Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-06-17

Such person or persons accused or ind;,,t
ed OF The crimes aforesaid, (thst is Oft a..
son or any other capital ofence) shall be al.
lowed x admitted in his said defence to make
any proof that he or they can produce, Inv
lawful witness or witnesses, and shall hovs.
the like process of the court where he or
they shall be tried, to compel his or their
witnesses to appear at his or their trial,
as is usually granted to compel witnesyr,
10 appear on the prosecution against them"
This provision is made for persons ac-
cused or indicted. From the imDerCect;-
on OF human language it frequently han
pens that sentences which ought to he The
most explicit are of doubtful Construction
and IN this case the words w;ccused o..
indicted" may be construed to he synoni-
NOUS 70 describe person in the same ST.
tuaton, or to apply to different sta~cs Of
the prosecution. The word or may Ia.
taken lii conjunctive or a distinctive
sense. a reason for understanding chem
in the latter sense is furnished bv the sec
ton itself. 1t commences with tIeclarin-
that any person who shall be accused and
indicted OF treason shall have a cory the
indictment, &c. at least days before his
trlal. This right is obviously to be enioy-
ed after an indictment and therefore the
words are "accused and indcted.' So
with respect to the subsequent clause which
authorises party to make hi, defence and
directs the court on his application TO as
sign him Counsel. The words relate ia
any person accused and indie, ed. But
when the section proceeds to authorize the
compulsory process FOR witnesses, the phra-
seoiogy is changed. The words are ssand
every such person or persons accused or.
indicted, &c" thereby adapting the ex-
preston to the situation of an accused per
son both before and after Indictment. If
is to be remarked too that the person so ac-
cused or indicted is to have 4" the like nro-
cess to compel his or their Witnesses To
appear at his or their trial as is usuallv
granted to compel witnesses to appear on
the prosecution against them" The fair
construction OF this clause would seem tn
be that with respect TO the means of COM
pelhng the attendance of witnesses to be
furnished by the court the prosecution and
defence are placed by the law on equal
ground ne right OF the prosecutor to
take out subpoenas or TO avail himself of
the aid of the court in any stage of the nro-
ceedings previous TO the Indictment is not
C ntroverted. This act OF Congress il ist.ue.
applies only to capital cases but persons
charged with offences not capital have a
constitutional and legal right to examine
their testimony, and this act ought to be
considered as declaratory of the common
law in cases where this constitutional
right exists.
Upon immemorial usage then, and
upon what is deemed sound constructi-
on OF the constitution and law of the land.
the court is of opinion that any person
charged with crime in the courts of the
United States has right, before as well
as after indictment, to the process of the
court To compel the attendance OF his Wit,
nesses. Much delay and much inconveni.
edce may be avoided by this construction.
no mischief which IS perceived can be pro.
duced by II. The process would only is
sue when according to the ordinary course
of proceeding the indictment Womb he
tried at the term to which the subpoena
Is made returnable, SO that it becomes in
cumbent on the accused to be ready for
trial at that term.
This point being disposed Of, it remains
to enquire whether S46hocna duces te-
cum can be directed to the President of
the United States, and whether it oughc
to be directed in this case.
This question originally consisted oftWo
parts. 1t was at first doubted whether a
subpoena could issue in any case 10 the
chief magistrate of the nation and is Il
could whether that subpoena could do
more than direct his personal attendance
whether it could direct him to bring with
him paper which was to constitute the
gist OF his testimony.
Winnie the argument was opening the at.
torney for the United States ayowed his
opinion that general subpoena might is
sue to the President but not a subpoen,
duccS team. This terminated the arm
ment on that part of the question. Ihe
court, however, has thought 1t necessary
to state briefly the foundation of its opinion
that such a subpoena may issue.
In the provisions of the constitution and
OF the statute, which give to the accused
right to the compulsory process of the
court, there is no exception whatever
The obligation therefore ofthose provision,
is general; and II would seem that mo
person could claim an exemption from
them, but one who would not be witness
At any rate, if an exception to the general
exists, it must be looked for in
the law of evidence, The exceptions fur
nished by the law Of evidence with one on
ly resHrvation) so far as they are personal.
are OF those only whose testimony could not
be received. The single reservation alluded
to is the case of the king. Altho'hc may per-
haps 8 We estimony, it is said to lie in.
compatible with his dignity to appear I'M
dert process Of the court. Of'the MANY
points of difference which exist between
the first Magistrate in England and the
first Magistrate of the u. Stntes. in rec
peCt OF the personal dignity Conferred ON