The enquirer. [volume] (Richmond, Va.) 1804-1815, 1806-07-11

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on OF Mr.. Madifon is at this time completely
different. Removed az he is from the rcfidence
of the court, and removed as that court will
be from the feat of government, il is impofIibe
that he can obey it's mandates, without fub-
jecing himfelf to the ril< of interruptiag the
operations of the executive.
But il the teitimony Of Mr.. Madifon cannot
be obtained by perloaai attendance, may it not
be had by dtpoftion
Any man can fee, by recurring to the laws of
the United States.. that fbey have made no
exprsG provfion for taking the deboftions
of witnefies in criminal cafes. BY the 3oth
feet. of the ad Of 1889, for ej2abhk,ing The
judicial courts offbe U. States, there is an ex-
prefs rule laid down for civil, bur none for cri-
ninal caufes." And when (fays that frSf.) the
teftimony of any perfon fhall he neceflary 10 any
eirH canfe depending in any diftrief, In any
court of the United States, who fhail live at a
greater diftance from the place of trial than one
hundred miles, or is bound on a voyage to fea,
oris about to go out ofthe United States, or out
offuch diftriet, and to greater ditance from
the place of trial as aforefaid, before the time
of trial, or is ancient very nfirn, the ebofti-
on of flch perfon may be taken de- 5.ne eM be-
fore any iuaice and Judge of any OF the courts
Of the u. States, &c. Sex" The preceding
claufe does not con,ain Jingle exprefIion, in
favor or taking depoHtions IN criminal project
tons.
What has been the doctrine of the Enslih
judicature. on this fubjets, feems not to have
been completely fettled. On Judge Chaie's I'm
parchment. IBIS quefion wac asryed in the
courfe OF the pleadings but il was no very
FAR hunted after, for very obvious reaion. He
had refuied to grant Calender the <necefIary
time for obtaining the attendance of witnef1es,
although an affidavit had been offered of their
being necelfsry to his defence & the resufne
OF there reatonabe applications, was one of the
ARTICLES OF Impeachment lagainft him. But
Judge Chafe was not impeachcd Cor refriing
t" iiiue commidinns 20 rake the debofaous of
w'tnei1rs becauie, no iuch application had
oesn made by Callender's copncil. The quef-
non however qvas ffatted on the yriai, whether
the Judge zvon' 6ace had the right to ifiue thefe
con,mifinns: hut MIR. Rodney and MIR. War
TN feeuf to be the only two who touched upon
It at Ali. -g~- s.-
Mr.. Z odnrv ffated that there was ssa cafe
in Cowpcr's R"onrts, where the perfnn accu-
bfed mace an affidavit of the abfencs of very
material witnets, who was out OF the reach of
the rrorcfs of ne court. And tire court in.
formed the proircutor, that uplefs he wonid
content that the depoFt;on of fbe zuiinei;
Hon'a be tak~r md read in eUidense, that
they would poftcnne the cafe for ever. In
England, coiir.s OF common law have no pow
er TO ifue comminious to take tbs depoitions
of -9itnefes. unIefs tv content, and therefore
Lord Mansfield declared, that although the
court conld not obliee the proiecutor TO con-
TENT. yet they world poltoone the trial far ever
unlefs he did. But the Gatutcs Of the United
States exbreiiy authorize the courts no i1iie
comm'fiions, &c" Page III OF the Report.
In anfwer TO this, Mr.. Martin Eays: &C A cafe
has alto been referred to in Cewper's Reports.
where the defendant wanting the tefimonv Of A
witnefs who lived out or the inrifdictiou Of the
court and the court not having the power TO
ihue commlIion to obtain his teffimonv, the
court declared that If the plaintiffs would not
co"frnt 20 hHv- the 5epoftion OF fuch rvitnef.
&c taken to he read az the trial. rl,rsav<o.,a,
courinIe the caufe indefinitely. The houora-
HE manager has further faia. that though in
England. the court eanuo. ifaue cor1nfien
TO examine the witneDes, vet here the court
has power TO ifiuc commifiion for that pur-
pote. This houonranle court will recoliett that
the cafe of Calender was q criminal proiecut-
I'M. doubr whether the court has any power
IN criminal cafe to iifuc commiiiion to exam
inc witne.Ies for agairft the profecution, do
NOT know oeanv law which gives them that DOW
er" Mr.. Rodney was certainly mifaken if he
a'erted that fhe ftatufrs on the u. States ex-
brei5fg authorized the courts to if,ie covnmiffi-
ms IN criminal CAFES /; INT the cafe which he
cited from the Enrliiii courts was perfectly
correct. This doctrine as laid down nv Lord
Mansfield in the cafe of Mefyn Herf,s Fabri-
gas, quoted from Cowper's Reports. is in the
following words "Tf he wants the teftimonv
OF witneifes whom he cannot compel m attend,
The CONT NAV do what the court did in the
cafe Ola fri1inJ proftcution of woman who
had received apeniion as an officers widow {:
and 1t was charged in thc Indictment that fhe
never was married at all. She anedgei A mar
rage in Scotland, but that ffIe could nof COM
pel her witncffe. 10 come ur, to give evidence.
The conrt obliged the Drofecutor 70 content
that the witnenss might he examined before
any OF the Judges ofthe court Of f.fIions or any
ofthc barrons ofthe court n FIX -he1uer in SCOT
land. and that The d1boGtiou5 10 taken .6oaid be
rad If tie triaI.''
Our couclnfions then are
That .he executive fun 4ions of a f-creta-
~ IF Gate are paramount 10 any judici-
al duties, which he NAV incur:
That he ought not Cat Leaf in the preient
cafe) TO give his t.riouai attendance, where
the feat Of the court is 70 far removed from
The feat of government
That court has right only n expect his
attendance, when Il is held within the We
~ dftrif where he refides,
That our laws do not ey1rejJig provide for OBJ
tanning evidence by the way ola deboffion
IN criminal cafes
That the practice 10 Erqinnd feems general
= Iy:o have been, to refufe the benefits Of
This procefs, even with the content of par