The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-07-09

We have thus made !, TO appear thar II is the
practice TO dired quehiors 10 he committed TO
writing in the courts of MARYLAND, in the f,.
preme court of the United States, and in this
Conrt.-Do not this abundahtly juaify the con-
dird of the Respondent ? But even admitting
that conduct TO nave been Improper. was it cor
rupt or criminal? What moral obligation did
It violate? What hatutory provition did it IN
fringe And isa man improbable for that
which violates no moral principle or legal pro-
vihon lffo, this is the mott dangerous doc
trine ever advanced.
The Jeeond Specification is in the following
words
In refufing 10 poftpone the trial although
an a:hi.av't was regularly fled, Eating the alb
fence of material witnefes CT behalf of the accu-
led and a!th it was ruanifeft, that with
the utino't diligence, TIE attendance OF fi,ch
w'tnciics could not hare been Procured, at this
term" NJ
Ihis Charge is grounded on the fact of re-
fuial to poftpone the trial or an affidavit.
That the court acted correctly in this inftance
will appear from this confederation. Nothing
| IS more clear than that under the comm on law,
al! applications for continuance, on affidavit,
| are founded on the difcretion of the court. Il
1T not wonderfully finguiar that there fiould
have been application fouried on an affidavit,
, II the law OF Virginia, as fated in the 9Th art-
|
either that the encouragement and Mr.. Efav
had loft all recolle6tion of the exifepce of this
law o. Virginia refpecing continuances, or that
they ccniidered it inappcable. For they would
| not otherwifc have founded the application on
an affidavit. They would have produced the
lazy and have demanded a continuance Did
! they do 10: No. If then the law officer of
! the fate and Mr.. Hay both forgot that it ex-
itted, is it fnrpriing that It fhould be unknown
! Nlr-E, - r. lF
lect the exiitence of the law, they NUT fureIv
have been Of opinion that it ditlnot apply TO the
| cafe OF Calender. or they would have faved
ther.,ielves TIE trouble OF fling an affidavit.
It Will however be fhewn that it did not ap-
! Ply. and hence their application founded on
! affidavit.
! have hated tina. all applications for 4 con-
t!nuance on affidavit are addrefIed to the difcre-
ton OF the court. It is = great obiea of Grim
inal in1ice that TIE punil,inent of the guilty
thouid be certain, lenient aud fpeedy. In the
tate Of Maryland, where Judge Chafe had 70
long Prefided or praoifcd, it IL the uniform prac-
tie TO Try oences the frit tern, they are prefent
Cd 1t IS afo the rrsttice in England unlefs par
ticuiar rea'ons are aligned for de,av. ! was a.
bout 70 prove this; but AS it is conceded will
not trouble the court with authorities. fudge
Chafr then, having no knowledge of the par.icr.
lar law Of Virginia, had TO rccur to the affidavit
was that cau!e for the continuance of the .ri.
a.! When man is charged with a criminal Of
fence, matter, which il,al juftifv a continuance
rT1r!t 20 TO the whole of the charges, and not
merely TO part of them. IF he cannot defend
tome of the charges, he is to plead Guilty. ia
them, and pray continuance of fuch of tie
charges as he can iufify by evidence. This is
an un'Vertal rule of Juice and of Practice TIC
tam'liarize 1t by common incident A man is
'ntAfted for neang horfe, addle, and bri.
de. he is arraigred, and pIeeds not guilty., and
| tHen deiires continuance, on an affidavit that
an aeient witneis can prove that the bride is his
own: would It not revolt common fenfe 10
! continue the, SAFE, when his defence reited on
! iuch grounds ! No court of criminal iurifpru-
dence would profiute Juice by conniving at
fuch an indulgence.
How was 1t in the cafe or Calender . Were
there not, in each coun. Of the indictment, twen-
| Yciitinct lets oflbellouS words In order then
70 warrant a continuance. it was nece iidrv to
new the abfence of material witnefTes in relati.
on to the whole, or to plead guilty. to all the
charges on which flch tefimony did not exit
Snt Vt IS faid tie Judge had no right to be in
FORMED what, 1t was expected. could he proved
| on oehaif CT the Traveller. This idea is move,
20 my practice. 7 will not favit does not pre-
vail elsewhere 4; but certain I'm that II does nct
prevail IN the courts which I have attended-It
's again alleged that a party is not Obliged to
oicic'e MS teRimony. But the law provides
thas be ihaN, when he applies for favor. So
different IS the pra6tice in the tate of MARYLAND
from that contended for on this location, that
Ia party is obliged to fate what he expects to
prove, and ifthe oppofte party admits it, they
nun 30 to trial on the remaining part of the
charge According to the practice of MARYLAND
thi5 AFFIDAVIT is materially defective, inafmnch as
not guilty IS pleaded 10 the Whole of.he charges
contained in the indictment, and it is not deciar-
eel that teftimony is wanting, which there is a
!eaionable exPect9tion Of getting, to disprove or
Ju'tty the whole of them. |; is alfo materially
detective in another point. II is not Rated that
there was probability of obtaining the tcRimo-
ny within reafonahe time. have never
known an affidavit conddered good, which did
not Rate this circumitaDce.
We allow that every man il entitled 10 con.
pu'iorY procefs TO obtain the attendance of his
witnefIts; but thisrght does not in the leaf lec
fen the diicretion of the cour., with regard 70
the time on which the trial iball take place this
they will fix according TO circumstances; and
when the trial does come on, fl,oud the viii.
nenes fummoned by party not attend, he is en-
titled 20 attachments dgainl them. This afTi-
! davit then was defective in two refpee}s: il did
not Rate the abftnce OF witnefies who could inn.
Itiiy the whole OF the charges. neither IA Z,