P. Edwards, interrupting, said, the court, he presumed, intended to accommodate the counsel on both sides, with the postponement of both questions till to-morrow.

Sanford, understood that the court had already decided on that point, by declaring that the public prosecutor, should not lose the precedence of his motion, to bring on the trial by the delay which had been accommodated, and he insisted upon the point of order.

Emmet, did not imagine the court had decided against hearing the argument in favour of the motion for an attachment. He understood the trial was not to be brought on instanter, but certainly that was not to postpone the right of the defendant, to have his motion allowed.

[At this moment the grand jury came into court, and the foreman informing the court they had found no bills, and the district attorney declaring he had nothing to lay before them; they were discharged for the present.]

Emmet consented to the accommodation on the condition that it do not operate to the injury of his client, and proposed to offer an affidavit, proving the absent witnesses to be material on the trial. He hoped it would be understood that the trial was to be put off from day to day, until the witnesses came in.

PATTERSON, J. The first motion will have the priority in the decision, but if the counsel agree they may argue the latter proposition first.

Sanford. We pray the decision of the court as to the mode of proceeding.

PATTERSON, J. I am willing to hear the arguments on both points, and I do not care which is argued first, but I do not mean to decide either until both are gone through.

TALMADGE, J. The first motion will have the first de

cision.

PATTERSON. J. You make all the difficulty out of a mere matter of form. If you argue the motion for an attachment to-day, no opinion will be given until the court have decided upon the motion for bringing on the trial. Let them go hand in hand, and the court will take care that neither party shall be caught or entangled in the net of form.

It was then agreed by the counsel on both sides, that the two questions should be argued together to-morrow. Adjourned, till ten o'clock to-morrow.

Tuesday, July 15th 1806.-Present Judges PATTERSON

and TALMADGE.

Colden made a brief recapitulation of the course of

proceedings of yesterday, and then offered the following affidavit of Wm. S. Smith:-viz.

New-York, ss.

William S. Smith, the defendant in the above cause, being duly sworn, says, that James Madison, of the city of Washington, Robert Smith, of the same place, Jacob Wagner, of the same place, and William Thornton, of the same place, are material witnesses for him the deponent, on the trial of this indictment, as this deponent is advised by his counsel, and verily believes to be true, and that he cannot safely proceed to trial of the said indictment without the testimony of the said James Madison, Robert Smith, Jacob Wagner, and William Thornton, and that they have been regularly subponad to attend at this court, on the fourteenth day of July instant, to testify in behalf of this deponent, on the said trial, and have not appeared in the said subpœnas, nor hath either of them appeared; and this deponent further saith, that he hopes and expects to be able to prove by the testimony of the said witnesses that the expedition and enterprise to which the said indictment relates, was begun, prepared and set on foot with the knowledge and approbation of the president of the United States, and with the knowledge and approbation of the secretary of state of the United States; and the deponent further saith, that he hopes and expects to be able to prove by the testimony of the said witnesses, that if he had any concern in the said expedition and enterprise, it was with the approbation of the president of the United States, and the said secretary of state; and the deponent further saith, that he is informed and doth verily believe, and hopes, and expects to be able to prove by the testimony of the said witnesses, that the prosecution against him for the said offences, charged in the said indictment, was commenced and prosecuted by order of the president of the United States; and the deponent further saith, that he has been informed, and doth verily believe, that the said James Madison, and Robert Smith are prevented from attending by the orders or interpositions of the president of the United States and further this deponent saith not. (Signed) W. S. SMITH.

Colden proceeded. The present application is to put off the cause on account of the absence of witnesses whose testimony the defendant alleges is material for his defence, and who have disobeyed the ordinary process of the court. In compliance with the intimation from the bench yesterday, the defendant has disclosed, by the affida

vit which I have just read, the points to which he expects the witnesses who have been summoned will testify.

If the court cannot, or will not issue compulsory process to bring in the witnesses who are the objects of this application, then the cause will not be postponed.

Or if it 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 absence of witnesses whom they cannot compel to appear; and of whose voluntary attendance there is too much reason to despair; or on account of the absence of witnesses who, if they were before the court, could not be heard on the trial.

It is therefore my business to show that the court can issue compulsory process against those persons who have disregarded the subpoenas. And secondly, that this process ought to issue because their testimony, as it is disclosed by the affidavit, would be material.

If the witnesses who have been summoned stand on the same level with their fellow-citizens; if there be not something in their high offices to raise them above those laws which are above the rest of the community; then there can be no doubt but that they are subject to that provision of the constitution, which in its terms seems to pay no respect to official dignity or station; but, as it appears to me, gives the accused a right to demand compulsory process against any man whose testimony he may deem necessary to make his innocence appear. I shall not, however, enlarge on the powers of the court in ordinary cases, to issue the process for which we now apply. I shall be content to repose on the articles of the constitution and the laws of the United States to which I referred yesterday.

I proceed to inquire whether Mr. Madison and the other heads of departments have offered a sufficient excuse for their disobedience to the process of the court, by saying they are members of the executive government-whether these dignified sounds elevate them above the constitution and laws.

The general rule is that all persons are bound to give testimony. I have no book from which to read this rule'; but I think it is written by the finger of God on the heart of every man. True it is that the necessities of society have introduced one exception, and but one: and that is where a person in the capacity of counsellor or attorney, repre

sents another. This exception is most strictly confined to this relationship. No obligations of secresy or confidence however sacred; no connections of blood or ties of friendship can interpose in the administration of justice: If they could, a Russel would not have perished by the hands of the executioner, or England have been indelibly stained with the blood of a Sidney. In the case of the dutchess of Kingston (11 State Trials, 246.) for bigamy, sir Cæsar Hawkins was called to prove that he had delivered the dutchess of a child. He attempted to excuse himself from giving testimony on the ground of professional confidence ; but the court wrung from him his secret. And in the same case lord Barrington in vain implored to be excused from giving testimony against the accused, as all he knew had been imparted to him in the confidence of friendship. A Roman Catholic priest has been compelled to disclose the communications of his penitent in his religious capacity of confessor. (2 Atk. 524.)

I do not expect to hear the counsel for the prosecution contend after this, that any obligations of confidence interpose to shield the defaulting witnesses from the process which in the name of the constitution we demand. Nor will I suppose that the learned counsel who are opposed to us mean to say that there is any thing in the official dignity with which the witnesses are clothed which saves them from the operation of the laws. The peers of England have not thought that their titles or stations afforded them any such exemption. And even the king of that country, who claims his title by divine right, has yielded to the obvious moral obligation of giving his testimony when the administration of justice rendered it necessary. (1 Salk. 278. 2 Hawk. 152. Hob. 213.) Indeed, if it were necessary to produce authorities on this point, we might go very far back and show that the kings of Judea have witnessed and been witnessed against. Seld. 1521, 1526. Wilk. edition.

But it may be said that there are certain political motives which should induce the court to excuse the secretary of state and other heads of departments from giving testimony. That were they to be examined as witnesses they might disclose state secrets!

If I were to admit that there are certain secrets between the president and his secretaries which they would not wish to disclose, (and I have no doubt there are many such) or which ought not to be disclosed; still the witnesses who have been duly summoned owe obedience to the process of

the court; they must appear and be sworn, and when on their oaths, they may avail themselves of this excuse if questions are put to them which they ought not to answer. But the court must judge and not the witnesses, whether they shall or shall not answer. Much less shall the witnesses be allowed to determine for themselves whether they will be obedient to a mandate of the judicial authority. Such was the determination of the supreme court of the United States in the case of Maubry against Madison. Cranch's Reports, 137.

But the dreadful inconvenience to the gentlemen themselves and the injury to our national affairs, that may result from the court's exercising a power to call on our great men as witnesses, has been suggested. In the case I have mentioned of Maubry against Madison, Mr. Lincoln took precisely these grounds. Yet in that case the court would not grant him a moment's time to consider whether he would or would not be sworn, although they had no objection that he should have time to consider what he would or ought

to answer.

Before I quit this point I will pray leave to refer the court to one other case which has occurred in our own courts: I mean the case of the United States against Thomas Cooper. And although I should be sorry to find that case received as law in all its points, because I think there are in it some determinations against the defendant too severe and rigorous; yet it will she that the question under consideration is not a novel one. Mr. Cooper calls as witnesses several members of the national legislature and officers of the executive government-Judge Chase permits subpoenas to issue against them-Judge Peters indeed objects to the members of the legislature being subpoenad on account of a supposed privilege attached to them as members of the congress then in session, and therefore he thought the process could not be enforced and that the court ought not to issue a process to which they could not compel obedience. But an objection on account of official station or dignity, or on account of executive confidence is not even thought of: Such extraordinary objections are reserved for this very extraordinary prosecution. In the event, Mr. Cooper's witnesses appeared in court and offered to be examined.

If, however, the exemption in the present case should be supposed to extend to the heads of departments, I presume it will not be contended that it extends likewise to Messrs. Thornton and Wagner, who are admitted to be only clerks