THE TRIAL

OF

WILLIAM S. SMITH.

THE court met and opened at eleven o'clock. Present, the Honorable William Patterson, one of the judges of the supreme court of the United States, and The Honorable Matthias B. Talmadge, judge of the district of New-York.

Counsel for the Prosecution.

Nathan Sanford, district attorney of the United States; and Pierpoint Edwards.

Counsel for the Defendant.

Messrs. Washington Morton, Cadwallader D. Colden, Josiah Ogden Hoffman, Thomas A. Emmet, Richard Hari

son.

The names of about sixty persons were called over at the request of the district attorney, as witnesses on the part of the United States. Colden, in behalf of the defendant, gave a list of witnesses to the clerk, whose names were called at his request, as follows:

Colden read a subpoena, directed to James Madison, esquire, whereby he was commanded to appear at the present circuit court, to testify in behalf of the defendant. Also the copy of the subpœna ticket, and read an affidavit in the words following:

Charles Lindsey, at

City and County of New-York, ss. torney at law, being duly sworn, saith, that on the twentyeighth day of May last he served on James Madison the writ of subpana hereunto annexed, and also at the same time delivered to the said James Madison a ticket of subpoena, a true and perfect copy whereof is also hereunto annexed, and this deponent further saith that at the time of shewing the said writ and of leaving the said ticket, he offered to pay to the said James his reasonable expenses, and tendered to him twenty dollars which the said James would not accept, saying, " that "he would not take them now, and that it was unnecessary to say any thing about them;" and this deponent further saith, that the said James made no objection to the quantity or quality of the money so tendered as aforesaid to the said James, and further this deponent saith not. Dated the 16th day of June 1806.

σε

CHARLES LINDSEY.

Sworn the 17th day of June, 1806.

MATTHIAS B. TALMADGE.

Colden stated that he had in his hand subpoenas for the other witnesses who did not attend, with like proof of service on them. That the present application to the court, however, would only relate to Mr. Madison, Mr. Smith, Mr. Wagner, and Mr. Thornton. As to the three last the documents he had to offer, were mutatis mutandis, the same as those he had read relative to Mr. Madison; it would therefore be unnecessary to trouble the court with reading them; he should put them on file and the decision of the court on

the documents that had been read he presumed would be allowed should govern in the other cases.

He trusted that the court would not order the trial to proceed until the defendant has had the compulsory process of the court, to bring up the witnesses who have disobeyed the subpoena. And that compulsory process, he presumed, must be an attachment for which, in behalf of the defendant, he now applied. He did not move for this process merely as a means of bringing in the witnesses to answer for their contempt in disobedience of the ordinary summons of the court; but he applied for it, as for that compulsory process which, by the constitution of the United States, every person accused was entitled to in order to bring in his witness to testify on his trial. (Here he read the 8th article of the amendments of the constitution of the United States.) He also read the 6th section of the act of congress of the 2d May, 1793, by which it is provided, that "Subpoenas for witnes66 ses, who may be required to attend a circuit court of the "United States, in any district hereof, may run into any "other district."

Colden also read the 14th section, of the act of 24th September, 1789, which enacts, "that the courts of the Uni❝ted States shall have power to issue writs of scire facias, "habeas corpus, and all other writs not specially provided "for by statute which may be necessary for the exercise of "their respective jurisdictions, and agreeable to the princi"ples and usages of law." This present application, said he, is sanctioned by the constitution, and the laws of our country. There can be no doubt of the power of the court to award the process, for which we apply, nor can there be any question of the justice or propriety of granting it. I will not suppose that there is any thing in the station of the gentlemen who are the subject of the present application, which exempts them from proceedings to which any other citizen would be liable. The court cannot, and I trust will not, recognize them in their official situations; but hear of them only as of men, who have disobeyed the process of the court, and whose attendance the defendant requires as witnesses. I shall not say more on this subject, because I cannot but persuade myself that the process we pray for will be granted as of course. But we have, in behalf of the defendant, a further petition to the court; which is that the process be made returnable at a short day, and that the court adjourn de die in diem until it may be served and returned.. The defendant cannot go to trial till his witnesses be brought

in, and yet he is very unwilling that there should be any unnecessary postponement. The court cannot be ignorant that the defendant, by being removed from an office which was the support of a numerous family, and for which he had sacrificed all other business, has suffered, while his guilt is yet not proved, a punishment greater than any it is in the power of the court to inflict. The court must also know that while this prosecution is pending against him, it would be in vain for him to seek any new employment or means of life. The court will readily perceive that humanity, as well as justice, requires that the defendant should have not only the benefit of the testimony of his witnesses, but that he should have that benefit speedily. It is therefore, our humble petition to the court, in behalf of our client, that the process to bring in the witnesses may be made returnable at some short day, and that the court adjourn from time to time, till the return be made.

We shall forbear at present to urge any further arguments in support of the motion now before the court. When we have heard the counsel for the prosecution, we may have more to offer.

Sanford. The first question is, whether the application of the counsel for the defendant, for an attachment against the absent witnesses subponad in this cause on behalf of their client, is at this time regular? I contend it is not. We are not bound, at this time to discuss the question whether the attachments ought to issue or not. When the proper time, for the argument of that question shall arrive, we shall be prepared to meet them on that, as on every other question which may occur in the progress of the prosecution.

The court must have observed that the public prosecutor has, in the first instance, moved to bring on the trial of W. S. Smith; while this motion is depending before the court, nothing can be in order but a motion to postpone the trial; that question must precede the application for an attachment, the object of which is to punish the absent witnesses for a contempt. It may happen, that the parties are prepared to go to trial with the witnesses present; we are prepared on the part of the prosecution, and it does not follow that because persons who may have been regularly summoned as witnesses by the defendant are absent, the trial must be delayed even for a day, and still less until the return of the attachments shall be made.

I forbear to say a word at present on the application for an attachment, as a regular or legal mode of bringing in witnesses to testify. When that point shall come before the court, we

shall be ready to meet and discuss it. We object to the mdtion for an attachment at present, simply on the ground that it is irregularly made at this time; and we shall not advance further in the argument, until the court shall have decided this point.

As therefore the application is altogether out of order, I trust the court will refuse it, and will order on the trial.

Colden, I do not see the difference in point of time as a matter of much importance. Whether the court decide on the one motion or the other first or last would be of little consequence. If the court order on the trial, then we shall renew our motion, and the court will certainly hear our application, and decide upon it before they allow the trial to proceed.

P. Edwards wished to be admitted to say a word in explanation. This prosecution must be at some time brought to trial, and why not now, after the delay already granted by the court? Certainly the defendant's counsel will not press a further delay, unless they show some good reason and legal ground for what they ask.

They say, that the witnesses subponad by the defendant do not appear. Well, is this a ground of delay? Will they be in a better condition if their witnesses are attached, and brought here to answer for a contempt of the process of this court? No such thing-the attachment they solicit, does not go to them testificando, to bring them in to give testimony, but merely to receive punishment for an alleged contempt.

The only motion they can make, is to put off the trial for some sufficient and legal cause; if they make that point, we are prepared to meet them; but surely the court will not put off the cause, in order to wait the return of an attachment, to be issued against Mr. Madison and the other gentlemen, who have been mentioned.

Hoffman. If the question is to take this shape, I am ready to meet it; but at present we hope the court will, at any rate, grant us a short delay for the absent witnesses to come in. It is the usual practice of the court, when the witnesses do not appear instanter, to postpone the trial for a day or more this is what I should request, as it is probable that two of the witnesses may reach this city to-morrow. Far be it from me, to postpone this trial to a distant day: my only and sincere wish is, that may come to issue before this court rises; but we anxiously hope that the court, from motives of justice and

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