The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-06-23


Mr.. Nickbau here obfSrved, that the rep-
,le,nar had Intlaeen ths ohiea of the applca-
ton We moi only want this letter, but the
orde' 81 the navy Gypav-mont. They ieN us,
they have the order and are ready 20 produce
II; bnt we donht the idenu.y Of this COPY
Without meaning auy in,p1taiion Upon Mr.
S's'th, w lay that they have fgversl orders
from h's department. Let us fee this order
then, and we may afcertain whether il be the
identical one, which we want. Let us but m
ipect then the order which thefe gentlemen
have in their podeiison, and if h be the one
which we require, the procefs to be iIued may
oe made more liNited in its operation.
Mr.. Hay. The fecretary of the navy incioc.
ed Tins order to me for wha. pnrpofe know
not, unleis 1t was for the fake of fhowine it.
But as am not particularly .inftrutted on this
point, do not conceive myielf authorized to
produce it at prefsns. l will exhibit this pa
per, If the court thinks it material.
Mr.. Wiekbam. We have a. right to apply
to the Prehdent ofthe United States for the CO.
py of any order; but if it is alledged TO be a
Rate paper, it mum not be refuied on the ale-
gationsiof council, but on the oath ofthe officer.
Mr.. NeRas. Is your fubpoena then to be
addrehed to theie other officers?
Mr. Wickbans No, FIR, to the PRECEDENT -
lone, who has all theie offices under his con-
trout. -
Nr' Wsttae. i Will attempt to fatisfy the
court that the council have not grounded their
motion upon this affidavit. Q1ere MIR. McRae
read The affidavi,)-" 6ay be material TO his dc.
fence" Now, fir, how is this had AL
ways underftood before, that all applications
ot this kind mna be foanded upon poEtivc tef-
timony, that the party was not at liberty TO
rate vssuc and Ioofe conicctures but that he
NUT give undoubting anertons and what
wac Till further, that he fhould fwear that
theie documents were material TO his defence.
Inc oath is not, that they may politely be of
ute that they may or may not be material
on this iuhJeet 1t is not merely fufficient to
ADVANCE iome precarious conjeetures; but the
party mutt explicitly ftate his belief, not that
they may be; but that they are material. Nav,
It'll further, in criminal cafes, the party is not
merely required by the court to fay, tha, they
ave material, but to fay ~ qvbat reflect they
are 10. In thsfe points then, this affidavit Is
ehcntialiy detective: 1t certainly does not
tate, Aozv theie documents are material: it
does not even ai,ert that they are material; but
only advances conjecture, that they NAV be
f..
believe, FIR, on the authority of a deci6on
OF the court OF the United States, in the cafe
OF Cooper of Northumberland, 70. Is of the
Report OF the trial) it may be flown, that the
Prefent party has no authority to demand theie
papers:
And, FIR, the cafe of Cooper was nsteTialv
d'itlngulihed from the one before the court. in
this important feature (: that the public Off
GERS were in the very city and on the very
iPot, where the trial was conducted. The feat
OF government, was then at Philadelphia and
not At Warrington. This cafe, fir, was well
known to every individual, who was interefted
IN the politics OF thoic times. 1t is fufficient
merely TO repeat, that Cooper was fued for
libel that he put in two pleas 1T. not guilt
ty: end publication and that in order to
import his plea of publication, he applied to
the court for fubposna on the Prefdent of the
u S. to obtain certain public documents. And
what did the judge decide
(OnliHed for eva0t ofroom.)
But, FIR, ftrong as that declaration is in orr
favour, and though it completely goes to de.
P'ive the priioner OF the privilege which he
claims and though it is to be confdered as
law in the courts of the u. S.. yet, hr, abhor.
ring any thing that looks like perfecution, we
ihould have obtained to flielter ourfelves I'm.
der this abomnabe precedent. We deGre that
the prifoner may pof1efs all the information
winch is necefIary to his defence. 1t is nv
fncere with, in This as well as in every other
point, TO give him all the ailiftance, which evil
dence can afford. Prom our fouls, do we alb
hor every, the fighteft thing which wears the
appearance of periecution fir, / have only
iN"A tb'o autHOiitJ IL ibOW, tHdt we might
FLY have refufed this demand, under one of the
precedents efabIifhed by court of the U. S.
Mr.. Martin has iaid, that no fecrets ought to
| be withheld from court of juhice, excent
thofe which have been confdentially entrufed
TO legal council that this is the only except.
on to the general doctrine of evidence ; and tha,
in all other cafes, the witnefs may be compel
led to give information. The exception recor-
nlied by Mr.. Martin, certainly does exia bur
Mr.. M. has taken ground too narrow, nor is
that the only cafe where the witnefs is permit.
ted to keep his Information TO himielf. Sir
it confidential communication has been made
to Thomas Jeferlon, he is not refponible to
court OF juftce for its contents. / fpeak, fir
with dueiuomilion to the court but ground
my opinion principally oA a decjfion OF the f,.
preme court ofthe u. S. My petition is, that
If communication s conidentIaly made fo
Thomas Jeferfon, he is not bound to appear
before this or any other court, to dIfclofe il
i is unnecehary 20 collect arguments TO de.
monfrate the foundnofs of the policy on which
this principle is contributed. That would he
al esiy talk But, fir, inftead of waiting nv
time and the time Of The coart upon The policy
of the meainre, will refer you at once to
precedent. In the cafe of Marbury VS.. Ma.
dion in the fuprerne court of the u. S. Mr..
Lincoln the attorney general was calico into
couft, and 1t was vshemeutly con,ended that
he might be compelled to give Information, like
any other citizen. MIR. Lincoln aa,ed bis OBJ
jeetioas in the following terms
(Omitfsd/or qUaat ofrosuJ