National Republican., 1881-10-22
WITNESSES ALLOWED.
FULL OPINION OF JUSTICE COX.
He Grants the Prayer OF Guiteaus Counsel as to the
Attendance OF Witnesses nt the Cost OF the
GoVernment-Tho Number to Re
Determined Hereafter.

The Criminal Court room was packed
with an interested throng Of spectators yesterday
morning in anticipation that the assassin Guiteau
would be present to hear the decision Of Justice
Cox upon the application Of the counsel for de.
fense for the paymentof witnesses summoned from
distance Of over one hundred miles. II had
been decided, however, that II would not be me-
ccssary to compel the prisoners attendance, and
the spectators were considerably disappointed
As soon as the court had been formally opened
Justice Cox read the following opinion on the brei
submitted by Mr.. scoville. Wednesday;
An application Is made to the court to pass nm
order allowing fees TO witnesses residing at distance
| OF more than one hundred miles from Washington
who nre to be summoned for the defense, together
with the costs ofservcc IL Is made under Section No
$50 ofhe Revised Statutes ofthe District which Is in
| these words. viz:
In all criminal trials the Supreme Court or the
witnesses on behalf Of the defendant may appear
neces nry the fees thereof with the costs OF service
nesses are paid.
This Court, as learn from my brethren and the
older practitioners at this bar, has repeatedly exer.
clsed the power which is now invoked and which
seems TO be clearly conveyed by the general and com
prehcnsivc terms of tho statute. The doubt which /
nave ie on the subject ont OF the ruling Of the
supreme Court In the case OF Page vs. Burnstne, II
quo. by an act of 1861 dune 22) parties to suits In
the courts ofhis District were rendered competent 10
testify upon the trial of their own cases with ex.
ceptions not material TO this question: By an act OF
1863 applying TO the courts of the United es gener.
ally, and not to the District this privilege was denied
Where one OF the parties should be executor nd-
minstraor as TO any transaction with or statement
by the deceased &c. on the 2st OF February, 1871,
Tue act was passed establishing government for tho
District Of Columbia, containing this section, viz;
Ihe Constitution and nll laws OF the United States
which are not locally inapplicabe shall have the
sae force and effect within the District elsewhere
within the United states.
In the PAGE Rurnstine thn gunrorna
Court held that the effect of the last mentioned en-.
actment was TO make the act OF 1866 before mentioned
part OF the law OF the District The doubt which
this case suggested to whether this same pro
vision oflS7 did not put In force In this District an
act OF 1896 applying to the United States courts out
side ofthe District providing that whenever any
person indicted In ofthe United States max es
affidavit setting forth that there witnesses whose
evidence Is material TO his defense: that he
cannot safely go to trial without them
what he expects to prove by each OF them that they
are within the district In which the court Is held or
within one hundred miles of the place of trial. &c.
&C., &c. In such case the costs incurred
by the and the fees of witnesses shall be paid
In the same manner that similar costs and fees are
paid In case OF witnesses subpmnaed In behalf OF the
United Statcs and whether this law comforting the
power In question only to witnesses who are with
IN hundred miles OF the place OF trial. did not by
implication repeal the larger power conferred on the
courts OF this District think, however that can
perceive differences between the question de-
determined In the case cited and the present
one. The restriction upon the partys privilege
OF tesfyng created by the act OF 1866 when made a
part OF the law OF this District being inconsistent with
the unqualified privilege which before prevailed
necessarily operated repeal pro tdnto OF the existing
law On the other hand, there is necessary incon-
sstency between the act OF 1916 In the general statutes
and the act Of 1867 passed for the District OF Columbia
In reference of defendants witnesses The act of isiO
Is not n restrictive but enabling act, and so is
the other. Two acts comforting ut different times
different degrees OF authority, although the
more limited one be later in time, are not neces-
sarily conflicting. They not so in terms If they
are 1t must be because Of implication from the mar
rover act that the larger was designed to be modI.
fed. This implication Is not q necessary one, and
whether II Is proper one In n particular must
depeEd upon Its circumstances Ifthe act OF 1910 had
been enacted anew sngy and especially for the Dis
trict inasmuch as the court of the District already
possessed larger power. 1t would be natural sug-
gestion that such an act would be unneces-
sary, unless II was intended, by impllca-
ton, to curtail the powers already conferred.
But when II Is borne In mind that the act
OF 1871 was sweeping clause, embracing all possible
SUBJECTS and there IL to suppose that any
special attention was given to this particular subj
there Is not the same reason for holding mt the one
act was intended to repeal the oser or that the ex-
isting powers of this court , ere intended TO he chr
tailed And there Is reason why the two acts may
consist together and operate concurrenty viz: that
they provide .diferent relief for different con.
nngeneles. In the case OF witnesses within hun.
dred miles, the court is not in terms clothed
with discretion TO the number of witnesses for the
defense who are TO be paid The court on the show
ing made, may order payment for the witnesses.
This may, perhaps be held obligatory or, If not the
court has simply TO order or refuse. But under the
general power conferred without limit to distance
by the act Of 1867. the court is 10 fix the number OF
witnesses to be allowed for the defense and paid by
the United States. do not think therefore, that the
two acts are Inconsistent II both considered In
force here. But II may be doubted whether the act
OF 1916 Is TO he considered as locally nppli-
cable here. The term district, within which the wit
nesses must he, means undoubtedly the judicial dis.
trc OF the Federal judiciary SYSTEM whereas the Dis
trlct OF Columbia is not judicial district of that
system. II Is unnecessary, however TO discuss the
subject more at length. will consider at chambers
what and how many witnesses ought to be allowed
for the defense at the expense ofthe Government.
In regard to assigning counsel to assist Mr.. SEQ
Vile In the defense the Court said that before
making selection he would like to consult first
with the nrcscnt COunspl