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The Wilmington gazette. volume (Wilmington, N.C.) 1799-1815, April 09, 1805, Page 1, Image 1

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- ' - - mmmmmmmmmmmt m , m r ii in (! ; , ni MJ i r - - - ' - r- FoxrxwJt IX. PUBLISHED (wEEKtt) SY ALLMAND HALL a .'''"Mi r ATo. 431. . T a ta I 1 ii i " tc. 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

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