method of attaining this object. He clearly and fully stated to the jury the matter in iffue, the points in difpute, and legal principles which ought to govern their determination. He told them that Callender was indicted, for printing or publishing certain libellous matter extracted from "The Prospect Before Us;" that he must be proved to be the author or publisher of that book that the paffages ftated in the indictment muft appear to be contained verbatim in the book, and to be falfe fcandalous and malicious; and that the book must ap. pear to have been published; with intent to defame the prefident of the United States, and to bring him into disrepute and contempt. All this he fully explained to the jurors, before the question was propounded to them. Will any one fay that all this could have been as clearly understood by the jury, from fimply hearing the indictment read? And is a judge to be cenfured, because inftead of confuming the time of the court, in reading a long indictment, he took a

fhorter and more effectual method of at

taining, the only proper object that could be attained by the reading?

As to the main point of the fecond charge, the over-ruling of Mr. Baffet's fuppofed objection to ferving on the jurye