man who publishes a fibel fhall be arrested immediately and brought to trial and punished, while in another state another person who has committed the fame offence, fhall be served with a procefs that fhall be notice to him to make his escape: and shall it be faid, that fuch a rule fhall be applied to cafes where imprifon ment is part of the punishment. It has been in proof, that in Maryland it is ufual to arreft by capias in cafes of misdemeanor, and to try the traverfer at the fame term at which he appears: Are the courts of the United States, if fitting on one fide of the Potowmack, to be governed by one rule; and if fitting on another fide of the fame river, to be governed by another rule, in cafes of crime or offence against the laws and conftitution of the United States. It can never have been the intention of congress, that any fuch variety of proceeding Thould be allowed in practice, or that the procefs fhould be any where a summons in cafes of offences which were to be punished by imprifonment.

This can be further illuftrated by attention to the laws of congrefs inflicting punishment upon certain crimes, paffed in the year 1790, for perjury, for bribery, for obstructing by force the fervice of legal procefs, for importing flaves from foreign parts, for violence to an ambaffador and for other offences relative to ambafsadors; the punishment is fine and imprifonment. See ift vol. Laws of the United States, page 111. The process in all thefe cafes is to be the fame; if a capias is proper in one it is proper in all, or if a fummons is neceffary in one it is neceffary in all.

Suppofe in regard to an ambassador who has applied to our fecretary of ftate for the punishment of an individual, who may have done violence to his perfon or to one of his family, that a fummons fhall have been iffued to the offender who should abfcond or remove himself. It would be deemed very ftrange, perhaps incredible to the ambassador, if he should be told by our fecretary of ftate, that the offence being committed in Virginia, it was necessary to fummon the party to appear before the court, and inftead of obeying the fummons he had removed himself entirely, but if the fame matter had been profecuted in Maryland, the offender might have been instantly arrested and punished. The prefident of the United States regretted that the offender had efcaped with impunity, but the escape was according to law. Would not fuch an explanation be apt to be conceived an affront to the understanding of the ambaffador?

On a former occafion I read a rule of the fupreme court made in Auguft 1792, by which the judges declared, "that they confidered the

Y

practice of the courts of king's bench in England, as affording outlines for the practice of this court, and that they will from time to time make fuch alterations therein as circumstances may render neceffary;" and on the fame occafion reference was had to the practice of the king's bench, to fhew that a capias was a proper and ufual procefs. But it is neither neceffary nor correct to admit that the rule of the king's bench in England, is abfolutely a rule for the circuit courts of the United States. It furnishes a good outline of practice. The true pofition is, that neither the king's bench nor the ftate laws furnish rules to the federal courts in regard to procefs, which are pofitively binding on them, but the fe courts are to eftablish their own rules under the direction and controul of the ftatutes of the United States.

It is a known and un lifputed maxim, that the criminal code of each sovereign state furnish the rule in profecutions in the ftate courts, and is confined to offences against fuch ftate. An of fence against the commonwealth of Virginia, is not an offence against the United States; and therefore the laws of Virginia which regard offences againft itfelf, will have no effect touching offences against the United States, unless congrefs by their exprefs ftatute has given to them fome effect. The laws of Virginia and of every state, have declared how an offence against fuch state respectively shall be prosecuted, but they are not to be applied to the circuit court of the United States, fitting in such state, and holding cognisance of crimes against the United States. In confirmation of this doctrine, fuffer me to avail myself of the opinions of fome very diftinguished characters in the Virginia convention which adopted the conftitution. An' eminent judge who prefided in the highest court of that ftate for a long fpace of time, I mean judge Pendleton, laid it down as too clear to be difputed, that the powers of the federal judiciary fhould be coextensive with the powers of the federal legiflature. In this opinion Mr. George Mafon coincided with that gentleman, although he was oppofed to him on almost every other. Of the fame opinion was another diftinguished meinber of the convention, who now holds the high office of fecretary of fate. (3d vol. Virginia debates, pages 108, 121, 190.)

Unless then congrefs has made the laws of each flate the rules of procefs to bring offenders before the circuit courts, thofe laws do not bind the circuit courts in this respect, and there will be no foundation for the doctrine, that a circuit court of the United States ought to be govern ed by the laws of a ftate in refpect to procefs to bring the party to anfwer. Where is fuch a ftatute of congrefs? not in their ftatute books as I humbly conceive none fuch has been produced

The honorable managers have referred to the 34th fection of the flatute already mentioned, and upon that alone they rely. The words of the fection are as follows: " And be it further enacted, That the laws of the feveral ftates, except where the conftitution, treaties, or flatutes of the United States fhall otherwife require or provide, fhall be regarded as rules of decifion in trials at common law in the courts of the United States. in cafes where they apply." We are to take the whole expreffions of the fection together, and this fection is to be confidered conjointly with all the other provifions of the Ratute. It makes the laws of a state the rules of decifion in trials at common law awhere they apply. The laws of the ftate are to be rules of decifion in trials. The process which is awarded to bring in a party to ftand his trial, is obviously different from the trial felf rules of decifion in trials, are not rules of process antecedent to the apFearance of the party. What is a trial at common law? A trial may be faid to begin with empaneling a jury, and to end with the judgment of the court: 4 Black. 352. A capias that is iffued for the purpose of bringing the party to a trial by arresting his perfon, cannot therefore be deemed a part of the trial itfelf. Whether the traverfer appears with or without procefs, is feldom deemed material; it is only after he is brought to anfwer that his trial can commence.

If the conftruction contended for by the managers be admitted, it will make this fection militate against the 14th and 33d fections of the fame ftatute, which exprefsly provide upon the fubject of procefs. Beides it is unneceffary to give this conftruction, inafinuch as the ftatute provides amply refpecting the fileps preparatory to the trial. The 29th fection regulates the mode of fummoning a jury. There is no defect in the provifions of the flatute which eftablishes one fyftem that is to prevail every where, in regard to matters prior to the trial. Why would congrefs provide in refpect to procefs as they have done in the 14th and 33d fections, if they meant to adopt the various laws of each flate in regard to procefs, as has been contended by the managers. Congrels has declared what kind of procets may be ufed in the circuit courts, and that procels of arreft may be used. Our conftruction is warranted by the rule of the fupreme court that has been quoted, which rule was made long after the ftatute of 1789, and which flatute is as obligatory on the fupreme court as upon a circuit It is alfo warranted by the judgment of the circuit court in Pennsylvania diftrict, in the cafe of the United States against the infurgents, determined in the year 1795, before the refpondent was elevated to the bench of the iupreme court (2 Dal. 340, 341.)

court.

In giving his opinion on the 34th section of the ftatute, judge Peters obferves," although in ordinary cafes it would be well to accommodate our practice with that of the ftate, yet the judiciary of the United States fhould not be fettered and controuled in its operations, by a ftrict adherence to ftate regulations and prac tice. As to the claufe in the law of the United States, directing that "the laws of the flates (with great exceptions) fhall be regarded as rules of decision in trials at common law in the courts of the United States," I do not think it applies to the cafe before us.'

In conformity to the rule of the fupreme court and the authority of the case just cited, judge Chafe determined that the laws of the ftate of Virginia, which require a fummons to be issued in cafes of the commonwealth, did not apply to the court of the United States. Why, let me again ask, should this fection receive the conftruction contended for by the honorable managers? It has been fhewn that the laws of the United States provide fully in regard to the procefs to be iffued by their courts: that for the furtherance of juftice fuch a conftruction is neither neceflary nor convenient, and is inconfiftent with other parts of the fame ftatute. It was therefore perfectly, correct in the court to beftow no attention upon the laws of Virginia concerning the procefs to be awarded against Callender. When a prefentment was found by the grand jury, it was the duty of the court to act it was their duty to award a proper procefs for arrefting the offender. This is not only warranted by the principles and reafons already adduced, but is inferable from various passages of the laws of congrefs, particularly from the 19th and 20th fections of the ftatute paffed soth April, 1790, 1fi vol. page 108.

The learned counfel who defended Callender, appear from the teftimony to have taken up fome improper opinions relative to the criminal code of the United States. The subject was as they fay, new to them, and for this reafon let me remark, they might readily have fillen into error. It appears that they not only thought it was competent for a jury to decide upon the conftitutionality of a law, but allo that it belonged to the jury to affefs the fine upon the traverfer, becaufe a jury has that power by the laws of the flate in refpect to offences against the state. In the like manner it is er roneoufly faid in the prefent profecution, that the laws of the feveral fiates in refpect to procefs, are the rules which fhould guide the cir cuit courts of the United States.

I have, fir, endeavored to fhew in the fir place, that there is no charge of criminality tated in the fifth article of impeachment, and therefore the refpondent ought to be acquitted.

And in the fecond place I have endeavored to Latisfy this honorable court, that the act flated in the article to have been done by judge Chafe, was correct and legal in itself, and if legal, there remains no ground to prefume or infer the fmallest degree of evil intention. In this point of view he will alfo fland acquitted.

I will now proceed to make fome obfervations upon the fixth article of impeachment: --" And whereas it is provided by the 24th fection of the aforefaid act, intituled "An act to eftablish the judicial courts of the United States," that the laws of the feveral ftates, except where the conftitution, treaties, or ftatutes of the United States, fhall otherwife require or provide, fhall be regarded as the rules of decifion in trials at common law in the courts of the United States, in cafes where they apply; and whereas by the laws of Virginia it is provided, that in cafes not capital, the offender shall not be held to answer any presentment of a grand jury until the court next fucceeding that during which fuch prefentment shall be made; yet the faid Samuel Chafe, with intent to opprefs and procure the conviction of the faid James Thompfon Callender, did, at the court aforefaid, rule and adjudge the faid Callender to trial, during the tera at which he the faid Callender, was prefented and indicted, contrary to law in that cafe made and provided."

The charge in this article against the refpondent is in fubftance that he, with intent to opprefs and procure the conviction of Callender, ruled him to trial during the term at which he was prefented and indicted, contrary to the laws of Virginia, which it is alledged have provided that in cafes not capital, the offender fhall not be held to anfwer any prefentment of a grand jury until the next fucceeding court.

This article it is admitted does contain an ac cufation of crime; but I hope I fail be able to fatisfy this honorable court, that in this inftance no crime or offence was committed. I fhall undertake to fhew that no error in law was committed, and that if the judge had done otherwife, he would have been more liable to cenfure than he now is. If this be made to appear, as a fuppofed illegality of his conduct is the foundation of the charge, there will remain nothing to fupport the charge.

The accufed judge had fworn to fupport the conftitution of the United States, and to adminifter justice without refpect to perfons, and to perform all the duties of his office according to the laws of the United States. If in ruling Callender to trial at the fame term at which he was indicted, he acted according to law, the judge performed his duty and ought not to be chargd with oppreflon.

The article may be understood as affirming, that there exifts fome law of Virginia which poffitively prohibits the trial of a misdemeanor at the fame term at which the indictment is found. No fuch law has been produced, and I muft be allowed to deny that any fuch law of Virginia exifts. The act of affembly of 1783, which provides that "upon prefcatment by any grand jury of an offence not capital, the court fhall order the clerk to be a famous or other proper process against the perion of perfons offending, to appear and aniwer fuch prefentment at the next court,' appears to have given birth to the idea that an offender may not be tried for a mildemeanor at the fame term he is indicted. It however does not warrant the pofition. When the party appears and anfwers the prefentment, the trial may iminediately take place. When the party appears and anfwers an indictment, the trial may immediately take place, if fo ruled by the court, who are vefted with a difcretion unfettered by any pofitive ftatute. The defence of this article may therefore be placed on two grounds, either of which will be fufficient. ft. There is ro law of Virginia which prohibits the trial of a mifdemeanor at the fame term the indictment is found: and 2dly. If there be fuch a law, the fame is not binding on the courts of the United States, in refpe&t to offences against the United States.

With respect to the first ground, in addition to what was faid it may be observed, that fome inftances have been proven before this honorable court, of trials in the ftate courts of indictments for mifdemeanors, at the fame term they were found. Mr. Robertion ftated two specific cafs where the punishment might be imprifonment. Thefe inftances fhew there can have been no fuch pofitive prohibition by the laws of Virginia, as the article of impeachment has alledged; howfoever that may be, fuch a law, and that in the general practice of that state there are fome exceptions, or fuch a general practice would not be obligatory on the courts of the United Stater, which is the fecond ground of defense against this charge.

A great deal which has been faid in relation to the 5th article, applies with equal force to the article now under difcuffion.

When the fupreme court by their rule of court deliberately formed, declared that the practice of the king's bench thould form outlines for the practice in their court fubject to the alterations they might make, it was reafonabie and natural for the circuit court, compofed of judices of the fupreme court, to conduct its but nefs upon the like principle. In the king's bench, procefs may be returnable immediately. Gilbert's origin of king's bench, page 313. 2.

Hawk, ch. 3. fec. 14. 4. Black. 319. and fuch is the practice if the offence is committed in the county where the court fits; but if the offence is committed in another county,the procefs may be returned to any day the court will appoint. The object of the court in ufing its difcretion will be to infure the fervice of the process, and its due return by allowing fufficient time according to circumftances for that purpose. It is not denied that venire facias is a proper procefs in cafes not capital, but it is not the only procefs that may be iffued. Judge Blackftone who wrote fince Hawkins in the paffage cited, declares that a capias is a ufual procefs from the king's bench, and may be returnable at the pleafure of the court, but that in ftrictnefs there ought to be a venire facias where it is intended to proceed to outlawry. In the United States under the ftatutes of congrefs, there can be no proceeding to outlawry, and therefore the reafon for awarding a venire in England, does not hold in the United States in regard to profecutions in their courts. But let the practice of the king's bench be as it may, it is merely to be used as an outline by our judges who will guide and direct themfolves by the ftatutes of the United States, and will act in conformity to them. When procels has been ferved and the offender brought into court to anfwer an indictment already found, it is the duty of the court to proceed to the trial. Such will be fhewa to be the manifest direction of the laws of the United States. As to the laws of Virginia, it is repeated, there is no legiflative act of that state which fixes pofitively the time of trying an indictment for a mifdeneanor, and if there were, it would not Lind the federal court. The time of a trial is not the trial but a circumitance, which as well as the place of trial, is fubject to the laws of

the United States.

But it has been faid in fupport of this article, that in England it is not ufual or according to the general courfe of proceedings, to try petty

mitdemeanors at the fame court that the tra

verfer pleads. For this is cited 4. Black. 351. and it is also faid that the practice of Virginia conforms to the practice in England in this instance. Let this be admitted, and what does it avail. The practice that has been mentioned applies only to petty mildemeanors, and the law has always diflinguifhed between petty mifdemeanors and thofe of a greater malignity. The practice does not apply to what are termied crimina majera. Can it be faid that fuch a rule of practice applies to the cafe of Callender. Was he indicted for a petty mifdeme nor? no, fir, he was not. I have long learned to abbor the deteftable crime of calumny. A calumniator is the greatest of criminals, and Callender has been the greateft of calumniators. All have agreed in reprobating the wickedness of his

calunnies; and ought the honorable judge who is now anfwering before you to have applied the rule of English and Virginia practice concerning petty mifdemeanors to fuch a cafe as that of Callender? certainly not.

To place this matter ftill more clear of doubt, I wish the honorable court to turn their attention to the conftitution, and to a few claufes of the laws of the United States. The fixth amendment to the conftitution provides," that in all criminal profecutions the accufed fhall cu joy the right to a speedy and public trial by an impartial jury of the ftate and diftrict wherein the crime thall have been committed In the fame fpirit of speedy juftice, a claufe in the 33d. fection of the ftatute directs, that " copies of the procefs fhall be returned as speedily as may be into the clerk's office of fuch court, together with the recognisances of the witneffes, for their appearance to teftify in the cafe which recognifances the magiftrate before whom the examination fhall be, may require on pain of imprisonment; and if fuch commitment of the offender or the witnelles shall be in a district other than that in which the offence is to be tried, it shall be the duty of the judge of that diftrict where the delinquent is imprifoned, feafonably to iffue, and of the marshal of the fame diftrict to exe. cute a warrant for the removal of the offender and the witnefes, or either of them, as the cafe may be, to the district in which the trial is to be had. And upon all arrefts in criminal cafes, bail fhall be admitted, except where the punishment inay be death, &c.”

With the fame view to a speedy trial, the 7th section of the ftatute of 24 March, 1793,

enacts," that it fhall be lawful for the feveral courts of the United States, from time to time, as occafion may require, to make rules and orders for their refpective courts, directing the returning of writs and proceffes, &c. and otherwise in a manner not repugnant to the laws of the United States to regulate the practice of the faid courts refpectively, as fhall be fit and neceflary for the advancement of juftice, and efpecially to that end to prevent delays in proceedings." Hence it is evident, that in bring ing Callender to trial at the fame term at which he was indicted and at which he pleaded, the court obeyed the injunction of the conftitution, and it obeyed the injunction of the laws of the United States.

In cases where bail is requirable to delay, the trial may be used to the oppreffion of the accuf ed. It is therefore injoined by the conftitution and by the laws, that there fhall be no delay. If the honorable judge who ftands accused of trying Callender too foon, had deferred the trial to another term, that is to say fix months,