The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-06-17

appear hsfnrr the tiIciasnre is male. II II
dots cortsin amy matter which i wnod he in
prulen. to d:fcIofc, WHICH il isrot lie with of
the executive 60 iicloir. tuch c,atter. If il be
not Immediately and eiieutislly Applicable To
! The point, will, of courfs, he fu1c.eHcd. tits
not eaiy - conceive, that 80 Mach OF tie letter
rs relates 10 the conduit of the accufrd, can be
a iuhiett of delicacY with the PreGdrnt. Eve
| ny thing of this kind, however, will have its
due confederation on the retnrn OF the flhpa.na.
sdly. IL has been allrdged that copy may
be received infead of the original, aud the att
| ot Congrets has been cited in iupport OF this
! propoftion.
J This argument pre-fuppof,s that the letter
required is document filed in the department
| or rate, the reverie of which may be and moft
probably is the fact. Letters sdtlre fled 20 the
Prehdent are mott ufuaily retained by himfclf
They do not belong to any ofthe departments
But were the fatt otherwife, copy might no;
ani:vsr the pTTpofe. The copy would not he
hyperion to the original, and the original itfslf
would not be admitted, if denied, without
proof that it was in the hand writing of the wit
neis. Snppofe the cafe put at the bar, of an
| Indictment OIL this letter for libel, and on it's
production it fhou!d appear not TO br 10 the
| hand writing of the perfon indieted. Would
its being depohted in the department of Rate
make it his writing or fukjea him to the con-
ieqnenoe OF having written it /? Certainly not.
For the purpofe then of filowing the letter to
have been written by particular perlon, the O.
rginal muft be produced and copy could not
be admitted.
| On the confidential nature of this letter.
much has been faid at the bar and authorities
have been produced, which appear to be con.
clulive. Had its contents been orally commu.
Inicated, the perfon to whom the communi.
cations were made could not have executed
himfelf from detailing them 70 far az they
| might be deemed efentia in the defence
Their being in writing gives no additional fame
tIty, the only difference produced by that Cir
cumftance is, that the contents of the paper
mutt be proved by the paper itfelf, not by the
recollection of the witnefs.
Much has been faid about the dfrefped to
the chief magiitrate which is implied by this
motion and by fuch decifon of it as the law
is believed to require.
Thcie obiervaiions will be very truly anfwer-
| ed by the declaration that this court feels ma
ny, perhaps peculiar motives, for mantle ftiRp
as guarded refpef for the chief magifrate of
the union as is compatible with its Official du
ties. To SO beyond thefe would exhibit a
conduct which would deferve fome other ap.
peatioR than the term refpfef
1t Is not tor the court to anticipate the event
OF the preient protecution. Sould it termi-
nate AS is expected on the part of the Unit
ed States, all thofe who are concerned in il
thould certainly regret that paper which the
| accuted believed to be e1enti.l to his defence,
which may, for aught that now appears,
be eiential, had been withheld from him.
| will not fay that this circumstance would
IN any degree tarniih the reputation of the
government, but 1 will fay that it would
Juttiy tarnifh the reputation of the court
WHICH had given its fanetion to its being
withheld. Might / be permitted to utter
one fentiment with refpee to myfesf, if
would be to deplore mott earneftly, the occa-
hon which thoud compel me to look back on
any part of my official conduct with 70 much
teIf-reproach as ihould feel, could declare on
the information now pofefIed, that the ac-
cnted is not entitled 70 the letter in suction,
If 1t mould be really important TO him.
The propriety ofrequirng the anfwer TO this
letter is more OBJECTIONABLE. 1t is alledged that
1t moi probably communicates orders moving
the ituaiion of this country with Spain, which
will be important on the mifdemeanor. If it
contains matter not eifeHtial TO the defence and
the difcloture is uupleafant to the Executive, it
certainly ought not to be difclofcd. This is a
point which will appear on the return.
! he demand of the orders which have been
llflned, and which have been, as is aledeed.
PubIiihcd in the Natchez Gazette, is by no
means mutual. Such documents have often
been produced in the courts of the u. States
and the courts Of England. IF they contain
4 matter intereiting to the nation, the conceal
ment of which is required by the public (afety,
that matter will appear upon the return. If
i they do not aud are material, they may be ex-
! hibited.
1t is fad they cannot be material becaufe
they cannot juftify any unlawful reliance which
may have been employed or meditated by the
accufed.
| Were this admitted, and were it alto admit
ted that fuch reliAance would amount to trea.
ION, the orders might fti be material becaufe
they might tend to weaken the endeavor to
connect fuch overt act with aoy overt aet OF
which this court may take cognzance.
| The court, however, is rather inclined to the
opinion that the fubpena in fuch cafe ought to
be directed to the head of the department in
| whole cuttody the orders are, and the court
NUT iuppofr that the letter Of the frcretary of
the navy which has been ftated by the attorney
for the u. S. TO refer the council for the pri-
Toner to his legal remedy for the copies he de-
fired, alluded to fucb motion as 10 now made.
The affidavit on which the motion is ground
ed has not been noticed. 1t is believed that
I fuch fabPGna as is afked ought TO inue II
there EXIT any res(on for fuppoiing that the
teitimony may be material and ought TO be adj
mitted. 1t is only becaufe the fubpona is ad.
| dreiied to thcfe who adminilter the govern
ment OF this couhtry, that fuch an affidavit was
required as would furnlh probable caufe to be-
lieve that the ieftimoDy was deiired for the real
purpofes Of defence, and not for fuch as this
court will forever difconntenance.