Alexandria daily advertiser. [volume] (Alexandria [Va.]) 1803-1808, 1807-06-26

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from burdening some officer BY compelling
an unnecessary attendance. This court would
certainly be very unwilling to say that upon
fair construction the constitutional and legal
right to obtain its process to compel the at
tendance of witnesses does not extend to their
bringing with them spgh papers as may be
material in the defence. The literal dislinc-
ton which exists between the cases is too
much attenuated to be countensnccd in the
tribunals Of a Just and humane nation If
then the subpoena be used without enquiry
into the manner OF its application, it would
seem to trench on the privileges which the
constitution extends to the accused, it would
seem to reduce his means of defence within
narrower limits than is designed by the funda-
mental law of cur country, it all oyerstraincd
rigor should be used with re;Dect 20 his right
to apply for papers deemed by himself 20 be
material. In the one case the accused is made
the absolute Judge Of the testimony to be
summoned. If, in the other, he is not to
Judge absolutely for himself his Judgment
ought to be controlled only SO far as tits APP
parent that he means to exercise his prlriie-
gcs, not really in his own defence, but for
purposes which the court ought to discounte
nance. The court would not lend It's aid to-
motions obviously designed to manifest disre-
spect to the government, but the court has no
right to refuse its aid to motions for papers
to which the accused may be entitled, and
which may be material in his defence.
These observations are made to slew the
nature of the discretion which may be exsrcis-
ed. 4 it is apparent that the papers are ire
leyant to the case, or that for state reasons they
cannot be introduced into the defence, the SUBJ
psna duces tecusa would be useless but ifthis
is not apparent; if they may be important in
tie defence if they may be safely read at the
trial, would it not be blot in the page which
records the judicial proceedings of this ceun-
try Il, in case of sucn serious import as this,
the accused should be denied the use OF them
The counsel for the Z s. take very differ
ent view OF this subject. and INSIST that mo
ton for process to obtain testimony should be
supported By the same full and explicit proof
of the nature and application of that testimony
which weuid De required on motion which
would delay public justice, which would arrest
the ordinary course of proceeding, or wtich
would in any other manner affect tic rights of
the opposite party. In favor of this position
has been urged the opinion of one whose loss,
as friend and as Judge sincerely deplore,
whose worth / feel, and whose authority
shall at ali times greatly respect. If his Cpl
MON was really opposed to mine should GER
tain!y revise, deliberately revise the Judgment
had formed. But perceive no such opposi-
ton.
In the trials of Smith * Ogden, the court
in which Judge Patterson presided, required
special AFFIDAVIT III support of a motion made
by the counsel for the accused for continu-
ance and for an attachment against witnesses
who had been summoned, and had failed to at
tend.
Had this requisition ola special aflidavtbeen
made as well as q foundation for an attachment,
as fora continuance, the cases would not have
been parallel; because the attachment was
considered by the counsel for the prosecution
merely as mean fol-punishing the contempt,
and court MI GIT certainly require g stronger
testimony to indQce taem to punisha contempt
than wouldbe required to lend its aid to parry
In order TO procure evidence IN cause. But
the proof furnished by the case is most conclu-
sive that the special statements Of the aiHdavIi
were required solely on account Of the cont
nuance.
hltaough the counsel forthe U S. consider
ed the motion for an attachment merely as
mode of Furnishing for csntempt the coanse
for Smith * Ogden considered it as compul
sorry process to bring in wieness,snd moyeda
continuance until they could have the beneh
OF this process. The continuance was to ar
restthe ordinary course of justice. and there
fore, the court required a special affidavit shew
ing the n1ateriality Of the testimony before
this continuance could be granted. PR1MA
FAc1E, the evidence could not apply to the Gaze,
and this was an additional reason for a specia
affidavit. The object Of this special statemea.
was expressly sad to be for continuance