The Wilmington Gazette

              wilmington gazette voliimk ix published wkkklv)by allmand hall tuesday apkil 0 laos l-v 431 is alledgcd against him ; and this he prays may be enquired of by this honorable court in such manner as law and justice shall seem to them to require the sixth article of impeachment alledgcs thnt this respondent " 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 cullender to trial during tlte term at which he the said callender was presented and indicted con trary tu the uw in that case mudu and pro vided ticc and construction in the state of virginia to cases of smtill oflences which are to be tried by the court itself upon the present ment without an indictment or the inter vtntionof apetitjury but for cases like that oi callender where an indictment must follow the presentment this law made no provision further the state laws are di rected by the abovementioned a<t of cbh gress to he the rule ol decision in the courts of ihe united slates only " in case where they apply whether they apply or not to a particular case is a question »( law lo be decided by the court where such case |« pend ing and an error in making the deciaion is not a crime nor even an offence unless it can be shewn to have proceeded liom im proper motives this respondent is of o puuon that the law in question did not up ply to the case of callender for i reasons stated above and therefore thai ii would have been hit duty to disregard it even had it been made known to him by the counsel for the traverseri united states m liicli lie hud been infrit ; vu coii:initti'(l in the district and ibat desired the district attorney ti aid uic jr a i jury in their enquiries concerning tl-.e exit ence & nattue ol this offence by these thi-i i acts each of which it was his duty to perform he is alleged to have degraded hishiijbitt dici.il functions and tended lo impair i he puijlic confidence i i and respect fir the tribunals of jusiite sj essential iu the t<-""j | jbl uclliile i that this honorable court may h able to ' form correctly its judgment loncuriint the i transaction mct>ti<ntd in t|iu article thi re | s|ti|llll-i!l l.l.bllnts llif fotlowjilg sl;.',|.t|t i olit which lit tvcll 10 le tint and i nib ! tu pro e on i 27ih day of june i8c0 this re l ipor.du i ih t..ve oi the nmtrciatc'.jdb'ii.tft of ■ t lie supreme court of the uuitcd su cs : presided ln tie circuit court ol the united | stnles then held at ncn-casiie in und f<i the dish ict i.iu lawarc nj was assisted ly cut j ning bedford escj then dittrict judge ol tin , united slates for tbnt district at ihc opui j ing of the court on thut day tbis rts ondctit , accqrdihg to his duty and hi uniform prac j tu e delivered a cjiarge to llie grxnd jury in i which he gave in charge to them scvual | statutes of llie united states and among j others an apt of congress passed july u i v0\i vntitlcd • an act in addition to the act 1 for the punishment of certain cflvnes bgainst ! the u iittttcs ktidconinionlyethtdthe scdi tion law 1 lie directed them 16 enquire con cerning any breaches of those utaiutra and espcci.illy of that coinmonly called the sedi tion law within the district of delaware on the same day before the uk\i?i hour of adjournment the grand jury come into court find informed the court that they had found no indictment or presentment and had no business before them for which reason :.'■ y wished to be discharged tfcis replied that it wsis earlier lh*n lh v ual hour of diicliai'gihg a jmy and that : business might occur during the sitting cf ; flieconijt he also ssl;e<l them if tlity h..d ; fjo information of publications vrtth'ih the ! district that came under tire se^ltfiyn fiiw j a;id added that he iklfl h«dn ii.frim t nt i llif-re was a paper called ihe ' !'.' r f r | i li j lished at wilmington w'r.ich ehittail fl liu i lous charges n;;ainst the j'-i>tvfmicnt it<l president ofthe united st»us : hat he ii.-w ix<t e<n that ptipe'r but it vts tiveir duty o enquire into the ixibje'ci ; otiti if thtj had not turned their at t ■ icr t it the attorney for the district would be pieasi d to exaitiine a file i f iliiil paper aiid if he found s;i y thing i that came within the sedition lave would liivr ' it before them — t is is the substance of | what the respondent said lo the grand jury on that occasion inrl ho believe nearly l.is words or the momiiii ofthv 1 cxt d.n they 1 came into court and dcelarbtl thttt they h:.d i no presentments or indictmi-nts in milt on • which they were immediately disrvarpcd - the whole time therefore for vliic!i they were detained wastwi-nty-fouf lirurs fav less than is generally required of j tand juries in these proceedings this respondent nr ted according to his sense of what the duties of his office required it certainly wus his duty to give in charge to the grand jury l such siatutes of the united states as provided for the punishment ol riftsr.cesi and amont others that called the sedition act into all oikiiccs aj;ainst wliith act,^hile it continued ij force the prand jury were bound by their oaths to enquire in giving it in charjre together with the other acts of on^rckb frr the punishment of offences he followed mon - over thti example of the other judges of the supreme court in holding their respectire | circuit courts he alxo contends and did ; thenbeliete that it was his duty when in j formed of an offence which the grand jury , had overlooked to direct their attention to j wards it and to request for them and even j to m;uire if necessary the aid of the district j attorney ij making their enquiries in thus i discharging what he conceires to bo his du ty even if he committed an cnor in so con sidering it ht denies that he committed or could commit any offence whatever with respect to the remarks which he is charged by this article with having made to the grr.nd jury relative to " a highly sedi tious temper vhich he had understood to have manifested itself in the state of dela ware among & certain class of people par ticularly in ni.w-castle county and more especially in the town of wilmington and relative to " a mo*t seditious printer residing in wilmington unrestrained by any principle of virtue and rcgardlets of social order ;" this respondent docs not recollect or bclic-ve that he made any such observations hut if he did make them it could not be improper in him to tell the jury that he h;id received such information if in fact he had received it ; which was probably the case though he cannot recollect it with certainty at this distance of time that this informa tion if he did receive it was correct so far as it regarded the printer in question v ill fully appear from a file of the paper called the " mirror of the times c published at wilmington delaware from february 5th to march 19th lboo inclusive wniqh this char.jc also is founded ut en ih ac of c;oni;rehs bf september 34lh 1 7«9 alxjvementioned which enacis section 34j ' that the laws of the several states except where the constitution treaties or stututett of the united s'a'e 1 * shalj otherwise ppovul . i hull lie ifgtrdt i a the rules of decisioi'i in trials ut common lu;v in the courts of me i united states in cases where they apply | and 2 1 uiiy on a law of the state of virginia ! wliii h is suppoted t prove ■• tiiat in c.tsci ! not capital the offender shall dot be held to j answer any presentment of a grand jury until i the court next preceding that during which i such presentment shall have been made j this law it is contended is made the rule of j decision hy the abovem-:nlioned art of con gress and was violated by the refusal to con tinue the case ol cullender till the ne:;t tei m high court of impeachment | judge chase's answer continued jrom vur lust.j from tlicr»c words it is perfectly manifest that the law of virginia admitting it to ap l>ly did not order a summons to be issued but left it perfectly in ilit discretion of the court to issue a summons or such other process as they should judge proper it is therefore a sufficient answer to this article to say that this respondent considered a cftpttts as the proper process and therefore orderid i it to issue ; which be admits that he did ' immediately after the presentment was found against the %>' ' cullender by the grand jury ' "' . this he is isiforlj ', ind expects to prove has betn the conslj|l»'i of this law by the courts of virginis^w rtitir p.enerul prac | ticc indeed ii would fie most strange it any other construction or practice had been i adopted there lire many offences not ca pital which arc of a very dangerous tenden cy and on which very severe punishment i inflicted by the luws of virginia and toenact by law tliat in all such cases however no torious or profligate the offenders might be the courts should be obliged after a present 4nent by a grand jury to proceed igain&t jihem by summons would be to enact that is boon its theirguilt w;is rendered extremely robable,by t';e presentment of a grand jury hey should receive regular notice to escape '. from punishmenlby flight or concealment it will also appear as this respondent be lieve i by a reference to the luws and pruc lice of virginia into which he has made ail l!i enquiries which ciicumstanccs and the shortness of lime allowed him for preparing his answer would permit that all the case j in which a summons is considered as ihconiy j l>r:>pcrt pieces aiu ciws of petty offences || which on ihe presentment of a grand jury (' are to he tried by the court in a summary jj way without the intervention of a petit ju j i — therefore th^sa provisions had no ap jj ilication to tlie case of calender which ii could be no otherwise proceeded on than hy j indictment and trial on the indictment by a i petit jury ' | ii must be recollected that the act of con | kress of september nh 7ho enacis hec i ion l-v limtiin courts ofthe united states [', k!i.-h have power to iarvic writs of scire facias • habeas i<>i(ims and all other writs not specially j provided for by statute which may l>e neces j ry fur the exercise of their respective ju j risdiction and agreeable to tbi principles and t m«a^cs of laws dn ■ •■[ icntly the circuit ■' ca'.::-t where the proceedings in question tj took place had power to issue u capias a ; ivimsi uie traversiii on the presentment un • k-v-i tli state law abovementionsd governed i hie case an contained something to restrain i the ismiin oi ili.tl writ in such a case this | respondent contends fjr the reasons above ij stated that this state law neither applied to ii tlic c4v nor contained any thing to prcvenjt jl tiiv issuing of a c.ipi-.\s if it had applied i thus it appears that this respondent in j ordering a capias to issue.agaitut cullender '. decided correctly , as it certainly was his in | tention to do cut he claims no oilier nii !! rit tlian that of upright intention in this tic ij c;sion : for when hs made the decision he \' was utterly ignorant that such a law existed j in virginia ; iifld declares that he never heard ■ of it t till thi<i article was reported by a com j mitteeoftha hou.cof representatives lur ■ ing the present session of congress this u'w w«s i.<ii mentibned on the trial either || by tha councilor the tr>vert»et or by judge i iriftin i > certainly had much beetvn op i portui ities of knowing it than this respond j ept ■:■ i who no doubt would have tiled it | ht i i ' i •- y ktipwn it and considered ii as ap plicable to the case this respondent well !| knows that in a criminal vi?w ignorance ofihc i j l.i.v excuses no m.iriinoilviidinv.u iin-t it but this maxim bppliesnot tothedecisionofs judge i in whom ignorance oft he law in general would l t ■•; .! inly be a disqualification t"r this office though hoi a crime ; but ignorance of a par ticular act of assembly of where lie j t.".i an utter stranger must be considered s ij a very pardanablv error especially as the j council for the prisoner to whose case that jl **•,*• i ilunpn'xul to have applied forbore or ■! ontilted tociteiti nl a->ajudge of the state ; tlways rcvi!ei<t in it and long conversant i kit'.i its local luws cither forgot this law or ' fonsidered it as inapplicable such is the answer which this respondent j tr.?.l:es to the fifth article of impeachment j if he erred intliis case it was thro ignorance i of lite law and surely under such circurn stancebj cuui;ot ic ;\ crime much k-ss a hii;h i ciime juid misdemeanor for which he oujjht and in the last place he contends thnt ihe law of virginia in question is not adopted by the abovefnentioned act of congress as the ru!e of decision in such cases as that now under consideration that at i dots indeed provide " that ihe law of the several males exct]it where the eonstitmion treaties or itatutcsofthe united su-'cs ahull p|herwls provide shall be i'eyw»lcd s pules of deci ion in trials at common law in t!ie courts of the united states hi cases when they ap ply but this provision in ins opinion tan relate only to rights acquired under the s'tate laws which came into question on the trial nnd not u forms un the process or model of proceedings anterior or preparatory lo the trial nor cun it a ihis respondent a;>pre hends hnve any applieulk>n to indictnitnth i tr ojtencls aguinst the stulutcscf ih united states which cannot with i'.ny propriety be called " iiials at common law it rt lattu mi rtlv in his opinion to civil rigjits ncquirtd under the mate laws wliich by virtue of this provision ure when they come in question in the courts ol the united states to be governed by the laws under which they ac crued in answer to this charge his re«pondent declares that he was at the lime of making the abovomeoiioned decision wholly igno rant of any such law of virginia v that in ' question th.it no such law w is adduced or mentioned by the council of callendor in support of their motion for a continuance neither when they first mado it before this j respondent sitting alone ; nor when they re ' luwcd it alter jur!;,e grimn had takci his { beat in conn that no sui.'i uw w»s mentioned by judge uriffin ; who concurred in ov;rrnl i ing tiie motion for a cotitiuuaucc and order i iiu on t!nj trial j wi>:cli lie could not have j done had he known that iich a law existed ' or connid red it hsapplicubsetu thecasq ; h'i,t j that this re»pondwii never heurd of any such j law yntil the jriiil » i inipeaehiiki.l now ] under consideration were reported in the j course ol the prc«etn e<»sion of cringrebs i by a committee of ihe house of rcpresenta j tivrs i if i:i these opinions this respondent be in i correct it is an honest error and he c mends tl.iit neither such an error in ihe construc tion of a law nor his iu.ruict of a local state law which he hail r opportunity of knowing and of which the counsel for the party whose case it u wppo»ed to have af fected were equally ignorant can be consider ed as an offence liable to impeachment r lo any sort of punishment or blame i and for pk-a to the said mniii article of impeachment ihe said sufnuel chase saitli thai he is not guilty of any high crime or misdemeanor an in and by the said article i ' alledged against him and this he prays mny ' be enquired of by this honorable court in such i manner as law and justice shall seem to them ! to require the bcventli artjcje of impeachment relates to sc;:ne conduct of this rti-pondent in his judicial capacity at a circuit court of the united states held at new-c*stl in the state of delaware in june 1s00 the suunient ofthla conduct made in the article is aim getlu » t runous ; but hit were irue/uu re spondent dc-nits that it contains any mutter lur which he is lialile to impeachment jt iii!':i!;;cs that ctittregarding the ixiies of l.is office he did descend from the di^nitj of u judy>e ami stoop to the level of an informfer this high offence consisted according to the article 1st in refusing to discharge the grand jury although intreuted by sever:i of die said jury to do so 2nrity in " oh c-rv iii(5 to the grand jury after the suici grand jury had regularly declared thro 1 their fore man tiutt they had found uo bills of indict ment wid had no presentment to nuke that he the s^id samuel chase understood ' that a highly seditious temper had manifested itscllin the state of delaware among a cer tain class of people particularly in new castle county and more in the town of wilmington where lived a most seditious printer unrestrained 1 any princi ple of tirtue and regardless of bocial order that the name of this printer i " 3i!ly ' in then checking himself as if stnsi ble ot the indecorum which he wa com mitting 4thly in adding ' that it mlgnt be assuming too much to mention the n.ime ofthia person ; butit becomes your duty gen tlemen to enquire diligently into this mat ter 1 or words to that effect 1 and 5thly ' in authoritatively enjoining on the district attorney of the united states with intention to procure the prosecution of the printer in question the necessity of procuring a file of the papers to which he alluded and by a strict examination of them to find some passage which might furnish the ground work of a prosecution against the printer these charges amount in substance to this ; that the respondent refused to discharge a grand jury on their request which is every day 1 * practice and which he was bound lo do if he believed that the due administration lof justice required their longer attendance that he directed the attention of the grand jury to an offence against a uatute of the a jiulorc i certainly hound to me all pro per and reasonable me:ins of obtaining a knowledge of ihe laws whim he is appointed to administer i l>-,n after he us of such j means t overlook misunderstand or remain ignorant of some particular liw is t all times a pardonable error vt t i ■* much n.otc so iii the c:\se of a judge of tfce supreme court of the united slates boldina a circuit court j iii j |; u irii!ar itut with w'ieh he it a itrat'i ger mid with tlit toca laws which lie can havo enjfiyed but very imperfect opportuni ties of becoming acquainted it v fore seen by congrt ss in esttibluthi\g tli circuit couttsof llic united slu'.cs t!»t difficulties i un'l inconveniences must friruienwy ii-,u ' fiom this source ami lo olr.iutf such cly.i i culticts it w.is provided that the d strict judge j ol tiicli state vlio li;i\in ev hpeiidcnt of j the state and » practitioner in ilstouris hud ' all the necessary means oi'becominv m qu&int i ed with its local laws should fpvn lt p i rt ! of the circuit con.t in iii own ktie the i j'lri^-i of the supreme court i«expeied with ! r«ason to be well versed in the gcnral ihw j but the local jaws of the sim form hipeculiar province of the district judt^e whojnay he ju«tly considered as particularly retionbible j for thoir due observance i in thbease in question this i'tapondent overlooked tr mis ! conhtruod any id al law ofth«hiatu 6 vir^i | nia which ou.iflii to have governed tl cuse • it as equally overlooked and misundtuttoodi i not only by the prisoniii's couniil whotmade | the motion and whose peculiar duty \ was j to know the law and rin,r k into imc viw of the court but nl<o by the diktrict judge«who i hud the best opportunities of knowingutnd ! iiiulerstanding it and in whom neverthetss j this nvurniglit or mistake is considered 4 a i venal cmr wliile in thii respondent i is 1 made the ground of a criminal charge this respondent further states that altr i the most dijigant and the n:osi exlensto j enquiry which lha tinv allowed forprc-jjuiis j thin answer would permit he ran find no uir of virginia which expressly enacts tha " in casr not capital the offender shall no be held to answer any presentment oia s^faii jury until the court next succeeding that du ring which uch presentment shall have been j made this principle he supposes to he an inference drawn by the authors of the ar ticles of impeachment from the law of virgi n'ra mentioned in the answer to the preceding article the law of november 15th 17j2 which provides " that upon presentment made by the grand jury of an offence not ca pital the court shall order the clerk to issue a summons or other proper process against the person or persons so presented to appear and answer such presentment at the next court thin law he conceives does not warrant the inference so drawn from it be cause it speaks of prticntments and not of indictmentt which are very different things ; and is as he is informed confined by prtc tr l)i removed voin his office if a judi;e were impckdiable for acting against law froin ignim'htite.orrty ii would follow that lie ili bt punished in the same manner for deciding again ipw wilfully and for decid ing u^.iiiiii it thro 1 mistake hi other words t!u-ri tuu1.1 bj no dislinction between ip norance andd«*ign,i>etw«en«rror and corrup tion . an'l the said respondent for plea to the i i'id fifth article of impeachment saitli that m i«n t guflty f any hi^li crin»c and mis ivtr .:>;,;•, ds io and by the said fifth article