Questions by Mr. Harper. We have heard much of the political characters of a number of gentlemen; what was the political character of Mr. Nelfon, the attorney, at the time Callender was tried? A. He was oppofed to the then admin. iftration. Q. Have you known inftances where the courts have decided, before judge Chafe went to Richmond, that the state laws, did not govern in the manner of affeffing the fine? A. There had been two inftances of indictment before the trial of Callender, one before judge Iredell and the other be ore judge Witfon, and they both decided that the court wouid aflefs the fine. Q. In what manner did they mention this? A. The jury were about to be sworn, and the state law was mentioned, but judge Wilfon immediately declared that it was the province of the court to affefs the fine. There was no verdict in this cafe, but there was, in the cafe in which judge Iredell prefided, a general verdict of guilty, but the judgment was afterwards arrefted for fome detect in the indictment. Q. Did the counfel contend for the right of the jury to affefs the fine ? A. The point was mentioned by the counfel, but was not argued. Q. Are you not profecutor of the court held in Richmond? A. I am. Q Have you not known a capias to have fued, in cafes of mifdemeanor, and the caufe tried at the first term ? A. I recollect a capias once to have iffued; but he caufe was not tried at the frit term. I have repeatedly tried cafes of mifdemeanors at the first term. Q. Did you try any of them when a motion was made for a continuance ? A. Generally when a motion was made for a continuance I fuffered it to take place; but I never confidered it as a matter of right. Q Is the court you fpeak of created by an act of the legillature? A. It is. Q. Do you recollect an inftance where a motion was made for a continuance, and yet the cafe tried at the first term? A. I do, it was the cafe of a man who was prefented for receiving a hogfhead of tobacco out of a dray driven by a negro, a motion was made for a continuance, but it was retufed, and the jury fined him one hundred dollars, and the court fentenced him to be imprifoned for fix months. James Winchester examined by Mr. Harper. Q Is it not the practice in Maryland to adjourn courts? A. It has been a conftant practice ever fince I have been acquainted with the courts for them to adjourn to any time they thought proper. I was a short time clerk to the circuit court of Maryland; 1 was afterwards a member of the bar, and, fince the year 1798, have been district judge, and I have never heard their right to adjourn difputed. The flats courts of Maryland are in the conftant pretice of adjourning. * Q. Do they try caufes at the adjourned courts? A. Certainly they do; but I have no recollection of feeing a criminal tried at one of them. Q. Do you not know that judge Chafe ence adjourned the court in Maryland and went to hold a court in Delaware? A. I think I recollect that he once did, Question by Mr. Key. Was there not an adjournment of the court from May to December? A. There was. Question by Mr. Randolph, Have you ever known any other of the judges of the circuit court to do this, except judge Chafe? -A. I do not recollect, William Rawle examined by Mr. Harper. Q. Is it not the practice for the circuit courts to adjourn ? A. The first time I recollect the fubject. to have been difcuffed was when Mr. Jay,. Some the then chief justice, prefided. occafion produced a wifh for an adjourn. ment. The judges called me up to the bench and requested me to examine whe ther they had the power to do it. I ac. cordingly examined the act of congrefs, and told the court that in my opinion they had a right to adjourn, as the length of their fellion was not limited by law, and both the judges were of the fame opinion. The next inftance that I remember, was in the year 1795, when the trials of fome of the infurgents lafted until 3 or 4 o'clock in the morning and the court did not meet the next day. In the year 1804, on my motion, judge Wafhington adjourned the court from May until fome day in July. Question by Mr. Hopkinfon. Was it not contemplated to adjourn the court laft fummer until January? A. It was contemplated, provided the fever fhould be in Philadelphia. Mr. Harper. Previous to our examining witneges to prove the practice of iffuing capes on Virginia, I must do justice to Mr. Nicholas. Iftated that we fhould be able to prove that he ordered a capias in a cafe not capital. The record which I have received does not warrant that pofition. We will now call Mr. Edmund I. Lee to thew what has been the practice in that part of Virginia, where he practices. Edmund . Lee examined by Mr. Harper. Q. What is the practice in Virginia with refpest to the ila ng of process A. I have practiced law in Virginia for nine years. My practice has been confined to the upper counties in that fate. I have never been public profeca. tor; but whenever I have been engaged in a criminal cafe,' it was on the fide of the defendant. In thofe cours, the procefs in cafes not capital, and where the party is not proceeded againft-by way of indictarent, is to iffee a fummons. There are fome offences which are tried folely by the court, without the intervention of a jury, fuch as profane fwearing and fabbath breaking. When the grand jury prefents an offence, in which the fine does not exceed five dollars, a fummons iffues. There are fome offences which may be profecuted in the diùrict courts, where the penalty does not exceed 20 dollars, there a fummons iffues. There are fome proceeded againft by way of infor mation, and there a fummons iffues; but in the courts in which I practice, I have Lever known a fummons to iifue for the party to appear and answer to an indict. ment for any offence. The practice is, when a person is prefented for an indictable offence, for the attorney to fend up an indictment, and upon its being returned a true bill, a capias is ordered to iffue upon the indictment. I have had occafion to make the point, but the courts have uni verfaliy determined that under the words of the law, "other proper procefs," they had the power to award a capias. In the district courts I have known a capias to iffue in the first inftance on an indictment, for an affault and battery. Q. Has not the circuit of the district of Columbia, fitting in Alexandria, when the laws of Virginia are in force, determined that a capias was the proper procefs. A. The court did fo determine and Mr. Mafon, the profecutor, has uni-' formly iffued a capias on all indictable offences. Q. Is not a capias the only mode of arrest in Virginia?` A. I have never known any other. Q. Where did Mr. Nelfon, the late attorney, of the diftrict of Virginia, refide? A. He refided in York county. Edmund 1. Lee cross-examined by Mr. Randolph. Q. Did you ever know a capias to iffue upon a prefentment ? A. I never did. Q. At what time is a ble? A. The next court. capias returna criminal profecutions? Q. Have you been much engaged in A. Only in the county courts. Q. Did you ever hear of a bench warrant in Virginia? A. I never have. taken up on a magistrate's warrant and Q. Have you ever known a man to be held to bail? A. I have in cafes of affault and battery. Gunning Bedford fworn and examined by Mr. Harper. Q. Judge Bedford, was you on the bench with judge Chafe, at a eircuit court held at New Caftle, in the ftate of Delaware, in June 1800? A. I was prefent and fat as one of the judges on the 27th and 28th of June, 1800, at the circuit court held at New Caftle, at which court judge Chafe prefided. Q. What were the circunftances which took place at the court ? A. On the morning of the firft day of the court, I believe, I arrived at New Caftie, about half an hour before judge Chafe. The court met, and the grand jury being charged by judge Chafe, retired to their room. After being there about half an hour, they returned into court, and being afked by the clerk whether they had any prefentments or bills of indictment, they answered in the negative. The court then called upon the attorney to know whether he had any business to lay before the grand jury, and the reply was that he had none. The grand jury then asked to be discharged. Judge Chafe obferved that it was not ufual to difcharge the jury fo foon, and turning round immediately to me, he faid, “Mr. Bedford, what is your ufual practice here, with regard to difcharging grand juries." I replied that it depended on the bufinefs which they had to do. Judge Chafe then addreffed himself to the grand jury and faid, but, gentlemen, I have been informed that you have in this ftate a feditious printer who is in the conftant habit of abusing the government. His name is but perhaps I may do injury to the man by mentioning his name. Have you ever attended to this fubject?" The grand jury anfwered that they had not. Judge Chafe obferved that it was their duty to enquire, as he had given them the fedition law in charge, and if there was any truth in what had been told him it was their duty to enquire into it. Judge Chafe further obferved, that it was high time that these feditious printers should be corrected, that the happiness, honor and prosperity of the country depended on it. He then asked the attorney whe. ther he could procure a file of the printer's papers. Some perfon at the bar obferved that he could. The judge then asked Mr. Read whether he would look over the fite and fee, by the next morning at ten o'clock, whether there was any thing in them. Mr. Read replied that he would. Judge Chafe then told the grand jury that they must attend next morning at ten o'clock. They complained at not being difcharged and faid that it was a bufy feafon, but the judge faid that the bufnefs about which he had fpoken was important and he could not discharge them. Other bufinefs was then done and the court adjourned. On our way to our lodgings, I obferved to judge Chafe, why my friend, I believe you do not know where you are, the people in this place are not well pleafed with the fedition law." Judge Chafe replied, "my dear Bedford, no matter where we are or among whom we are, we mult do our duty." We went into court the next day and the grand jury after being called over retired to their room. In about an hour they returned and obferved that they had made no prefentment. Judge Chafe then asked the attorney whether he had found any thing in the file of papers, who replied that he had found nothing except a piece against the judge himself. Judge Chafe replied, "my fhoulders are broad enough and I can bear any thing against myself, but where there is a violation of the laws, then will I interfere and have the offender punished." The grand jury were then immediately difcharged. Q. Did judge Chafe fay any thing about a feditious temper being manifefted in Delaware, among a certain defcription of people? A. I have no recollection of any thing of that kind. I have turned my attention. to the fubject ever since I saw the depoi tion of Mr. Read, which was taken last winter for the ufe of the houfe of reprefentatives, but I cannot recollect any thing of it. The converfation which took place on the day of the tranfaction between judge Chafe and myfelf, makes me believe that I could never have heard thofe expreffions, becaufefif I had I should not have told him that I believed he did not know where he was, because those expreffions would have fhewn that he did, I faw a publication in the Mirror of the Fimes," (the paper which had been examined by the attorney) on the fourth of July 1800, which contained a statement of the tranfaction. I thought the facts were much exaggerated, but there was not one word in the publication 'concern. ing the "feditious temper," which has been mentioned by Mr. Read. Q Was there any commanding in the manner of judge Chafe to the attorney? A. There was more the usual manner of a court to the profecutor. in Delaware, while he could in every Nicholas Vandyke fworn and examined by Q. Was you in the circuit court at New Gunning Bedford cross-examined by Mr. what took place? Q. Was the title of the paper mention ed by judge Chafe ? A. I believe not, I believe it was mentioned by me when the attorney was requested to procure a file of them. Q. Was not judge Chafe warm? A. He generally expreffes himself in a warm manner, but I faw nothing unusual in his manner on that day. Q. Did not an unusual concourfe of prople attend on the fecond day? A. I believe there was more than ufual. Q. Did not judge Chafe afk whether there were not two printers? A. He did when he faid that perhaps he might do the man an injury. Q. Do you recollect judge Chafe's expreffions on that occafion> A. They were very much in thefe terms, perhaps I am going too far, or I may do the man an injury, have you not two printers ?" the answer was in the affirmative. Q. Has it not been the practice in the circuit court of Delaware to difcharge the grand jury on the first day of the term? A. It is the ufual practice. Q. Did not judge Chafe obferve when fpeaking of the printer, "that if report did not belie him he came under the fedi. tion law"? A. I did not hear him fay fo. Q. Did you not hear judge Chafe complain, that while he could not get any printer indicted in Delaware, that in Virginia he could not only get them indicted but convicted and punished? A. I do not recollect to have heard any fach expreffions. I have fome impreffion on my mind of hearing judge Chafe obferve in a public company that it was kard he could not get a single man indicted " A. I attended the circuit court held at New Caftie on the 27th and 28th of June 1800, as one of the bar. I was not prelent the first day when the court was opened but came in while he judge was deliver ing a charge to the grand jury. After this the grand jury retired to their cham ber, they were there but a little while when they returned into cour. I have no diftinct recollection of a question being ask. ed them by the clerk, I believe I was out at that time. I came to the bar while there was a paufe, when judge Chaf observed that fince he had come to the ftate, he had been informed that there was a feditious printer among them, and he conceived it his duty to call the attention of the grand jury to the fubject. He appeared to be proceeding to state the name of the printer but he did not, whether he faid that it might be improper for him to mention the name, or that he might do the man injustice, I do not remember. He then turned and asked the attorney whether there were not two printers in the state, who replied that there was. Some converfa tion then enfued: the fubitance was concern ing an enquiry into the fubject. I he judge afked the attorney whether he could not procure a file of the papers; but I did not hear him mention the title. Some perfon at the bar mentioned where a fie could be procured, and the attorney faid that he would examine them, by the next morning. I then heard fome obfervations among the jury about being discharged, and they requested the court to difcharge them. Some of them ftated that they were farmers and that it was a bufy feafon. Judge Chafe faid that the business to which he had called their attention was of confiderable importance to the community, and he could not difcharge them until the next day. This is all that I recollect to 1 have taken place on that day. pretend to fay that I have language of the judge. I will not used the Q. Did you hear any thing about a feditious temper which had manifefted itfelf in Delaware ? A. I do not think I ever heard fuch expreffions in the court house. I have endeavored to recollect any thing of the kind but I cannot, but I do not pretend to say but what they might have been üfed. Q. Did you return into court before the converfation commenced ? A. I came into court when there was a paufe, and then judge Chafe proceeded as I have just stated. Q. What was the manner of judge Chafe in fpeaking to the attorney? A. It was his ufual manner which is eatneft and warm, but there was nothing which appeared uncommon. Q. Was there any thing imperative? A. It did fo ftrike me. I came into court the next day after the grand jury had retired. The attorney went up to them, and after a while the grand jury returned: A file of the paper called the "Mirror of the Times," was then laid on the bar table. The judge then enquired of the attorney if he had found any thing in them. The attorney replied that there was nothing which he could fee except a publication against the judge himfelf. Judge Chafe faid" that has nothing to do with the fubject, it is only for abufing the government that we are to take notice of printers, my fhoulders are broad enough to bear all they can fay about me.' He then difcharged the grand jury. Archibald Hamilton fworn-examined by Mr. Harper: Q. Was you prefent at the circuit court held at New Caftle in June 1800, and What took place in court? A. I left home on the morning of the Court very early, with my father, who was the marshal of the district, and arrived at New Castle before judge Chase. When the court was opened, the grand jury were called and fworn, and having being charged by judge Chafe they retired to theft chamber. They remained there about an hour when they returned, and being afked by the clerk whether they had any prefentments to make, they replied in the negative. The judge then afked the attorney whether he had any bufinefs to lay before them, who replied that he had not. Judge Chafe faid it was not ufual for a grand jury to be fo foon difcharged, that perhaps fome bufinefs might turn up. He obferved that he had been informed that there was a feditious printer in the state who was in the habit of abufing the government, that his name was, he here faid, "stop, I may commit myfelf and do injuftice to the man, have you not two printers ?" the reply that was there were. Judge Chafe then asked the attorney whether he could not procure a file of the papers. Mr. Read replied that he did not take the paper. Some perfon obferved that a file might be got of Mr. Crofs Judge Chafe then afked Mr. Read whether he would get and examine it. Mr. Read replied that he confidered it his duty and would do it. The judge then told the jury that they must attend the next day. I was in court the next day when judge Chafe asked the attorney whether he had found any thing in the papers, Mr. Read replied there was nothing but a piece against the judge himfelt and was handing up the file for him to look at, judge Chafe faid "no, fir, my fhoulders are broad enough and can bear all the abufe, I am abufed from one end of the continent to the other, but it is not of that I complain." He then difcharged the grand jury. Q. Did you hear any thing about feditious temper ? A. There was no expreffion of that kind ufed. I was fitting by the fide of the clerk, directly under judge Chafe, and nothing of that kind could have been faid without my hearing it. Archibald Hamilton cross-examined by Mr. Rodney. Q. What was the manner of judge Chafe? A. There was nothing particular in his · manner. Q. Did not the term end on the second day? A. It did, 583242 |