Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-06-13

compulsory process TO obtain his wit |
nesses, applied to different stage of
the proceedings, not to the prelimina
~ measures which had been taken
with regard to Aaron Burr that the
intention of that amendment was TO
secure fair and impartial trial; but
an examination before 4 magistrate or
an enquiry before grand jury was
not a trial. In order TO shew the pre-
maturity of the motion, he asked, if
the President was actually summoned
and attended, what could be done with
his evidence {? 1t could not be used
unless the trial should come on UNI
less the bills Of Indictment should be
found true bills.
He suggested another difficulty,
that no day could be appointed on
which the process should be returna-
bic. He acknowledged that on
motion to commit, prisoner is emit
tied to examine witnesses on his be-
halt; but there was no such motion
now before the court, though it would
, be made if Gen. Wilkinson did not
W. i've IN - iBAOtt'i u CpUlsltl, 4
prisoner may examine Witnesses if
they are present, but has not right
TO have such motion postponed on
! account OF their absence.
Mr.. IWckhGnl on the other side, in
sisted thar the motion was only made
through spirit OF accommodation,
Tor the clerk was bound to issue the
subpoena at the request Of Col. Burr.
He declared thar this WAS ,he first
time he had ever known the doctrine
advanced that a person accused was
not entitled to subpoenas for his wit
nesses. He observed that thc U. S.
had had suhpoenas for witnesses on
their behalf; that the right to the
same process attached TO Col. Burr
attne moment when after having been
seized by !aWless and arbitrary force.
he was brought before the Chief Tus-
tee for examination that in the trial
OF Smith and Ogden at New YORK
winch resembled this, subpoenas were
issued In their favor 20 summon MIR.
Madison and Cen. Dearborn, who
failed to attend, in consequence oi
which an attachment was moved fol
against them that in the arpumen,
oi that case, no person doubted the
power ofthe clerk to issue the subpoe.
mas, bur the court divided on the ques-
hon concerning the attachment. Re
SAID i was true that MIR. HAY Nigh,
or might not send tn bills to the grand
jury bur il n might send them, Col.
u. might want The witnesses in his
defence; that the motion to commit
which had been made the other dav.
was noi reiinquished, bat only suspen-
ded; that the argument relative Ia the
return day OF the process, was of no
weight, for the court could appoint a
day, and had done il in hundreds of
instances and chat # on a motion for
commitment, prisoner cannot have
4 continuance, that is the strongest
reason for his being prepared with ties.
tlmony 10 meet it. He concluded
with saying that the rule that a person
accused had a right to subpoenas for
/ Witnesses in his favor, had been set
lied ever since the days of Magma
Cnarta.
Mr.. Nartin cited some parts of a
report of Cgden's trial to confirm the
observations made by Mr.. Wickham.
Mr.. nay said the gentlemen were
mistaken as to the subpoenas in Og-
| den's case that they were not IS
sued before the indictments were
found that Mr.. Wickham had mis-.
represented his argument in suppos-
ing that he denied the power Of the
clerk to issue suhPoenas in this stage
OF the prosecution; that he had stated
that 1t was the practice to issue them :;
but Practice and right are different
things....He called for any authority
on the point.
Mr.. Wickham contended he was
right as to Ogden's case, because it
proved that subPoenas issued for a
prisoner were not irregular. He ac-
knowledged that no authority could
be produced, for no such question as
that made by Mr.. Hay had ever been
raised before.
Mr.. Hay said he was willing to sub.
NIT the question to the court.
Mr.. Bats read an act of Congress