Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-06-20

10 us inclination, but to its judgment, an
It's judgment is to be guided by sound
legal principles.
a subpoena duces tecurn, varies from
an ordinary subpoena only in this,
that witness is summoned for the pur-
pose OF bringing with him paper in his
custody. In some of our sister states
whose system of Jurisprudence is erected
on the same foundation with our owns
TIN, process, we learn, issues Of courses
In this state it issues not absolutely OF
course, but with leave Of the court. No
case, however, exists, as is believed, in
which the motion has been founded, on
an affidavit, in which it has been denied,
or IN which ii has been opposed. IL has
been truly observed, that the opposite par
~ can regularly take no more interest
In the awarding subpoena duces tecum,
than in the awarding an ordinary subpoe-
ma. In either case he may object to any
delay, the grant OF which, may be implI-
ed in granting the subpoena, but he caa
no more object regularly TO the legal
means Of obtaining testimony, which ex-
lists in the mind, than in the papers of
the person who may be summoned. If
no inconvenience can be sustained by the
opposite party, he can only oppose the
motion in the character of an amicus pu.
rae, 10 prevent the court from making an
improper order, or from burdening some
officer by compelling an unnecessary at
tendance. This court would certainly be
unwilling to say that upon fair construc.
ton the constitutional and legal right TO
obtain its process to compel the atten.
RI &c
their bringing with them such papers as
may be material in the defence. The Ii.
tcral distinction which exists between The
cases, IS too much attenuated To be coun.
t.EanCed in the tribunals Of just and
humane nation. Ifthen, the subpoena be
used without enquiry into the manner of
its application, it would seem 10 trench
on the privileges which the constitution
/ extends 10 the accused; it would seem
10 reduce his means of defence, within
narrower limits than is designed by The
fundamental law Of our country, if an over
strained rigor should be used with res
peel 70 his right, 10 apply for papers deem-
Jed By himself 10 be materials In the one
case The accused il made the absolute
Judge OF the testimony 10 be summoned {;
if in the other, he is not to Judge abso.
luteiy for himself his judgment ought to
be controlled only so lar as ills apparent
that he means 10 exercise his privileges
Do' really in his own defence, but for pur-
poses which the court ought to dscounte-
nance. The court would not lend its
aid 10 tnotichs obviously designed to ma.
nlfest disresPect to the government, but
the court has no right TO refuse its aid
TO motions for papers 10 which the accu-
sed may be entitled and which may be-
material in his defence.
These observations are fsade to show
the nature of the discretion which may
be exercised. If it is apparent that the
papers are irrcIa,iYe 10 the case, or that
tor state reasons, they cannot be introdu-
ced MAO the defence the subpoena duces
tecum would be useless but ii this is not
apparent ; il they may be important in
the defence it they may be safely read
at the trial; would it not be a blot in the
page which records the judicial procee-
dings of this country, if in a case of such
serious import as this; the accused should
be denied the use Of them?
The counsel for the United States lake
very different view Of this subie6t, aud
Insiat that a motion for process 10 obtain
testimony, should be supported by the
same full and explicit proof of the neture
and application of that testimony, which
would be required on a motion which
would delay public justice (which would
arrest the ordinary course Of proceeding,
or which would in any other manner az.
iect the rights of the opposite party. In ia.
Vor OF this position, has been urged The OPT
lnion OF ona, whose loss as a friend, S, as a
Judge sincerely dsplore; whose worth
feel, whose authority shall at all times
greatly respect. IF his opinion vas real.
ly opposed TO mine, shooid Certainly re-
wise, deliberately revise the Judgment
had formed But perceive nv such OBJ.
position.
In the trials of Smith and Ogden, the
court in which Judge Patterson resided
required special affidavit in suppor, OF a
motion made by the counsel for the accos.
ed Tor a Continuance and for an attachment
against Witnesses who had been Summon
ed and had failed to attend.
Had this requisiion oe special afRda
Wit been made as we'll as a foundation fol
an attachment, as for a Continuance, ths
csses would not have been parslsI; be
cause the ottachmert was considered %,
a