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

nad been fu'1'mcncd and had failed to attend.
Had this rec lih;;ca OF 4 ipeCidl atii'iavt hrsa
made as we'll foundation for an attachment,
rs tor continuance, the cafes wonl,l not have
| oetn parallels becauir the attachment MAS
co.tidered by the coun.ei for the proircu,on
merely as a mean of puniihins the contempt,
and acourt might certainly require Rronser
teitrnony to induce them to puniih a contempt
| tsau would be required to lend its aid to par
| ty IN order to procure evidence in caufe. But
| the proof eurnilhed by the cafe is mott conclu.
fi'e, that the fpecial flatements Of the affidavit
! were required foley on account of the continu-
ance.
Although the counfel for the United States
considered the motion for an attachment mere
F., ~ as mode OF puniihing rr contempt, the
council fur Smith and Ogden conhdered it as
| compufory proceis to bring in witnefs, and
moved a continuance until they could have the
| benefit of this procefs. The continuance was
| to arret the ordinary courfe ofjuitice, s. there
tore the court required fpecial affidavit, thew
ing the materiali,y of the teamony before this
continuance could be granted. Prima faci9
| evidence could not apply 10 the cafe, and
there was An additional reaion for ipeciai at
hdavit. The obiea of this fpecia Ratemcnt
was expressly iad to be for a continuance.
| GOLDEN proceeded. "The preient appl.
cation is to put off the caufe ON account of the
abience of witneGrs, whole tsttinony the de-
PENDANT alledges is material for his defence, and
who have diobeyed the ordinary procefs of
the court. In compliance with the init.
! nation from the bench yeiterday, the defeu
dant has difclofed, by the afidavi, which |
have jutt read, the points to which he expects
the witneiscs who have been iummoned will ,ef-
tifyI
the court cannot, or will not iTue COM
Pultory procefs to bring in the witnei1cs who
are the objects of this application, then the
caufe will not be poftponed.
| Or IT it appears to the court tn At the m IT.
FER dlsclofed by the affidavit might not be given
in evidence if the witnelcs were now here,
then we Cannot expect that our motion will be
iucceisfuI. For it would be abfuri to fuppofe
that the court will pottpone he trial on account
OF the abience of witnefies whom they cannot
comPei to appear and of whole voluntary at
tcndanee there is too much reafon to defpair
or on account of the abfence of witnefIes who
1t they were before the court, could not be
heard On the trial. (PageIeO
This argument ftates unequivocally the pur.
pole for which fpecial affidavit was required
The council for the U. S. confiderrd the
tubjeef in the fame light. After exhibiting an
affidavit for the purpofc Of flowing that the
witnsies could not probably poiIefs any ma
teral information, Mr. Sanford faid " II was
decided by the court yefterday that it wa. in.
cumbent on the defendant, in order to cntitle
himieit TO pottponemcnt of the trial, on &C.
count OF the abtence ofithefe witneiTes, TO new
IN what refpeet they are material for his de.
fence. II was the opinion of the court that
the general affidavit in common fo,m would
not be efficient for this purpofe but that the
particular facts expected from the witurffes
mutt be difclofed, in order that the court might
upon thofe facts, judge of the propriety OF
granting the poitponement." page o7.)
The court frequently treated the fubie6a 70 az
to fiiow the opinion that the fpecia affidavit,
! was required only on account of the continu.
ance but what is conclufve on this point is,
that after deciding the tefimony of the witDef
les to De iuch as could not be offered to the ju-
ry, Judge Patterion was of opinion, that 4
rule to ihow caufe why an attachment ihoud
not ihue ought to be granted. He could not
have required the materiality of the wtnefs to
be hlown on a motion, the fuco eis of which
did not IN his opinion, in any degree depend
on that materially; and which he granted af
ter deciding the teftimony to be fuch as the
jury ought not TO hear. 1t is then mott appa
rent that the opinion of Judge Patterfon ha.
been miiunderftood, and that no inference car
pofhbiy be drawn from it, oppofed to the prn
ciple which has been laid down by the court
That principle will therefore be applied to the
prefent motion.
The firft paper required, is the letter of Gen
Wilkinfon, which was referred to iu the NET
fage of the PRECEDENT to CongrefS. The app
cation of that letter TO the cafe, is fhown by
the terms in which the communication wa.
made. 1t IS A ftatemeRt of the conduct of tbe
accuied, made by the perion who is declared
10 be the ehenta witnefs againft him. The
order for producing this letter is oppofcd,
III =: Becdufe it is not material to the defence
1t is principle universally acknowledged
that party has right to oppofe to the tefti
mony of any witnefs againtt him, the declare.
! tons which that witnefs has made at Other
times on the fame fubeGt. If he po1enes thi:
right, he NUT bring forward proof Of thofe de.
c'arations. This proof NUT be obtained be.
fore he knows poftiveiy what the witnefs viii
fay, for if he waits until the witnefs has been
heard at the trial. it is TOO late to meet him with
his former declarations. Thofe former decla
rations, therefore, coBfitutc MATS Of teftimony
which a party has right to obtain by way o
precautou, and the pofiive neceiiity Of which
can only he decided at the trial.
1t is with fome furprZe an argument wa.
heard from the bar, inhnuatine that the aware
of a itbpena on this ground, gave the coun.
tenance OF the court TO fuipciops, affecting the
veracity of a witnefS who 10 to appear on the
part of the United States. This obferyation
could not have been confidered. In contefs OF
this delcription the court takes no part the
court has no right TO take a part. Every per.
fen may give in evidence, teitimony fuch as /.
| ltated in this cafe. What would be the feelings
of the prosecutor, if in this cafe the acculed
fhould produce witnef5 completely exculpat.
s,.. ,f.iC a a. r. o.