the general with natural to every friend of truth, decorum, and virtue, that perfons guilty of fuch offences, as that of which the traverfer ftood indicted, should be brought to punishment, for the fake of example. He has no hefitation to acknowledge, that his indignation was ftrongly excited, by the atrocious and profligate libel which the traverfer was charged with having written and published. This indignation, he believes, was felt by every virtuous and honorable man in the community, of every party, who had read the book in question, or become acquainted with its contents. How properly it was felt, will appear from the book itself, which this respondent has ready to produce to this honorable court; from the parts of it incorporated into the indictment now under confideration; and fome further extracts. contained in the paper marked exhibit No. 6, which this refpondent prays leave to make part of this his answer. He admits, and it can never be to him a fubject of selfreproach or a cause of regret, that he partook largely in this general indignation, but he denies that it in any manner influenced his conduct towards the traverser, which was regulated by a confcientious regard to his duty and the laws. He moreover contends, that a folicitude to procure the conviction of the traverfer, however unbecoming his character as a judge, would not have been an offence, had he felt it; unless it had given rife to fome misconduct on his part. Intentions and feelings, unless accompanied by actions, do not conftitute crimes in this country; where the guilt or innocence of men is not judged of by their wishes and folicitudes, but by their conduct and its motives. And this refpondent thinks it his duty, on this occafion, to enter his folemn protest against the introduction in this country, of thofe arbitrary principles, at once the offspring and the inftruments of defpotifm, which would make "high crimes and mifdemeanors to confift in "rude and contemptuous expreffions," in "vexatious interruptions of counfel," and in the manifeftation of "indecent folicitude" for the conviction of a moft notorious offender. Such conduct is, no doubt, improper and unbecoming in any perfon, and much more fo in a judge: but it is too vague, too uncertain, and too fufceptible of forced interpretations, according

according to the impulfe of paffion or the views of policy, to be admitted into the clafs of punishable offences, under a fyftem of law whofe certainty and precifion in the definition of crimes, is its greateft glory, and the greatest privilege of those who live under its fway.

In concluding his defence against thofe charges contained in the fourth article of impeachment, he declares, that his whole conduct in that trial, was regulated by a ftrict regard to the principles of law, and by an honeft defire to do justice between the United States and the party accused. He felt a fincere wish, on the one hand, that the traverser might establish his innocence, by thofe fair and fufficient means which the law allows; and a determination, on the other, that he fhould not, by fubterfuges and frivolous pretences, fport with the juftice of the country, and evade that punishment of which, if guilty, he was fo proper an object. These intentions he is confident, were legal and laudable; and if, in any part of his conduct, he fwerved from this line, it was an error of his judgment and not of his heart.

And the faid refpondent for plea to the faid fourth article of impeachment, faith, that he is not guilty of any high crime and misdemeanor, as in and by the faid fourth article is alledged against him, and this he prays, may be inquired of by this honorable court, in fuch manner as law and juftice fhall feem to require.

The fifth article of impeachment charges this refpondent, with having awarded "a capias against the body of the faid James Thompfon Callender, indicted for an offence not capital, whereupon the faid Callender was arrested and committed to clofe cuftody, contrary to law in that cafe made and provided."

This charge is refted, ift, on the act of Congress of September 24th, 1789, entitled, "an act to establish the judicial courts of the United States," by which it is enacted "that for any crime or offence against the United States, the offender may be arrested, imprifoned, or bailed, agreeably to the ufual mode of procefs, in the ftate where fuch offender may be found." And 2dly, on a law of the state of Virginia, which is faid to provide" that upon prefentment by any grand jury, of an offence not capital, the court fhall order the clerk to iffue

a fummons against the perfon or perfons fo offending, to appear and anfwer fuch prefentment at the next court." It is contended, in fupport of this charge, that the aft of Congrefs above mentioned, made the ftate law the rule of proceeding, and that the ftate law was violated by iffuing a capias against Callender, inftead of a fum

mons.

The firft obfervation to be made on this part of the cafe is, that the date of the law of Virginia is not mentioned in the article. A very material omiffion! For it cannot be contended, that by the act of Congress in queftion, which was paffed for eftablishing the laws of the United States, and regulating their proceedings; it was intended to render thofe proceedings dependent on all future acts of the state legiflatures. The intention certainly was, to adopt, to a certain limited extent, the regulations exifting in the ftates at the time of paffing the act. Confequently, a law of Virginia, paffed after this act, can have no operation on the proceedings under it. But by referring to the law of Virginia in queftion, it will be found to bear date on November 13th, 1792, more than three years after this act of Congrefs, by which it is faid to have been adopted. But the omiffion of the date of this law of Virginia, is not the most material overfight which has been made in citing it. Its title is "An act directing the method of proceeding againft free perfons, charged with certain crimes," &c. and it enacts, fection 28th, "That upon prefentment made by the grand jury, of an offence not capital, the court fhall order the clerk to ifue a fummons, or other proper process, against the perfon or perfons fo prefented, to appear and anfwer at the next court." It will be obferved that thefe words, " or other proper procefs," which leave it perfectly in the difcretion of the court what procefs fhall iffue, provided it be fuch as is proper for bringing the offender to anfwer to the prefentment, are omitted in this article of impeachment.

From thefe words it is perfectly manifeft, that the law of Virginia, admitting it to apply, did not order a fummons to be iffued, but left it perfectly in the difcretion of the court to iffue a fummons, or fuch other procefs as they should judge proper. It is therefore, a fufficient

ficient anfwer to this article to fay, that this refpondent confidered a capias as the proper procefs, and therefore ordered it to iffue; which he admits that he did, immediately after the prefentment was found against the faid Callender, by the grand jury.

This he is informed and expects to prove, has been the conftruction of this law by the courts of Virginia, and their general practice. Indeed it would be moft ftrange, if any other conftruction or practice had been adopted. There are many offences not capital, which are of a very dangerous tendency, and on which very fevere punishment is inflicted by the laws of Virginia; and to enact by law that in all fuch cafes, however notorious or profligate the offenders might be, the courts fhould be obliged, after a prefentment by a grand jury, to proceed against them by fummons; would be to enact, that as foon as their guilt was rendered extremely probable, by the prefentment of a grand jury, they fhould receive regular notice, to efcape from punishment by flight or concealment.

It will alfo appear, as this refpondent believes, by a reference to the laws and practice of Virginia, into which he has made all the inquiries which circumftances and the shortnefs of time allowed him for preparing his anfwer, would permit, that all the cafes in which a fummons is confidered as the only proper procefs, are cafes of petty offences, which on the prefentment of a grand jury, are to be tried by the court in a fummary way, without the intervention of a petit jury.-Therefore, these provifions had no appplication to the case of Callender, which could be no otherwife proceeded on than by indictment, and trial on the indictment by a petit jury.

It must be recollected that the act of Congrefs of September 24th, 1789, enacts, fection 14, "that the courts of the United States, fhall have power to iffue writs of fcire facias, habeas corpus, and all other writs not fpecially provided for by ftatute, which may be neceffary for the exercife of their respective jurifdictions, and agreeable to the principles and ufages of laws." Confequently, the circuit court, where the proceedings in queftion took place, had power to iffue à capias against

the

the traverfer, on the prefentment, unless the state law above mentioned governed the cafe, and contained fomething to reftrain the iffuing of that writ in fuch a cafe. This refpondent contends, for the reasons above ftated, that this ftate law neither applied to the cafe, nor contained any thing to prevent the iffuing of a capias, if it had applied.

Thus it appears that this refpondent, in ordering a capias to iffue against Callender, decided correctly, as it certainly was his intention to do. But he claims no other merit than that of upright intention in this decifion: for when he made the decifion, he was utterly ignorant that fuch a law exifted in Virginia; and declares that he never heard of it, till this article was reported by a committee of the Houfe of Reprefentatives, during the prefent feffion of Congrefs. This law was not mentioned on the trial either by the counsel or the traverfer, or by judge Griffin, who certainly had much better opportunities of knowing it than this refpondent, and who, no doubt, would have cited it had they known it and confidered it as applicable to the cafe. This refpondent well knows that in a criminal view, ignorance of the law excufes no man in offending against it; but this maxim applies not to the decifion of a judge; in whom ignorance of the law in general would certainly be a difqualification for this office, though not a crime; but ignorance of a particular act of affembly, of a state where he was an utter ftranger, must be confidered as a very pardonable error; efpecially as the counsel for the prifoner to whose cafe that law is fuppofed to have applied, forbore or omitted to cite it; and as a judge of the state, always refident in it, and long converfant with its local laws, either forgot this law, or confidered it as inapplicable.

Such is the answer, which this refpondent makes to the fifth article of impeachment. If he erred in this cafe, it was through ignorance of the law; and furely, ignorance under fuch circumftances, cannot be a crime, much lefs a high crime and misdemeanor, for which he ought to be removed from his office. If a judge were impeachable for acting against law from ignorance only, it would follow, that he would be punished in the fame manner

for