WEDNESDAY, February 20.

Mr. Early rofe and spoke as follows:

MR. PRESIDENT,

There is nothing more demonftrative of the efficacy of the principles of our government, than the prefent profecution. We are now called upon to test the correctnefs of thofe principles. A highly important officer of the government is brought before the bar of this court, charged with having committed acts of the deepest dye. E An officer who has been intrufted by his country to administer to the people a portion of the juftice on this fide of the grave, ftands charged with difregarding the facred obligations of the conftitution, and of ftaining the pure ermin of juftice, by political party fpirit. The tranfactions for which the refpondent is now to answer, have paffed in review before the people, and fixed a foul ftigma on the American character. To this honorable court, the people through the medium of their reprefentatives, have applied for a vindication of their rights, and dragged the guilty here to receive punishment. The firit article of impeachment exhibited by the house of reprefentatives, charges the refpondent with a conduct that one strikes at the root of one of the most important priviledges of a free people. I mean the right of trial by jury. This right was one of the most valuable priviledges which we acquired by the revolution, and forms one of the fafeguards in the federal conftitution. The relative rights of judges and juries in. criminal cafes were little known in the dark ages of fuperftition, it was referved for the fpirit of modern times, to allow to the jury that inestimable right of deciding the law as well as the fact in criminal cafes. This right has been fo long practifed, that it would be reasonable to expect that we fhould not witness any difference of opinion

on the fubject, efpecially in capital cafes. It is not my intention to deny the right of judges to deliver their opinion on the law to the jury, but it is the most delicate power which they poffefs, and ought to be exercifed with caution. By the conflitution of the United States, the accufed is to enjoy the right of a trial by an impartial jury. We charge the defendant with having deprived John Fries of the right of having his cafe determined by an impartial jury. For the refpondent did deliver anextrajudicial opinion, and made certain declarations to influence the minds of the jury against the cafe of Fries. This opinion, and these declarations would be more regarded by them, as being the acts of a judge who was well informed of the defence of Fries, which depended upon principles of law, and upon thote laws which had been denounced by the refpondent, before any argument was heard, and when he knew that the defence of Fries refted folely on thofe laws. But fir, we must look a little farther into this tranfaction. It was not enough that Fries fhould have his chief defence fnatched from him. enough that a folemn opinion was given before counfel were heard, but as if determined to clofe every avenue of defence, the refpondent prohibited the counsel from arguing the law to the jury. This fact is eftablished in fuch a manner, as to force conviction to the mind of every man. We have the pofitive teftimony of Mr. Lewis and of Mr. Dallas. On the other fide, there is the negative teftimony of Mr. Rawle. This honorable court well know that the teltimony of one affirmative witnefs fwearing to a fact, is more regarded in law than the teftimony of many negative witneffes, and we must forcibly feel the confonancy of this rule, with common fenfe. But we will not reft the cafe here. It appears by the evidence of all the witneffes, that almolt every obfervation of the counfol

for Fries, was predicated on the idea that their priviledges were to be reftricted. Mr. Rawle himself ftated, that all the obfervations of Mr. Lewis were bottomed on that idea, although Mr. Rawle conceived the idea to be a miftaken one. But the recollection of Mr. Rawle must be very imperfect as to the tranfactions of the first day. He was bufily employed in performing his official duties and took no notes of the proceedings, nay, fo imperfect was his recollection, that he did not remember whether Fries was that day in court, or not. But is it not remarkable, that all thofe obfervations of the counsel which were predicated on the idea, that they were to be deprived of arguing the law to the jury, fhould have been fuffered to pafs unnoticed yb the court, if they had not intended that the counsel thould be deprived of this right? Thofe obfervations would not have been fuffered to pafs unnoticed, had they been unfounded. We have it in teftimony from Mr. Lewis and Mr. Tilghman, that on the fecond day the refpondent told the counfel that they might argue the law to the jury, but it would be at the hazard of their characters. But fir, in page 12 of the answer of the refpondent, he i admits that certain obfervations were made on the first day to reftrict the counfel, and yet none of thofe obfervations were recollected by Mr. Rawle, which plainly evinces his inattention to the tranfactions of the first day. I confider myself then fafe in the pofition, that the counfel for Fries were reftricted from arguing the law. The crime with which Fries ftood charged, was the greatest poflible offence, and he ought to have been fhewn every poffible indulgence. Not only fhould every argument which the ingenuity of counfel could have devifed, have been heard, but the judge ought to have been counfel for the accufed. It should never be forgotten, that judge Chafe had a previous example before his eyes, and of a ve

ry recent date, fet by a judge who is now departed from this tranfitory world, to the land of fpirits. In the first trial of Fries, judge Iredell fet an example, which judge Chase ought to have followed; but difregarding all precedents, and fetting at naught all examples; the refpondent first determines the law, and then prohibits the counfel from arguing it to the jury. Of what avail is the right of the accused to be heard by counsel, when his counfel are prohibited from arguing the law on which his defence entirely refts? Of what avail is it, that the jury are invested with the right of deciding the law as well as the fact, if they are to be prohibited from hearing arguments as to the law. The right of the jury to decide the law in criminal cafes, is as much acknowledged as their right to decide on the facts, and the court have as much to power abridge their rights in one cafe as in the other; and the accufed has as much right to be heard by counfel on the law as he has on the facts But here we are affailed by the refpondent, in his anfwer, with a train of reafoning which it may be proper to answer in part. He informs the court, that the law with regard to treafon, had been fixed by his predeceffors, and he was not at liberty to depart from those principles which had been fettled by them. It is not our intention to enquire whether the opinions of his predeceffors were correct, and whether he was bound by them. The enquiry is, whether the refpondent was justifiable in prejudging the cafe, and prohibiting the couníel for the accufed from argung the law to the jury. Some part of the reafoning of the refpondent, is an aggravation of his offence. He fays that it is important that the jury fhould not be milled by the counfel, and it was a favor confered on them to prevent improper arguments being made to them. This reafoning will apply to every criminal cafe, whatever. In cafes of murder and theft, the court might

confider it a favor to prevent counsel from arguing to the jury, left improper impreffions fhould be made on their minds. Is this the amount of the boafted trial by jury, that they who poffefs the right to decide both law and fact, fhould be guarded against improper impreffions, and fhould receive no information on the fubject they are about to determine? We are told by the refpondent, that on the fecond day the counsel were permitted to proceed with the defence in their own way, but they declined. The refpondent fuppofes that much of his defence will reft on the tranfactions of the fecond day, conceiving that the opinions which he had promulgated on the first day were dangerous; the refpondent on the fecond attempted to withdraw them, but there are fome important features which it is proper to notice, as a preface to the conduct of the judge on the fecond day. Why were the papers which he had thrown down on the bar table on the first day recall. ed? was it on account of their pernicious tendency, or impropriety, or did the refpondent feel compunétion for having done the act? No fir, nothing of this kind operated as an induce ment to recal the papers. The firm and manly stand made by the counsel against fuch an ufurpation, and their determination not to yield to a proftration of their rights, were the caufes which induced the recal of the papers, and they were not recalled until the court had convincing proof of the determination of the counsel. But this recalling of the papers was a mere fineffe played off to give an appearance of fairnets to the conduct of the refpondent. Was the crime which was committed by the refpondent the great er, because the opinion was reduced to writing? It was not. The forming and delivering the opinion, in the prefence of the jury, tending to influence their decifion, was the guilt of the offence, and the evil was completed by he application of the law to the par

ticular cafe, and the counsel were left to the miferable hope of convincing the judge that he was wrong. If then I were afked, as the counfel were, whether if an error had been committed, it should not be fuffered to be corrected, I would anfwer, that it was an offence. that admitted of no atonement. The evil was complete, and repentance came too late. As well might a man who had inflicted a mortal wound, attempt to repent (when he found the perfon dying) under fear of being punished. The fin committed by the refpondent was of fuch a nature, that it admitted of no repentance. As to the permiffion given to the counsel to proceed, I will obferve, that I have been unable to perceive any permiffion which placed them on better grounds than they were on the day before. I think, I obferve only a defign in the conduct of the refpondent to impofe on the people a fhew of fairness when it had the fubftance of injuftice. Although he informed the counfel that they might argue the law to the jury, yet when brought to explain himfelf, we find he restricted the counfel. They were to be permitted to argue the law to the jury, but the manner was to be regulated by the court. They were permitted to read cafes that were law, but not cafes that were not law. This is Mr. Rawle's teftimony, that common law cafes and decifions under the ftatute of Edward the Third, before the revolution in England, fhould not be read to the jury; for it will be recollected that the cafes mentioned by the judge as improper to be read, were decifions after the ftatute of Edward the Third, and were made in the reign of Edward the Fourth. I ask the court to look at the confequences of this doctrine. The counfel were permitted to argue the law, but not to read cafes that were not law. Who was to determine whether the cafes were or were not law? The judge himfelf, and the right of the jury, was as much impaired as if the counfel had been

prohibited altogether from arguing the law. It may be faid that fome reftriction is necefiary to be laid on counfel. I grant this in fome extreme cafes, and where it is apparent that the books read, have no relevancy to the jubject, but the greatest restriction on counfel in fuch cafes, ought to be a regard for their profeffional reputation. Here I might clofe the argument on the first article; but my reflection is hurried to the latter part of this tranfaction. -We find an American citizen fummoned to the bar, under a charge which affected his life, and in this ftate of agitation obliged to make his defence without the affiflance of counfel-and we find the judge who ought to have been his counfel, prejudging the only ground of his defence, and clofing the avenues of juflice. On this fubject, language would be too weak to exprefs my abhorrence of the tranfaction, and I mult leave it to the fironger expreflions of filence. For this tranfaction to denounce the refpondent, for a violation of our most valuabl priviledges and invoke the juftice to expiate the unholy fin by a punifhment of the author. The fecond, third and fourth articles, charge a conduct in the refpondent, which forms many grounds of accufation.

It is

true that in this inftance, no perfons life was at flake, but other privileges were violated which are equally facred. In cafting our eyes over this tranfaction, we are ftruck with a feature not ufual in the leftory of judicial proceedings. We find the refpondent proceeding with a determination to convict. We find him endeavoring to bring fhame upon the counfel who appeared for CalJender. We are met in the outset of this cafe by the refpondent, with a long train of reafoning, but it appears to be the resioning of a man confcious of impropriety. The teft which was adopt ed to try whether the jurors were impartial, and the manner in which the judge acted, cannot be accounted for on any other principle, than an inten

tion to convict. Upon what other ground can we account for the jurors being afked, whether they had formed an opinion upon what they had never feen; and although every juror might have an opinion which infured the conviction of Callender, yet they were obliged to anfwer the queftion in the negative, which was put to them by the refpondent. I hope to be pardoned for faying what is painful to me, confidering the years of the refpondent, that his reafoning on this fubject is an unworthy evafion. It is an evasion which muft prevent a difqualification of any juror, and will fet at nought the conflitutional provifion which gives to the accufed the right of a trial by an impartial jury. But it is alledged, that the opinion formed by Mr. Baffet was no difqualification, because it contained no opinion as to the guilt of the traverfer. There is a plain rule on this fubject which is fafe and reasonable. That a juror mult be indifferent. The refpondent has in page 20 of his anfwer given his expofition of indiffer ence in a juror, which I conceive to be erroneous. I am to be answered by gentlemen of great legal abilities, and who well know that partiality in a juror will create a difqualification, and that a juor muft ftand indifferent both as to the perfon and the matter in difpute. Partiality or prejudice need not be in the cafe then for trial, in order to prevent a perfon from ferving on the jury. It is a rule even in civil cafes, where an opinion is expreffed on the fubject, that the party is not a comperent juror. By way of illuftratio. I will put a cafe of a man who is tried for murder. Suppofe there is a difpute as to the fact of killing, whether it amounted to murder or not, and a juror fpeaking in relation to the killing fuch, exprets an opinion that fuch a killing was murder. I ask whether fuch a declaration would not be a dif qualification, certainly it would. The prefent cafe is equally as ftrong/ Although Mr. Baffet did not declare that

Callender was guilty, yet he did fay fo in fact, for he declared that he had formed an "unequivocal opinion," "that the author of The Prospect Before Us, came under the fedition law."

And it was well known that it was for the publication of that book, that Callender was indicted. But the refpondent states another reason why Mr. Baffet fhould not have been excufed, which is, that as it was competent for Callender to have proved the truth of the charges, Baffet could have formed no opinion on the fubject. But let it be remembered, that under the fedition law, there were two grounds of defence, to wit, the facts and the intent, for a writing muit not only have been falfe, but alfo, fcandalous and malicious, to conititute criminality, and although Baffet might have formed no opinion as to the truth of the publication, yet he certainly had as to the intent with which it was published. But it is ftated, that the opinion of Mr. Bailet was only founded in reprefentation. The fame may be faid in almost every cafe, because few are spectators of the commillion of an offence, and their opinions must be formed on reprefentation. In the case of Fries, there were three jurors fet afide on the ground' of prejudice, yet it is not probable that either of them were fpectators of the overt acts of treafon, which Fries ftood charged with having committed. The refpondent ftates, that the opinion of a juror mult have been delivered as well as formed to difqualify him from ferving. Even admit the correctness of this pofition, yet it does not excufe him, for Mr. Baffet exprefsly ftated, that he delivered the opinion which he had formed, in open court, previous to his being fworn in chief. Then why in the teeth of this damning fact, did the judge order Baffet to be fworn on the jury. In purfuing this tranfaction, the scene arifes on us.

We are

next to examine a part of it, in which human invention may be tortured in

vain for a palliation, this is the rejection of Colonel Taylor's evidence. The charge in the indictment which he was called to give evidence on, must have conftituted diftinct offences, but one charge might have confiited of feveral facts. We have two views of this fubject, the one to be found in the teftimony the other in the answer. We learn from the testimony, that the refpondent rejected the evidence of colon 1 Taylor because it did not go to prove the truth of the whole charge. I take it that the charge which colonel Taylor was to prove, was a distinct offence, and that his evidence ought not to have been rejected on the ground aligned by the refpondent. In a cafe of murder, the defence may depend on many things. Was it ever heard of before, that a witnefs was rejected because he was unable to prove the whole of the defence? I believe not. Why then was this doctrine applied to the cafe of Callender? Was his justification fuch an anomaly in its nature, that it did not admit of the ordinary rules of jurisprudence? As the charge confifted of different facts, fo the defence ought to have been allowed to be made to each charge. I will now notice the reafons affigned by the refpondent, in his anfwer for the rejection of colonel Taylor's evidence. In page 24 of the answer, we find this doctrine laid down that it firft must be shown what is in the power of the party to prove, or the evidence of the first witnefs fhall not be received. Muft it then appear that the party who produces a witnefs has proof in reserve? For this is the amount of the reasoning of the refpondent. It is new doctrine to me, that the admiflibility of teftimony fhould depend upon what may afterwards be produced. The judge had no right to know what could be proved by other witneffes. I will farther premife, that the question, how far the evidence fubftantiated the truth of the charge, and its legality also, were questions for the jury, becaufe