per, requires to be informed what the witness is to prove or to see the writing before the first is examined or the second is read to the jury. The court has the same right, resulting necessarily from its power to decide all questions relative to the admissibility of evidence. This right our courts are in the constant habit of exercising not only when objections are made by the parties, but when there being no objection, the court itself has reason to suspect that the testimony is improper. In most cases, but not in all, consent by the opposite party removes all objections to the admissibility of evidence, and courts sometimes infer consent from silence; but as it is their duty to take care, that no improper or illegal evidence goes to the jury, unless the objection to it be removed by consent of parties: it is consequently their duty, in all cases where they see reason to suspect that the evidence offered is improper, to ascertain whether consent has been given, or whether the seeming acquiescence of the opposite party has proceeded from inattention. This is more particularly their duty in criminal cases, where they are bound to be counsel for the government, as well as for the party accused.

It being thus the right and duty of a court before which a trial takes place, to inform itself of the nature of the evidence offered, so as to be able to judge whether such evidence be proper, it results necessarily that they have a right to require, that any question intended to be put to a witness, should be reduced to writing; for that is the form in which their deliberation upon it may be most perfect, and their judgment will most likely to be correct. In the case now under consideration, the court did exercise this right. When the testimony of John Taylor was offered, the court enquired of the traverser's counsel, what that witness was to prove. The statement of his testimony given in answer, induced the court to suspect that it was irrelevant and inadmissible. They therefore, that they might have an opportunity for more careful and accurate consideration, called upon the counsel to state in writing, the questions intended to be put to the witness.

This is the act done by the court, but concurred in by the respondent, which has been selected and adduced, as one of the proofs and instances of "manifest

injustice, partiality, and intemperance" on his part. He owes an apology to this honorable court, for having occupied so much of its time with the refutation of a charge which has no claim to serious consideration, except what it derives from the respect due to the honorable body by which it was made and the high character of the court where it is preferred.

The next circumstance stated by the article now under consideration, as an instance and proof of "manifest injus tice, partiality, and imtemperance" in this respondent, is his refusal to postpone the trial of the said James Thom son Callender, although an affidavit was regularly filed, stating the absence of material witnesses on behalf of the accused, and although it was manifest that with the utmost diligence, the attendance of such witnesses could not have been procured at that term.”

This respondent, in answer to this part of the charge, admits, that in the above mentioned trial, the traverser's counsel did move the court, while this respondent sat in it alone, for a continu ance of the case until the next term; not merely a postponement of the trial as the expressions used in this part of the article would seem to import; and did file as the ground work of their motion, an affidavit of the traverser, a true and official copy of which, marked exhibit No. 5, this respondent herewith exhibits and begs leave to make part of this answer; but he denies that any sufficient ground for a continuance until the next term, was disclosed by this affidavit: as he trusts will clearly appear from the following facts and observations.

The trial of an indictment at the term when it is found by the grand jury, is a matter of course, which the prosecutor can claim as a right unless legal cause can be shewn for a continuance. The prosecutor may consent to a continuance, but if he withholds his consent, the court cannot grant a continuace without legal cause. Of the sufficiency and legality of this cause, as of every question of law, the court must judge; but it must decide on this as on every other point, according to the fixed and

known rules of law.

other

One of the legal grounds, and the principal one on which such a continu ance may be granted, is the absence of competent and material witnesses, whom

of obtaining them, might be entertained. On the ground of this book and these copies, therefore, there was no pretence for a continuance. As to the witnesses, it is manifest, that, from their very distant and dispersed situation, there exist ed no ground of reasonable expectation, that their attendance could be procured at the next term, or at any subsequent time. Indeed, the idea of postponing the trial of an indictment, till witnesses could be convened at Richmond, from South Carolina, New Hampshire, and the western extremities of Virginia, is too chimerical to be seriously entertained. Accordingly the traverser, though in his affidavit he stated them to be material, and declared that he could not procure their attendance at that term, could not venture to declare on oath, that he expected to procure it at the next, or at any other time; much less that he had any reasonable ground for such expectation. On this ground, therefore, the affidavit was clearly insufficient: and it is consequently the duty of the court to reject such application.

But the testimony of these witnesses, as stated in the affidavit, was wholly immaterial; and therefore, their absence was no ground for a continuance, had there been reasonable ground for expect ing their attendance at the next term.

William Gardner and Tench Coxe, were to prove, that Mr. Adams had turn ed them out of office, for their political opinions or conduct. This applied to that part of the publication, which constituted the matter of the third charge in the indictment, in these words, "the same system of persecution extended all over the continent. Every person holding an office, must either quit it or think and vote exactly with Mr. Adams." -Judge Bee, was to prove, that Mr. Adams had advised and requested him by letter, in the year 1799, to deliver Thomas Nash, otherwise called Jonathan Robins, to the British consul, in Charleston. This might have had some application to the matter of the seventh charge; which alledged that "the hands of Mr. Adams, were reeking with the blood of the poor, friendless, Connecticut sailor." Timothy Pickering was to prove, that Mr. Adams, and while Congress was in session, was many weeks in possesion of important dispatches, from the American minister in France, without communicat

ing them to Congress. This testimony was utterly immaterial; because, admitting the fact to be so, Mr. Adams was not bound, in any respect, to communicate those dispatches to Congress, unless in his discretion, he should think it necessary; and also, because, if true, had no relation to any part of the indictment. There are, indeed, three charges, on which it might at first sight seem to have some slight bearing. These are the eighth, the word, furnishing the matter of which are, "every feature in the administration of Mr. Adams, forms a dis. tinct and additional evidence, that he was determined at all, events, to embroil this country with France ;"the fourteenth, the words stated in which, alledges, that "by sending these ambassadors to Paris, Mr. Adams and his British faction, designed to do nothing but mischief," and the eighteenth, the matter of which states, "That in the midst of such a scene of profligacy and usury, the President persisted as long as he durst, in making his utmost efforts, for provoking a French war." To no other charge in the indictment, had the evidence of Timothy Pickering, as stated in the affidavit, the remotest affinity. And surely, it will not be pretended by any man, who shall compare this evidence, with the three charges above mentioned; that the fact intended to be proved by it, furnished any evidence proper to go to a jury, in support of either of those charges, that "every feature of his administration, formed a distinct and additional evidence, of a determination at all events, to em broil this country with France," that "in sending ambassadors to Paris, he intended nothing but mischief," that "in the midst of a scene of profligacy and usury, he persisted, as long as he durst, in making his utmost efforts for provok ing a French war," are charges, which surely cannot be supported or justified by the circumstances of his "keeping in his possession for several weeks, while Congress was in session, dispatchs from the American minister in France, without communicating them to Congress," which he was not bound to do, and which it was his duty not to do, if he supposed that the communication, at an earlier period, would be injurious to the public interest The testimony of William B., Giles and Stephens Thompson Mason, was to prove, that Mr. Adams had ut.

tered in their hearing, certain sentiments, favorable to aristocratic or monarchical principles of government.

This has no reference except to a part of the twelfth charge; which has been already shewn to be wholly iminaterial if taken separately, and wholly incapable of a separate justification, if considered as part of an entire charge. And, lastly, it was to be proved by gen. Blackburn, that in his answer to an address, Mr. Adams avowed, that there was a party in Virginia, which served to be humbled into dust and ashes, before the indignant frowns of their injured, insulted and offended country." There were but two charges in the indictment to which this fact, if true, had the most distant resemblance. These are the fifteenth and sixteenth, the words forming the matter of which, call Mr. Adams "an hoary-headed libeller of the governor of Virginia, who with all the fury, but without the propriety or sublimity of Homer's Achilles, bawled out, to arms, then, to arms!" and "who floating on the bladder of popularity threatened to make Richmond the centre point of a bonfire." It would be an abuse of the patience of this honorable court, to occupy any part of its time in proving, that the fact intended to be proved by general Blackburn, could not in the slightest de" gree support or justify such charges as these. This is the account given of the testimony of the absent witnesses, by the affidavit filed as the ground of the motion for a continuance. From a comparison of it with the indictment, it will appear that out of twenty charges in the indictment, there were but eight, to which any part of the testimony of these witnesses had the most distant allusion; and that of those eight charges there are five, which the testimony, having some allusions to them, could not in the slightest degree support. Twelve charges therefore, remained without even an attempt to justify them; and seventeen were wholly destitute of any legal or sufficient justification. On these seventeen charges, therefore, the traverser must have been convicted; even if the remaining three had been completely justified by the testimony of the absent witnesses. The conviction on these seventeen charges, or even on one of them, would have put it into the power of the court to fine and imprison the traverser, to the whole extent allowed by the law. If the truth of thsee three charges, admitting it

to be established, could have any effect in mitigating the punishment, which depended on the court and not on the jury, the court in passing sentence might make, and in this case, actually did make, the fullest abatement on that account that the testimony it adduced would warrant.

This testimony, therefore, was in ev ery view immaterial; and had it been material, there existed no ground of reasonable expectation, that it could be obtained at the next term or any future term. For these reasons, and not from those criminal motives, which without the least shadow of proof are ascribed to him, this respondent did overrule and reject the motion for a continuance till the next term: as it was his duty to do, since he had no discretion in the case, but was bound by the rules of law.

But in order to afford every accommodation to the traverser and his counsel, which it was in his power to give, this respondent did offer to postpone the trial for a month or more, in order to afford them full time for preparation, and for procuring such testimony as was within their reach. This indulgence they thought proper to refuse.

On Monday, the second, and Tuesday, the 3d day of June, 1800, when Judge Griffin had taken his seat in court, and was on the bench, the counsel for the traverser, renewed their motion for a continuance, founded on the same affidavit; and after a full hearing and consideration of the argument, the court, judge Griffin concuring, overruled the motion, and ordered the trial to proceed.

Ifthis decision be correct, as he believe and insists that it is, no offence could be committed by him in making or concurring in it. It was a proper and legal performance of his duty as a judge. If it be erroneous, still the error, if an honest one, cannot be an offence, much less a high crime and misdemeanor; and as in his colleague it has been considered as an honest error, he confidently trust it will be considered so in him also.

To the third charge adduced in support of the article now under consideration, the charge of using "unusual, rude and contemptuous expressions, towards the prisoner's counsel," and of "falsely insinuating, that they wished to excite the public fears and indignation, and to produce that in subordination to law, to which the conduct of this respondent did manifestly

tend," he cannot answer otherwise than by a general denial. A charge so vague, admits not of precise or particular refutation. He denies that there was any thing unusual orintentionally rude or contemptuous in his conduct or his expressions towards the prisoner's counsel; that he made any false insinuation whatever against them, or that his own conduct tended in any manner to produce insubordination to law. On the contrary, it was his wish and intention, to treat the counsel with the respect due to their situation and functions, and with the decorum due to his own character. He thought it his duty to restrain such of their attempts as he considered improper, and to overrule motions made by them, which he considered as unfounded in law; but this it was his wish to accomplish in the manner least likely to offend, from which every consideration concurred in dissuading him. He did indeed think at that time, and still remains under the impression, that the conduct of the traverser's counsel, whether from intention or not he will not undertake to say was disrespectful, irritating, and highly incorrect. That conduct which he view ed in this light, might have produced some irritation in a temper naturally quick and wram, and that this irritation might, notwithstanding his endeavors to suppress it, have appeared in his manner and in his expressions, he thinks not improbable; for he has had occasions of feeling and laLacnting the want of sufficient caution and self-command, in things of this nature. But he confidently affirms, that his conduct in this particular was free from intentional impropricty; and this respondent denies, that any part of his conduct was such as ought to have induced the traverser's counsel to "abandon the cause of their client," nor does he believe that any such cause did induce them to take that step. On the contrary, he believes that it was taken by them under the influence of passion or for some motive into which this respondent forbears at this time to enquire. And this respondent admits, that the said traverser was convicted and condemned to fine and imprisonment, but not by reason of the abandonment of his counsel; but because the charges against him were clearly proved, and no defence was made or attempted against far the greater number of them.

The fourth charge in support of this article, attributes to this respondent "re

peated and vexatious interruptions of the said counsel, which at length induced them to abandon the cause of their client, who was therefore convicted, and condemned to fine and imprisonment." To this charge also, it is impossible to give any other answer but a general denial. He avers that he never interrupted the tra verser's counsel vexatiously or except when he considered it his duty to do so. It cannot be denied that courts have power to interrupt counsel, when in their opinion the correctness of proceeding requires it. In this, as in every thing else, they may err. They may sometimes act under the influence of momentary passion or irritation, to which they in common with other men, are liable. But unless their conduct in such cases, though improper or ill-judged, be clearly shewn to proceed, not from human infirmity, but from improper motives, it cannot be imputed to them as an offence, much less as a crime or misdemeanor.

Lastly, this respondent is charged under this article with an "indecent solici tude, manifested by him, for the conviction of the accused, unbecoming even a public prosecutor, by highly disgraceful to the character of a judge, as it was subversive of justice. This is another charge of which it is impossible to give a precise refutation and to a general denial of which, this respondent must therefore confine himself. He denies that he felt any solicitude whatever for the conviction of the traverser; other than the general wish natural to every friend of truth, decorum and vir tue, that persons guilty of such offences, as that of which the traverser stood indicted, should be brought to punishment, for the sake of example. He has no hesitati on to acknowledge, that his indignation was strongly excited, by the atrocious and profligate libel which the traverser was charged with having written and published. This indignation, he believes, was felt by every virtuous and honorable man in the community, of every party, who had read the book in question, or become ac quainted with its contents. How properly it was felt, will appear from the book itself, which this respondent has ready to produce to this honorable court; from the parts of it incorporated into the indictment now under consideration; and from some further extracts contained in the paper marked exhibit No. 6, which this respondent prays leave to make part

of