V
Ours are the plans of fair delightful peace,
UnwarpM by party rage, to live like Brothers.
- r . r-.- " r--. 1 -c- e-; Jil.UWll.-J
,4
Thursday, July 2, 1807.
No. 406.
Vol.. VIII.
, ;ot - 0H
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ft
. AND "
North-Carolina SMeGazetpk
Opinion of the Circuit Court
on the motion to issue a
SUBPOENA DUCES TECUM
ier the
President of the U. States.
The objecf f the motion now to
he decided is to obtain copies ot cer
tain orders understood to have been
issued to the land and naval officers
ofthe U. S. for the apprehension of
the accused ; and an original letter
from Gen. Wilkinson to the Presi
dent in relation to the accused, with
the answer of the President to thatj
let er, which papers are supposed to
be material to the defence. ; As the
legal mode of effecting this object,
a motion is made for a subpeena du
ces tecum to be directed to the Pre
sident of the U. States.
In, opposition to this motion a pre
HmirjSrffpbint has been made by the
counsellor the prosecution. It has
been insisted Dy mem .u-u, u.u u.c
grand j ury sh all h .vc found a true
bill, the party accused is not entitled
to the subpoena, or to the aid of the
court to obtain his testimony.
It will not be said, that this opinion
'.s now for the first time advanced in
the U. States ; but certainly,it now is
for the first time advanced in Vir
ginia. So far back as any knowledge
of our jurisprudence is possessed, the
uniform practice of this country has
been to permit any individual who ;
was charged with any crime,, topic- :
pare for his defence, and to obtain j
the process of the court, for the pur- j
pose of enabling him so to do. This j
practice is as convenient, and is as j
consonant to justice av it is to hu
manity. It prevents in a great mea
sure, those delays which are never
desirable, which frequently occasion
the loss of testimony, and which are
often oppressive, that would be the
:r.i;vitab!c consequence of withhold-;
:ng from a prisoner he process ot ,
the court, until the indictment a
gainst him was found by a grand
jury. The right of an accused per
son to the process of the court, to
compel the attendance of witnesses
seems to follow necessarily from the
right to examine those witnesses, and
wherever the right exists, it would
be reasonable that it should be ac
companied with the means cf ren
dering it effectual. It is not doubted,
that. a person who appears before a
court, under a recognizance, must
expect that a bill will be preferred
against him, or that a question con
cerning the continuance of a, recog
nizance, wiil be brought before the
court. In the first ever.
t, he has the j
ngT ana it is p
np3 his
duty to ;
prepare, for his oeer :e at the trial.
In the second event,. it will not be
denied that he possesses the right to
examine witnesses on the question
.of continuing his recognizance. In
ci'.her cac, it would teem reasona
ble that he should be entitled to the
process ol the court, to proxmYe the
attendance of his witnesses.
The genius and character of our
laws and usages, are friendly, not to
condemnation at all events, but to a
fair and impartial trial; and they
consequently allow to the accused
the right of prtpAnng the means to
sccifre such a trial. The objection
that the attorney; may refuse sto pro
ceed at tlits time, and that no day is
fixed for-the trial, if he should pro
ceed, presents no real difficulty. It
would be a very msnf.icicnt excuse to
a prisoner who itul'Tailed to prepare
ir.v his trial, to sy that he was not
certain the attorney would proceed
against him. Had the indictment
been found at the last term, it would
have been in some measure uncer
tain whether there would be a trial
at this, and still more uncertain on
what day that tria' would t.ike place ;
yet subpeenas v3 dd have issued re
t imabie to the first day of the term,
and if, after its commencement, other
siibpamas ha:l been required, they
v:ould hive issued returnable as the
court might direct. In fact all pro
cess to which the law has affixed no
certain returu day, is made returna
ble at the discretion of the courf.
General principles then, and ge
neral practice, Jare in favor "of the
fi.;ht of every accused person, so soon
as his case is in court, to prepare for
his defence, and to receive the aid of
tlie process of the court to compel
attendance 'f his witnesses.
The constitution laws of the U.
States will now be considered for the
purpose of ascertaining how they bear
upon the question.
The 8th amendment to the consti
tution gives to the accused in all cri
minal prosecutions, a right to a spee
dy and public trial,and to compulsory
process for obtaining witnesses in his
favor. The right given by this ar
ticle must be deemed sacied by the
courts, and . the article should be so
construed as to be something more
than a dead letter. What can more
effectually elude the right to a spee
ey trial than the declaration that the
acctised shitll bedisabledTrom pre
paring ' fWit, until an indictment
shall be found against him ? It is
cJrjUiinly much more in the true spj
rif'of the provision which secures to
the accused a speedy trial, that hi
should have the benefit of the provi
sion, which entitles him to a . com
pulsory process as soon as he is bro't !
into court.
'This observation derives addition
al force from a consideration of the
manner in which this subject has
been contemplated by Congress. It
is obvioii? by the intention of the
national legislature that in all ca
pital cases, the accused shall be
entitled to process before indictment
found. The words of the law are,
and every such person or per
s6ns accrued or indicted for the
crimes aforesaid (that is of trea
son or any other capital offence)
shall be allowed and admitted in his
aid office to make any proof that he
or they can produce, by lawful wit
nesses, and shall have the Ills c, pro
cess of the court where he or they
shall be tried, tocompel his or their
witnesses to appear at his or their
trial, as is usually granted to compel
witnesses to appear ca the prosecu
tion against them."
This provision is made for persons
'accused or indicted. From the im
perfection of human language, it fre- .
ciuentlv happens that sentences which !
night to be the most explicit, are of
!; doubtful construction, and in this case j
! the words " accu' ed or indicted" I
may be onstrucd to be synonimous, 1
to describe a person in the same situa-
tion, or to apply to different stages of
'lie prosecution. The word or may
betaken in a conjunctive or a dis
junciive sense. A reason for under
standing them -in the latter sens?;, is
furnished by the section itself; It
commences with declaring, that any
person who shall be accused and in
dicted of treason, shall have a copy
of the indictment, and at least thre
iays before his trial. This right is
obviously to be enjoyed after an in
dictment, and therefore the word
are accused and indicted." So will,
rc-pect to the subject clause which
authorises a parly to make his de
fence and directs the court oo his ap
plication' to assign him counsel.
The words relate Ao any person "ac
custu ana lnaictea. ivui wnen me
section proceeds to authorize the com
pulsory pieces for witnesses, the
vh rascal ;gy is changed. The words
are " and every such person or per
sons accused or indicted," Ecc. there
by adapting the expression to the si
tuation of an accused person both
before and after indictment. It is to
be remarked too, that the person so
accused cr indicted is to have " the
iike process to compel his or their
witnesses to appear at his or their
trial, as is usually granted to com
pel witnesses to appear on the prose
cution against them." i he fair con
struction ofthis clause would seem to
be that with respect to the means of j
compelling the attendance of wit
nesses to be furnished by the court,
the prosecution and defence are pla
ced by the law on equal ground.
the right ofthe prosecutor to take put
subpoenas orto avail himself of the
aid of the court, in any stage ofthe
proceedings previous to the indict
ment, is not controverted. This act
of Congress, it is true, applies only
to capital cases ; but persons charg
ed with offences not capital have a
constitutional and a legal right to ex
amine their testimony, and this, ac:
ought to be considered as declara
tory of the common law in the cases
where this constitutional right exists.
Upon immemorial usage then, and
uporv-what is deemed a sound con
struction of the constitution and law
i of the land, the ccur: is of opinion
that any person charged with a crime
in the courts of the United States,
has a rigrit before, as well as after
indictment, to the process of the
court to compel the attendance of hs
witnesses. Muchv delay and much
inconvenience might be avoided by j
this construction, no mischief which j
is perceivable can be produced by it.
The process would only issue, when
according to the ordinary course of
proceeding the indictment would be
tried at the term to which the sub
poena is made returnable, so that it
becomes incumbent on the accused
to be ready for his trial at that term.
This point being disposed of, it re
mains to enquire whether a Subpana
Duces Tecum can be directed to the
President ofthe U. States, and whi
ther it ought to be directed in this
case.
This question originally consisted
of two parts. It was at first doubled
whether a subpoena could issue in
anv case to the chief magistrate of
the nation ; and if it could, whether
that subpoena could do more than di
rect his personal attendance ; whe
ther it could direct him to bring with
him a paper which was to constitute
the gist of his testimony.
While the argument was opening,
the attorney for the U. States avow
ed his opinion that a general subpoe
na might issue to the President, Uu
not a 'subpoena Due s Tecum. This
terminated the argument on that rart
of the question. The court, howe
ver, has thought it necessary to stale
briefly. the foundation of its opinion
that such a subpc;ia may issnc.
In the provisions ot the constitu
tion, and ofthe statute which gave)
to the accused a right to the com
pulsory process of the court there is
no exception whatever. The nbl -gation,
therefore, of those provision1
'S general ; and it would seem that
no person could claim an exemption
fom them, but one who would not be
a witness. If an exception to the ge
neral principle exists, it must bo look
ed for in the law of evidence. The
exceptions furnished bv the law of
eidence (with one only reservation)!
v) lar as thty are personal, are o:
hose oi.lv whose testimony could
not be received. The single reser
vation alluded to, is the case of the
King. Although he may perhaps
give testimony, it is said to b: incom
patible wi h h?s dignity to appear un
xcv the process ofthe court. Ofthe
many points cf difference which ex
ist between the first magistrate of
the U. States,, in respect to the per
sonal dignity conferred on them -by
the constitution of their respective
nations, the court will only select
and mention two. It is a principle
of (he English constitution that the
King can do no wrong, that no blame
can be imputed to him, that he can
not be named in debate.
By the constitution of the United
States, the President as well as every
otf.er officer of the government, may
be impeached, and may be removed
on conviction or h.gh crimes and
misdemeanors.
By the constitution of G. Britain
the crown is hereditary, and the mo
narch can never become a subject.
By that ofthe U- States, the Pre
sident is elected from the mass v,f the
people, and on the expiration of the
itimc for which he is elected, returns,
to the mass of the pcople'again.
, Hdw essentially i his difference of
circumstances must vary the p'dicry
of the laws of the two countries, in
reference to the dignity of the exe
cutive chief, will be perceived by eve
ry person. In this respect, the first
magistrate of the union may more
properly be likened to the first ma
gistrate of a state at any rate, un
der the former confederation ; and
it is not known ever to have been
doubted, that the chief magistrate of
a state might be served with a sub
poena ad testiucandum.
If in any court of the U. S. it has
ever been decided, that a subpeena
cannot issue to the President, that
decision is unknown to this court. .
It upon any principle, the Presi
dent could be construed to stand ex
empt from the general provisions ot
the constitution, it -.would be because
nis duties as c.hiet magistrate de
mand his whole, time tor national
object. But it is apparent that this
demand is. not unremitting, and if it
should exist at the lime when his at
tendance on a court is required, it
would be shewn on the return ofthe
subpeena, and would rather consti
tute a reason for not obeying the
process of the court, than a reason
against its being issued. In point
of fact it cannot be doubted, that the
people of England have the same in
terest in the service of executive
government, that is, of tk$ cabinet
council, tlut the American people
have in the service of the executive
of the; United States, and that their
dmies are as arduous Sc as unremit
ting. Yet it has never been alledg
ed that a subpoena might not be di
rected to them.
It cannot be denied, that to issue
a subpena to a person filling the ex
alted station of the chief magistrate,
is a duty which would be dispensed
with much more cheerfully than it
would be performed ; but if it be a
du'.y, the fcourt can have no choice
in the case.
If then, as is admitted by the coun
sel for the U. States a subpoena may
issue to the President, the accused
is entitled to it of course ; nd
whatever difference mav exist ivith.j
respect to the power to compel the
same obedience to the process, as if
it had been directed to a private ci
tizen, there exists no difference with
respect to ihe power to obtain. The
guard furnished to this high officer
to protect him from being harrassed
by vexatious and unnecessary sub
penas, is to be looked for in the con
duct ofa court after those subpenas
have issued, and not in any circum
stances which is to precede their be
ing issued.
If in being summoned to give his
personal attendance to testify, the law
does not discriminate bttweentle
Piesidentsind a private citizen,tyit
ioundationfs there for the opinion,
rhat this difference is created bv the
circumstance thai his testimony de
pends on a paper in his possession,
not on facts which have come to his
knowledge otherwise th.m by wri
ting ? 'The court can perceive no
f mndai ion for such an opinion. .The
propriety of introducing any paper
into a case as testimony, must de-J
pcwl on the character of the paper,
not on the character of the person j
who holds it. Aj subpena DucesTc- j
cum thep may issue to any person to
whom ah .ortiinaiy subpena may is
sue, directing him to bring any pa
per of uhich the party praying it has
a right to avail himself, as testimo
ny, if indeed that be the necessary
process for obtaining the view cf such
paper.
When this subject was suddenly
introduced, the court felt some doubt
concerning the propriety of direct-
u suuiJLiiii io ine cmei mag isT rate, i
and some. doubt also concerning the
propriety of directing any paper in
his possession, not public in its na
ture, to be exhibited in court. The
impiessiott that the questions which
might arise in consequence of such
process, were more proper for dis-!
cussi on on the return of the process!
than on its issuing, was then strong I
on themir.dof tlie judgesjbutthe cir- jj
cumspection with which they would!;
take any step which would- in any
manner relate to that high person
age, prevented the'r yieldmc readily
to those impressions, and induced
the request that those poin's, if not !
admitted, might; be argued. The j
result of that argument is a confir-'
mation of the impression originally
entertained. The court can perceive ; deplore whose worth I feel, and
no legal objection to issuing a sub-j j whose autrfority I shall at all times
pena duces tecum, to any person !j greatly respect. If his opinion was
whatever, provided the case be such 'j really opposed to mine, I should' cer
as to justify the process. jtainly revise, deliberately revise,
This is said to be a motion to tire i the judgment : But I perceive no
! discretion ofthe court. This is true.
But a motion to its discretion, is a In the trials of Smith and Ogden,
motion not to its inclination, but to toe court in which Judge Patterson
its judgment, and'its judgment is tojiresided, required a special affidavit
be guided by sound legal principefip'pport of a motion made by the
A subpena clftces tecum, varies frVonnsel for the accused for a conti
an ordinary subpena only in thisfif nuance, and for an 'attachment against
that a witness is summoned for the 1 wfme53.es who had been summoned
purpose of bringing with him a pa- j! and 'had failed to attend,
per in his custody. In some of our jj , Had this requisition of a special
sister states, whose system of juris- j affidavit been made as well a iounc'a
prudence is erected on the same ; : tion of an attachment, as for a ecu-,
founciaiion with our own, this pro- j ' tinuance, the casei would not have'
cess we learn, issues of course. In jj been parvailel ; because the attach
this s ate it issues not only of course, ; ' mer.t was considered by the counsel
but with leave of the court. To
ce, however, exist1-, as is believed,
in which the motion hai been found-
ed on an affidavit, in which it has
been defied, or in which. it h,as been
opposed. . It has been truly observed,
that the opposite party can regularly
take no more inteesHn tfce award
ing a subpena duels tecum, lhan in
the awarding an ordinary siibpeiia.
In either case he may object to any
delay, the grant of which may be
implied in granting the subpena, ,but
he can no more object regularly to
the legal means of obtaining testi
mony which exists h tje rnrnd,
than in the papers cf the person who
may be summoned. If no inconve-t,
nience can be sustained by the-pppo
site party, he can only oppose , the
motion in the character of an amicus
curiic. to prevent the court from ma
king an improper order, or fr.om .iiur
deningj some officer by. compelling
an unnecessary attendance. . This'
couFt wouid certainly be very Unwil
ling to sayi that upon fair construe
tion the constitutional and Jegal right
to obtain its process' to compel the
attendance of witnesses, does not ex-
jj tend to their bringing with ther4
such papers as may be material in
the defence. The literal distinction
between the cases, .is ,tco much
attenuated to be countenanced in the
tribunals of a just and humane na
tion. If then the subpena be used
wstli or without enquiry into the ma'ni
nerofits application, it would seem
to trench on the privileges which the
constitution extends to the accused ;
it would seem to reduce his means
of defence, within narrower limits
than is designed by the fundamental
law of curfcountry, if an overstrained
rigor sdiould be used with respect io
his right, to apply for papers deem
ed by himself to. be material. In the
one cae the accused is made the ab
solute judge of the testimony to be;
summoned ; if in ihe other, he s
noMo judge absolutely for himself,
his judgment ought to be contrculecl
only , so far as. it is apparent that he
means to exercise ins privileges, not
merely in his own defence, but lor
purposes which the court ought to
discountenance. The court would
not lend its aid to motions obviously
designed to manifest disrespect to
the government, but the court has'
no right to refuse its aid to moiions
for papers to ..which the. accused may
be entitled and which may be mate
rial in his defence.
T h e s c cb ?e r va'ti o n s a r e m ad e to
shew the nature of the discretion
which may be exercised. If it is ap-,
parent that the papers are irrelative
to the case, cr that for state reasons
they cannot be introduced into the
defence ; the subpena duces tecum
would be useless ; but if this is not
apparent ; if they may be important
in the defence ; if they may be safe
ly read at the trial ; would' i.t not be
a blot in the pa'ge vdiich iccords thu
judicial proceedings of this country,
it in a case ot such serious impo;t
as this, the accused should be de
nied the use of them ?
The counsel for the U. S. take
very different views cf this subject,
and insiatthata motion for. process
to obtarn testimony, should be sup-
ported by ihe same full and explir it
proof of the nature and application of
that testimony, which would dtlav
public justice ; which would arrest
the ordinary course of proceeding,'
or which would in any other manner
affect the rights of thef)pposite naity.
In favor of this position, hits' been
u ged the opinion of one. whose loss
as a friend and as a-judge, I sincerely
: ! such opposition.
. for the prosecution me-dy as a mean
of punishing the contempt, and a
i courtraigh certainly require stronger
:
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