FRIDAY, February 221. Mr. KEY, ly in the fellion. of the court, the grand jury found a prefeatment and then an indictment against James T. Callender, as the author of the libel before referred to: this brought things Mr. President, and gentlemen of this honorable to an iffue, talents were immediately enlifted court, I rife to make some obfervations on the 2d. 3d. and 4th. articles of impeachment exhibited against the refpondent, the honorable Mr. Chafe. I fhall make no apology for my inadequacy to the task, becaufe I have voluntarily engaged in it, nor fhall I preface my argument with any exordium, at a period of time when every moment is precious, and when I feel the utmoft confidence, that this honorable body on fo momentous an occafion, will indulgently hear, maturely weigh, and impartially, decide, on the merits of the cafe: my only regret arifes from fevere indifpofition, which has rendered me lefs capable of doing juftice to the fubject, and of defending my honorable friend. As my obfervations apply to thofe articles which relate to the conduct of Mr. Chafe in Virginia on the trial of Callender, and to thofe only, it may be proper to take a view of the fituation in which the judge found himself at the commencement of it. The fedition law had paffed in 1799, and this together with the alien bill, from caufes not neceffary to explain, had excited the public attention, and greatly, agitated the public mind. In Virginia the fedition law was peculiarly obnoxious: many thought it unconftitutional, and moft thought it impolitic-the enemies of the bill believed, or affected to believe, that the prefs, the palladi um of liberty and fecurity of political rights was endangered, in violation of the terms of the conftitution. The friends of the bill tho' the liberty of the prefs more likely to perif under the ruins occafioned by its licentioufnefs, and believed that to punish perfons for publifh ing what was falfe fcandalous and malicious, and edited with intent to defame, was a falu tary reftraint, more calculated to preserve than to destroy it. In this conflict of public opini on, with a great majority in Virginia opposed to the law, did Mr. Chase in the ordinary affignment of judicial diftricts, arrive in Richmond, wholly a ftranger. Previous to his ar rival, a publication infamously disgraceful and libellous, had made its appearance, in favor of a character idolized by that commonwealth. It waseafy to foresee that a profecution would take place, that the conflitutionality of the sedition law would be contefted; and I need not apprife this honorable court, that where a law is confidered as peculiarly obnoxious, much of its odium is transfered to the makers, and more to the characters carrying it into effect. on the popular fide of the queftion; young men of afpiring minds volunteered their fervices; and every thing that fophiftry and ingenuity could devife, was brought into action to defeat the operation of the law, and remove the cafe from the decifion of a judge, whofe ftrength of mind and energy of character were much to be dreaded. Accordingly exceptions were taken at every point of the caufe, and when the jury were about to be fworn, incidents arefe, which laid the foundation of the 2d. article of impeachment; "That, prompted by a fimilar fpirit of perfecution and injuftice, at a circuit court of the United States, held at Richmond, in the month of May, one thoufand eight hundred, for the diftrict of Virginia, whereat the faid Samuel Chafe prefided, and before which a certain James Thompson Callender was arraigned for a libel on John Adams, then prefident of the United States; the faid Samuel Chafe with intent to opprefs, and procure the conviction of the faid Callender, did overrule the objections of John Baffet, one of the jury, who wished to be excufed from ferving on the faid trial, because he had made up his mind as to the publication from which the words, charged to be libellous in the indictment, were extracted; and the faid Baffet was accordingly fworn, and did ferve on the jury, by whofe verdict the prifoner was fubfequently convicted." Take from this article the harsh epithets applied to the conduct of the judge and there is nothing in it; and happily epithets do not conftitute criminality; facts mult be proved. The charge is "that judge Chafe with intent to oppress and procure the conviction of Callender, did overrule the obje&ion of John Baffet, one of the jury, who wished to be excused from ferving on the jury," Ec. In order to fuftain this article it is incumbent on the honorable managers to establish three pofitions. 1ft. That Baffet did himself object and with to be excufed from ferving on the petit jury. 2dly. That his objection was overruled in violation of the principles of law. 3dly. That the judge did fo overrule the objection from corrupt motives, and with intent to opprefs and procure the conviction of Callender. The arder to convict the refpondent has made the honorable managers bid defiance to the ftubborness of fact, and deny the clearest Soon after the arrival of the judge, and ear- principles of law; for as to the fact, I call on W them in reply, to point out the evidence that fupports their affertion that Baffet wished to he excufed from ferving on the jury. One would fuppofe that no better teftimony can exift than that which Baffet himself gives. He has been fworn at har, and what does he fay on oath? Does he bear the article out in its flatement of fact? Certainly not; he fwears that he did not object to ferving on the jury; that he did not with or af to be excufed. He ftated that he had fome fcruples which he conceived proper to mention to the court, and if not difqualified by law, he was willing to ferve on the jury, and carry the fedition law into effect. He had feen in a newspaper fome extracts faid to be taken from the work called "the Profpect Before Us," and for editing which Callender then flood indicted, and he thought that fuch a book would come within the fedition law, but he added he had never feen the book, nor did he know the author: he further flated, that he did not wish to be excused from ferving on the jury. I appeal to this honorable body, if this teftimony bears out the fact as charged in the article: it is not proved as laid: there is no teftimony that Baffet wished to be excufed, and not withing to be excused, the very fact on which the refpondent's guilt is predicated, fails in proof, and failing in proof, it would feem unneceffary further to notice this article: the foundation once gone, its fuperftructure, the criminal inference drawn from it, falls bafelefs to the ground. But I cannot in jufice to the refpondent content myself here, I will proceed to fhew the argument of the honorable managers to be as unfounded in law, as their fact charged is def titute of proof; and that they may have no caufe of complain, I will meet them on their own grounds. I will for the fake of argument admit, "that Baffet did wifh to be excufed from ferving on the jury," and then examine if the overruling the objection was contrary to law. In my opinion the court acted properly, and their conduct was ftrictly legal. Let us examine the law of challenges as fuccinctly as poffible, fo far as applicable to the cafe. Challenges in their general divifion, are of two kinds, to the array, and to the polls. A challenge to the array goes to the whole panel, and although at Richmond there was a feint attempt to quash the pannel by one of the courfel, yet it was only mentioned to be abandoned, and ferved no other purpose than to shew the eager anxiety of counfel to let flip no exception however frivolous and untenable; and to indicate to the court what might be expected in the progrefs of the caufe. A challenge to the pelis, is an exception ta ken to an individual on the pannel when he comes to be fworn as a juror. In this cafe, no caufe of challenge was made, no exception taken, or offered to be taken to Mr. Baffet.When a challenge is made there are two modes of trial if a juror ftands indifferent, the firft mode is by two triors, who are conflitut. ed, where two or more have been fworn on the jury, of the two firft who have been fo fworn. This mode was not reforted to by Callender's counsel. The next mode is by fwearing the perfon himself, as to his indifferency, which he muft anfwer in all things except that he is not bound to criminate himfelf. Now what is the meaning of being indifferent as applied to a juror, may be learned from the oath of the triors, and from various authorities stating in what the indifferency is to confift: a juror mult ftand indifferent, that is, "not actuated by malice or favour." Indifference does not mean that a juror fhould have no knowledge of the facts, or of the law, or of the parties: on the contrary, if a perfon has declared his opinion on facts, it does not render him incompe tent to ferve as a juror; nay if a person has on the fame indictment ferved as a juror and found another perfon guilty, this is no ex ception or challenge to him in trying another perfon on the fame indictment; in fupport of thefe legal pofitions I refer to the following authorities to wit, Rolles Abridgment, title trial, fol. 657, where it is laid down, that "if a juror has faid that he will find for one of the parties, it is a good caufe of challenge for fa vor, if he fo foke from favor; but if he did not fpeak it out of favor but from his knowledge of the matter in iffue, it is not a good caufe of challenge." And alfo in the fame folio, it is further laid down as law, "that it is no caufe of challenge to a juror, that he hath faid, that he will find his verdict for one of the parties, if it is not found by the triors or the court, that he spoke from favor and not from the truth of the fact." In folio 655, of the fame author, and in Tri als Per Pais, it is faid, "that if a juror hath twenty times declared that he will find for one of the parties, it is not a principal challenge, be caufe, he might have spoke it from his knowledge of the matter in iffue, and not out of favor or malice." In Kelynge, folio 9, and Trials Per Pais, folio 178, jurors were challenged by the pri foner, because they had given a verdict already, and had found others guilty on the fame in dictment, and held to be no caufe of challenge. Trials Per Pais 179, Salkeld 144, ftates the -3 eath of a trior in thefe words, "you shall well and truly try, whether A (the juror challenged) ftands indifferent, between the parties to this Jue." From these authorities it is clear that to be indifferent as applying to a juror, means that he fhould not be actuated by malice or favor with refpect to the parties, for in one of the authorities it is exprefsly determined, that if a perfon fays he will find the verdict one way for one of the parties, this is not a caufe of challenge, if he spoke from his knowledge of the cafe, and not under the influence of malice or favor; and in another of the authorities, a juror had ferved on a jury, had on oath made up his mind on the fact and the law, by con curring in the verdict of guilty, and yet held no caufe of challenge to prevent his ferving as a juror against another perfon charged with the fame offence in the fame indictment; and the reafon is, that not charged with being under the influence of malice or favor, he flood indiffent, and competent of courfe to a due and impartial examination of the evidence, and faithful afcertainment of the fact on which the guilt of the party was to attach. If the cafes cited are not law, I hope the induitry and talents of the honorable managers will point out in what respect and by what authority they are overruled, and if unequal to this talk, that in candor they will admit them; and if fuch is the law, how frivolous does the exception appear. Baffet knew nothing of the author, knew nothing of Callender, never faw the publication, and had declared no opinion as to the facts; and yet in their zeal to condesan Mr. Chafe, the managers difregarding thefe declarations of Baffet, ftill affect to think that the conduct of Mr. Chafe was criminal, and deferving of impeachment, to let him under fuch circumstances ferve on the jury. To fupport this article, a fingular ground is relied on, that Mr. Chafe on the trial of Fries put this question to the jurors, "have you formed or delivered an opinion," in the alternative; and in Callender's cafe the queflion was altered for fpecial purposes, and put in this way, "bave you formed and delivered an opiI fhall not even remark upon the apparent captioufnefs of this objection, in a great caufe like the prefent, it only fhews the defperatenefs of the cafe, and I fhall reft fatisfied that it is wholly immaterial whether the quef tion was put in the disjunctive or the copulative, because the authorities prove, that had Baffet anfwered in the affirmative (which he did not,) it was no good caufe of challenge, unlefs his opinion had been made up from favor or malice: which Baffet never faid, which has not been attempted to be proved, and which the Managers have not in any way infinuated. . But it has been contended that Baffet had made up his mind on the ferlition law, and that. fuch a work as the Profpect before Us, came within it-Granted-Who was there of any understanding or political information in Virginia, that had not made up his mind on the conftitutionality or unconftitutionality of the fedition law? What man but concurred in opinion that the Profpect before Us, was a wicked, difgraceful and malignant libel? And where do the honorable managers find it a difqualification of a juror, or a caufe of challenge to a juror, that he has declared an opinion as to the law? A familiar cafe will illuf trate the fallacy of their objection. Has not every man from his infancy heard and often declared that one man to kill another with malice prepenfe was murder; yet this is an opinion formed and declared as to the law ariling on a particular ftate of facts. Let us fuppofe a man indicted of murder, put on his trial, and when a juror came to the book, an exception was taken to fuch juror on the ground that he had formed and delivered an opinion on the law, because he had faid the killing of a man. with malice prepenfe was murder, would not fuch an exception be fcouted out of courts? Is not fuch a man notwithstanding fuch opinion, competent and impartial as to hearing and weighing the evidence in the cafe before him? As to the intent with which the act was done, charged to be murder? And in what does the prefent cafe differ? Baffet thought the extracts he had feen in the newlpaper came within the fedition law. He thought that law conftitutional; but whether Callender was the author, whether the publication was malicious and falfe, and edited with intent to defame, were facts to be determined from the evidence in the caufe, were facts as to which he had formed no opinion, and relative to which he had neither heard or uttered a word, and confequently was competent to an impartial decifion. Here permit me again to refer to Trials Per Pais 171.. where the juror had certainly formed his opinion on the law arifing on the facts ftated in the indictment, and yet it was held to be no caufe of challenge to his trying another perfon on the very fame indiment; but if the honorable managers do not approve of English authorities, I will refer them to the decision of chief juftice Ellfworth in the state of ConnecSee Kirby's reports, folio 427. ticut. "As to the other point; an opinion formed and declared upon a general principle of law. does not difqualify a juror to fit on a cafe, where that principle applies. Jurors are judges of the law as well as of the fact, as relative to the iffucs put to them, and are fuppofed to have opinions of what the law is, though a willingnes to change them, if reason appears in the course of the trial. They may all be challenged on ene fide or the other, if having an opinion of the law in the cafe, is ground of challenge. It is enough in point of indifferency, that jurors have no intereft of their own affe&ed, and no perfonal bias or prepofeffion, in favor or against either party, and not requifite that they fhould be ignorant of the caufe, or unopiniated as to the rules and principles on which it is to be decided. It has been adjudged (23. Car. K. B.) not to be a fufficient caufe of challenge, that a juror had declared his opinion concerning the -title of the land in queftion; fo alfo that the jury have found others guilty on the fame indictment; or that a juror has declared his opinion that the party is guilty, and will be hanged, if it appears he made fuch declaration from his knowledge of the caufe, and not out of ill will to the party. 2. Hawk. p. c. 418." This authority recognizes and adopts the English determinations: It was made by an able judge of our own courts; and is conclufive on the point. With deference to the judgment of this court, I therefore contend, that if Baffet had objected to his ferving as a juror, which I have admitted for the fake of argument, yet he difclofed no objection, which in point of law, incapacitated him from ferving on the jury, and it became the duty of the court under their oath and their knowledge of the law, to fee that he did ferve; had they objected to him, there would have been a more colourable caufe of impeachment than now exifls. To ferve as a juror in criminal cafes, is at all times irksome and unpleasant; to do so in fuch a political cafe which greatly convulfed the public mind, was doubly fo, and hence it became more strictly the duty of the court to fee that none from frivolous or illegal excuses, or from motives of fcrupulous delicacy fhould exempt themfelves from the burthen, by impofing it on others. This honorable and upright difcharge of duty on the part of the court, for which they merit approbation rather than cenfure, has been magmified, feen through an improper medium, to a charge of high crime and misdemeanor; and again fo unmerited an attack the refpondent repofes himself on the knowledge, integrity and impartiality of this high and honorable body, with the fulleft confidence of an honorable acquittal.", If however I am too fanguine, if I am miftaken in the fact, and Bat did object to ferving on the jury, as the article charges, although Baffet himfelf fwears he did not. If I am miftaken in the law, and the doctrine of the managers be deemed correct, in defiance of the cafes cited. Yet to fuftain this article of impeachment, much more is required of them. They muft prove that Mr. Chafe acted corruptly; and with intent to op prefs and procure the conviction of Calleuder, did overrule the objection of Baget. Here let us paufe. Let us bear in mind the teftimony in the cafe; and having done fo, where is the evidence to convict the refpondent of having acted corruptly? Have the honorable managers named the witnefs? Have they pointed to the proof on which they rely? No fir, and for the beft of poffible reafons, because there is none to juftify the charge; there is not a fhadow of proof in fupport of it; not a hint, not an infinuation, unless it is to be found in the affertions of the honorable managers themselves, and in inferences which they draw from unfupported doctrines. I would not pay fo ill a compliment to their talents as to fuppofe that the articles were not framed with a view to particular proofs; it is well known that exparte depofitions to criminate the refpondent, were taken before any one of the articles was framed; nor can I fuppofe feeing to many profeffional characters amongst the pa nagers, that they have not adduced their frongeft proof in fupport of each article. As there fore they have not in opening the caufe conde. fcended to point out any witnefs that is credi ble, who in any manner goes to prove that Mr. Chafe acted corruptly, and with intent to op prefs and procure the conviction of Callender, I call on them in reply, to fatisfy the court of this fact; to fatisfy their country, whofe high name is ufed, and let the world determine be tween us. Arguments indeed have been urged to this honorable court to induce a conviction of the refpondent, as novel in their nature as they are dangerous in their doctrine. Some of them I fhall examine. It has been laid down as a principle of law, that every man is liable to punishment who acts contrary to law, and that judge Chafe having given an opinion and acted contrary to law is liable to be punifhed. The general principle I will readily admit, but like all other general rules it has its exceptious, and the cafe of a judge giving an opinion against law, forms precifely an exception to the gene ral rule. Miferable would be the condition of a judge, if every error of judgment, was con frued into corruption-called into office to determine complicated cafes arifing from the conflicting interefts of individuals, to punish the crimes and the villainies of mankind, more cannothe required of him than that he should carry to the judgment feat, talents and integrity; clear head and a pure heart. Judges must be inade of men, and from the imperfection of human nature, must be incident to its frailtiesIn what code are they to be deemed infalli ble? By what means are they to become fo! And if fo, then why the unneceffary eftablish mcnt of appellate courts, to rectify errors of inferior jurisdictions in all well organized governments? Why not punish all inferior judges on reverfal of their judgment by a fuperior tribunal, if error be admitted as proof of corruption? If not to err, means a coincidence with public opinion, it is eafily attained--impeachremove--and when honeft men are driven from the judgment feat, pliant tools will readily be found whofe judgment fhall conform to the will of a majority, and who will proftrate principle to preferve office. An honorable manager has obferved, that to err in fo plain a cafe, was of itself evidence of corruption, and the defendant muft be confidered guilty, unless the contrary be shown. I did not expect this obfervation from his liberal anind; it is againft law, and outrages all prineiple. In 1ft Term Reports, 653, Judge Bullen lays down this doctrine," that you can never infer corruption from the judgment itfelf, but from the opinion given;" corruption is a fact of a high criminal nature, and must be proved not prefumed. The English authorities abound with these principles, and the benignity of our law is fuch, that every man is prefumed innocent until his guilt is proved. Why should this principle fo obvious, fo full of tenderness and humanity, fo protective of life and character, be facrificed to gratify the impeachment againft Mr. Chafe; I truft it will never be departed from, and that this honorable body in their judgment will give their fanction to its wisdom and humanity. They will require proof, clear and full proof. It has been faid by an honorable manager, and I greatly regret an obfervation of fuch want of liberality and correctnefs fhould have efcaped him, that judge Chafe overruled the objection of Baffet, becaufe he knew his political fentiments; a charge of this nature ought to be well fupported, or at once retracted. What are the facts? The refpondent was an entire firanger at Richmond, had no acquaintance with Baffet, and Mr. Baffet fwears that he was fummoned as a juror in the act of dif mounting his horfe, having come to town from the country that morning; that he proceeded to court, and found the court in feffion. This charge made on this folemn occafion, fo heinous in its nature, and fo directly attacking the purity of the judge, is utterly deflitute of every thing like evidence to fupport it. Mr. Chafe and Baffet were entire ftrangers, and from any thing that appears in teftimony did not know of each other's exiftence, till they met in court on the morning of the trial. On this occafion, the honorable managers all fay, that the refpondent is highly gifted, that he poffeffes great talents, found and extenfive knowlege in the law. I confefs Mr. Prefident, I feel alarmed at their prodigality of compli. ment--"timeo danaos et dona ferentes." His head was praised in order to impeach his heart. But as his talents are great to those who have long known him, his integrity is not lefs. But lot me unmafk the motive of the compliment and analife their argument. I will endeavor to put it in a fyllogiftic form. Their major propofition is, "that the defendant is a man of high legal knowlege and fuperior talents," and in this I acquiefce heartily. The minor propofition is, "that he has acted contrary to law by permitting Baffet to be fworn on the jury." This I deny; but fuppofing it to be correct, the conclufion they draw from the premises is, that poffeffing fuch talents he must have erred corruptly, and with intent to opprefs and procure the conviction of Callender; he could not er innocently. This with deference I fpeak it, is a pálpable non fequitur, a conclufion not warranted by the premifes, and is in direct hoftility to known and acknowleged principles. I would apologise for the time I have wafted on this article, but that I confider it all-important to place the character of the respondent on high and honorable ground, and above the imputations charged in it. Mr. Prefident-I have endeavored to fhew that to fuftain the impeachment on the 2d. article, it was effential for the managers to prove three things; firft the fact that Baffet wifhed to be excufed from ferving on the jury, in which they have failed entirely. 2dly. That the court erred in judgement in permitting him to ferve, under the circumftances, and fcruples difclofed to them, and I fubit the law to the court. And 3dly. That the error was a corrupt one, done with intent to opprefs and procure the conviction of Callender; of which we have had no evidence other than the affertions of the honorable managers, and inferences which they have thought proper to draw. Upon this article I have therefore the fulleft confidence of an honorable acquittal. I will now, Mr. Prefident, proceed to an examination of the third article of impeachment, viz. “That with intent to opprefs and procure the conviction of the prifoner, the evidence of John Taylor, a material witnefs on behalf of the aforefaid Callender, was not permitted by the faid Samuel Chafe to be given in, on pretence that the faid witnefs could not prove the truth of the whole of one of the charges conained in the indictment, although the faid charge embraced more than one fact." In the opening of the impeachment it was |