Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-06-20

al statements ofthe affidavit were requir-
ed solely on account OF the continuance.
Although the counsel for the United
States considered the motion for an attach
meAt merely as mode OF Furnishing for
contempt, the counsel for Smith and Og. |
den considered il as compulsory process ]
to bring in witness, and moved a cont. !
nuance until they could have the bene i'll |
of this process. This continuance was 10
arrest the ordinary course of Justice, and
therefore the court required a special al
fdavit, shelving the ma,eriality Of the tes-
timonY before this continuance could be
granted. Prlra iacie evidence could
not apply TO The case, and there was an adj
ditonal reason Cor q special affidavit. The
obieGl Of this special statement was ex.
press'y said TO be for a continuance.
GOLDEN proceeded. A." The present
application is 10 put OF the cause on ac-
count OF the absence of Witnesses, whose
Testimony The defendant ailedges is ma.
terial Ter his defence, ard ~hn have dis.
obeyed the ordinary process of he count.
In compliance with the intimeior from
The bench YESTERDAY, the defendant
has disclosed, by the affidavit which Ihave
just read, the points 20 which he expects
The witnesses who have been summoned
will testify.
" If the court cannot, or will not issue
compulsory process to bring in he wit
nesses who are the oblects, of this appli-
cation, then the cause will not be postpon.
cd.
" Or If il appears to the court that the
matter disclosed by the affidavit might not
be given in evidence if the witnesses were
now here, then we cannot expect that our
motion will be successful. For it would
be absurd to suppose that the court will
postpone the trial on account OF The alb
sence OF witnesses whom they canno, COM
pei TO appear; aud of whose voluntary at
tendance there is too much reason 10 des-
Pair, or on account Of the absence of wit
nesses who if they were before the
court, could not be heard on The trial"
page la
This argument states unequivocaIIy the
purpose Tor which a special affidavit was
required.
The counsel for the u. S. considered
the subject in the same light. After ex-
hIbiting an affidavit for the purpose of
showing that the Witnesses could not pro-
n,
Mr.. Sandlord said Il was decided by the
court yesterday that ii was incumbent on
the defendant in order TO entille himselflo
postponement of the trial, on account of
the absence of these witnesses, To- shew in
what respect they are material for his de.
fence. IL was the opinion of the court
that The general affidavit in common form
would not be sufficient for this purpose;
bot that the particular facts expe cted from
the wItne ses must be disclosed, in order
that the court might, upon those facts,
Judge OF the propriety of granting the
posiponemrrt"--(Page 40
The court frequently treated the SUBJ
jecl su as 10 show The opinion that the spe-
cial affidavit was required only on account
Ofthe continuance but what is conclusive
on this point is, that after deciding the tes-
timony ofthe Witnesses 10 be such as could
not be offered TO the Jury, judge Patter-
son was of opinion hat rule TO shew cause
why an attachment should not issue, ought
10 be granted. He could not have reouir.
ed the materially of the Witnesses to be
shewD on a motion, the success of which
did not in his opinion in any degree de-
pend on that materially; ard which he
- dbtCO dlt6I OGCiIIDR the testimony 10 be
such as The jury ought moi 10 hear. /; is
then most apparent that the opinion of
Judge Patterson has been misunderstood,
and that no inference can possibly be
drawn from il opposed to The principle
which has been laid down by the court.
That principle will therefore be applied to
the present motion.
The first paper required is the letter Of
Gen. WILKINSON, which was referred 10 in
The message OF the presiden; TO congress.
The application Of hat letter TO the case,
is shewr, by the terms in which the com
munication was made. II is a statement
OF the conduc' ofthe accused, made by the
person who is declared TO be The essential
witness against him. The order for pro.
ducing this letter is opposed:
lst: Because it is not material to the
defence.
Ills principle universally acknowledge
ed that party has a right to oppose 10
the testimony Of any witness against him,
the declarations which thai witness has
made at other times on the same subje6t.
IL he possesses this right, he must bring
forward prsof ofthose declarations. This
proof must be obtained before he knows
pOsitiyelv what tho aimee ,.,;u 80. r..