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

fame iIirsreR in ths iervice OF the executive 60
lv.rnu.ent, that is, OF the cabinst council, that
the American people have in the ier,ice of the
eXecnt,'e Of the Ontcd States, and tina. their
duties are as arduons and az unremi.tirs. Yet
it has never hren aledged that iuepGEa nigh,
not be dirsScd TO them.
, Il cannot &c denied, that TO ifiue fubpoeua
to s:rfoS filling the exalted Ration of the
chief magiitrate, is a duty which would be DIFF
pented with much more cheertuly than i,
would be performed but IS 1t he duty the
court can have no choice in the cafe.
| then, as is admitted by the council for the
! United States, a fubpcena may inne TO the Pre-
iident, the accu(vd is entitled TO it of courfe
and whatever difference may exit with refpett
| to the power TO compel the fame obedience to
the proceis, as if il had been directed to a pri-
waite citizen, there exits difference with
! reipee to the right 10 obtain it. The guard
| turnlHied to this~ high officer to protect him
| from being Narrated by vexatious and uunecef-
| fairy iubp9nas, is to be looked for in the con-
duct of a court after thote fubpGnas have ilIu-
ed, not in any circumaance which is TO prccede
| their being ifiued.
! If in being fummoned to give his perfo-
nal attendance to tetify, the law does not
| dtcrimiDate between the PreEdent and pri-
vate citizen, What Foundation s there for
the opinion, that this difference is created
by the circsmtauce that his tettimouy depends
| on A paper in his po1efiion, not on facts
which have come to his knowledge ot;ierwife
than by writing The court can perceive no
Foundation for fuch an opinion. The proprie-
| ~ OF introducing any paper into cafe as tef.
| timgny, mutt depend ON the character of the
paper, not on the character of the perfon who
holds IT. fubpGna Ducs5 1ecUm then mar
iiiue to any pefon to whom an ordinary fub-
po.na may itlne directing him to bring any pa
per OF which the party praying it has right to
avail himielf, as teitimony, if indeed that be
the neceiiary proceis for obtaining the view of
fuch paper.
When this fnbjett was Suddenly introduced,
the court felt fome doubt concerning the pro.
priety OF directing fubpoena to the chief ma
Citrate, and fome donbt ALTO concerning the
proprietY of directing any paper in his poiieili-
on, not public in its nature, TO be exhibited in
court The imprefiiou, thar the queRions
which might arife IN confequeuce Of fuch pro.
ceis, were more proper for dilcufiior on the re-
turn of the projects than on its iliuinp, was
thsn itronS on the mind of the judges, but the
lcircumtpeciion with which they would take
any ttcp, which would in any manner relate to
that high perfonage, prevented their yielding
readily to tho!e mPreiions, and induced the
reqnet that thofe points, If not admitted,
might be argued. The refult of that argument
is confirmation of the impreGion originally
entertained. The court can perceive no legal
objection TO iiluing iubpoena duces secum,
TO any perion whatever, provided, the cafe BE-
fuch as TO iuf:fy the procefs
This is iau TO be motion TO the diicretion
OF the court. This is true. But motion TO
ITS diicretIon, Is a motion not to its ncnati-
en-, but to tsJudsement, and its judgement is
to be guided by found legal principles.
A iubpGna duces tecum, varies from an Or
binary iubpGna only in this, that witnefs is
tummoaed tor the purpofe Of bringing with
hin paper In his cultody. In fome of our fiC-
ter ftates whole fyem of jarifprudeuce is erect
ed on the lame foundation with our own, this
proceis, wa learn, ilues of courfe. In this
Rate IT itiues not absolutely of courfe, but with
leave OF the court. No cafe, however, exits,
AZ is believed, in which the motion has been
founded, on affidavit, in which il has been
denied, or in which il has been oppofed. II
has heen truely obferved, that the oppof.e
party can regularly take no more intereft in the
, awarding iubpGna duces tecur, than in the
awarding an ordinary fubpGla. In either cafe
he may object to any delay, the grant of which,
may be implied 10 granting the fabpena, but
he can no more object regularly to the
} legal means of obtaining teftimony, which
exits IN the mind, than in the papers OF
the perion who may be fummoned. II
no Inconvenience can be fuitained by the
oppohte party, he can only oppofe the mo-
vent the court from making an improper order,
or from burdening fome officer by compelling
an unnecehary attendance. This court would
certainly be very unwilling to fay that upon
fair contraction the: constitutional and legal
right 20 obtain its procefs TO compel the atten-
dance of wtDeiies, does not extend to their
bringing with them fuch papers as may be ma
telia in the defence. The literal ditineion
which eXihs between the cafes, is too much at
tenudted 80 be countenauced in the tribunals of
jut and humane nation. If then, the fab
pCcna be u(ed without enquiry into the man.
Der Of its application, it would feem to trench
on the privileges which the contribution ex-
tends TO the accnftd it would feem to reduce
his means Of defence, within narrower limits
than is defgned by the fundamental law of our
country, If IN orerfrainrd rigor fhould be u.
fed with refPect TO his right, to apply for pa
Pers deemed by himfef to be material. In the
one cafe the accuftd is made the abfolute Judge
= ct the teftimony 70 be fummoned if in tue O.
} Their, he is not TO judge absolutely for himfeIf,
his judgement ought to- be controlled only 70 far
as II il apparent that he means TO exerele his
privileges, not really 10 his own defence, but
for Purpotes which the court ought to difcouB-
: tenance. The court would not lend its aid TO
} nations obvioufy drfgned to manifet dlre.
fpett to the government, but the tourt has no
right to rcfufe its aid to motions for papers TO
7 which the accuied may be entitled and which
may be material in his defence.
Thefe obfsrvations are made TO ihow the ma
ture OF the diicreton which may be exercifed.