of the 27th year of his late Majesty, with regard to persons appearing on recognizance in any court to give evidence as aforesaid, extends only to poor persons, such court also considering their circumstances; and, also, does not extend to persons on subpæna to give evidence.” "And whereas it is just and reasonable, and may tend in future to the prevention of crimes, or to the due prosecution of all offenders against the laws, that every person so appearing on recognizance or subpoena to give evidence should be allowed his reasonable expenses, and also, in case he be poor, a reasonable satisfaction for his trouble and loss of time" For these reasons, it is in the Sth section enacted: "It shall and may be in the power of the court, where any person shall appear on recognizance or subpœna to give evidence in any grand or petit larceny, or other felony, whether a bill of indictment be preferred or not to any grand jury, provided the said person shall, in the opinion of the court, bona fide have attended the said court in obedience to such recognizance or subpoena, to order the treasurer, &c., to pay unto such person such sum of money as to the said court shall seem reasonable, not exceeding the expenses which it shall appear to the said court the said person was bona fide put to by reason of the said recognizance and subpoena; making, in case the said person shall appear to the court to be in poor circumstances, a reasonable allowance to such person for trouble and loss of time," &c.: so that in England, to this day, the allowance is confined to persons appearing in court on recognizance or subpoena in the case of felony, and the allowance is only of the parties' reasonable expenses; except in the case of poor persons, with relation to whom a discretion is given to the court to make a further allowance for trouble and loss of time. In England, therefore, to this mo. ment, there is no provision, either by the common or statute law, for a witness imprisoned because he cannot or will not give a recognizance for his appearance, and attending the court only because of such imprison. ment; the provisions being restricted to persons, there is not only no provision for his compensation while detained in prison previous to the court, but not even for his actual attendance on the court by force of the imprisonment; the provisions being restricted to persons attending on recog nizance or subpoena, and under such circumstances, and with such expressions, as to render it impossible for the court of that country to extend the provisions, upon any notions of equity, to persons appearing in court under any other species of constraint. The strict construction put by the court upon the statute 27 Geo. II, whereby the provision was limited to persons appearing on recognizance, can leave no doubt of the construction which is put on the amendatory statute. Blackstone expressly treats its provisions as confined to "persons appearing upon recognizance or subpoena to give evidence."-(4 Black., p. 362.) Now, if the loss of a witness's time, trouble, and expense, in attending to give evidence for the public, were considered in England as a mischief which called for redress, then, whether he were rich or poor, or whether the charge under prosecution were felony or misdemeanor, he would be equally entitled to compensated for the loss of that time, trouble, and expense. But, in all prosecutions for misdemeanor, whether the witness be rich or poor, he is without any manner of compensation. In cases of felony, he is equally uncompensated for his loss of time, unless he be poor; and even if he be poor, he remains uncompensated not only for his loss of time, but even for his expenses, unless his attendance has been the consequence of a

summons or a recognizance. If it has been procured by his imprisonment, although such imprisonment has proceeded not from his contumacious refusal, but his inability to give security for his attendance, he is nevertheless entitled to no compensation; not only no compensation for the time during which he shall have been imprisoned, but not even for the time of his attendance on court in consequence of such imprisonment. In England, therefore, such an imprisonment for such a purpose is not considered as a mischief which calls for legislative interference; it is considered merely as a necessary means of securing the attendance of a witness for the public good. The witness, while in prison, is not at his own expense; he is supported by the public. Nor is it likely that any serious practical mischief can follow from such a course of proceeding. It is very improbable that any man of good character should be unable to give security for his attendance in court. It will be more generally on accomplices, or persons of otherwise bad character, that the restraint will fall. An obscure or unknown stranger may be placed in the predicament of having a recognizance required of him. But it is in the discretion of the magistrate to require security on the recognizance or not; and it is not probable that it will be required but from suspicious or doubtful characters. Or, say that this doubt and suspicion should sometimes light on an innocent man; it is not in the nature of things that it should hap pen often, and the law acts only upon those mischiefs quæ frequentius accident; it being considered better that an individual should sometimes suffer an inconvenience, than that the public should sustain a serious injury.

Let us turn from the English law upon this subject to the law of Maryland. In the case of McIntyre, the court advert to this law thus: "By the law of Maryland, (1797, c. 94, sec. 5,) which was in force at the time of the separation of this part of the District of Columbia from that State, every witness was allowed one dollar and fifty cents for each and every day the witness shall attend for the discharge of his duty. This act does not use the words 'in court.' It seems to us, however, that both statutes should receive the same construction, and that both were intended to give the witness a compensation for the time necessarily lost in consequence of his obligation to attend the court as a witness. It is unnecessary, therefore, to decide which is the permanent law."

The words of the clause are," that there shall be allowed to each witness attending the general court on the western and eastern shores of this State, the sum of one dollar and fifty cents for each and every day such witness shall attend for the discharge of his duty, besides itinerant charges. I concur with the court in thinking that this act ought to have the same construction with the act of Congress; but the practical construction of this act is precisely that which I have given to the act of Congress-it is extended to those only who attend court. But let us look at this matter a little more closely. The court of Columbia seems to be under the impression that this act of Maryland governs the com pensation to witnesses in criminal cases; but it is not so.. The State of Maryland pays no compensation to witnesses for their loss of time. In this respect, the old common law of England is still the law of Maryland. Witnesses in this State receive no compensation in any criminal case whatever, except in cases of conviction, where the costs are paid out of the estate of the prisoner; or in the case of acquittal, where the charge is

found to be frivolous and unfounded, when they are paid by the prosecutor. But how stands the law of Maryland on the very case under consideration-the case of a witness imprisoned because unable to give security for his attendance? Does he receive a per diem allowance during his imprisonment? So far from it, that until 1752 he was obliged to bear his own expenses while in prison; and, if unable to pay them, was sold as a servant for so long time as would be sufficient to pay those expenses. The Maryland statute of June, 1752, ch. 13, was meant to redress the whole mischief which the legislature supposed to exist in the case; the preamble of which is, "Whereas many indigent persons or strangers have been necessarily, for want of sureties to appear as witnesses, committed to prison; by means whereof, such persons have been sold as servants for the prison fees arising upon such commitment, or otherwise detained in prison for such fees, to their great damage and loss to the public in the labor of such persons." Here we have the very case under considera. tion, with all its circumstances of grievance directly looked at: and what is the remedy? Nothing more than a provision for the payment of such prison fees-not a cent being allowed for loss of time; and, by the statute of 1792, this law is made the permanent law of the land. So that in Maryland all that a witness so circumstanced receives is his support in prison; and he receives the same from the United States.

Again: let us look at the consequences of a construction, which, besides supporting such a witness, should pay him one dollar and twentyfive cents per day during the time of his confinement. When, in consequence of the new reference of this question to me, I inquired whether, by the laws and usages of Maryland, such witness received both the support and the per diem allowance? the answer was, No; and that if such were the laws and usages of Maryland, all the prisons of the State would not be sufficient to contain those who would contrive to get themselves committed on such terms. And, when we consider the class of character on whom such a provision would be most likely to fall, the suggestion appears by no means extravagant.

Upon the whole, I retain the opinion which I formerly expressed my only doubt upon the subject, growing out of the reconsideration of the case, being, whether the law ought not to be confined in practice, as it is in terms, to summoned witnesses. On this last point, as the witness is, from the commencement of the session of the court, placed in their hands, and under their power to be brought into court whenever he shall be called, I think that he ought to be regarded as a summoned witness from the time that he is placed in this predicament. The court of Columbia are understood to consider such a witness as under the power of the court from the time of his commitment, and the time which he spends in jail as lost in obeying the orders of the court." But it is not so: the witness is not committed to jail by order of the court, nor is he held by "obeying the order of the court;" he is committed by a single magistrate, and detained by the order of that magistrate. The court has no cogni. zance of the fact until the commencement of their session; then it is brought to their knowledge; and thenceforth the witness is detained by the power and authority of the court, and is, I think, to be regarded as a summoned witness.

One further question arises in this case. By the 4th section of the act of Congress of the 8th May, 1792, entitled "An act for regulating pro

cesses in the courts of the United States, and providing compensation for the officers of said courts, and for jurors and witnesses," it is enacted, "that there shall be paid to the marshal the amount of the expenses for fuel, candles, and other reasonable contingencies that may accrue in hold. ing the courts within his district, and providing the books necessary to record the proceedings thereof; and such amount, as also the compen sation aforesaid to the grand and petit jurors, to the witnesses summoned on the part of the United States, to clerk, &c., shall be included in the account of the marshal; and the same having been examined and certi fied by the court, or one of the judges of it, in which the service shall have been rendered, shall be passed in the usual manner at, and the amount thereof paid out of, the treasury of the United States to the mar shal, and by him shall be paid over to the persons entitled to the same." It seems that the marshal did not include in his account the per diem al lowance in question to the imprisoned witness during the time of his confinement previous to the session of the court; but the court, on mo tion, decided that the marshal was bound to have included it in his account, and that the same ought to be passed by the accounting officers of the treasury, and paid out of the treasury to the marshal, &c. And it is. supposed that the account so passed becomes imperatively binding on the. treasury, and that they have nothing to do but to pay it.

I am not of this opinion. The power given to the court is not to examine and certify any account that the marshal may present; if it were so, there would be some color for the opinion which has been expressed. But it is not so. The law has specifically enumerated the items of which the account shall consist; and it becomes the duty of the officers of the treasury to see that the account consists of these items, and no other; for, however imperative the language of the section may be, it is only in relation to an account composed of those specified items that it is thus imperative. The language of the section which is deemed so imperative is, that the account which the act describes, having been examined and certified by the court, shall be passed at the Treasury Department in the usual way. What is the usual way of passing accounts at the Treasury Depart ment, to which that act has allusion? The act of 1789, chapter 12, an swers the question. The 5th section of that act makes it "the duty of the Auditor to receive all public accounts; and, after examination, to certify the balance, and transmit the accounts with the vouchers to the Comptroller, for his decision thereon. The 2d section makes it the duty of the Comptroller to examine all accounts settled by the Auditor, and to certify the balance arising thereon to the Register. The 6th section makes it the duty of the Register "to transmit to the Secretary of the Treasury copies of the certificates of balances of accounts adjusted as herein directed: on which the Secretary, if he also approve, is to give the warrant for the payment of the money. This is the usual manner in which the law com mands that the marshal's accounts shall be passed at the treasury. The account, then, is to be first submitted to the Auditor, and he is to exam. ine it; not to control, in the slightest degree, the discretion with which the law has invested the court, but to see that that discretion has been exercised upon the subjects pointed out by the law; or, in other words, to see that the account contains no item but those which are authorized by the law. If it contain no other item, the Auditor is, I think, bound to pass it, however extravagant he may think the allowance, unless the ex

travagance be so monstrous as to argue corruption; in which case, his authority and duty, as one of the sentinels over the treasury of the United States, would extend to the disallowance of the account. But short of this, I am of opinion that the officers of the treasury would have no power to disallow a marshal's account, which should have been examined and testified by the court, provided it contain no item beyond the enumeration prescribed by the law; but if it contain any such item, then I am very clear that there is nothing so imperative in the law as to require them to pass it, but, on the contrary, that it is their duty to reject it.

In the present case, the objection to the item is, that it is not within. the enumeration made by the law. It is supposed to be within the first class of subjects enumerated in the law: the words are:

"There shall be made to the marshal the expense for fuel, candles, and other reasonable contingencies that may accrue in holding the courts in his district." It is understood as conceded, that if the per diem allowance of the imprisoned witness be not within this enumeration, it is within no other contained in the act; and that it is not, is, to my mind, very manifest. The contingencies provided for are those that may accrue in holding the courts in his district; not from the circumstances of there being a court of criminal jurisdiction held in his district, but such contingent expenses as may arise in the course of the court; or, in the very words of the law, such as may accrue in holding the court; of which, fuel and candles are put as examples. Now, by what process of candid inquiry can the per diem allowance of an imprisoned witness, for three or four months before the commencement of the session of the court, be brought within the description of contingent expenses which accrue in holding the court, in the same manner as the expense of fuel and candles accrues in holding the courts?

The fact is, that the compensation of witnesses summoned on the part of the United States is not a contingency under this law at all: it is, on the contrary, one of the specific objects to which it looks. The title of the law directly contemplates it as one of the objects for which it proposes to provide, and the very section under consideration expressly provides for it; for among the subjects which the marshal is directed to include in his account, is the compensation" aforesaid "to the grand and petit jurors, to the witnesses summoned on the part of the United States," &c. What is the compensation aforesaid to the witnesses which the law directs the marshal to include in his accounts? It is found in the 3d section of the law; and is "to witnesses summoned in any of the courts of the United States, the same compensation in each State respectively as is allowed in the supreme court of the same." Had this provision of the law stood, and had the law of Maryland been considered as governing the case of McIntyre, we have seen that he would have received nothing but his subsistence while confined in jail. But this provision has been repealed, and substituted by that, which is now in force, and on which I have already commented at large; that is, to the witnesses summoned in the courts of the United States, one dollar and twenty-five cents for each day they shall attend in court. Thus the law having made all the proVision for the compensation of witnesses which it seemed good to the legislature to make for them, and the marshal being expressly directed to include this specific compensation in his account, I am of opinion that no other and additional compensation can be introduced into that account