The People v. William S. Smith, 3 Wheel. Cr. Cas. 100

On Tuesday the 8th of April, Messrs.

Ogden and Smith, being separately called upon to plead to their indictments, respectively put in their pleas in abatement, verified by affidavit, which pleas were substantially as follows : That the grand jury, by whom the bill of indictment was found, previously to the finding thereof, had before them illegal testimony, and such as, by the laws of the land, ought not to have been before the said grand jury previously to their finding the said bill of indictment; and that the said defendant, on the first day of March last past, was arrested by virtue of a warrant issued by the honourable Matthias B.

Talmadge, Esq. district judge of the United States for the district of New-York, and thereupon carried before the said judge, and was then and there sworn and examined by the said judge touching the supposed offences charged in the said indictment, and was then and there illegally, and against his will, forced and compelled by the said judge to answer certain questions touching the said supposed offences, in the said indictment contained, which said examination and deposition of the said defendant were reduced to writing by the said judge, and the said defendant was then and there by the said judge illegally, and against the will of him the said defendant, compelled to sign the "same, and to swear to the same as the same were so reduced to writing and signed, and that the deposition in writing of one (the defendant in the other cause) taken before the said honourable Matthias B.

Talmadge, Esq. in the absence of the said defendant, together with the aforementioned legal deposition and examination of him the said defendant, were, before the said indictment was found, illegally laid before, and were before the grand jury, who found the said bill of indictment, and this he is ready to verify, &c. After these pleas had been filed, the district attorney prayed time until the next day to consider what measures he should adopt, which was immediately granted by the court, without any opposition on the part of the defendants.

On the next day, the dislrict'attorney filed his demurrers to those pleas; and the counsel for the defendants prayed time to join in demurrer till the next day, in order that they might be prepared for the argument. The discussion relative to postponement of the argument on the demurrer, was then renewed. Mr.

Emmet stated, that from the nature of the facts set forth in the pleas, he had rather expected the district attorney would have taken issue on them, than admitted them by demurrer; that therefore the whole of his attention, and he believed also of that of his associate counsel, had hitherto been directed to the best manner of supporting the plea before a jury; that therefore the demurrer was a surprise upon him, and he was not prepared to argue it, except on the general principles which first suggested to the defendant’s counsel the propriety of the plea.

He observed further, that no objection had been made to indulging the district attorney with time for consideration j'esterday, because the pleas were probably not expected by him; and there was no wish on the part of the defendant’s counsel to obtain an advantage by surprise. The court then observed, that if the defendant’s counsel were really unprepared, they should be indulged with time till the afternoon, but no longer; and at half past twelve adjourned till three o’clock.

The sitting of the court being resumed, the district attorney began by stating some formal objections to the plea, which it is unnecessary to mention here," as the judgment of the court was founded exclusively on the general objection on the merits, that no such plea would lie. On this general question he argued, in support of the demurrer, that this plea was a perfectly novel experiment, for which no precedent or authority could be found. This very novelty was conclusive evidence that it would not lie; for otherwise it is inconceivable that it should not have been made use of before now.

It manifestly appears, from the silence of all the elementary writers, that there can be no such plea in abatement. Lord Hale (2 Hale’s PI. Cr. cap. 30, p. 236) details all those pleas, among which such as this is not to be found. They are, according to him, 1st- Such defects as arise upon the indictment itself, and the insufficiency of it. 2d. Such defects as are in matters of fact, as misnomer or false addition of the prisoner ; and 3d. By matter of record.

The acts of grand juries are not to be brought into court and questioned in this way ; they are independent and irresponsible; they judge- for themselves of the testimony upon which they ought to find indictments, and no one has a right to inquire; nor has he, without a violation of the grand juror’s oath, the means of knowing what evidence they may have had before them.

Ho injury can result from this ; for it is the duty of the grand jury to decide on ex parte evidence ; and if they decide wrong, or prefer a false charge, the natural and the only remedy is, that the accused will be acquitted on his trial before the petty jury. The object of the grand jury is only to judge whether there is probable cause for putting a party to answer a charge, and therefore it should not be bound down to the same strictness of investigation as the tribunal which is ultimately to decide upon the charge. The counsel for the defendant have probably been led to adopt this step, by Dr.

Dodd’s case; (1 Leach’s Cases in Crown Law, 184.) but in truth it is an argument against them; for it is no precedent of a plea in abatement. If such a plea would have lain, why was it not adopted in that case ? On the centrar)', the matter there submitted to the court, was laid before it on a

summary application; which clearly shows, that the prisoner’s counsel had no idea it could be taken advantage of in any other way. The defendant’s counsel replied as follows: Among the authorities cited on the opposite side, is the arrangement in 2 Hale’s PI. Cr. chap. 30, p. 236, of pleas in abatement of the indictment; and from the circumstance that a plea similar to that now under discussion is not found there, it is inferred, that no. such plea can exist. But it appears that Lord Hale’s arrangement has not been very accurately examined. He classes those pleas as follows: 1st.

On such defects as arise upon the indictment itself and the insufficiency of it. 2d. Such defects as are in matters of fact, as misnomer or false addition of the prisoner; and, 3d. By matters of record. How, we do not see why our plea does not come under the second of those heads; for it is a mistake to confine that head merely to misnomer or false addition of the prisoner. The arrangement comprehends pleas from such defects as are on the face of the indictment itself, which perhaps more properly ought to be called demurrers;' 2d. Such as arise from matters dehors the indictment in pais ; and, 3d.

From matters dehors the indictment of record—comprehending every possible matter that can arise. Is not the circumstance alleged in our plea, that illegal evidence has. been offered to the grand jury, if it be true matter of fact and dehors the indictment ? And does it not exactly class itself under the second head of Lord Hale’s arrangement?

If it does not, and that head must be considered as comprehending only the two cases that appear to be mentioned, merely for the purpose of illustration, then his classification is insufficient, and in proof of that assertion we specify a plea in abatement unquestionably good, which is equally excluded from his arrangement. This is to be found in Bro.

Abr. title, Indictment 2. “ Note, that where a man is indicted of felony by those, of whom part are indicted or outlawed of felony, and others acquitted by pardon, so that they are not probi nec legales homines, there it was agreed, that the indictments by them presented shall be void, and the parties who are indicted shall not be arraigned on this; and note, that this matter ought to be pleaded by him who is arraigned onthisindictment, before he pleads to thefelony. ” On this quotation, let it be observed for the present, that it furnishes proof of a plea in abatement arising from matter of fact, dehors the indictment, and not from misnomer or false addition of the prisoner, but from matter relative to the grand jury ; and it is therefore so far precisely parallel to that before the court.

Having thus endeavoured to set aside the respectable authority of Hale, if it could be considered as furnishing any argument against us, let us proceed to consider the general principles on which our plea can be supported. It is a fundamental doctrine in the law, that there is no wrong without a remedy, and no right without the means of enforcing it. Apply that to the present case.

Is it not a wrong to be accused and subjected to prosecution on illegal evidence ; to be injured in character, in peace of mind, and in the trouble and expense of defending one’s self against an indictment, which by the rules of evidence and law ought not to have been found ? If so, what is the remedy ? Is it not the right of every man that he shall not be put to answer to an indictment, unless it shall have been found according to the rules of law ? And if so, what are the means of enforcing that right ?

A grand jury, it is true, ought to listen only to ex parte evidence; but that should be of such a nature as would be received to support the prosecution before a petty jury, and such as,, if uncontradicted and unexplained, would induce a conviction. The rules of evidence, are the result of accurate reasoning, and of a strict regard to the rights of those, whose persons or property are to be affected. That reasoning is equally accurate, and those rights ought to be equally sacred, whether the investigation be before a grand or petty jury.

Those rules of evidence are not the result of any statutory regulations, but are adopted on account of their wisdom, justice, and universal applicability. What is there in the nature of grand juries, in the purposes for which they were instituted, or the objects they are to attain, that ought to enfranchise them from those rules of wisdom and of justice, which are also of universal applicability ?

But the attorney general insists, that grand juries are independent and irresponsible; judging for themseves as to the grounds on which they will prefer an accusation, and that no one has a right to investigate or to know what evidence they have had before them. This doctrine is broadly denied; and we do so from regard to an institution, which we have been habituated to love, and do not wish at this day to learn to detest.

Grand juries are the offspring of free government; they are a protection against ill-founded accusations; and the necessity of their originating bills of indictment, is supposed to be infinitely more friendly to liberty, than the mode of proceeding by information; but if their powers were of such a nature as we have heard described, we should advise the friends of freedom and security to seek for the abolition of such an odious institution, and to throw theinselves at once upon the mercy of the public prosecutor. What frightful privileges is it alleged to possess ?

Hearing only ex parte evidence, secret in its deliberations—irresponsible for its decisions, and bound in its investigations by no rules of law! Does this fall short of what we have heard or read of respecting the most despotic tribunals in the most enslaved countries ? The powers which it in fact possesses, of deciding only' on the evidence for the prosecution, and of keeping its deliberations secret, are in themselves sufficiently serious; but they are controuled and prevented from becoming dangerous by this, that it is bound to investigate according to the rules of law.

It is at liberty to range through the wide extent of the community in pursuit of crime; but it is confined to travel in its pursuit only by the established paths of evidence.- From whence too does the attorney general infer, that grand juries are irresponsible ? Is it from the power anciently claimed by judges of fining them for misconduct?

We do not pretend to say that such a power ought to be revised—but the frequent exercise of it in former times, shows that their acts have always, from the earliest periods, been considered as subject to investigation and punishment; and at this day it will not surely be questioned, that if a grand jury grossly misconducted itself from corrupt motives, the members so offending might be prosecuted by information or indictment, as is specified in 2 Hale’s Pleas of the Crown, 159-60; where he also mentions the 3 Hen. 7. c.

I. empowering justices of peace, oyer and terminer, or gaol delivery, to impannel another inquest to inquire of the concealments of a former one, for the purpose of punishment. If they are not irresponsible, and that their acts may be inquired into, let us see whether there lie any thing in the secrecy of grand jury proceedings, to prevent our being at liberty to alledge that illegal evidence was offered to them.

It might perhaps be advisable to ascertain with more precision than is already done, in what the secrets should really consist—but without entering into any discussion of the kind, it may be sufficient to observe that although the sentiments expressed by jurors, and the facts disclosed by witnesses to them, are secrets, the names of those witnesses never can. Those are facts which any man may learn, by placing himself at the door of the grand jury room, or by looking at the names indorsed on the bills after they are found.

We may say further, that no vnlavful act done in the grand jury, is such a secret as jurors are bound by their oaths to keep. If a bill of indictment were found by less than twelve of the jury, surely no man is restrained from disclosing that. If a bill of indictment be found in another unlawful way, by the admission of illegal evidence, is that violation of law more protected by the obligation of secrecy?

It would be competent to him against whom an indictment had been found bv only eleven jurors, to avail himself of that fact, and to get rid of the accusation—why is it not equally competent to the man, who is indicted on evidence which the grand jury ought not by law to have received, to insist for the same purpose on the illegality of this procedure ? We have established that grand juries are not independent of either the law or the court; let us now eximine whether they are exclusively competent to judge for themselves as to the grounds on which they will prefer an accusation.

To that doctrine may he opposed the well-known maxim “ ad questions legis reepondeantjudices, ad questiones facii, juratores.” That maxim so accurately marks the distinct and constitutional provinces of judges and juries, that we cannot hesitate to apply it equally to grand as to petty juries. They are each of them subordinate parts of the criminal system obviously instituted for the ascertainment of facts ; and, as to matters "of law, under the guidance and.controul of those with whom is deposited the

interpretation of the law. If then it shall at any time in the course of the proceedings appear to the judges, that the grand jury are about to err, or have erred in matter of law ; in the first case, the court will prevent their error, by giving them proper information ; in the other/case, where an error has been actually committed, the court will interfere, and prevent any injurious consequences from the mistake. Every day’s experience shows us grand juries applying to the court for advice in matter of law, and the court directing them as of right and as a part of its duty.

There are two cases which immediately present themselves, and are illustrative of those two positions. In the one, the court prevented the error which the jury was about to commit; in the other, if the alleged error had been actually committed, the court manifestly would have interfered, and prevented any injurious consequences from the mistake. The first is Denby’s case, 2 Leach’s Cr. Ca. 580., the other is Dr. Dodd’s case, 1 Leach’s Cr. Ca. 184., and both prove that illegal evidence shall not be permitted to go before the grand jurj-.

In Denby’s case, that body, Suspecting Denby himself (who was examined as a witness before it against one Edwards) of prevaricating, applied to the court for his depositions taken before the magistrate, pursuant to the statutes of Philip and Mary. But the court refused, because while Denby could be had," they were only secondary evidence, and would be therefore illegal.

The judges did not say to the jury, “ You are independent and irresponsible, and 3’ou must decide for 3'ourselves as to the grounds on which you will find indictments; therefore, as you ask for those dispositions, take them, though they are not strictly legal evidence.’’ No ; their answer substantia^" establishes, that whatever is not legal evidence, shall not go before the grand jury, and that it is not that bodyr, but the court, which is to decide on the legality of the evidence on which an indictment is to be found. In Dr.

Dodd’s case, he stated to the court, when called upon to plead, that the indictment was found on the testimony of an incompetent witness. Did the court answer—“ with that we have nothing to do; the grand jury only is competent to decide as to the evidence on which it will find indictments? No; the judges instantly received the objection, and determined, that if the grand jury liad, found abill on illegal evidence, they would interfere and prevent any injurious consequences to the prisoner.

The point was argued by some of the most able lawyers at the bar, and submitted to the twelve judges; and it was only because they decided that the witness was competent and the evidence legal, that the objection did not avail—from which it manifestly results, that where the evidence on which a bill of indictment has been found, is confessedly illegal, the court should interpose, and prevent the accused’s sustaining any injury from the error of the jury.

But, says the attorney general, if a grand jury do wrong, and find an indictment on illegal evidence, the remedy and the only remedy is, that the accused will be acquitted on his trial, before the petty'jury. That this is-not the only remedy, is- clearly established by the two cases last cited. Let us farther examine, whether it be any remedy for the wrong done to a citizen by being illegally indicted.

Suppose a case of misery often witnessed; a wretch, after being indicted, unable to find bail—or a man indicted of a felony, in which bail would not be received ; suppose farther, what not unfrequently happens, a court limited like this as to the duration of its sittings, and so pressed with business, that part must be postponed—would it be any remedy to a man illegally indicted, and obliged to remain in prison till September next, that in September next he would be acquitted and discharged?

Is such an acquittal a remedy Tor a moment’s imprisonment, for anxiety of mind, derangement of affairs, suspension or loss of character ? If not, we revert to the established maxim, “ there is no wrong without a remedy,” and ask, in this case, what is the remedy ? or, at least, what is the remedy exclusive of that which we have adopted ? But great stress is laid on the novelty of this plea, and on its being entirely without precedent. Whether it be so entirely, without precedent, shall be examined presently; but let us now take for granted that it is so.

This certainly imposes on us some difficulty; hut it only imposes one which has been gotten over in' a case very nearly similar.' It has been already shown from Brook’s Abridgment, title Indictment, § 2. that -where some of the grand jury were indicted or outlawed of felony, it might be pleaded in abatement of the indictment. As far as we can find, there is hut one instance of such a plea, and.that in the reign of Charles I. Sir William Whithipole’s case, reported Cro.

Car. 134.; that this was the first instance of such a plea, is manifest from the reporter’s expression, that “ because this was the first plea that had been upon that statute," and would be a precedent in crown matters, the court would advise.” Here then is a-plea, the like of which had never been produced before the time of Charles I. and yet its entire disuse and novelty formed no ground for its rejection. Since the days of Charles I. there has been no precedent of any thing like it.

If then that solitary case had not accidentally happened to occur, the same objection of novelty would as strongly apply to (hat plea, which is unquestionably good, qs it can to that which we have offered to the court. But novelty only imposes on us the necessity of more accurately-investigating the principles of law, ,on which we rely; if our deductions from them be well founded (and wo trust they are) the objection of novelty vanishes.

Along with tills objection of novelty may be classed another; namely, that supposing the court will interfere in a case like this, we have mistaken our application; and to that was pointed the attorney general’s expression, that Dr. Dodd’s case is no precedent for a pica in abatement. To that we answer, 1st. That there may be more ways than one of applying to rectify the same error; and, 2d. That emphatically the most correct and proper way of applying to rectify this error, is by a plea in abatement. The first position may be illustrated! thus : It is laid down in Hawk. Pl.

Cr. b. 2. ch. 25. § 16. that any one who is under a prosecution for any crime whatsoever, may, by the common laxv, before he is indicted, challenge any of the persons returned on the grand jury, as being outlawed for felony, &,c. or villeins, or returned at the instance of a prosecutor, or not returned by the proper officer, &c. Here then is a

summary mode given to the accused of objecting to grand jurors, either by challenging the array, or challenging the polls, as the case may require; but has he no other mode ? Sir William Whithipole’s case, Cro.

Car. 134.; and Brooke, in the paragraph already cited from him, tells us, that these objections may be pleaded in abatement; and Lord Coke (3 Inst. 34.) says, “ the safest xvay, for the party indicted, is to plead, upon his arraignment, the special matter given unto him by the stat. of 11 Hen. 4. for tlic overthroxv of the indictments, with such averments as arc by laxv required (agreeable to the opinion of lord Brooke, vbi supra) and to plead over to tiie felony, and to require counsel learned for the pleading thereof, which ought to be granted, and also to require a copy of so much of the indic tment as shall be necessary for the framing of bis pica, which ought also to be granted —and these laws made for indiffcrency of indictors, ought to be construed favourably; for that the indictment is commonly found in the absence of the party, and yet it is the foundation of all the rest of the proceedings.” Here then is a case where an objection to the grand jury may bo taken advantage of either by a challenge to the jury, or by a plea in abatement, at the option of the defendant.

Farther, cases frequently occur, in which an indictment is quashed, on motion for error on the face of it, which might have been the subject of demurrer, or of arrest of judgment; but was it ever said in any of these cases, that because you have the first remedy, you cannot have the last ? On the contrary,

summary applications on motion, particularly in criminal cases, are comparatively of modern invention; for the most

part introduced for the case of the defendant, and to save him from the technical nicety of formal pleading; but they were never intended to deprive him of the benefit of such pleading, should he judge fit to resort to it. Dr. Dodd’s case, however, can be considered in no other light than as furnishing a plea in abatement, pleaded ore terns; he averred, that the indictment was found on illegal evidence, which he set forth, and submitted that lie ought not to be compelled to plead the general issue. Have not this allegation and prayer all the substantial requisites of such a plea ?

But the facts which he averred, being admitted, there was no necessity for putting it into form, and the law arising from them was argued as on a demurrer. Had the facts, however, been disputed, and the law indisputable, what should he have done ? The ansxver to this question leads to the discussion of our second position—that emphatically the most correct and' proper way of applying to rectify this error, is by a plea in abatement. Had the facts been disputed, shotild they have been-ascertained hy a war of affidavits submitted to the judges, who are not the competent organs for ascertaining facts ?

No, ad qucestiones fadi respondent juratores. If the facts alleged would afford sufficient ground for quashing an indictment, but their truth bo controverted, a jury must decide on their truth ; a jury cannot decide on their truth without an issue joined; an issue cannot be joined without a plea put in; and no plea can he put in but a plea in abatement.

It follows, therefore, that wherever the facts are capable of being traversed, the only correct way of bringing them forward, is in the form of a plea tendering an issue—the ancient and strict rules, of which the’ defendants have not lost the benefit, know no-other way of bringing before the court facts that ought to prevent an accused person answering an indictment, than by pleading them, that if denied, their truth may he tried by those who are to try the truth of facts; and if admitted or proved, they may appear upon the record, and bring it to a legal termination.

Any other way is an innovation—useful in many cases, frequently an advantage to the accused—but on which he may waive, if he prefer the original mode of pleading.

As to the formal objections which were taken, the counsel for the defendant replied to them ; but stated, that the facts contained, in their pleas had come to their knowledge so very short a time before the defendants were called upon to plead, that they6had no time to re-peruse them ; and were obliged to file the original draughts, without even taking copies; that therefore, if the court should think any of the formal objections valid, they would pray for liberty to amend; which they had no doubt it would be ready to grant, under the circumstances of these being criminal cases, in which the defendants should not be entangled by niceties, and of there being no precedent to which the counsel could have had recourse for their guidance..

Mr. Edwards replied : but confined himself entirely to the formal objections, and did not enter into the 'general question whether sucli a plea would lie. After he had concluded, the court adjourned till the next day. Colden read a subpenna, directed to James Madison, Esq. where- ■ hy he. was commanded to appear at the present circuit court, to testify in behalf of the defendant. Also the copy of the subpoena ticket, and read an affidavit in the words following: City and County of Jfetw-York, ss.

Charles Lindsey, attorney at law, being duly sworn, saith, that on the twenty-eighth day of May last he served on James Madison the writ of subpoena hereunto annexed, and also at the same time delivered to the said James Madison a ticket of subpoena, a true and perfect copy whereof is also hereunto annexed, and this deponent farther saith, that at the time of showing the said wtit and of leaving the said ticket, he offered to pay to the said James his reasonable expenses, and tendered to him twenty dollars which the said James would not accept, saying, “ that he would not take them now, and that it was unnecessary to say any thing about themand this deponent farther saith, that the said James made no objection to the quantity or quality of the money so tendered as aforesaid to the said James, and farther this deponent saith not.

Dated the 16 th day of June, 1806. CHARLES LINDSEY. Sworn the nth day of June, 1806. MATTHIAS B. TALMADGE. Colden stated that he had in his hand subpmnas for the other witnesses who did not attend, with like proof of service on them. That the present application to the court, however, would only relate to Mr. Madison, Mr. Smith, Mr. Wagner, and Mr. Thornton. As to the three last the documents he had to oiler, were mvtatis mutandis, the same as those he had read relative to Mr.

Madison ; it would therefore be unnecessary to trouble the court with reading them; he should put them on file, and the decision of the court on the documents that had been read he presumed would be allowed should govern in the other cases. 1-Ie trusted that the court would not order the trial to proceed until the defendant has had the compulsory process of the court, to bring up the witnesses who have disobeyed the subpoena. And that compulsory process, he presumed, must be an attachment for which, in behalf of the defendant, he now applied.

He did not move for this process merely as a means of bringing in the witnesses to answer for their contempt in disobedience of the ordinary summons of the court; but he applied for it, as for that compulsory process which, by the constitution of the United States, every person accused was entitled to in order to bring in his witness to testify on his trial. (Here ho read the 8th

article of the amendments of the constitution of the United States.) He also read the 6th

section of the act of Congress of the 2d May, 1703, by which it is provided, that “ Subpmnas for witnesses, who may be required to “ attend a circuit court of the United States, in any district hereof, “ may run into any other district.” Colden also read, the 14th section, of the act of 24th September, 1789, which enacts, “that the courts of the United States shall have power to issue writs of scire facias, habeas coi~pvs, and all “ other writs not specially provided for by statute, which may be “ necessary for the exercise of their respective jurisdictions, and “ agreeable to the principles and usages of law.” This present application, said he, is sanctioned by the constitution, and the laws of our country.

There can be no doubt of the power of the court to award the process, for which we apply, nor can there he any question of the justice or propriety of granting it. I will not suppose that there is any thing in the station of the gentlemen who are the subject of the present application, which exempts them from proceedings to which any other citizen would be liable. The court cannot, and I trust will not, recognize them in their official situations ; but hear of them only as of men, who have disobeyed the process of the court, and whose attendance the defendant requires as witnesses.

I shall not say more on this subject, because I cannot but persuade myself that the process we pray for will be granted as of course. But we have, in behalf of the defendant, a further petition to the court; which is that the process be made returnable at a short day, and that the court adjourn de die in diem unlil it may be served and returned.—The defendant cannot go to <r‘a* ^1S witnesses be brought in, and yet he is very unwilling that there should be any unnecessary postponement.

The court cannot be ignorant that the defendant, by being removed from an office which was the support of a numerous family, and for which he had sacrificed all other business, has suffered, while bis guilt is yet not proved, a punishment greater than any it is in thepower'of the court to inflict. The court must also know that while this prosecution ¡spending against him, it would be in vain for him to seek any new employment or means of life.

The court will readily per1 ccive that humanity, as well as justice, requires that the defendant should have not only the benefit of the testimony of his witnesses, but that he should have that benefit speedily.. It is, therefore, our humble petition to the court, in behalf of our client, that the pro1 cess to bring "in the witnesses may be made returnable at some short day, and that the court adjourn from time to time, till the return be made. We shall forbear at present to urge any farther arguments in support of the motion now before the court.

When we have heard the' counsel for the prosecution, we may have more to offer. Sanford. The first question is, whether the application of the counsel for the" defendant, for an attachment against the absent witnesses subpoenaed in this cause on behalf of their client, is at this time regular? I contend it is not. We are not bound at this time to discuss the question whether the attachments ought to issue or not. When the proper-time for the argument of that question shqll arrive, we shall be prepared to meet them on that, as on every other question which may occur in the progress of the prosecution.

The court must have observed that the public prosecutor has, in the first instance, moved to bring on the trial of W. S. Smith ; while this motion is depending before the court, nothing can be in order but a motion to postpone the trial; that question must precede the application for an attachment, the object of which is to punish the absent witnesses for a contempt.

It may happen, that the parties are prepared to go to trial with the witnesses present; we are prepared on the part of the prosecution, and it does not follow that because persons who may have been regularly summoned as witnesses by the defendant are absent, the trial must be delayed even for a day, and still less until the return of the attachments shall be made. I forbear to say a word at present on the application for an attachment, as a regular or legal mode of bringing in witnesses to testify. When that point shall come before the court, we shall be ready to meet and discuss it.

We object to the motion for an attachment at present, simply on the ground that it is irregularly made at this time; and we shall not advance farther in the argument, until the court shall have decided this point. As therefore the application is altogether out of order, I trust the courvwill refuse it, and will order on the trial. Colclm. I do not see the difference in point of time.as a matter of much importance. Whether the court decide on the one motion or the other first or last would be of little consequence.

If the court order on the trial, then we shall renew our motion, and the court will certainly hear our application, and decide upon it before they allow the trial to proceed. P. Edwards wished to be abmitted to say a word in explanation. This prosecution must be at some time brought to trial, and why not now, after the delay already granted by the court ? Certainly the defendant’s counsel will not press a further delay, unless they show some good reason and legal ground for what they ask. They say, that the witnesses subpeenaed by the defendant do not appear. Well, is this a ground of delay ?

Will they be in a better condition if their witnesses are attached, and brought here to answer for a contempt of the process of this court ? No such thing— the attachment they solicit, does not go to them testificando, to bring them in to give testimony, but merely to receive punishment for an alleged contempt. The only motion they can make, is to put off the trial for some sufficient and legal cause; if they make that point, we are.prepared to meet them; but surely the court will not put off the cause, in order to wait the return of an attachment, to be issued against Mr.

Madison and the other gentlemen, who have been mentioned. Hoffman. If the question is to take this shape, I am ready to meet it; but at present we hope the court will, at any rate, grant us a short delay for the absent witnesses to come in.' It is the usual practice of the court, when the witnesses do not appear instanter, to postpone the trial for a day or more : this is what l should request, as it is probable that two of the witnesses may réach this city tomorrow.

Far be it from me, to postpone this trial to a distant day : my only and sincere wish is, that it may come to issue before this court rises; but we anxiously hope that the court, from motives of justice and constitutional right, will grant us the compulsory process to bring in our witnesses, in the manner already requested. We do not dispute on matter of form ; when our witnesses are here, the court will command their testimony, and it is with the court to enforce their attendance; but we shall certainly object to the trial proceeding at this moment. Sanford.

Do you mean to postpone the trial, on account of the absence of witnesses ? If so, it might be cause of eternal delay. Hof man. Not so. 1 understand that two of the witnesses now absent, will be here to-morrow, and mention it as a sufficient reason for a day’s postponement. But I do not mean to commit myself on the question, whether we are bound to proceed to trial in the absence of our witnesses, when we can show we have used due diligence. vV hen that question is raised, I shall be willing to meet it, and if the witnesses should now come into court, 1 would cheerfully and confidently go to trial. jp Edwards.

The district attorney would repel with disdain, the idea of sheltering himself under forms. No, please your honors, he has with great liberality met the opposite counsel, and 1 feel myself impressed with its propriety. The objection to the mode of proceeding, on the part of the defendant, is founded in great solidity; hut it is net proper, at this stage of the business, to disclose to our antagonists the grounds of our opinions.

When the proceedings take their proper shape, we shall have no objection to indulge them in any proper information; till then they will not be answered on irrelevant matter; at present they ought to confine themselves to a motion for postponement, if-postponement is their object. When that is decided by the court,- we will proceed with them to discuss the-motion for an attachment against the secretary of state, and other officers of the executive government of the union. Paterson, J. 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: 41 To the Honourable the Judges of the Circuit Court of the District of JVew-Yorfc. “ We haveheen summoned to appear, on the 14th day of this month, before a special circuit court of the United States for the district óf IVew-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 attenlion due to the writs of subpoena issued in these cases, 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. Tiic 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 object of the parties in this ease 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, ) nth of July, 1806.” § The court also mentioned that they also had 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. Golden, by which it appeared that Mr. Wagner had offered to give his deposition in writing, if it could be taken by consent on interrogatorios.

Co him acknowledged that he had received letters from the above mentioned gentlemen; and said that these letters had been submitted to the counsel concerned for the defendant, who had agreed in opinion, that they could not, consistently with the interest of their client, dispense with the attendance of "these witnesses, or consent So receive their testimony in the way it had heen 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 witli the judiciary, which no doubt the court would indignantly repel. Paterson, J. The court mentioned these letters, to show that tho gentlemen who had signed them, would not be here upon the subpeenns, and wore particularly called forth by what had fallen from one of the defendant’s counsel, that two of the witnesses would probably be here to-morrow. Talmadg e, J.

Those letters are not to determine how the court shall act; their decision 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 to-morrow. Paterson, J. said that was the idea he meant to express. Golden■ 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, hut 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 question as to a day’s delay for the witnesses, whose attendance is expected to-morrow; but as to the question of attachment it is altogether different.

Wc have moved to bring on the trial; to defeat this motion, the defendant must show that the absent witnesses are material for his defence in the present cause; and I would asir how can he possibly show this when the gentlemen, whose testimony is required, weie 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 must 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. P. Edmards 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 gentlsmen 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 bo 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, J. 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 b¿ 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 tomorrow. 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 ottr 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. Tai,madge, J. 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, J.

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 J. Certainly not. Harison. Then .1 presume we are to give up the idea of arguing the motion for the attachment at present, as the trial is postponed by accommodation.

Talmadge, J. -’-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 defendant’s counsel the privilege of having the second motion argued until the first is determined; the first question still retains its priority. P. Edwards. When the attachment is argued; w.e 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 not 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. P. 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 had been accommodated, and he insisted upon the point of order. Emmet, did not imagine the court had decided against hearing the argument in favour 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, J. 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 deceision of the court as to the mode of proceeding. Paterson, J. I am willing to hear the arguments on both points, and I do not care which is argued first, but 1 do nqt mean to decide either until both are gone through. Talmadge, J. The first motion will have the first decision. ■Paterson, J.

You make all the difficulty out of a mere matter of form. If you argue the motion 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 car.e 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 Judges Patebson and Tab-MADGE.

Co'lden made a brief recapitulation of the course of proceedings of yesterday, and then offered the following affidavit of Wm. 8. Smitli: —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, ontho 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 W agner, 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 wit-, nesses 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 tiio 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 hopos, 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 Jafnes Madison and Robert Smith are prevénted from attending by the orders or inter-positions of the president of the United States—and farther this deponent saith not. (Signed) W.

S. SMITH. Colden proceeded. The present application is to put off the cause on account of the absence of witnesses whose testimony the defendant alleges is material for his defence, 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 bo postponed. ° Or if it appears to the court that the matter disclosed by the affidavit might not he given in evidence if the witnesses were now here, then we cannot expect that our motion will he 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 dignify or station; but, as it appears to me, gives 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 hut 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 llussel 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 tire dutchess of Kingston (11 State Trials, 246.) for bigamy, sir Caesar Hawkins was called to prove that he had delivered the dutchess of a child. lie attempted to excuse himself from giving testimony on the ground of professional confidence ; but the court wrung from him liis 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 I suppose that the learned counsel who are opposed to us mean to say that there is any thing 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 tlicir titles or stations afforded them any such exemption. And even tiie 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. 152.

Hob. 213.) Indeed, if it were necessary to produce authorities on this point, we might go very far back and show that thekings of Judea have witnessed and been witnessed against. Seld. 1521. 1526. Wilk. edition, . 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 fram giving testimony. That were they to bfe examined as witnesses they might disclose state secrets !

If I were to admit that there,are certain secrets between the president and his'secretaries which they would not wish to disclose, (and 1 have no doubt there are many such) or which ought not to be disclosed; still the witnesses who have been duly summoned oive 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 shallor 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 Mau» bry against Madison. Cranch’s Reports, 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 pur great men as witnesses, has" been suggested. In the case I have mentioned of Maubry against 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 in our own courts: I mean the case of the United States against Thomas Cooper.

And although I should bo sorry to find that case received as law in all its points, because 1 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 permitssubpoenas to issue against them—Judge Peters indeed objects to the members of tho 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 objpotion 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 bo refused to us in the present case; is the punishment to whicli the defendant is obnoxious of so trifling a nature, as to render his conviction or acquittal a matter of indifference ?

No, sirs, 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, arid which the court can furnish, will be to us that shield of defence. W ill it be admitted as an excuse, that the gentlemen cannot at» tend 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 mouths 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, whichis 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 notas 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 defendant 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 throe 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 withoiitauthority on this subject. In the case of the eprl of Anglesea, indicted for a misdemeanor, reported in 9 State Trials, 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 umneritedly ; 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 favour: 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 : M‘NalIy, 320. 323, &e. 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, hut 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 tie 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 wh-m that is done, the president is to act under it, and may authorize any military or hostile measures 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 that thereby the executive of this country was to be deprived of all chance of talcing an enemy by surprise, or of the advantages of secret measures of defence or offence.

It is well known, that at the time general Miranda’s expedition was set on foot, congress was sitting with closed doors, and might have, nay, it was universally believed '¿hat 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 lie 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 acted 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 bis 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 bo obliterated while a sense of justice, or knowledge of right and wrong is retained. . I expect to bear it said,-that af 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 sessions began, and how long it continued.

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

an act for goingto 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 preparations for general Miranda’s expedition as wéll 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 endeavoured 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 ór 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 he 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, J. 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'Nally’s Hules of Evidence, 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, or 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 upon 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 ¿ndeavour to maintain, is, that the testimony of Mr. Madison and the other witnesses named in the affidavit, is material to Col. 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 judgement 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 tilings between this country and Spain, where the assent and approbation of the executive of the United States, would justify the expedition charged in the indictment; 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 lor 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 : wo 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 ex-, pedition against a nation, with ythom 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 defacto, 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. An attack may be made here at the city of New-York; may not the president commence and execute offensive operations, (o 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 tci alt 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 extremeties. 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 declaration? Do I mistake the fact, when I say, that an ex-, pedition was fitted out against Tripoli? And will it he 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 1 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 iu his judgment to insure success. A law was afterwards passed by congress, 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 tho power to protect and preserve the peace of the United States—t

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