The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-08-13

dulged them beyondwhat they were entitled 10
by law. s,s -
according to the laws of England, and 20 is
the law conhdereiin Maryland, to entitle the
party co continuance, hemut file an affidavit
moving what wtnr1es he wants--what he ex-
poets TO prove by them-that he has ufed due
o'hsence to procure them, and that he has rca-
fonable expectation to procure their attendance
at lone time. Judge Chafe, had he wifhed that
Calender fliould be deprived of a continuance
OF ms cauic, would have futItred them to file
their general affidavit, but what was his con.
duct Defirolis. they fhould not improperly &
hattily commit themfrlycs, and lofe advantages
to which they might be entitled, he gave them
caution, and time till next day to profit by it.
YIN the next day they did, it is true, file ipe-
ciai aihdavt; but this ipecial affidavit 70 drawn
GP' under the caution given them blythe court,
~ nor iuch as. can in any degree, fiand the teit
which one of the honnurable MANAGERS mn
Rodney hath this day Introduced. Ca,len.Ier
aid not IN ms affidavit fta'e that he expeStsa &c.
be able TO procure his witnefes at the next
Term, the term after, or At any term He alto
Rated that there were certain books neccilary
for his defence, but he did not fate that he had
endeayoured TO procure them before--or that
ne expected TO get them againit the next term.
And fnrely, if when Calender wrote that libel,
he founded any part of his charge upon books
WHICH had been publiihed, he ought 10 have
had them by him when he wrote and publ,lied
and to have kept them by him for his defence
whenever hS iirouid be called upon to arfwer
for that publication, and could have no right
to Claim continuance for the purpofe of oD-
tanning fuch books. One of the honorable ma
nagers Mr.. Rodney has this morning referred
usto 9th vol. Bacon's abrid. from PAGE $50 to
652, upon the fubeet in conttft, the mode OF
putting off trial, and there as he acknowledge
es & as the authority euforces, if there is any
cauie OF futpicion, that delay is the ol,ieGf, the
court fhou!d be fatished from circumstances,
that the Perion abicnt is material wi,nefs-
that the perton applying has beer guilty of no
laches or negle9-and that he is in reaionai,le
expectation Of beipg a'sieto procure his attrnd-
ance at Tome future time" That the court had
IN Cal!enders cafe iu!t reafon to believe that de-
lay was the !oie objeet of the council, no perfon
can doubt-Nay, the council ttenfelves have
upon oath declared, that delay was their object
that they had no hope or expectation that
witnefies could be of any fervice to theni--tha,
they coniidered Calendars caufe desperate if
the law was constitutional; and that their great
object was to continue the cauit- to another
court that it might not be tried before my ho-
nourable client, ofwhofe conduct in the cafe of
Fries they had heard, and againft whom they
had formed, it feems, the mott decided preiu
does.
This authority then produced by the hofonr-
able managers perfectly utilities the conduct Of
my client, in refuing upon that affidavit, to con-
tlnue the caufe to the next term. The court
was then fitting to hear the charges brought be-
tore them--lt was their duty to have them de-
termined without pnpecefiary DELAY, that if the
party was innocent he fhould be ACQUITTED. II
guilty that ne ihonld be brought to fpoeedy Du-
IMMINENT. The fame honorable manager has
| from the fame authority fhewn, shat upon the
particular circumstances of the cafe the court
VIII make rule for putting off the trial of 4
cauie to the fccond term after the rule for put
ting off the tria! is made" / admit the law.
ana VIII therefore readily admit that If an aff-
davit had been made by Calender, Eating tha,
be expected to be able to prove certain facfs.
Hating what the were by witneiies, whofron
their particular tiua.ion, could not with any
probability be produced before the fecond term.
after the affidavit, and could then probably be
had, the court might with propriety, and Der
maps ought to have continued the casfr TO th.
tecond court, but no inch affidavit was made .
therefore not having made out fuch cafe. tbev
mad no reaion to complain that they had not the
benefit OF 1t. They did not even fyear that they
expected to be able to procure the attendance
OF their wi;nefes at any time whatever.
A cafe has ALTO been referred to in Cowper'e
reports, where the defendant wanting the tefti-
mony of a witncfs who lived out of the ;urifdic-
tioh OF tile court, and the court not having the
power to iue commifiion To Obtain his tefti-
mony, the court declared that if the plaintiffs
would not content to have the depoGtion of
fuch witnefs taken to be read a, the trial. thew
would continue the caufe Indefinitely. The
honourable manager has further flid Tint tho'
In England the court cannot iGue commii:ion
to examine witnefies, yet here the court has a
power to ftiue commifion for that purpofe.
Tbs honourabie court will rccollect that the
CAFE OF Calender was criminal profecution. /
doubt whether the court has any power in a
criminal cafe to ifiue a commfIioD TO examine
w'tnclies for or againa the profecution do
not know of any law which gives them that
power. II the honourable managers know of
iuch law, they will be 70 obliging as TO refer
usto Il. But will take up the objection npon
each view, iuppofe commifIion might have
been tued, the council of Calender did nor
apply to the court 70 grart coFnrniiIiou, and
to continue the caufs till the commilIion was
returned. Suppofe commifIiop could not he
iiiued, Caliender's counftl did not annlv IN the
attorney general of the ditriet for his cor cot
that thefe witneles filould be examined v,here
they lived, and their depofton be read in evi.
dence on the trial, they did not apply to fLc
cOuT. Tor their ue,erminat;n, tL.e IL - - = =,