NEW-YORK, mon pleas, Hill. 24 Geo. 2, were also cases in which a motion for 1806. an attachment was made after nonsuit. V. To the same purpose is the case of The King v. G. Ring, 8 Term The People Rep. 585. In this case an attachment was moved for, and granted against Ring for not appearing at the assizes to testify before the grand jury against Everland and Davis, committed to Salisbury gaol on a charge of felony. Ring not appearing, the grand jury threw out the bill. Jekyll, on the part of the prosecution, moved for an attachment, and it was granted. Smith. The courts of Westminster always consider the proceeding by way of attachment as for a contempt, as a criminal proceeding. In the case of Small v. Whitnell, 2 Stra. 1050. the reporter says, "But it appearing not to be a personal service (that is, of the subpœna) the court held it not sufficient to warrant a proceeding criminally against him," (that is, the witness.) In this case an attachment was moved for against a witness for not attending, being subpœnaed and having a shilling left. In the case of Chapman v. Pointou, already cited for another purpose, the court say "that this way of punishing as for a contempt was new," &c. And so strictly is this proceeding by way of attachment against a witness as for a contempt, holden, to be a criminal proceeding, that the affidavits and all the other papers in the cause must be entitled, "The King v. the person to be attached." To this purpose is the case of The King v. The Sheriff of Middlesex, 3 Term, 133. It is there said, "But as the affidavits on both sides were entitled Robins v. Hall, and as the rule was drawn up on the civil side of the court, a doubt arose whether the proceedings were properly entitled, and the court held them to be irregular, and that a motion for an attachment in the course of a civil suit ought to go on the crown side of the court, and the affidavits entitled The King against the person to be attached,' because it was not a motion in the cause, but arising out of it." Farther, it is laid down in all our law books which speak on this subject, the granting an attachment is in the discretion of the court; but if granting an attachment for the non-attendance of a witness be ex debito justitiæ, the court can exercise no discretion; they have in that case only the power to inquire whether the witness had been duly subpoenaed, and whether the non-attendance was through obstinacy or not?-2 Strange, 1150, Chapman v. Pointou. From this review of the history of attachments, as relative to witnesses, we are authorized to say: 1st. That it never was considered, in the original or progress of this practice, either by counsel or by the court, that an attachment was granted for the purpose of bringing in the witness ad testificandum. 2d. But that an attachment, if granted, was always granted exclusively for the purpose of punishing the witness for a contempt. But there is another ground on which this motion for attachments may be successfully resisted. The court will never grant an attachment in the first instance. This was the course pursued in the cases of Hammond v. Stewart, 8 Geo. 1. B. R. 1 Stra. 510. Daleson and Aland, 10 Geo. 1. in 1806. the exchequer. Stephenson v. Brooke, 13 and 14 G. 2. Chap. NEW-YORK, man v. Pointou. Wyatt v. Wingford, 2 G. 2. B. R. Stretch and Wife v. Wheeler, Barnes, 497. 27 G. 2. I mention only the earliest cases. The case of Chaunt v. Smarl, 1 Bosanquet and Puller, 477. in the common pleas, sets this point at rest. Here the court say, "That in future the practice of this court should be conformable to that of the King's Bench, and the rule should be to show cause why the attachment should not issue in all cases, except of nonpayinent of costs on the prothonotary's allocatur." The motion for an attachment in the first instance, is certainly irregular, and therefore the defendant can take nothing by his present motion. But it has been contended by the counsel for the defendant, that this question, viz. "Shall an attachment be granted to bring in a witness ad testificandum?" rests in the courts of the United States on the basis of the constitution. For by the 6th article of the amendments of the constitution, it is among other things provided, "That in all criminal prosecutions, the accused shall enjoy the right, &c. to have compulsory process for obtaining witnesses in his favour." That therefore it is the constitutional right of the defendant to have an attachment to bring in his witnesses, and that nothing short of an attachment will be compulsory process according to the true spirit and meaning of this constitu tional provision, The words relied on by the counsel for the defendant are," To have compulsory process for obtaining witnesses in his favour." If the meaning of the word "compulsory," here used, can be determined, we shall find no difficulty in ascertaining, with perfect precision, the degree of weight which ought to be attached to the argument urged by the defendant's counsel. Process to compel the attendance of witnesses in criminal and civil causes was a kind of process well known to the people of the United States, long before, and at the time the articles of amendment to the constitution were adopted. They borrow their language, their laws, and of course the technical terms of them, from England. The only process to compel (in the first instance) the attendance of witnesses in criminal or civil causes, known to the courts of common law in that country, and in this, is a subpoena. No other process is ever issued in England but a subpoena even in criminal causes. When the parliament enacted the statute of 7 Wm. 3 cap. 3. part 7. the crown possessed no right to use any other process than a subpoena to compel the attendance of its witnesses Until the making of that statute, the prisoner could by no process compel the attendance of his witnesses. By that statute it is enacted, That every person who shall be indicted for high treason, whereby any corruption of blood may be made, shall have the like process of the court where he shall be tried to compel bis witnesses to appear for him at such: trial, as is usually granted to compel witnesses to appear against him." In England, then, a subpoena is compulsory process; it is the only compulsory process (unless entering into a recognizance to appear VOL. III. 1.8 The People V. Smith. NEW-YORK, at the trial be called process) provided for the crown, or the prisoner, by the laws of that country. 1806. The People Smith. The article in the constitution of the United States, relied upon by the defendant's counsel, it is true, has no relative clause in it, as the statute of 7 Wm. 3. has; for that says, " He shall have the like process of the court where he shall be tried to compel his witnesses to appear for him at such trial, as is usually granted to compel witnesses to attend against him.' This, however, cannot help the argument of the defendant's counsel. The constitution has not told us what that process shall be, but has used the word process in reference to obtaining witnesses. The words compulsory process, are used as being terms, the meaning of which was then well understood. It was to be process which would, according to the legal notions existing in the minds of the framers of the constitution, be adequate to compel the attendance of the witnesses of the accused. To the present moment the United States cannot use any other process to compel the attendance of witnesses on their behalf in criminal causes, than a subpœna; and no one has ever entertained an idea, but that a subpoena, when used in such cases, is compulsory process, or in other words, a process to compel the attendance of witnesses. One of two things must have been in the intentions of the people. of the United States when they adopt this amendment : First. That in all criminal prosecutions, the accused should have such compulsory process for obtaining witnesses in his favour as was then known to our laws, and used for such a purpose; or, Secondly. That a new kind of compulsory process, not hitherto in use in our courts, or known to our laws, for the purpose of compelling the attendance of witnesses in behalf of the accused, should be provided. If the former was the intention, then clearly the motion for attachment must be denied, for an attachment in our laws is not known as compulsory process for obtaining witnesses, but the process of subpoena is the only process recognized by our law for obtaining witnesses. If the latter was the intention of the people of the United States, the amendment relied upon has only provided that the accused shall have a right to compulsory process, for obtaining witnesses in his favour of a new kind not hitherto known to our laws. The amendment not having prescribed what that process shall be; not having said that it shall be an attachment, a warrant, a capias, or pointed out any of its attributes other than that it is to be "compulsory," they have, therefore, left the kind of process to be designated and prescribed by a law of congress; for courts of law cannot make a new process wholly unknown to the common law, and unauthorized by act of congress, and not prescribed by the constitution. So in article 3d, sec. 1st, of the constitution of the United States, it is declared, that the judicial power of the United States shall be vested in one supreme court, and such inferior courts as the congress may from time to time ordain or establish." But those courts must be created by act of congress before they can exercise any of the powers conferred on them by that article of the constitution. NEW.YORK, So in this case, if a process, not known to the existing laws, be di- 1806. rected in order to compel the attendance of the witnesses of the accused, that process must be provided and established by an act of The People congress. But the framers of the constitution never contemplated any other compulsory process than that already known to our laws, and con stantly used, viz. a subpœna. If by the expression in the amendment relied upon," shall have a right to compulsory process for obtaining witnesses in his favour," the defendant has a right to an attachment, why was it not used in the first instance? why was a subpoena the first process that he thought proper to use? There is no intimation in the article relied on, that the accused is first to use some other process than an attachment, but it is absolute, "a right to have compulsory process," and if it be the right of the accused to have any attachment at ali for obtaining his witnesses, he has a right to have it in the onset. But if he had a right to have an attachment in the first instance, ex debito justitiæ, why did he not use it? He has been guilty of laches in not taking out an attachment instead of a subpœna. Had he taken his compulsory process in the first instance, he would on this day have had his witnesses in court. But be negJected to do this, and therefore he cannot now have the trial postponed for the purpose of taking out his attachment, that is, "compulsory process for obtaining witnesses in his favour," which process, according to the construction of the constitution contended for by his counsel, he had an undoubted right to have taken out in the first instance. But we resist this motion on another ground. The motion is in effect, to postpone the trial of the cause for the reason stated in the affidavit. Before it will be granted, the defendant must satisfy the court that the gentlemen named in it are material witnesses; and that he has been guilty of no laches or neglect, in omitting to do all that he might have done to procure their attendance. These are principles laid down by the court in the case of The King v. Le Chevalier D'Eon, 3 Bur. 1513. and are found in good sense. The affidavit upon which the present motion is found, appears to have been shaped with a view to these principles, for it states "that the defendant expects to be able to prove by Mr. Madison" and others, “that the expedition and enterprize, 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 "that if he had any concern in the said expedition and enterprize, it was with the approbation of the president of the United States, and the said James Madison ;" and "that he expects to be able to prove by the said witnesses, that the prosecution against him for the said offence, charged in the said indictment, was so commenced and prosecuted by order of the president of the United States;" and "that he has been informed, and doth verily believe, that James Madison and Robert Smith are prevented from attending by the order or interposition of the pesident of the United States." Their testimony, it is urged, is material in two points of view. V. Smith. NEW-YORK, 1806. The People V. Smith. 1st. It will show that the United States were not, at the time when the enterprise is alleged to have been set on foot," at peace with Spain." 2d. Should the court be of opinion that it is not material in that respect, it is material for the purpose of showing to the court the degree of criminality attached to the defendant by any agency which he may have had in beginning or setting on foot the expedition" alleged, and thereby enabling the court to proportion the punishment of the defendant according to the degree of his guilt. That to enable the defendant to obtain the testimony of these witnesses for this purpose, it is necessary that he should now be furnished with compulsory process; for after a verdict of guilty, any testimony to this purpose must be laid before the court by affidavit, and the law knows of no process by which a witness can be compelled to make such an affidavit. In support of the first proposition it is urged, that the testimony expected from these witnesses, will establish this as a fact, that the United States were not, at the time when the alleged offence is supposed to have been committed, at peace with Spain; for it will certainly evince that "the expedition and enterprise" referred to, "were begun, prepared and set on foot with the knowledge and approbation of the president," and this " approbation" necessarily implies, on the part of the president, an acknowledgment that the United States were then at war with Spain, and by the constitution of the United States, the president possesses the power of determining whether the United States were at war or not, in cases where any aggressions and acts of hostility have been committed by a foreign nation upon the territory, or citizens of the United States. If the constitutional principle which is assumed by the defendant's counsel, cannot be maintained, the first ground, viz. the materiality of this testimony in point of justification, must be abandoned. In support of this proposition, "that by the constitution of the United States, the president possesses the power contended for," much stress has been laid on the 3d section of the 2d article of the constitution. "He," (the president) "shall, from time to time give to the congress, information of the state of the union." These words, it has been insisted, give to the president the power of determining whether the United States are or are not in a state of war. This section, if susceptible of the construction contended for, must also, of necessity, give to the president the power of determining after war shall have been declared by congress, that the United States are at peace; and of course of repealing the act of congress by which war may have been declared. The words are, 66 of the union." give to the congress information of the “state In the 8th section of the 1st article of the constitution, it is declared, that the congress shall have power to declare war." Here this power is given in a most explicit manner. But, if the construction of the 3d section of the 2d article be as contended for, then the constitution in point of effect, reads thus: " congress shall have power to declare war, but the president shall have power to determine when the United States are at war, and when they |