NEW-YORK, 1806. The People V. Smith. prisoner. The point was argued by some of the most able lawyers at the bar, and submitted to the twelve judges; and it was only because they decided that the witness was competent and the evidence legal, that the objection did not avail-from which it manifestly results, that where the evidence on which a bill of indictment has been found, is confessedly illegal, the court should interpose, and prevent the accused's sustaining any injury from the error of the jury. But, says the attorney general, if a grand jury do wrong, and find an indictment on illegal evidence, the remedy and the only remedy is, that the accused will be acquitted on his trial, before the petty jury. That this is not the only remedy, is clearly established by the two cases last cited. Let us farther examine, whether it be any remedy for the wrong done to a citizen by being illegally indicted. Suppose a case of misery often witnessed; a wretch, after being indicted, unable to find bail-or a man indicted of a felony, in which bail would not be received; suppose farther, what not unfrequently happens, a court limited like this as to the duration of its sittings, and so pressed with business, that part must be postponed-would it be any remedy to a man illegally indicted, and obliged to remain in prison till September next, that in September next he would be acquitted and discharged? Is such an acquittal a remedy for a moment's imprisonment, for anxiety of mind, derangement of affairs, suspension or loss of character? If not, we revert to the established maxim, "there is no wrong without a remedy," and ask, in this case, what is the remedy? or, at least, what is the remedy exclusive of that which we have adopted? But great stress is laid on the novelty of this plea, and on its being entirely without precedent. Whether it be so entirely without precedent, shall be examined presently; but let us now take for granted that it is so. This certainly imposes on us some difficulty; but it only imposes one which has been gotten over in a case very nearly similar. It has been already shown from Brook's Abridgment, title Indictment, 2. that where some of the grand jury were indicted or outlawed of felony, it might be pleaded in abatement of the indictment. As far as we can find, there is but one instance of such a plea, and that in the reign of Charles I. Sir William Whithipole's case, reported Cro. Car. 134.; that this was the first instance of such a plea, is manifest from the reporter's expression, that "because this was the first plea that had been upon that statute, and would be a precedent in crown matters, the court would advise." Here then is a plea, the like of which had never been produced before the time of Charles I. and yet its entire disuse and novelty formed no ground for its rejection. Since the days of Charles I. there has been no precedent of any thing like it. If then that solitary case had not accidentally happened to occur, the same objection of novelty would as strongly apply to that plea, which is unquestionably good, as it can to that which we have offered to the court. But novelty only imposes on us the necessity of more accurately investigating the principles of law, on which we rely; if our deductions from them be well founded (and we trust they are) the objection of novelty vanishes. Along with this objection of novelty may be classed another; namely, that supposing the court will interfere in a case like this, we have mistaken our application; and to that was pointed the attorney general's expression, that Dr. Dodd's case is no precedent for a plea in abatement. To that we answer, 1st. That there may be more ways than one of applying to rectify the same error; and, 2d. That emphatically the most correct and proper way of applying to rectify this error, is by a plea in abatement. The first position may be illustrated thus: It is laid down in Hawk. Pl. Cr. b. 2. ch. 25. 16. that any one who is under a prosecution for any crime whatsoever, may, by the common law, before he is indicted, challenge any of the persons returned on the grand jury, as being outlawed for felony, &c. or villeins, or returned at the instance of a prosecutor, or not returned by the proper officer, &c. Here then is a summary mode given to the accused of objecting to grand jurors, either by challenging the array, or challenging the polls, as the case may require; but has he no other mode? Sir William Whithipole's case, Cro. Car. 134.; and Brooke, in the paragraph already cited from him, tells us, that these objections may be pleaded in abatement; and Lord Coke (3 Inst. 34.) says, "the safest way, for the party indicted, is to plead, upon his arraignment, the special matter given unto him by the stat. of 11 Hen. 4. for the overthrow of the indictments, with such averments as are by law required (agreeable to the opinion of lord Brooke, ubi supra) and to plead over to the felony, and to require counsel learned for the pleading thereof, which ought to be granted, and also to require a copy of so much of the indictment as shall be necessary for the framing of his plea, which ought also to be granted -and these laws made for indifferency of indictors, ought to be construed favourably; for that the indictment is commonly found in the absence of the party, and yet it is the foundation of all the rest of the proceedings." Here then is a case where an objection to the grand jury may be taken advantage of either by a challenge to the jury, or by a plea in abatement, at the option of the defendant. Farther, cases frequently occur, in which an indictment is quashed, on motion for error on the face of it, which might have been the subject of demurrer, or of arrest of judgment; but was it ever said in any of these cases, that because you have the first remedy, you cannot have the last? On the contrary, summary applications on motion, particularly in criminal cases, are comparatively of modern invention; for the most part introduced for the ease of the defendant, and to save him from the technical nicety of formal pleading; but they were never intended to deprive him of the benefit of such pleading, should he judge fit to resort to it. Dr. Dodd's case, however, can be considered in no other light than as furnishing a plea in abatement, pleaded ore tenus; he averred, that the indictment was found on illegal evidence, which he set forth, and submitted that he ought not to be compelled to plead the general issue. Have not this allegation and prayer all the substantial requisites of such a plea? But the facts which he averred, being admitted, there was no necessity for putting it into form, and the law arising from them was argued as on a demurrer. Had the facts, however, been disputed, and the law indisputable, what should he have done? The answer to this question leads to the discussion of our second position-that emphatically the most cor NEW-YORK, 1806. The People V. Smith. 1806. The People V. Smith. NEW-YORK, rect and proper way of applying to rectify this error, is by a plea in abatement. Had the facts been disputed, should they have been ascertained by a war of affidavits submitted to the judges, who are not the competent organs for ascertaining facts? No, ad quæstiones facti respondeant juratores. If the facts alleged would afford sufficient ground for quashing an indictment, but their truth be controverted, a jury must decide on their truth; a jury cannot decide on their truth without an issue joined; an issue cannot be joined without a plea put in; and no plea can be put in but a plea in abatement. It follows, therefore, that wherever the facts are capable of being traversed, the only correct way of bringing them forward, is in the form of a plea tendering an issue-the ancient and strict rules, of which the defendants have not lost the benefit, know no other way of bringing before the court facts that ought to prevent an accused person answering an indictment, than by pleading them, that if denied, their truth may be tried by those who are to try the truth of facts; and if admitted or proved, they may appear upon the record, and bring it to a legal termination. Any other way is an innovation-useful in many cases, frequently an advantage to the accused-but on which he may waive, if he prefer the original mode of pleading. As to the formal objections which were taken, the counsel for the defendant replied to them; but stated, that the facts contained in their pleas had come to their knowledge so very short a time before the defendants were called upon to plead, that they had no time to re-peruse them; and were obliged to file the original draughts. without even taking copies; that therefore, if the court should think any of the formal objections valid, they would pray for liberty to amend; which they had no doubt it would be ready to grant, under the circumstances of these being criminal cases, in which the defendants should not be entangled by niceties, and of there being no precedent to which the counsel could have had recourse for their guidance.. Mr. Edwards replied: but confined himself entirely to the formal objections, and did not enter into the general question whether such a plea would lie. After he had concluded, the court adjourned till the next day. Colden read a subpœna, directed to James Madison, Esq. 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: City and County of New-York, ss. Charles Lindsey, attorney at law, being duly sworn, saith, that on the twenty-eighth day of May last he served on James Madison the writ of subpoena 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 farther saith, that at the time of showing the said writ and of leaving the said ticket, he of fered 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 unneces sary to say any thing about them;" and this deponent farther saith, Sworn the 17th day of June, 1806. 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 witnesses, 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 United 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 "agrecable to the principles 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 fur NEW-YORK, 1806. The People V. Smith. 1806. The People NEW-YORK, ther 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 per ceive 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 farther 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 subpoenaed 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 motion for an attachment at present, simply on the ground that it is irregularly made at this time; and we shall not advance farther 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 |