verfal; not by delicate fcruples, which admit of endless variety, according to the varying opinions and feelings of men.

Such were the reafons of this refpondent, and he prefumes of his colleague the faid Cyrus Griffin, for refufing to excufe the faid John Baffet, from ferving on the jury above mentioned. These reafons, and the decision founded on them, he infists were legal and valid. But if the reasons should be confidered as invalid, and the decifion as erroneous, can they be confidered as fo clearly and flagrantly incorrect, as to juftify a conclufion that they were adopted by this refpondent, through improper motives? Are not thefe reafons fufficiently strong, or fufficiently plaufible, to juftify a candid and liberal mind in believing, that a judge might honeftly have regarded them as folid? Has it not been conceded, by the omiffion to prosecute judge Griffin for this decifion, that his error, if he committed one, was an honeft error? Whence this diftinction between this refpondent and his colleague? And why is that opinion imputed to one as a crime, which in the other is confidered as innocent?

And the said Samúel Chafe, for plea to the faid fe-' cond article of impeachment, faith, that he is not guilty' of any high crime or misdemeanor, as in and by the faid fecond article is alledged against him; and this he prays may be inquired of by this honorable court, in fuch manner as law and juftice fhall feem to them to require.

The third article of impeachment alledges that this refpondent" with intent to opprefs and procure the conviction of the prisoner, did not permit the evidence of John Taylor, a material witness in behalf of the faid Callender, to be given in, on pretence that the faid witnefs could not prove the truth of the whole of one of the charges, contained in the indictment, although the faid charge embraced more than one fact."

In answer to this charge, this refpondent begs leave to fubmit the following facts and obfervations:

The indictment against James Thompfon Callender, which has been already mentioned, and of which a copy is exhibited with this answer, confifted of two distinct and

and feparate counts, each of which contained twenty diftinct and independent charges, or fets of words. Each of thofe fets of words was charged as a libel against John Adams, as Prefident of the United States-and the 12th charge embraced the following words: "He (meaning Prefident Adams) was a profeffed ariftocrat; he proved faithful and ferviceable to the British intereft." The defence fet up was confined to this charge, and was reft ed upon the truth of the words. To the other nineteen charges, no defence of any kind was attempted or fpoken of, except fuch as might arife from the fuppofed unconftitutionality of the fedition law; which, if folid, applied to the twelfth charge, as well as to the other nineteen. It was to prove the truth of these words, that John Taylor, the perfon mentioned in the article of impeachment now under confideration, was offered as a witness. It can hardly be necessary to remind this honorable court, that when an indictment for a libel contains feveral diftinct charges, founded on diftinct fets of words, the party accused, who in fuch cafes is called the "traverfer," muft be convicted, unless he makes a fufficient defence against every charge. His innocence on one, does not prove him innocent on the others. If the fedition law fhould be confidered as unconftitutional, the whole indictment, including this twelfth charge, must fall to the ground, whether the words in queftion were proved to be true or not. If the law fhould be confidered as conftitutional, then the traverfer, whether the words in the twelfth charge were proved to be true or not, must be convicted on the other nineteen charges, against which no defence was offered. This conviction

on nineteen charges, would put the traverfer as completely in the power of the court, by which the amount of the fine and the term of the imprisonment were to be fixed, as a conviction upon all the twenty charges. The imprisonment could not exceed two years, nor the fine be more than two thoufand dollars. If then this refpondent were defirous of procuring the conviction of the traverfer, he was fure of his object, without rejecting the teftimony of John Taylor. If his temper towards the traverfer were fo vindictive, as to make him feel anxious to obtain an opportunity and excufe for inflict

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ing on him the whole extent of punishment permitted by the law, ftill a conviction on nineteen charges afforded this opportunity and excufe, as fully as a conviction on twenty charges. One flander more or lefs, in fuch a publication as the "Profpect before Us," could furely be of no moment. To attain this object, therefore, it was not neceffary to reject the testimony of John Taylor.

That the court did not feel this vindictive fpirit, is clearly evinced by the moderation of the punishment which actually was inflicted on the traverfer, after he was convicted of the whole twenty charges. Inftead of 2000 dollars, he was fined only 200, and was fentenced to only nine months imprisonment, instead of two years. And this refpondent avers, that he never felt or expreffed a wish to go further; but that in this decifion, as well as in every other given in the courfe of the trial, he fully and freely concurred with his colleague, judge Griffin.

As a further proof that his rejection of this teftimony did not proceed from any improper motive, but from a conviction in his mind that it was legally inadmiffible, and that it was therefore his duty to reject it, he begs leave to state, that he interfered in order to prevail on the district attorney to withdraw his objection to thofe queftions, and confent to their being put; which that officer refused to do, on the ground "that he did not feel himself at liberty to confent to fuch a departure from legal principles."

Hence appears the utter futility of a charge, which. attributes to this refpondent a purpofe as abfurd as it was wicked; and without the flighteft proof, imputes to the worst motives in him the fame action, which in his colleague is confidered as free from blame. But this refpondent will not content himself with fhewing, that his conduct in concurring with his colleague in the rejection of John Taylor's teftimony, could not have proceeded from the motives afcribed to him; but he will fhow that this rejection, if not ftrictly legal and proper, as he believes and infifts that it is, refts on legal reafons of fufficient force to fatisfy every mind, that a judge might have fincerely confidered it as correct.

The words ftated as the ground of the twelfth charge above mentioned, are ftated in the indictment as one en

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tire and indivifible paragraph, conftituting one entire offence. This refpondent confidered them at the trial, and still confiders them, as conftituting one entire charge, and one entire offence; and that they must be taken together in order to explain and fupport each other. It is clear that no words are indictable as libellous, except fuch as exprefsly, or by plain implication, charge the perfon against whom they are published, with fome offence either legal or moral. To be an "ariftocrat," is not in itself an offence, either legal or moral, even if it were a charge fufceptible of proof; neither was it an offence either legal or moral, for Mr. Adams to be "faithful and ferviceable to the British intereft," unless he thereby betrayed or endangered the interefts of his own country; which does not neceffarily follow, and is not directly alledged in the publication. These two phrafes, therefore, taken feparately, charge Mr. Adams with no offence of any kind; and, confequently, could not be indictable as libellous: but taken together, they convey the implication that Mr. Adams, being an "ariftocrat," that is, an enemy to the republican government of his own country, had fubferved the British intereft, against the intereft of his own country; which would in his fituation, have been an offence both moral and legal; to charge him with it was, therefore, libellous.

Admitting, therefore these two phrafes to conftitute one diftinff charge, and one entire offence, this ref pondent confiders and states it to be law, that no justification which went to part only of the offence, could be received. The plea of juftification must always anfwer the whole charge, or it is bad on the demurrer; for this plain reason, that the object of the plea is to fhew the party's innocence; and he cannot be innocent, if the accufation against him be supported in part. Where the matter of defence may be given in evidence, without being formally pleaded, the fame rules prevail. The defence must be of the fame nature, and equally. complete, in one cafe, as in the other. The only difference is in the manner of bringing it forward. Evidence, therefore, which goes only to justify the charge in part, cannot be received. It is not indeed neceffary that the whole of this evidence should be given by one witness.

The

The juftification may confift of feveral facts, fome of which may be proved by one person, and fome by another. But proof, in fuch cafes, muft be offered as to the whole, or it cannot be received.

In the cafe under confideration, no proof was offered as to the whole matter contained in the twelfth article. No witnefs except the above mentioned John Taylor, was produced or mentioned. When a witnefs is offered to a court and jury, it is the right and duty of the court, to require a statement of the matters intended to be proved by him. This is the invariable practice of all our courts, and was done moft properly by this refpondent and his colleague, on the occafion in queftion. From the statement given by the traverfer's counfel, of what they expected to prove by the faid witness, it appeared that his teftimony could have no poffible applica tion to any part of the indictment, except the twelfth charge above mentioned, and but a very weak and imperfect application even to that part. The court, therefore, as it was their right and duty, requested that the queftions intended to be put to the witnefs, fhould be reduced to writing, and fubmitted to their infpection; fo as to enable them to judge more accurately, how far those questions were proper and admiffible. This being done, the questions were of the following tenor and ef fect:

ift. "Did you ever hear Mr. Adams exprefs any fentiments favorable to monarchy, or ariftocracy,' and what were they?"

2d. "Did you ever hear Mr. Adams while Vice Prefident, exprefs his difapprobation of the funding fyftem ???

3d. "Do you know whether Mr. Adams did not, in the year 1794, vote against the fequeftration of Britifh debts, and alfo against the bill for fufpending intercourfe with Great Britain ?"

The fecond queftion, it is manifeft, had nothing to do with the twelfth charge; for Mr. Adams's approbation or disapprobation of the funding fyftem, could not have the most remote tendency to prove that he was an ariftocrat, or had proved faithful and ferviceable to the British intereft. In that part of the publication which

furnishes