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FoxrxwJt IX.
PUBLISHED (wEEKtt) SY ALLMAND HALL
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ATo. 431. .
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V
-HIGH COURT OF IMPEACHMENT.
JUDGE CHASR'&AXSJVER. -(Continued'
Jrem evr last. J
, ,?rom.these words it is perfectly manifest,
that the law of Virginia, admitting it to ap
"ply, did not order a summons to-, be issued,
but left it perfectly in; the discretion of the
Cotrt to issue a -summons, or' Such other
process as they shotjJFjudge proper. Tt-ia
- therefore, a sufficient foswejLtd this article to
.iff
his' he is info&fod expects to prove,
aeen the coiisr tWjjtof this law by' the
say, that this r.esponde'nt considered a capias
as the proper process, and therefore ordered
it to -issue; which he admits that he mi,
I immediately, after the presentment was
found against the saAf Callcndcr, by the grand
lurv
This
(has been the cottsf tttfo:
courts f VirciniSMCW iheir general ' prac
tice. Indeed' it wbnl36e ' most strange, If
any other construction or 'practice had been
adopted. There are many offencrnot ca
pital, which -are of a very dangerous tenden
cy, and' oh which very-severe punishment -is
inflicted by the laws of V irginia -fand to enact
by la that in all such -cases, however uo-
orious or profligate the offenders might oe,
he courts should be obliged, after a Trsent-
ent by a grand jury to 'proceed -against
hem by summons; would be to enact, that
is soon as their euilt was rendered extremely:
robable,by the presentment of a grand jury
W l I 1 I ' - ' ' - 1 .' .T A .
sncy .snouia receive regular nuweo, w ct-jicj
Krom punishment by flight or . concealment, j
It will also appear, as this respondent pe--j
lieves..by. a reference tof.he laws and , prac-i
ice of Virginia, into which be has made, all
he enquiries which ch cumstances .and tHe
shortness of time allowed him for preparing
his answer, would hermit, that all : the' easiest
in which a summons is considered as the only;
proper pvcc!i, ai tx tascs vi pcu; na.pi'
which on. the presentment of a grand Jury,
are to be. tried, ,by the court in summary,
way, witho'tu the in'terven'ion of a "petit ju-,
ry. Therefore, promions, had no ap-
plication.' to the cane )f Cullender, which
could be no otherwise proceeded on Ahan by
indictment, and tr'ul on the indictment by a:
pttit jury, ,.. . .-.
It must be recollected that the act of Con-
' crcsa cf September 24th, 1789. encts,.ec-
tioii IV Uint the courts of the United .States, ;
'shall have power to issue writs.of scire facias, j
habeas corpus, and all other writs not specially j
provided for by statute, which may be ncces-J
, aary fur the exercise of their, respective ju-'i
,i;isdiction. and agreeable to the principles and J
n)v VI IUYV3S V"IMT pviini f v vvti
court, .wlisrc the pracsrdings in question
tyok place, had power to issue a capias a-
'(ra'snst the traverser, on the presentment, un
less the state hw abovementiond governed j
the case, and contained something to restrain ?
me iismui oi inai w ru in tutu a f.asc ins
.respondent contends for the reasons, above
staled, that this state law neither applied to
tb case.-nor cnnta'wrd any thing to- prevent
tii issuing f a capias, if it had applied, t
Thus it appears that this rtspondentin
' ordering a capias to isiue, against Callcndcr, Jl
Ucciaea corrccuy, as u cciiainiv was wis iu
tentiin to do. Uut he claims no other me
rit than that of u'nrfaht intention in this dc
c:sion: for when he made the deefsion, he j
was utterly Ignorant that such a law existed j
in Virginia and declares that he never hciid . j
of it, till this article was reported by a com-
nutteeollha ilouiil Hepresentvtives, cur
ing the present session of Congress. rTbis
Uw ws not mentioned on tha trial either
byths councilor the trvttsei or by judge
..Crniii,.who certainly had much betttr o
jK'rturities of know rag itthsti this respond
ent, a i.l who, no doubt, woubi have cited it
hH'thcr knowiTthantl-conViuVrrd- l-s -i
t hcaUc to llis case, litis rctponucnt . well
knswslhat in aciiininal tiewt ignnrancc oi tl.o
law rxcueoo inaninodcftdinitaijsin-t it; but
iMs rnixim ip?liesnottothedecistonof3 judge
iti'whomisnorinceofthelawin general would j
eruin!ybe a disqualificaiiotl 1 lor-this oflice,
ho;U mrt a crime ; tut ignorance of a par-
licular act of cssemblr, ofasute where he i
ras an utter strangf, must be ioi0ilrtd as 'i
very parujnarie errors nprnaiir no
Sw sui'fxe.1 to have spplicd, forbore or
oiuUtcdfitUflttl no aiatu'igeoi mesiaie,
1jys rtsidfi.t init. and l'nz conversant
Js alledeed agamst him : and this he. prays,
may oe enquirea oi, oy mis xiunursiuic yu :
in such manner, as law and justice haU.seem
to them to require. -r-f.V.'
The sixth article onmpeachment alledgei,
that tbis respodent, " with intent to oppress
and procure the conviction of the said James
Thompson Callender, did, at the court afore
said, rule and adjudge the said Callender to
trialt during tUelerm at which . he, te said
Callendef '"w as -presented-and - indicted, con-
wit!i its local Uws, t itber forgot this law, or
taaiidered it ss.iospplicable. , .
Such is the answer,, which this respondent
wakes to the fifth article of impeachment,
ir he erred in this case, it was thro' ignorance
fcftiie lawVanlVufxly, under such clrcunw
stanrrs, canr.ot be I crime, much less Ugh
siime ani wisderfttan', for which he ought
tobe rmofed from his ofTice. If a judge
terre impeachable for acting agaioit law
froin iitnorahteftrily. U would fallow that he
vmU be punWhtd in the same manner for
Vcidiag.agshist law wilfully, and for decid
ing s,aini it thro' mistake. U other words,
.there,: woll tiws.fiiMiuclion httweeo ig.
-ra-ice and dii jn,ltwen error and corrrtp-
MAis,iih saU rrtDokrirnt. tor rica to the
aiA(LiVi.atle of- Jmpiachnient,
,hs in'y.unir Ittylilgcrip-a aftd:mis-J
trsry to the law in: that case made and. pro
tided." . -,. -. - - - --trr .;
I This charge also, is founded. U, on the
act of Congress 6f September 24th, .1789,
abovewentioned, which enacts, section 34,
that, the; Ja.ws of the several states, except
where t constitution, treaties, or statutes of
the .United fVates shal otherwise provid.
ahail bg regarded k the rulea of decisior,. in
trials at iommon law, .in; the. courts of vac.
United. States, in cases wlver they apply,"
and 2dly, on a law of the Mate of Virginia,
-which is supposed to prove, l that in cases
not capital; the offender shall not be held to
.answer any. presentment of a grand jury, until
the court next preceding that, during which
such, presentment shall have , been made."
.This lawj' it is contended, is ipade the rule of
decision by the abovem-:ntioned act of Con
gress,'and Was violated by the refusal to con
tinue the case ol Callender. till the next term.
, In answer to this charge this respondent
'declares, that he was at the, time of making
the nbovemen'ioned decision, wholly igno
rant of.any such law of Virginia as that in
question, that no such law was adduced or
mentioned by the council of Callender, in'
support of their motion .for a continuance ;
neither when they first ni.ide- .it, before, this
respondent sitting alone ; iior when they re
newed it. after judge GHHin had taksri his
,'se.at in court, that no such law wis mcntjontd
D7 ' judge Griffm; who concurred iirovjrrnl
i ing the motion for a continuauce and (jrder
ing on the trial ;. which - he could not.have
done had he .known that siich a hw, existed,
or considsred it HsappliCiibleto thecasq ; and'
that this reponduit never Jieurd of any such
law, until the' artichs of ioipcachment now
under consideration were reported, in the
course of the present session of Congress,
by a coramittee of the House of Representa
tives. .
A judge is certainly hoiuiJ to use all pro
per and reasonable mean$ of obtaining a
knowledge of the .laws whitfi he is appointed
to administer i but after the us of such
mean?, te overlook, misuriders'.andj'or remain
ignorant of some particulr law, is at all
times a pardonable error, ut is much more
ta in the case of a judge of te supreme court
of the United States, holding a circuit court
in a particular state, with wlich he is a stran
ger, and with the local laws which he can
have, enjoyed but very impelftct opportuni
ties of becomintr acquainted. It was fore
seen br Conirrtss, in e)tabliehiir the circiiit-
courtsof tbu United States, tUt thff.cullies
and inconveniences, must frtuieutly ari.e
from this source, alid to ob'uik such diHi
cutties it as provided, that the (litrict judge
of each stale, who having been yesident of
the; state and a practitioner in iistoum, ha!
all the necessary means ofbecomirs acquaint
ed with its local laws, shonld'.futii a part
of the tirV.uit cou.t in his own stVe. The
judge of the supreme court isexpeled, with
reason,. to bs well versed in the gent-al laws:
I but the local laws of the state Curni llipeculiar
j province of the district juJe, wbofuay le
h justly Considered as particularly retionsible
jor tneir due ontervauce. u in ine case in
question, this respondent overl(ked ir mis
lonstrued any local law of the state .oVirgi
1. tujwhkh-caglU.ao.rare.nouued lU case, .
. , , i-.: .1.. .
,rjas euauy ovcnonnfu uu nusuuiKnoon,
not only by the prisonsr'a couniil whomade
the motion, tnJ whoV K-r.uliar duty was
to know the law and bring iljnto the w of
the court, hut Wo by the dilricl judge.who
had the best opportunities of knowinfrWid
understanding it, and in whom, nevcrlluVtt,
this ovcrig!.t or mistAe is considered I a
venal error, while in lists respondent ills
made the ground cTa criutinal charge.
1 his retnotxicnt lurtner states, that ailr
the most UUigciit and the trott catcnt
ennulrf which ih tim allowed for prrpaf
this answer would permit, he can find no la!
of Virginia which, .expressly enacts, th
" in cases, not capital, the o Hinder shall a
be held to answer any presentment ol a gran
iury. until the court next succeeding that du
nnir which sucb presentment shall have been
made." .This principle lie supposes to be
an inference drawn by the authors of the ar-
titles of impeachment, from the law of Virgi
rw mentioned in the answer to the preceding
article, the law of November ISth, 1793,
.which provides that tipon presentment
made by the grand jury of anrjiTenre not rs-
. pital, the court shall e-rdcr the clerk to fuue
.
a tummons, or otaer proper process, sgainti
tice and construction inib;auUfgiMa, .
lraas-of7i'iittalI .tttencjUitwiUj
tried by the , court iSelf fipon,. the. preseht-t
ment, without an indictment w the; niter-1
vfcntion of a petit jury . Biir for cases, like j i
that of Callender where an indictment must" ,
follow the presentment, this law made;; :no ;1
provision. Further, the state laws are di- J
reeled by the abovemeijtionedact ' of Coh- '
gress, to be the rule of decision in thq courts .
of Xlic UnitefLStalest only K m "a'sea y here
they apply." Whether lhey apply ,pifpotto a .;
particular cade, is 'a Question qf Jaw, to ;be
decided bythe court where rach ijiseTs pcad- .
"nig, and an error in making the ctision- is
not a crinie, nor. even an offence unless-it '..
ean be shewn to have proceeded from, im
proper motives. , This respondent i-is of o
pinion,Hhat the law in question did not ap-
ply to the case of Callender," for the "reasons ,
su.ted above ; and thereTofe'r that it' would
have been his duly to disregard it,' even had '
it been made known.to him by the counsel for '
the traverser. .
And in the last place he contends that the
law of Virginia in question, js "not adopted
by the abovenientioned act of Congress as
the rule of decifion, in silch cases'as that now
under consideration. That act does indeed
provide " that the Jaws of the seyei;al, states,
except where the 'constitution, treaties or
statutes of the United, tatcs.' shall otherwise
provide, shall be resided as pules of deci-,
sion in trials at common law, in, 'the, courts of
uic unneu oiaies, ni cases ,nere iney ap
ply." Rut this provision in Jjjs.opiqion, 'fan'
relate oniy to rights acquire under the slate,
laws, which came into question " on" the trial ,
and not to forms on the pi:9Cess or'nicdcs
proceedings, anterior or. preparatory to,, ihe
trial. Nor can it, as this respondent appre
.hends, have any appliculK-n' to indictmenta
far o Jencts Hguinst the statutes of the United
States, which caiihot with any proprictyj.be '
called trials at common law." It relates,
merely, in his opinion, to civil.rights required
under the stale laws; which by virtue cf this,
provision, are, when they come in question I
in the courts of the . United States, to be'
governed by the laws under which they ac-.
crued. 1
If in these opinions this respondent be in-'
correct, il is an honest error ;'and he contends
that neither such an error in the construc
tion of a law, nor his ighcrat.ee tf a local
state law which he had ro opportunity of
knowing, and of which the" counsel for the
party whose case it 4r-sirppocd t have- af.
fected were equally ignorant, can be coiiMcler
tcl as an offence liable to impeachment, er to
any sort of punishment or blame.- .
And for plea to the said sixth article of
United IStates, which he had been inforr
asnTmlneditnTlhe districtr-and that r
desired the districfattorney to aid the gra,
jury, in their enquiries Concerning the exis..
encc &,nature;of this i qffppcer By these thrt,
acts, each of which it was his duty to perform,
fit Is alledged to have degraded his high ju
dicial functions, r.,aod tended to impair the
. public v confidence ' ia, and respect for, the
(tribunals, of justice, so essetUial to the genej
impeachment, in saiu iimuel those saith,
il!iat he i not kuilty of any hiirh crinie or
misdemeanor as in and by the said article is
alledgcd against him; and this he prays may
be enquired of by this honorable court in siich
-manner as law and justice shall seem 19 them
to require. . , .. ( , . . '.
The seventh artirje of impeachment ;ela'es
to some conduct of ibis ixpondriit.in his
judicial capacity, fit a circuit court of ! the
United States held at New-Castle in the stale
of Delaware, in June I SOO. The sUlciacnt
ofth'a conduct made in the artiOe is ako
gctlut ronous ; but, ifil were. Hue, tiii re
sponticnt denies, that It contains any matter,
fur which he is liable to impeachment. ft
utledgesthat'direKarding the duties, ofj his
office, he did descend from the dignity, cf a'
judge, and sloop to 'the level or an informer.
This jiigh offence consisted, according to' the.
article, 1st. in refusing to discharge the
grand jury although inirealcJ by several of
the said jury to do so." Sndlr, in observ
.ing. la the graniLjuryA aficLthesa'uL gnuiiL
jury hsd rfguluTly declared tnro' their fore
,tnan, that they Had lound potillt cl indict-
incnt, and had no presentment to nuke, that.
he the said Samuel Chase understood tlmt
a highly seditious temper had manifested
itself in the state of Delaware, among a cer
tain tlass or people, particularly in New
Castle county, and more eiptci-lly in the
town of Wilmington, hcre lived a roost
seditious printer unrestrained by any princi
ple of virtue, and regardless of social order,
.. . . 1 r .11. . ' "
inai me name 01 iuis pnnicr was
3dly, in then checking himself as if sensi
ble of the indecorum which he was com
milting.' 4thly, n adding1 that St might
be assuming too much, to mention the name
of this person 1 but il becomes your duty, gen
tlemen, to enquire diligently into this flat
ter,' or words to that effect, And 5thly,,
in authoritatively enjoining on the district
attorney of the United States, ith intention
to procure, the prosecution of the printer in
question, the necessity of procuring a file of
the papers to which he alluded, and t)y a
strict examination of them to find some
psttage, which might furnish the . e round
work of a prosecution against the printer.' '
These charres amauot in
Thatihtf honorabje, court roaFbTifbte to
farm jiorialy.usjqdgmen the
, jtransactiomspupnei in tjils article, this re-'
.pon'dent wbms.ilje fblfowirg 'stau rr,i rt
f it, which lie ayci.torbe true, and extcts
to prove. ( , . . " ,'r '
On "the 'irthdav 'of 'June; 18C0, ibis re-"
L-apor.dtr.aa cspe. pfifsc csaeciatcjubi I'Oes. of
.f he: .supFemfV cpurtiCtr thUiicd. Males,
pr'esided in t,p, circuit court of ihe United
States, then held at New-Castle in and for the .
district of Uelawarc, nd was assisted ty .uri
ning Bedford esq. then'" district-judge ot ti e
United States for jla'fdjstrict." At the even
ing of the courtvori that day, this respondent
accqrdi'ng to his duty and his uniform, prac
ticevdelivered a cjiarge to the grand jury in
' w hjch ;he'. gav",fn ' charge-to them sevci al
statuies.of .the United ;Sates, ' and" amcng
cithers, in act of Congrisfi pasitid July ' 1 4ih,
1793, entitled .' An 1 "act in addition to the act '
cernintr anv breaches of those ttalutei, and
L especially f. that commonly called' the scdi-
iiion uw, wiinin me aiwrici m ieawarc. .
. .unuie same day te tore tnenstrft nour 01
aojournmem, ine grenti jury-cviwe juiufcouii
arid informed the cwurt that they , had found
no indictment cr "presentment, end had no
busrnes before them,' fof which. Teason they
wished to' be discliarge. "'This'Jetppndcnt
replied, thafit , waij eartierv'thar, the; waual
hour of discharging-a grand 'juty J 'ancl tjiat
business might occur during the sitting of
t',iecoui;t.( He also sked 'them ti'fhey had
no information ,f publications ;wliliin the
district,. that came umler the' stfcUf fort fiw,
and added, that be btin1 been ;infttie'd, tl at
Ijiere was a paper called theMVri pvb
lis):cd'at Wilmington',, wVjtctV rVitttliieff lil.i I--hrus
charges' agaihst the goeiTiWeiU ltd
"President ofthe United States V that i.e ha 4
not seen that pepe'f, but it was their duty o
enquire, into the subject j'uhd 'inhty had
not turlscd.thtir itt-ton t'i'tKe attorney
for the district would be pleased to examine
a file (filial paper, and if he found any thing , ,
that came within the eiitim law, would lay 1
it before them." This is the substance of
what the respondent said to ti e gtand jury
on that occasion, nnd, lc believes nearly lis
words, or. tl.d "morning of the next day, tiny
came into couri and declared ''.that they had
no presentments oriftdictmenta to make, on
which they ,were immediately discharged.
The whole' fime thefefrre. for which they
were'dctame'd, waVtwc.nly-foflt hVirs, fa1 less
than is gencrslly required bf gt and .juries.
lnhese proceeilingi, this respondent ac
ted according to his sense bf what the duties
or his ofHce required. It certainly was his
duty to givtin charge to the grand jury, &U
such svatutcs of the United States us provided
lr the punishment' of offer.ce'si and among
oiheri, that called the sedition sctj into all
offences against which act, while it continued
in force, the p'rand jury were' botmd by their
.oaths to enquire In iving itin charye,
together with the ether acts of Congress ;frr
the punishment of offences, he followed more
over the example of the other judges of ihe
supreme, court, in holding their respective
JdrcuiLcourts.Jlc.aJso contends an did
subitancfc to
.the rxrann. rr persona so presented, to appear! I this that the respondent refased lo discharge
.and answer such presentment at the tti i a grand jury on their request, which is every
court.!' .This' law he toncsives does not I day's practice, a ad which he was bound to
'.warrant the hfere nee so drawn from it, bt- I do, if he belie ved thst the due administration
csutc It speaks of tntimrit and pot of II of justice required thelf longer attendance t
andis,'ai Le li informed, cor.ined by prac- Injury to aa offence against autule of the
then believe that it washisduty, when in
formed of an offence, which the grand jury
had overlooked, o direct thclr'attcntion to
wsrds it,and to rcqnett for them, and even
to require if jicceissry, the aid ofthe district
attorney in making their enquiries. In thus
discharging what he conceirei to b his du
ty, even if he somtnitled in trior in so con
lideringit", be'dtftica that he committed or
could commit any offence whatever.
.'With respect to the remarks which he is
charged by this 'article with having made
lolhc grAnct jiirjrretltlve to a highly sedi
tious temper, which he had understood to
bae'manifettfd itslf in the state of Dela
ware, among I cetlain class of people, par
ticularly in Nrw-Castle count), and more
especially in the town of Wilmington,
and relative oM a most scdicioua printer,
residing in Wilmington, unrestrained by any
principle of virtue, and regardless of social
( order lhis reipondent docs not recollect or
' beficve, that he made any such observations.
Hut if he "(did make them, it could not be
ImprojW In Mm to tell the jury that he lad
received such Information, il lo fact he bad
received H( which was probably the cate,
though he cannot recollect it with certainty
at this distance of time. That' thia informa
tion. If he did rtreWe It, was correct, so far
as it regarded the printer In question, i!l
fully appe sr from a file of the paper called
the 44 Mirror ef the Times," kc-tnunttl
at Wilmington, Delaware, from Vebruanr
Ith, to March 15th, 1100, Inclusive whitfi
' t
"' U
A-
9
liitr.taor, at I ana oj ui ym