UNITED STATES v. SMITH, 27 F. Cas. 1192

PATERSON. Circuit Justice, informed the bar, that the court had received a letter from Messrs. Madison, Dearborne and R. Smith, informing that they would not be able to attend. The letter was in these words: “To the Honorable the Judges of the Circuit Court of the District of New l'ork: We have been summoned to appear, on the 14th day of this month, before a special circuit court of the United States for the district of New York, to testify on the part of William S. Smith and Samuel G. Ogden, severally, in certain issues of traverse between the United States and the said William S. Smith and Samuel G. Ogden.

Sensible of all the attention due to the writs of subpoena issued in these eases, it is with regret we have to state to the court, that the president of the United States, taking into view the state of our public affairs, has specially signified to us that our official duties cannot, consistently therewith, be at this juncture dispensed with. The court, we trust, will be pleased to accept this as a satisfactory explanation of our failure to give the personal attendance required.

And as it must be uncertain whether, at any subsequent period, the absence of heads of departments, at such a distance from the scene of their official duties, may not equally happen to interfere with them, we respectfully submit, whether the objects of the parties in this case may not be reconciled with public considerations by a commission issued, with the consent of their counsel and that of the district attorney of the United States, for the purpose of taking, in that mode, our respective testimonies. We have the honor to be, with the greatest respect, your most obedient servants. James Madison. H. Dearborne.

R. Smith. City of Washington, 8th of July, 1806.” THE COURT also mentioned that they had also received a letter from Mr. Jacob Wagner, and one from Mr. William Thornton, which stated that they could not attend. That the letter from Mr. Wagner covered; copies of a correspondence between him and Mr. Colden. by which it appeared that Mr. Wagner had offered to give his deposition in writing, .if it could be taken by consent on interrogatories.

Colden acknowledged that he had received letters from the above mentioned gentleman; and said that these letters had been submitted to the counsel concerned for the defendant, who have agreed in opinion, that they could not, consistently with the interest of their client, dispense with the attendance of these witnesses, or consent to receive their testimony in the way it had been offered. Nor did he think it possible that the court would suffer either the letter which had been read from Mr.

Madison and others, or those referred to by the court, to have any influence in the decision of the question then before them. The letter from the heads of departments, written by order of the president, was an attempt of the executive to interfere with the judiciary, which no doubt the court would indignantly repel. PATERSON, Circuit Justice. The court mentioned these letters, to show that the gentlemen who had signed them would not be here upon the subpoenas, and were particularly called forth by what had fallen, from one of the defendant’s counsel, that two of the witnesses would probably be here tomorrow.

TALLMADGE, District Judge. Those letters are not to determine how the court shall act; their decisions must be formed upon other ground. They were mentioned, as I conceive, with the view of convincing the counsel that none of the gentlemen who have signed them will be here tomorrow. PATERSON, Circuit Justice, said that was the idea he meant to express. Colden. Our application to the court for an attachment, the district attorney says, is superseded by his motion to bring on the trial.. I do not mean to enter on an argument on this point; but let me inform him that he misconceives us in this particular.

We apply for the attachments not merely to bring in the witnesses to answer for their contempt, but that they may be brought here to testify. We have no partiality for this or that process, nor care whether the process the court, grants to us be called an attachment or any thing else, so that it be that compulsory process which the constitution and laws give us a right to demand. Sanford. The court will please to dispose of the questions as to a day’s delay for the witnesses, whose attendance is expected tomorrow; but, as to the question of attachment, it is altogether different.

We have moved to bring on the trial; to defeat this motion, the defendant must show that the absent witnesses are material for his de-fence in the present cause; and I would ask how can he possibly show this when the gentlemen, whose testimony is required, were all at Washington when the military expedition was set on foot, and preparing at New York? What possible knowledge of their own could they have of those transactions at the distance of 250 miles?

No affidavit in common form, stating the materiality of the witnesses, can be admitted; they muáít show the special grounds on which their testimony can operate for the defendant; and when this shall be done, the court will judge whether the special matter which may be disclosed constitutes a sufficient reason for postponing the trial. Pierpont Edwards concurred in the position of the district attorney, and required of the defendant to show the special ground for the application, wherein the testimony of the absent gentleman was material to his defence. Colden.

That is not the law, as we have hitherto understood it. If we are obliged to offer an affidavit; we conceive it to be sufficient, in the first instance, to declare generally, that the witnesses are material, without specifying the particular points to which they are to testify, and that without them our client cannot safely proceed to trial. PATERSON, Circuit Justice. You must offer an affidavit, and must show in what respect the witnesses are .material. The facts charged in the indictment took place, and are laid, in New York; the witnesses are admitted to have been during that period at Washington.

The presumption is, therefore, that they cannot be material, and this presumption must be removed by affidavit. Colden, after a short silence, during which the counsel on both sides had conferred together, addressed the court. The counsel have agreed among themselves that the cause shall go off till to-morrow. To which the counsel for the prosecution having signified their assent, Colden then said, the trial being disposed of for the present, I now move on the documents which have been read, that an attachment be issued against Mr. Madison. Sanford.

We have by no means waived the priority of our motion that the trial may proceed, by consenting to postpone the cause till to-morrow. When the court shall have decided that, the motion for an attachment is in order, and we shall be ready to argue it; but the court will not permit our first question to be superseded by the deference we have paid to .their request. Washington Morton said the counsel for the defendant had no objection to this question also going off till to-morrow, and then arguing them together. Colden.

If the court would grant us the attachment to-day, it would be a gain of so much time, as the trial is postponed till tomorrow. TALLMADGE, District Judge. The questions of bringing on the trial, and of the attachment, are certainly distinct, but setting the first aside for the moment does not authorize the other to assume its place. You cannot have your motion for the attachment argued before it is determined whether the trial shall now proceed. Colden. It has been agreed to postpone the trial; the district attorney’s motion then being disposed of, nothing now interferes with our motion for the attachment.

PATERSON, Circuit Justice. The conversation is extremely desultory, but go on in your own way. Colden. I am now ready to open the argument at large, on the motion for an attachment, if the court will please to hear me. But if we now agree to postpone this argument till to-morrow, as we have the preference now, we trust the court will grant it to us then, and hear us before the motion to bring on the trial is renewed. PATERSON, Circuit Justice. Certainly not. Harrison. Then I presume we are to give up the idea of arguing the motion for the attachment at present, as the trial is postponed by accommodation.

TALLMADGE, District Judge. The accommodation has been granted, for the purpose of giving time for the arrival of some absent witnesses; this throws the trial off for a day, but it cannot give to the defend.ant’s counsel the privilege of having the second motion argued until the first is determined; the first question still retains its priority. Pierpont Edwards. When the attachment is argued, we shall not take the ground of privilege for the executive officers of the government. I know the district attorney would ■disdain to rest himself on such a pretext.

We shall require of the defendant to show that they are material witnesses, by affidavit and proof; if they cannot make out this point, their application fails. We have suffered the trial to go off for to-day; perhaps the other motion ought likewise to be suspended, especially if the defendant has not prepared his affidavit on which the motion must be bottomed. . Emmet. Have the court decided that the motion for the attachment should be heard in preference to the question which has been postponed till to-morrow?

If they have not, I would ask permission to suggest one circumstance why it should have the precedence. The right of the defendant to compulsory process to bring in his witnesses, is not only guaranteed by the constitution and the laws, but springs from the- necessity of the furtherance and due administration of justice in all well regulated governments, and if we can obtain the attachment to-day it will certainly expedite the trial. Pierpont Edwards, interrupting, said, the court, he presumed, intended to accommodate the counsel on both sides, with the postponement of both questions till to-morrow.

Sanford understood.that the court had already decided on that point, by declaring that the public prosecutor should not lose the precedence of his motion, to bring on the trial by the delay which has been accommodated, and he insisted upon the point of order. Emmet did not imagine the court had decided against hearing the argument in favor of the motion for an attachment.

He understood the trial was not to be brought on instanter, but certainly that was not to postpone the right of the defendant, to have his motion allowed. (At this moment the grand jury came into court, and the foreman informing the court they had found no bills, and the district attorney declaring he had nothing to lay before them, they were discharged for the present.) Emmet consented to the accommodation on the condition that it do not operate to the injury of his client, and proposed to offer an affidavit, proving the absent witnesses to be material on the trial.

He hoped it would be understood that the trial was to be put off from day to day, until the witnesses came in. PATERSON, Circuit Justice. The first motion will have the priority in the decision, but if the counsel agree they may argue the latter proposition first Sanford. We pray the decision of the court as to the mode of proceeding. PATERSON, Circuit Justice. I am willing to hear the arguments on both points, and I do not care which is argued first, but I do not mean to decide either until both are gone through. TALLMADGB, District Judge. The first motion will have the first decision. PATERSON, Circuit Justice.

You make all the difficulty out of a mere matter of form. If you argue the motiofi for an attachment to-day, no opinion will be given until the court have decided upon the motion for bringing on the trial. Let them go hand in hand, and the court will take care that •neither party shall be caught or entangled in the net of form. It was then agreed by the counsel on both sides, that the two questions should be argued together to-morrow. Adjourned, till ten o’clock to-morrow. Tuesday, July 15th, 1806. Present PATERSON, Circuit Justice, and TALLMADGB, District Judge.

Colden made a brief recapitulation of the course of proceedings of yesterday, and then offered the following affidavit of Wm. S. Smith, viz.: “New York, ss.: William S.

Smith, the defendant in the above cause, being duly sworn, says that James Madison, of the city of Washington, Robert Smith, of the same place, Jacob Wagner, of the same place, and William Thornton, of the same place, are material witnesses. for him the deponent, on the trial of this indictment, as this deponent is advised by his counsel, and verily believes to be true, and that he cannot safely proceed to trial of the said indictment without the testimony of the said James Madison, Robert Smith, Jacob Wagner, and William Thornton, and that they have been regularly subpoenaed to attend at this court, on the fourteenth day of July instant, to testify in behalf of this deponent, on the said trial, and have not appeared in the said subpoenas, nor hath either of them appeared; and this deponent farther saith, that he hopes and expects to be able to prove by the testimony of the said witnesses that the expedition and enterprise to which the said indictment relates, was begun, prepared, and set on foot with the knowledge and approbation of the president of the United States, and with the knowledge and approbation of the secretary of state of the United States; and the deponent farther saith, that he hopes and expects to be able to prove by the testimony of the said witnesses, that if he had any concern in the said expedition and enterprise, it was with the approbation of the president of the United States, and the said secretary of state; and the deponent farther saith that he is informed and doth verily believe, and hopes, and expects to be able to prove by the- testimony of the said witnesses, that the prosecution against him for the said offences, charged in the said indictment, was commenced and prosecuted by order of the president of the United States; and the deponent farther saith, that he has been informed, and doth verily believe, that the-said James Madison and Robert Smith are prevented from attending by the orders or interpositions of the president of the United Siates; and farther this deponent saith not. (Signed) W.

S. Smith.” Colden proceeded: The present application is to put offi the cause on account of the absence of witnesses whose testimony the defendant alleges is material for his defense, and who have disobeyed the ordinary process of the court In compliance with the intimation from the bench yesterday, the defendant has disclosed, by the .affidavit which I have just read, the points to which he expects the witnesses who have been summoned will testify. If the court cannot or will not issue compulsory process to bring in the witnesses who are the objects of this application, then the cause will not be postponed.

Or if it appears to the court that the matter disclosed by the affidavit might not be given in evidence if the witnesses were now here, then we cannot expect that our motion will be successful. For it would be absurd to suppose that the court will postpone the trial on account of the absence of witnesses whom they cannot compel to appear; and of whose voluntary attendance there is too much reason to despair; or on account of the absence of witnesses who, if they were before the court, could not be heard on the trial.

It is therefore my business to show that the court can issue compulsory process against those persons who have disregarded the subpoenas. And secondly, that this process ought to issue, because their testimony, as it is disclosed by the affidavit, would be material.

If the witnesses who have been summoned, stand on the same level with their fellow citizens; if there be not something in their high offices to raise them above those laws which are above the rest of the community; then there can be no doubt but that they are subject to that provision of the constitution, which in its terms seems to pay no respect to official dignity or station; but, as it appears to me, givgs the accused a right to demand compulsory process against any man whose testimony he may deem necessary to make his innocence appear.

I shall not, however, enlarge on the powers of the court in ordinary cases, to issue the process for which we now apply. I shall be content to repose on the articles of the constitution and the laws of the United States to which I referred yesterday. I proceed to inquire whether Mr. Madison and the other heads of departments have offered a sufficient excuse for their disobedience to the process of the court, by saying they are members of the executive government—whether these dignified sounds elevate them above the constitution and laws. The general rule is that all persons are bound to give testimony.

I have no book from which to read this rule; but I think it is written by the finger of God on the heart of every man. True it is that the necessities of society have introduced one exception, and but one: and that is where a person in the capacity of counsellor or attorney, represents another. This exception is most strictly confined to this relationship. No obligations of secrecy or confidence however sacred; no connections of blood or ties of friendship can interpose in the administration of justice.

If they could, a Russel would not have perished by the hands of the executioner, or England have been indelibly stained with the blood of a Sidney. In the Case of the Duchess of Kingston, 11 State Tr. 246, for bigamy, Sir Caesar Hawkins was called to prove that he had delivered the duchess of a child.

He attempted to excuse himself from giving testimony on the ground of professional confidence; but the court wrung from him his secret And in the same case Lord Barrington in vain implored to be excused from giving testimony against the accused, as all he knew had been imparted to him in the confidence of friendship. A Roman Catholic priest has been compelled to disclose the communications of his penitent in his religious capacity of confessor. 2 Atk. -524.

I do not expect to hear the counsel for the prosecution contend, after this, that any obligations of confidence interpose to shield the defaulting witnesses from the process which in the name of the constitution we demand. Nor will 1 suppose that the learned counsel who are opposed to us mean to say that there is anything in the official dignity with which the witnesses are clothed which saves them from the operation of the laws. The peers of England have not thought that their -titles or stations afforded them any such exemption.

And even the king of that country, who claims his title by divine right,, has yielded to the obvious moral obligation of giving his testimony when the administration of justice rendered it necessary. 1 Salk. 278; 2 Hawk. P. O. 152; Hob. 213. Indeed, if it were necessary to produce authorities on this point, we might go very far back, and show that the kings of Judea have witnessed and been witnessed against Salk. (Wilk. Ed.) 1521, 1526. But it may be said that there are certain political motives which should induce the court to excuse the secretary of state and other heads of departments from giving testimony.

That were they to be examined as witnesses they might disclose state secrets I If I were to admit that there are certain secrets between the president and his secre taries which they would not wish to disclose, (and I have no doubt there are many such), or which ought not to be disclosed, still the witnesses who have been duly summoned owe obedience to the process of the court; they must appear and be sworn, and when on their oaths, they may avail themselves of this excuse if questions are put to them which they ought not to answer.

But the court must judge, and not the witnesses, whether they shall or shall not answer. Much less shall the witnesses be allowed to determine for themselves whether they will be obedient to a mandate of the judicial authority. Such was the determination of the supreme court of the United States in the case of Marbury v. Madison, 1 Cranch [5 U. S.] 137. But the dreadful inconvenience to the gentlemen themselves, and the injury to our national affairs, that may result from the court’s exercising a power to call on our great men as witnesses, has been suggested. In the case I have mentioned of Marbury v.

Madison, Mr. Lincoln took precisely these grounds. Yet in that case the court would not grant him a moment’s time to consider whether he would or would not be sworn, although they had no objection that he should have time to consider what he would or ought to answer. Before I quit this point, I will pray leave to refer the court to one other case which has occurred ir our own courts. I mean the case of U. S. v.

Cooper [Case No. 14,861], And although I should be sorry to find that case received as law in all its points, because I think there are in it some determinations against the defendant too severe and rigorous, yet it will show that the question under consideration is not a novel one. Mr. Cooper calls as witnesses several members of the national legislature and officers of the executive government. Judge Chase permits subpoenas to issue against them.

Judge Peters indeed objects to members of the legislature being subpoenaed, on account of a supposed privilege attached to them as members ' of the congress then in session, and therefore he thought the process could not be enforced, and that the court ought not to issue a process to which they could not compel obedience. But an objection on account of official station or dignity, or on account of executive confidence, is not even thought of. Such extraordinary objections are reserved for this very extraordinary prosecution. In the event, Mr. Cooper’s witnesses appeared in court and offered.to be examined.

If, however, the exemption in the present case should be supposed to extend to the heads of departments, I presume it will not be contended that it extends likewise to Messrs. Thornton and Wagner, who are admitted to be only clerks in the offices. If one clerk is entitled to this privilege, so is every other on the ground of being an executive agent. Suppose a case of treason or murder Would the court admit of such an apology for refusing to the person indicted compulsory process? It is monstrous to suppose that they would.

Why, then, should it be refused to us in the present case; is the punishment to which the defendant is obnoxious of so trifling a nature, as to render his conviction or acquittal a matter of indifference? No, sir; the defendant is exposed to punishment extremely severe; he is subjected to a penalty of great amount, and to imprisonment in the common bridewell, among the vilest felons who are separated from the community. Shall he be exposed to all this, deprived of that shield which will cover him from this ungenerous attack?

For the testimony we have sought, and which the court can furnish, will be to us that shield of de-fence. Will it be admitted as an excuse, that the gentlemen cannot attend at this time, because the affairs of the nation rest upon their shoulders? But it is intimated in their letter that their official employments will always interfere whenever the defendant may require them as witnesses. In that case we cannot issue an attachment either now or hereafter. Yet it is no uncommon thing to find these gentlemen absenting themselves from the seat of government for months at a time, for their own pleasure or business.

It is hard indeed that they cannot devote a few days to the fate of a fellow citizen. I humbly hope that I have satisfied the court that they have power to issue the process we pray for, and that no sufficient excuse has been or can be offered for disobeying the subpoenas, and that therefore the attachment ought to be granted; if not for the purpose of bringing in the witnesses to testify, which is now our object, at least I think the court will be of opinion that they ought to compel the witnesses to appear and answer the contempt.

I now proceed to inquire whether the testimony which we expect to obtain from these witnesses may not be given in evidence, when the defendant is on his trial. And here we may say it may be given in evidence either in mitigation of the punishment, or as a justification. If not as a justification, certainly we shall be allowed to offer it in mitigation; and the proper time to offer it in mitigation is on the trial. There is no doubt but that circumstances in mitigation may be offered to the court after the verdict.

If. a defendent is so fortunate as to be able to obtain such testimony after he has been pronounced guilty by the jury, the court will undoubtedly listen to it. But the laws do not put it in the power of a defendant to compel a witness to appear and testify in his behalf, unless it be on the trial of the issue. It is as much the right of the accused to lay before the court testimony which may tend to lighten his punishment, as it is to offer testimony that will entirely exculpate him.

Is it not as unjust and unreasonable that a defendant should be subject to three years’ imprisonment when he can show that he ought not to suffer three days’ confinement, as it is that he should be convicted when he is not guilty? If, therefore, there is no other mode of obtaining the mitigatory testimony but by the witness appearing upon the trial, the court will oblige him then to appear.

Let us ask, has the law provided any means by which the defendant can compel a witness to give an extra judicial deposition in any criminal case; or is there any process by which the defendant can compel a witness to appear in court after the trial? We answer with confidence that there is none. Such a thing has never been heard of, and the counsel for the prosecution, we are certain, cannot point out to us any means by which we may oblige a witness to give the testimony we expect, if the court should say they would hear it after the trial.

It is true, indeed, where witnesses have voluntarily made affidavits of this nature, the courts have received them after the issue has been decided. But can a matter of this importance to the accused depend on the mere will and pleasure of another? Every notion of justice is opposed to such an idea. And if there be no certain mode of obtaining this testimony but by examination of the witness on the trial, the court will oblige him to appear.

We are, however, not without authority on this subject In the Case of the .Earl of Anglesea, indicted for a misdemeanor, reported in 9 State Tr. 305, it was expressly decided that circumstances in aggravation of the defendant’s offence might be given in evidence on the trial. Now if circumstances in aggravation may be offered on the trial of the issue, a fortiori, it must be lawful to give in evidence circumstances of mitigation.

For, as it is better that a guilty person should escape punishment rather than that an innocent one should suffer unmeritedly, so it is better that a guilty defendant should escape with too light a punishment rather than that he should suffer more than he deserves. This case of the Earl of Anglesea is a very strong one in our favor. The point now before the court was there debated, and received a decision which supports the principles for which we now contend.

So in many instances have the courts allowed a defendant to give evidence of character, where the character of the defendant could have nothing to do with his guilt or innocence: McNal. Ev. 320, 323, etc. But we may appeal to universal practice on this subject. Is there a lawyer who hears me that will say he ever knew testimony of this kind refused by a court on a trial? And is it not admitted every day? I hope, therefore, the court will say that although we may only offer this testimony in mitigation, yet the witnesses must be compelled to come here, and give us the benefit of it.

We, however, go farther, and offer this testimony not merely as mitigatory, but as relevant to the issue, and as a complete justification of the acts with which the defendant is charged. We say by the affidavit that the witnesses will prove that what the defendant did he did with the knowledge, consent and approbation of the president of the United States; and if they do prove this, the defendant must be acquitted. Let us suppose that we could prove that the acts charged against the defendant were done by the express order of the president of the United States; would not such an order be a complete justification?

That the president might have authority to give such an order cannot be questioned. Congress have the power of declaring war; and when that is done, the president is to act under it, and may authorize any military or hostile measure against the enemy. If it be said that there was no declaration by congress, it is sufficient for us to answer that there might have been.

The constitution does not Require that a declaration of war should be made public; it would be absurd to suppose that it did, and thereby the executive of this country was to be deprived of all chance of taking an enemy by surprise, or of the advantage of secret measures of defence or offence. It is well known, that at the time General Meranda’s expedition was set on foot, congress was sitting with closed doors, and might have, nay, it was universally believed they had, declared war against Spain.

If they had done so, the president would have had constitutional. authority to sanction the acts for which the defendant is now to answer; and will it be said that the individual acting under the order or sanction of the chief magistrate of the country, who might have had authority to give that sanction, shall be answerable criminally for what he has done pursuant to that order? Must he inquire whether the chief magistrate was or was not authorized to give the order, and must the defendant be punished if it turns out that the president has aeted illegally?

No; it would be an oppressive and tyrannical doctrine to say the defendant may be charged with a crime under such circumstances. The defendant had only to inquire whether the president gave him an order which might be within the scope and limits of his constitutional functions, and if it was so, the defendant cannot be punished for his obedience.

I will not-take up the time of the court longer on this part of the subject, or detain it with any argument to show that when we have proved that the defendant acted with the knowledge, consent, and approbation of the president of the United States, it must be equivalent to proving that he acted under an express order. But let us suppose that the testimony we offer would not make out a justification according to the strict legal acceptation of that term; still we say it would form such an excuse for the defendant as would entitle him to a verdict of acquittal.

If the defendant can satisfy the jury by the testimony of the witnesses whom he now calls, that he had no intention to disobey the laws, but on the contrary that he thought, and had reason to think, that his conduct was sanctioned by their authority; and that he would merit the approbation of his government, and the applause of his countrymen, he will not, he ought not, to be convicted. Where there is no intent to do wrong, there can be no crime.

This is a principle not derived to us from tradition or record; it is in the heart of every man, is imbibed with our reason, and cannot be obliterated while a sense of justice, or knowledge of right and wrong is retained. X expect to hear it said, that if this principle be applicable to all cases, then an ignorance of the law will always be an excuse for an offence. Sir, I say it will be so whenever a defendant may have it in his power clearly to demonstrate that he was ignorant.

As if a law should this day be passed at Washington against the exportation of arms, and a person to-morrow, before he could possibly have knowledge of the existence of such a law, should make a shipment contrary to the prohibition. I say no jury on earth would convict a defendant under such circumstances. No court on earth would tell a jury, that in such a case, they ought to convict. But as it may, in many cases, be impossible to prove on a defendant a knowledge of the law, he is very wisely charged with it.

In the first instance, it is always to be presumed that every citizen is acquainted with the laws of his country, and that presumption must stand against him till it is destroyed by decisive and irrefragable proofs. And so it is also with respect to the intent. If an offence is committed against the laws, it is to be presumed that there was an intent to offend until the contrary appear. But when that does appear, the presumption is destroyed, and the accused is exculpated.

The testimony we would offer may then be heard if only for this purpose, if only to take away that presumption of criminal intent, which the law very wisely and necessarily raises against the defendant. But whether this testimony may be a justification or excuse, it ought to be submitted to the jury. They are the judges of the law, and the fact. And all the facts ought to be brought before them, that they may apply the law.

I do not mean by this that a party is to be at liberty to offer any sort of testimony that he may please, but he has an unquestionable right to submit to the jury every fact that has any relation to the crime with which he is charged. There is another ground, also, on which the jury ought to be permitted to hear this testimony. It has become a practice for jurors to recommend a convict to the mercy of the court where they think he deserves it.

This practice is sanctioned by. so many instances, and by such a length of time, that it may now be considered as a right; and if it be so, then certainly the jury ought to have every circumstance before them, which will assist them to determine whether they will recommend or not. It may be proper, in order that the court may see the full applicability of the testimony we expect from the witnesses who have been subpoenaed, that I should mention the other testimony that we expect to offer in connection with it. We shall show from the journals of congress when their secret session began, and how long it continued.

We shall prove that it was universally believed that congress had secretly passed

an act for going to war with Spain. We shall read the president’s message at the opening of the last congress, and a variety of documents communicated by him, on the sixth of December. And we shall then, from proving the notoriety of the preparation for General Meranda’s expedition as well here as at Washington, and by a variety of other circumstantial testimony, bring home to the president the knowledge we impute to him.

Thus, may it please the court, I have endeavored to establish the power of the court to issue the process for which we ask, and to show that the gentlemen who have been subpoenaed, are not exempt from the process on account of their official dignity, or excused from obeying the subpoenas, on the ground of their being confidential executive agents. I have attempted to show that the .testimony which these witnesses would afford us would be material either in mitigation or exculpation, and that in either case it must be given in evidence on the trial I too plainly perceive how much I have left undone.

But it is my province only to open this argument I am happy that I am to be followed by counsel who will not fail to supply my omissions. Hoffman. If I am not precluded by the intimation of the. court' yesterday, that it was necessary to disclose, by affidavit, the facts intended to be established by the absent witnesses, I solicit permission to submit some remarks, tending to show that the general affidavit ought to be received as sufficient for the postponement of the trial.

With all possible respect, I suggest, that the defendant’s counsel were not heard on this question, and I hope I may consider the intimation not as a fixed or deliberate opinion of the court. PATERSON, Circuit Justice. You are too late, the question is already decided. Hoffman. I proceed then to add to the opening argument, and shall limit my observations chiefly to the materiality of the testimony; for as it respects the right to an attachment, the principles on which we rely have been fully and ably stated.

I, however, beg leave to read an additional authority, in support of the general scope of the argument used by my associate counsel.

In 1 M’NaL Ev. 255, it is decided, “that the claim of exemption from giving evidence, is scrutinized with a jealous eye, and the person relying on it, must establish his right by showing a positive law, o? express authority.” The master of the rolls, ■ Sir Michael Smith adds: “It was the undoubted legal constitutional right of every subject of- the realm, who has a cause depending, to call apon a fellow subject to testify what he may know of the matters in issue.” And every man is bound to make the discovery, unless specially exempted and protected by law.

The general proposition, which I shall endeavor to maintain, is, that the testimony of Mr. Madison and the other witnesses named in the affidavit, is material to Ool. Smith in his defence of the present prosecution.

It is material, as matter of excuse or justification; but if not strictly as matter of justification, then as evidence to inform the judgment of the court, in the exercise of its discretion, in inflicting the punishment Before I enlarge on these points, I remark, that it is sufficient for our purpose, to suppose a state of things between this country and Spain, where the assent and approbation of the executive of the United States, would justify the expedition charged in the indict-menc; for if there can be such a case, the advice of the counsel, as stated in the affidavit, must be presumed to apply thereto; unless, therefore, it shall appear negatively to the court, that the prosecution or defence can assume no shape, where the testimony required will be important, they will not refuse to postpone the trial.

It certainly is not necessary for the defendant to disclose by affidavit, the precise use intended to be made of the evidence. We are not bound to unfold our entire defence to the public prosecutor; we are only bound to lay enough before the court, from which the importance of the testimony may be inferred. The offence charged in the indictment, is for beginning and setting on foot, preparing and providing the means for a military expedition against a nation with whom the United States are at peace.

And it may be asked, can the United States be in a state of war with a foreign nation, until congress shall have formally declared war? Congress have alone the constitutional right to elect to go to war; but in case of an actual war declared or waged by a foreign power, there is no option, war does already exist; a defensive war, without the agency of congress; a war de facto, and which would take the case out of the statute.

Put the case of actual war commenced by Spain, against the United States, when war has not been declared by congress, would it not be permitted to the president, to call out the military forces of the Union, to repel the aggression? Certainly it would. Aa attack may be made here at the city of New York; may not the president commence and execute offensive operations, to draw off the enemy from this port, and put them on their defence in Florida, or any other part of the Spanish dominions? Offensive war once begun, the nation attacked succeeds to all the rights of legitimate warfare.

It may merely resist its enemy, or it may repel its aggressions by a stroke at the head, the heart, or the extremities. All are equally justifiable. Suppose, in the progress of this cause, we should be able to verify the language of the president in his message on the subject of a war with Spain, when he speaks of force being to be met by force;' and that we should show the conflict had already commenced, in which we were trying “who could do the other most harm”; would not this be actual war? I ask, whether a war has not existed between this country and other nations, without a declaration of war by congress?

Whether it did not exist against Tripoli and other African states, without such a declaration? Do I mistake the fact when I say, that an expedition was fitted out against Tripoli? And will it be denied, that we were then in a state of actual war? Yet congress had declared no war. Was the president of the United States justifiable for this act of hostility, commenced without the authority of congress? Certainly he was. It can never be denied to the executive to resist an attack.

He is constitutionally bound to defend the United States against all foreign attacks, as well as domestic insurrections, and in the way best calculated- in his judgment to insure success. A law was after-wards passed by congress [2 Stat 129], providing the ways and means of carrying on the war, then existing, and so existing; and let it be remarked, continuing to exist, without any positive or formal declaration by congress.

If war then can exist between- the United States and a foreign nation without a declaration of war by congress, it belongs to the executive of the Union to ascertain the fact, and to declare the condition of the nation,—to say if actual war exists or not. The constitution delegates to the executive the power to protect and preserve the peace of the United States,—to communicate with foreign nations; and he is the constitutional organ through which the people derive their knowledge of our political relations with foreign powers. Mr.

Hoffman then urged, that the assent and approbation of the president -of the United States to the expedition charged in the indictment was strong evidence that Spain was not at peace with the United States; as it was not to be presumed, that the president would have violated his trust by authorizing the expedition. At any rate, that he was in the execution of a right constitutionally vested in him,—that he alone was responsible; and the individual who acted in conformity to his permission, had committed no offence. (These topics were again argued by Mr.

H. in his address to the jury; the reporter, therefore, omits to insert them in this part of the trial.) Mr. Hoffman then proceeded to the second branch of his argument. Waiving all farther discussion on the first point, I shall endeavor to fortify the argument, that the defendant is entitled to have the witnesses examined, and to submit his whole case to the court and jury, for the purpose of mitigating the punishment. The constitution of the United States secures to the accused the right to have compulsory process for his witnesses.

This privilege is hardly worth the enjoyment, if it is to be confined to the case of. a complete acquittal of the charges in an indictment. Col. Smith may be technically guilty, and yet his offence of so small a grade, as hardly to merit more than a nominal punishment. It is conceded, that after the trial, this court has no power to enforce the attendance of the witnesses, and the constitution does not extend its benevolent provisions to my client, unless he is permitted on the trial to prove the extent and nature of his offence.

The correct principle is laid down in McNally’s Evidence, already cited, “that wherever the punishment is discretionary, the testimony is to be received, although it only applies for the purposes of mitigation.” I think I may, without fear of contradiction, assert that there is no authority to the contrary; and I speak with confidence that such has been the practice in the courts of this state. While I had the honor of holding the office of attorney-general, the objection was never made; and I understand, that the practice of my predecessors always corresponded with my own.

Let us examine the question upon the strength of authority. Besides the case already mentioned from McNally, there has been read to the court the Case of the Earl of Anglesea; to which, I presume, will be opposed the Case of the Chevalier D’Eon, in 3 Burrows, 1513. The case is shortly thus: An information was filed against the Chevalier D’Eon for a libel on the Count De Geurchy. M. D’Eon moved to postpone the trial on account of the absence of material witnesses.

It appeared that the witnesses resided in Prance, and were there at the time of printing and publishing the libel, and that they were in the service of the crown of Prance; and that there was no probability of their being sent over, or even permitted to come over, to give evidence on behalf of D’Eon. It is to be observed, that their attendance could be never be enforced, nor could they be compelled to give evidence in any stage of the prosecution.

Their attendance and their evidence would be altogether voluntary, and no possible injustice could be done to the defendant by refusing to postpone the trial; for it would be useless to delay it in expectation of obtaining the testimony. Lord Mansfield proceeds to say; “If their knowledge relates to any circumstance that may serve to mitigate the punishment in case the defendant should be convicted, that sort of evidence will not come too late after conviction of the offence, and may be laid before the court by affidavits.” Lord Mansfield by no means decides, that the evidence could not be received on the trial.

He only says, it will not come too late after conviction. The Chevalier D’Eon was not deprived of any benefit by the course adopted by the court on that occasion, for as they could not aid him by any process that could be awarded, they leave him in the same situation as if the trial was not postponed,— to his ability to obtain voluntary affidavits. Not so here; this court can enforce the attendance of the witnesses at the trial, and at no other time.

If the testimony is not then received, the defendant must forego it; for after trial no compulsory process can issue; and strange as it may seem, the defendant has a right secured to him by the constitution, which he cannot enjoy, if the court refuses to interpose its authority, and compel the attendance of the witnesses at the trial. The Case of D’Eon, therefore, fairly considered, is in principle with us. The question appears to be reduced to the single point: The testimony we seek is material to the defendant in this cause.

The court can now give him the benefit of it; if they do not, he may be presented for punishment as an offender whose guilt is of the deepest dye. And is it not material to the cause of the defendant, that the extent of his offence should be known? Is it not material to his personal liberty, to his interest and his character, that the punishment should bear a just proportion to the offence?

The discretion granted to the court by the stat ute is useless, if the defendant is deprived of the means of showing circumstances evin-cive of his innocent intentions, and justly demanding the utmost lenity of the court This subject is before the court in a way extremely inauspicious to the honor of the government of the United States; the president of the United States approving the act which he now seeks to punish. His approbation no doubt proceeded from honorable motives, —from enlarged views of the true policy and dignity of our country. It deserves praise.

But if he did order this prosecution, it is not for me to justify or excuse the perfidy. Let it, too, be remembered, that in the Case of D’Eon, Lord Mansfield says: “If the witnesses had been sent away by the person on whose account the prosecution is carried on, that indeed would have been a sufficient ground for putting off the trial until they could be had. But here,” says his lordship, “is no pretence for such an insinuation.” Are we not expressly within this principle? The president of the United States ordering the prosecution, and the president of the United States restraining the witnesses from attending.

To conclude: The justice of our present application must be evident, and unless there exists some stubborn and unbending rule of law to the contrary, I indulge a strong hope, that the court will postpone the trial, compel obedience to its process, and thereby become possessed of the whole truth. If so, my client has no dread of punishment: It may be nominal; it cannot be severe.

PATERSON, Circuit Justice, expressed some regret that it was not in the power of the parties to carry the present motion up to the supreme court for its opinion, which could only he done in consequence of a difference in opinion between the two judges sitting in the circuit court as expressly declared by the law. Mr.

Sanford read an affidavit, as follows: “District of New York, to wit: Nathan Sanford, being duly sworn, deposes and says, that the offences laid in the indictments in these causes, took place in the city of New York between the twenty-fifth day of December last, and the first day of February last; that the facts which will be given in evidence on the part of the prosecution, upon the trial of the said indictments, took place in the state of New York, and principally in the city of New York, during that period; that during the whole of that period, James Madison, Robert Smith, Jacob Wagner, and William Thornton, were, as this deponent has been informed and really believes, at the city of Washington, and not in the state of New York; and that, as this deponent has been informed and really believes, the said James Madison, Robert Smith, Jacob Wagner, and William Thornton have not, nor has either of them, any personal knowledge of the offences charged in the said indictments, or of the facts which will be given in evidence upon the trial of the same on the part of the United States; and farther this deponent says not.

Nathan Sanford.” Mr. Sanford proceeded to say that the facts stated in this affidavit were not at variance with those stated in the affidavit offered by the defendant. Sanford. If I understand the questions now before the court, they are these: First, whether the trial shall be postponed until the defendant’s witnesses, who are now absent, shall come in; and second, whether attachments shall issue against the four witnesses who have not attended upon the subpoenas.

It was decided by the court yesterday, that it was incumbent upon the defendant, in order to entitle himself to a postponement of the trial on account of the absence of these witnesses, to show in what respect they are material for his defence. It was the opinion of the court that the general affidavit in common form would not be sufficient for this purpose; but that the particular facts expected from the witnesses must be disclosed, in order that the court might, upon those facts, judge of the propriety of granting the postponement.

In compliance with this decision the defendant has now made an affidavit, in which he has stated the particular facts which he expects to establish by those witnesses. The matters stated in this affidavit must at present be taken to be true, and for the purposes of this motion, it must be supposed that the witnesses are really able to prove the facts stated. The point of inquiry, therefore, is whether the matters stated in the affidavit of the defendant are material in point of law, to his defence, upon the trial of this indictment.

The principal allegation of the defendant in his affidavit is, that the military expedition against Carracas, and his agency in it, took place with the knowledge and approbation- of the president and the secretary of state. It is said by his counsel, this amounts to a complete justification of the offence, or that, at least, it must operate in mitigation of punishment; and that in either view, they are. entitled to the testimony. This we altogether deny It can neither operate in justification or in mitigation.

The most superficial attention to our constitution and form of government will be sufficient to convince any one that this sort of defence is wholly inadmissible. It proceeds altogether upon the idea that the executive may dispense with the laws at pleasure; a supposition as false in theory as it would be dangerous and destructive to the constitution in practice. The defendant is indicted for a breach of a positive statute of the United States. Do his counsel seriously contend that the president dispensed with the law in this instance? Where will they find an authority of this nature vested in the president?

For unless they show this, they gain nothing by their argument Among the powers and duties of the president, declared by the constitution, he is expressly required “to take care that the laws be faithfully executed.” They will not venture to contend that this clause gives the president the right of dispensing with the laws. Does the president derive such a power from his legislative character? Certainly not? He has a qualified. veto, before the law passes. If he approves a bill, he shall sign it; but if not, he shall return it, with his objections, and the bill may be passed into a law, without his consent.

When it has become a law, according to the forms of the constitution, it is his duty to take care that it be faithfully executed. He cannot suspend its operation, dispense with its application, or prevent its effect, otherwise than by the exercise of its constitutional power of pardoning, after conviction. If he could do so, he could repeal the law, and would thus invade the province assigned to the legislature, and become paramount to the other branches of the government.

To repeal a law, is an exercise of the same legislative power as to make a law; and the legislative power, for whatever purpose exerted, can only be exercised by the whole legislature. The president has no legislative power whatever, except in approving or disapproving bills, which have been adopted by a majority of both houses of congress. These principles result from the constitution, or rather, they are found in the constitution itself. The constitution of the United States is a delegation of limited powers.

The powers delegated are not only defined with accuracy, but are with equal caution allotted to different branches of the government. We observe throughout the separation of the legislative, executive, and judicial powers, a feature which renders it justly dear to the people. Hence it has become our boast that ours is a government of laws, and not of men. The judiciary surely will never give its sanction to so gross a violation of these principles, as would take place if the defence which is now attempted to be made were allowed to prevail.

If, then, the president has no power to dispense with the law, it follows undeniably, that his knowledge and approbation of the offence, cannot be a justification to the offender. If the president has acted improperly, or failed in the execution of his duty, his conduct may be the subject of inquiry before another tribunal. If he has been guilty of crimes or misdemeanors, he is answerable upon an impeachment. The defendant is answerable for his conduct before this court, and a jury of his country.

It is said, however, by the adverse counsel, that if the defendant be not fully justified by the assent of the executive to his offence, yet that circumstance must operate materially to mitigate his punishment. If this idea be analyzed, it will appear to rest upon the fallacy, which, 1 trust, I have already sufficiently exposed. If the president has no power to dispense with the law, it must follow. that an attempt to dispense with it would be altogether a void act, and could not afford any pretence of palliation or mitigation to the offender.

But the counsel say that the defendant was, or might have been, ignorant of this, and might have supposed that the assent of the executive would shield him from the penalties of the law. This would be to allege ignorance of the law as a defence; and they might as well have urged that the defendant was ignorant of the statute prohibiting military expeditions, upon which he is indicted. Some of the counsel have indeed had the hardihood to assert in terms.that ignorance of the law is an excuse.

The maxim of law on this subject, undoubtedly is, that “ignorantia juris quod quisque tenetur scire neminem exeusat.” This rule must be as much applicable to matters which are urged for the purpose of palliation or extenuation as to those which are presented by way of justification or complete defence. Were it otherwise, the veriest villain in society might escape from justice, under the pretense that he was ignorant of the law, or that he thought the law was dispensed with in his favor, to enable him to perpetrate offences prohibited to every other person. Our law does not recognize such an absurdity.

Every man is bound to know the public law of the land; and if he violates them, he does it at his peril. Upon these principles, how does tlie purposed vindication of the defendant appear? The counsel say that he had the countenance or the connivance of the executive in the unlawful expedition. What then? I answer he was bound to know, not only the public statute of the United States, but also that the president has no power to dispense with its provisions. The countenance, or connivance, or consent of the president, can, therefore, neither justify his conduct nor mitigate his punishment.

An idea was thrown ■' out by the last counsel, that we were in a state of war with Spain at the time the expedition was prepared, and that therefore the case does not come within the statute, which relates only to military expeditions set on foot against foreign states, with whom the United States are at peace. It would be a sufficient answer to this idea, at present, to say that this is not now a question before the court. The inquiry at present is simply whether the matters stated by Colonel Smith in his affidavit, as the testimony which the absent witnesses can give are material to his defence?

It is upon this affidavit alone that the postponement is now asked for. Colonel Smith does not state that he expects to prove anything respecting the state of peace or war by the absent witnesses. On the contrary, he states that their testimony, will relate entirely to other objects. The affidavit states that the expedition was set on foot with the knowledge and approbation of the president;, but contains not a word of a war with Spain. But this is not the only answer which may be given to this idea of war-with Spain.

It must appear affirmatively on our part at the trial, that the United States- and Spain were at peace. How is this to appear? The constitution vests the power of declaring war in the legislature. It is a power given up by the states to the general government as an attribute of the national and supreme authority. It must, therefore,, appear from the acts of the legislature, that the country is at war. But, the counsel say that an actual state of war may exist without the declaration of congress, and have attempted to cite instances of such wars.

There is no instance in which the president has undertaken to make war, but in pursuance of the provisions of the constitution and laws passed under it He certainly has. power to repel invasions, and suppress insurrections; but even this is a power not vested in him by the constitution, but is expressly delegated to him by a statute. Act Feb. 28. 1795 [1 Stat 424], The counsel also speak of the late war with Tripoli. That war was also authorized by

an act of the legislature. PATERSON, Circuit Justice, desired Mr. Sanford to lay that law before the court; accordingly the law in volume 6, p. 8, was handed up. Sanford. But the question of peace or war is to be determined by the court upon the laws themselves. The acts of the legislature when they make war, or cause it to be made-by others, are like all their other acts; public statutes or general laws which the courts must recognize. So treaties of peace made by the president, with the consent of two-thirds of the senate, are the supreme laws of the land.

The judges are bound to know judicially, and to conform to these as to all other laws. It follows then, that the question of peace or war, is a question of law, to be determined by the statute book, and not a question of fact, to be determined by the testimony of any man. The treaty between Spain and the United States, made in 1795, is still in force, and must remain so until it be abrogated by

an act of the legislature; and as such is the law of the land while it remains, in force, there is no power in this country that can authorize an individual to set on foot a military expedition against Spain, or any of her territories. In .the year 1798, when congress thought proper to enter into a partial war with France, they began by rescinding the treaties and conventions which then existed between France and the United States.

The court will not listen to what has been said respecting the president's message to congress at their last session, and the measures which may have been projected or proposed in that body, without having been finally adopted. It is absurd to contend that an individual may infringe the laws at pleasure, because the legislature in their secret deliberations, may have repealed the law or may have declared war. I do not mean- to occupy the attention of the court in combatting arguments or assertions like these.

I have attempted to show that the testimony of the absent witnesses is not material either for the purpose of justification or mitigation. The Case of D’Eon has been cited on the other side. If that case be examined, it will be seen to be a strong authority in our favor. In that case, the court held that they ought to be satisfied that the witnesses were material; that there had been no neglect in the party applying for delay, in endeavoring to procure their attendance; and that there was a reasonable expectation of his being able to procure their attendance at some future time.

In that case, as in this, it appeared negatively that the witnesses were not material; for they were not present when the criminal transaction was charged to have taken place. It is added, if their knowledge relates to any circumstances that may serve to mitigate the punishment, in case he should be convicted, that sort of evidence will not come' too late after the conviction of the offence, and may be laid before the court by affidavit.

Upon the whole, they were clearly of opinion that the putting off the trial could not tend to advance justice, but, on the contrary, would delay it This case then is a decisive authority to show that a trial is not to be postponed on account of the absence of witnesses, who, if present, could only give evidence in mitigation of the punishment; such evidence would not be proper on the trial of the issue, and could only be received by the court in its discretion after conviction.

The counsel who opened this argument threw out an idea that because the jury were judges of the law as well as of the fact, they were therefore entitled to hear all the testimony which the party might offer. He attempted indeed to modify his position, but did not divest it of its absurdity. The court are judges of what is proper evidence to go to a jury; and unless the counsel intend to deny this, and insist that the jury are judges of .the testimony which it is proper for them to receive,—a position which would be equally contrary to the law and practice,—I do not perceive the point of this argument.

The court, in the first place, judge of the testimony which is to go to the jury, and the jury then judge of the fact and the law upon that testimony, which the court suffer them to receive. Having thus reviewed the ideas of others, and stated my own upon the question for a postponement', I now pass on to consider the motion for attachment The adverse counsel suppose they are entitled to the attachment, as of course, and have cited some authorities to prove this point. This we deny.

The proceeding by attachment against absent witnesses is undoubtedly known to the law; but such an attachment never issues of course. It is a

summary and extraordinary proceeding, which is used by the court in its discretion, to vindicate its justice and punish contempts against its authority. The only rule which can be laid down on the subject, therefore, is that the court may or may not issue the attachment in its discretion, according to all the circumstances of the ease.

The party injured by the absence of the witness has his remedy against him by action, without this extraordinary process of the court When the attachment is issued, it is issued not for the purpose of bringing in the witness to testify, but in order to punish him for contempt The counsel opposed to us have argued as if we meant to insist that the absent witnesses are entitled to some peculiar privilege or special exemption from giving testimony. We do not contend for any such exemption; we oppose the application for attachments on other grounds.

If I have succeeded, in any degree, in the preceding part of my argument, I have shown that the testimony of the absent witnesses is altogether immaterial, and could not be received if they were now present.

If this be so, it would seem to be a strange absurdity, that the court should be bound of course to issue attachments against persons who are absent, who could not testify if they were present And unless I deceive myself, it is now presented to the court as a naked question, whether the court shall issue the attachments of course against absent witnesses who have been summoned, merely because they have been summoned, when it appears to the court, from the statement of the party who calls for them, that they could not have testified in the cause if they had attended.

If it be discretionary in the court, to grant or refuse the attachments, as we contend it is, this is surely a ease in which they ought to be refused. It was an abuse of the process of the court, to summon persons who could not be witnesses. It would be intolerable to subject those persons to imprisonment, not for any purpose of justice, but merely because they were summoned by a process which issues of course at the pleasure of every party. I admit that the court have power to issue attachments, but they will undoubtedly exercise it in sound discretion, for fair purposes, and to promote justice.

They will take care, on the other hand, to enforce obedience to their process, in all eases where the purposes of justice require it, and on the other, they will take equal care that this process shall never be turned to improper purposes, or employed to harass men who know nothing of the transaction about which they are summoned to testify. In addition to this, it appears that the absent witnesses have not failed to attend, from any contumacy or contemptuous disregard of the authority of the court.

There are documents before the court, which exhibit the reasons of their absence, and show that they intended no contempt of the court, even if their testimony had been material. Colden. If the letters in the possession of the court which have not been read are alluded to, and are to be made any use of in this argument, I shall pray that they may be read. There are some parts of them which we think material for us. particularly «vhen one of the gentlemen who wrote these letters says he was present when the president of the United States ordered these prosecutions. Sanford. I will read them.

PATERSON, Circuit Justice. It is unnecessary. We have the papers before us. Sanford. If the court then are satisfied that no contempt was intended; and that the testimony they could give, were they here, would be immaterial and inadmissible, this surely is not a fit case for attachments. Another objection to the application for attachment arises from the affidavit of the service of the subpoenas. It is stated that the deponent tendered the sum of twenty dollars to each of the witnesses for his expenses.

This sum is insufficient, and the service of the subpoenas being therefore defective, that circumstance alone would exempt the witnesses from being liable to attachment A witness is not bound to attend, unless the full amount of his expenses is tendered to him at the time of serving the subpoena. PATERSON, Circuit Justice. Is there any law of congress on that point? Sanford. Yes, there is a law defining the amount of the witnesses’ fees. Colden. This does not apply to criminal prosecutions. We contend that it is not necessary to tender any thing to a witness in a criminal case. PATERSON, Circuit Justice.

What! by the common law? Emmet. Neither by common law nor by •statute. The statute of Elizabeth was the first law that gave a witness a right to demand his expenses. Sanford. The whole doctrine is laid down at length in Sell. Prac. p. 454. PATERSON, Circuit Justice. Is there any statute on this subject by the United States? Sanford. The compensation allowed to witnesses by the law of the United States is ten cents per mile for going and returning. This, without any allowance for attendance, would amount to more than twenty dollars, in the ease of the witnesses from Washington.

In respect to the necessity of tendering the expenses at the time of serving the subpoenas, I conceive the law and practice of this state must govern. This must be a case in which the laws of the United States recognize the law of the state as a rule of decision. By the law and practice of this state it is unquestionably necessary to tender the expenses. Here I rest the argument in the hands of the able counsel who will succeed me. Colden. The affidavit states more than the district attorney has attended to. The affidavit is that Hr.

Madison found fault neither with the quantity nor quality of the money, adding it was unnecessary to say any thing more on the subject. Edwards. The vast concourse of people who have constantly attended these trials in every stage of their progress must convince every intelligent observer that some motive other than their importance must have pro-' duced this effect Prom the solicitude discoverable in their countenances, it is evident an importance has been attached to them which their intrinsic merits do not justify.

But it is improper for me to be more explicit on this delicate point The learned and independent court before whom I appear will not participate in that glowing sensibility which evidently warms this assembly; they are above the reach of party views, and will decide with wisdom and the' purest integrity.

On my part, it would be highly indecorous, as well as weak in the extreme, to attempt to influence its decisions on the points submitted, by calling to my aid any consideration which is not intimately connected with such a view of the subject, as must naturally lead to a result demanded by the strict principles of the laws of our country.

Had the present application been made simply for attachments against the non-attending witnesses, and exclusively for the -purpose of punishing them for a contempt of the process of the court, the counsel for the United States would not, on this occasion, have troubled the court with any observation. In that case it would have been a matter between the United States and the witnesses. But the motion before the court has a double aspect: 1st. It is a motion for attachments, to the end, that the witnesses named may be brought into court and punished for contempt. 2nd.

To bring them into court to testify in these causes. And if the motion can be sustained for these two purposes, the effect will necessarily be, that the trials must be postponed. It will be recollected by the court, that I yesterday stated, that an attachment against a witness for non-attendance, after having been duly served, with a subpoena, is never granted for the purpose of bringing in a witness ad testificandum, but exclusively for the purpose of punishing him for a contempt. At that time some of the learned counsel for the defendant treated this proposition as one wholly untenable.

This circumstance led me to hope, that I should, on a discussion of the question now before the court, have heard from them some remarks intended to render my position questionable. But no observations of the kind which I had anticipated, have been made.

I shall, however, not dismiss that point, until I shall have again stated, and attempted to support by authorities, the position which I then with confidence submitted to the court I repeat then, that in no ease do the courts of common law grant an attachment against a non-attending witness, who has been regularly subpoenaed, for the purpose of bringing such witnesses into court ad testificandum; but in such case the attachment is issued exclusively for the purpose of bringing him into court to answer for the contempt offered to the court, by disobeying its process.

In criminal causes, I readily admit, that the practice of granting an attachment against a non-attending witness, subpoenaed on the part of the crown, is very ancient; but my researches have not yet brought to my view a single case, in which an attachment has been granted against a witness, subpoenaed by the defendant in a criminal prosecution. In point of principle, however, I do not hesitate to say, that it is as competent for the court to grant an attachment in the latter- as in the former case.

But the question still recurs, is an attachment, in either civil or criminal causes, ever granted for the purpose of bringing in a witness ad testificandum? In the case of Bowles v. Johnson, 1 W. Bl. 36, on motion for attachment against one Yerbury for not giving evidence at the assizes, Lee, C. J., says: “This is a new case. Attachments are a new practice. I remember the first motion for them.” This was in Michaelmas term, 22 Geo. II. 174S.

A recurrence to the English reporters will enable us not only to date the birth of this practice, but to fix upon the very time when the first travail throes took place that eventually brought it into existence. In the case of Hammond v. Stewart, 1 Strange, 510. determined Hil. term, 8 Geo. I., cited also in Wyat v. Wingford, 2 Ld. Raym. 1528; and in the case of Daleson v. Aland, determined in the exchequer, Mich., 10 Geo. I., a rule to show cause had been granted; but in each of those cases, the rule was discharged by the court. In Wakefield’s Case, Cas. t. Hardw. 313, determined Trin., 10 Geo. II., in B.

R,, Lord Hardwicke says: “The way of proceeding by attachment is a new method.” In the common pleas, Trin., 13 Geo. II., in the case of Huffe v. Fowke, and in the case of Stephenson v. Brookes, reported in Barnes, Notes Cas. 33, the court, in the first ease, refused to grant a rule to show cause; and in the second, after having granted a rule to discharged the rule, refused to grant an attachment, saying that “the party may have his action upon the statute of 5 Eliz. c. 9.” In the case of Chapman v. Pointon, Easter tterm, 14 Geo. H., in B.

R., the court say, “that this way of punishing as for a contempt, was new and practiced only in the court; the common pleas not doing it to this day, but leaving the party to his remedy on 5 Eliz. c. 9.” 2 Strange, 1150. From what is said in the case of Stretch v. Wheeler (Easter term; 27 Geo. H.) Barnes, Notes Cas. 497, it may fairly be inferred, that at that time the common pleas had not gone into the practice adopted in the king’s bench, long before, of granting attachments for a contempt against non-attending witnesses, who had been regularly subpoenaed. In the case of Wyat v.

Wingford, the court made the rule absolute for granting an attachment. This happened July 2, 1728. ' The origin of the practice of granting attachments against witnesses in civil causes having been thus clearly exhibited, I proceed to establish the proposition, that attachments are never granted for any other purpose than that of punishing the witness for a contempt. Lord Raymond, in giving the opinion of the court in the case of Wyat v.

Wingford, says: “But the court in this case thought it was a good foundation for an attachment; the disobedience to the subpcena being a contempt to the court” Not a word is said in this case by the court or the counsel, that intimates an idea that the attachment was moved for in order to bring the witnesses into court to testify. But there is a circumstance in this case which puts it beyond a doubt that that could not have been the purpose for which the motion for an attachment was made.

One Rolf Baily had been subpcenaed to attend the assizes in a cause in which Wyatt was plaintiff, and Wing-ford defendant; and there had been a tender to Baily of his charges; Baily did not attend, whereby the plaintiff was nonsuited. This is the state of the ease as reported in 2 Strange, 810, by the name of Wyatt v. Winkworth, but confessedly the same case as that reported in Lord Raymond, by the name of Wyat v. Wingford.

Surely after the cause was out of court, the plaintiff having been nonsuited, it must have been idle indeed to have moved for an attachment, if the object aimed at had been to bring in Baily ad testificandum. In the cases in Stephenson v. Brookes, before cited, and the case of Brodie v. Tickell, Barnes, Notes Cas. 35, which latter case was in the common pleas, HU, 24 Geo. H., were also cases in which a motion for an attachment was made after nonsuit. To the same purpose is the case of Rex v. Ring, 8 Term R. 5S5.

In this case an attachment was moved for, and granted against Ring for not appearing at the assizes to testify before the grand jury against Everiand and Davis, committed to Salisbury jail on a charge of felony. Ring not appearing, the grand jury threw out the bill. Jekyll, on the part of the prosecution, moved for an attachment, and it was granted. The courts of Westminster always consider the proceeding by way of attachment as for a contempt, as a criminal proceeding. In the case of Smalt v.

Whitmill, 2 Strange, 1050, the reporter says: “But it appearing not to be a personal service (that is, of the subpoena), the court held it not sufficient to warrant a proceeding criminally against him (that is, the witness)."” In this case an attachment was moved for against a witness for not attending, being subpoenaed and having a shilling left. In the case of Chapman v. Pointon, already cited for another purpose, the court say “that this way of punishing as for a contempt was new,” &c.

And so strictly is this proceeding by way of attachment against a witness as for a contempt holden to be a criminal proceeding, that the affidavits and all the other papers in the cause must be entitled, “The King v. the Persons to be Attached.” To this purpose is the ease of Rex v. Sheriff of Middlesex, 3 Term R. 133. It is there said: “But as the affidavits on both sides were entitled Robins v.

Hall, and as the rule was drawn up on the civil side of the court, a doubt arose whether the proceedings were properly entitled, and the court held them to be irregular, and that a motion for an attachment in the course of a civil suit ought to go on the crown side of the court, and the affidavits entitled ‘The King against the Person to be Attached,’ because it was not a motion in the cause, but arising out of it.” Farther, it is laid down in all our law books which speak on this subject, the granting an attachment is in the discretion of the court; but if granting an attachment for the non-attendance of a witness be ex debito justitiae,

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