of it, subjects himself to all the consequences of it. When Knox came on board the vessel, the question is, whether general Wilkinson knew that it was reluctantly? General Wilkinson knew, most assuredly, that he was put on board against his will, by a military guard, and yet he did not assist him; for he knew that it had been done in pursuance of his own well understood wishes and orders. The evidence of Mr. Gaines, collectively considered, proves this clearly. Gentlemen say, that the vessel was commanded by Mr. Read. I have seen the young gentleman, and I hope he deserves the character which the gentleman gives him; but it is clear, that he was ready to obey the superior commands of general Wilkinson, and that he knew it to be his duty. Mr. Gaines said, that he was obliged to apply to general Wilkinson, and not to Franklin Read for a passage on board the vessel. It was the same case with Mr. Graham. When several different commanders, as a military and a naval commander are together, the inferior in rank acts under the command of the superior, and all the navy of the United States at New-Orleans was under the command of general Wilkinson.

But what was done at Hampton? Mr. Gaines, in every thing relative to this transaction, only obeyed his superior officer. He therefore told Knox, "You are to understand, that you are brought here by virtue of a deputation from judge Hall to me, and not by the military orders of general Wilkinson. You are to understand, that this was really the case." Why? Because general Wilkinson recommended it. These were terms of mere civility. I dare say, that Bonaparte, when he gives orders, uses civil language; whenever he gives particular orders to any of his officers, he may say, "You will oblige me, by taking such a place." "You will oblige me, by seizing such a party." "You will oblige me, by conquering such a territory." Or, "by accomplishing any other achievement." Suppose the officer thus ordered, were to disobey and excuse himself by saying, "I misunderstood you; you only said you would be obliged to me, if I would do so." Would he not be instantly punished or shot for disobedience of orders?

Mr. HAY.-That is only the rule on military subjects.

Mr. WICKHAM.-This was not a civil transaction certainly. But, sir, this was really not so bad after all, because Knox had counsel. That counsel only expressed his doubts to judge Hall. It is the custom at New-Orleans for lawyers to respect and obey judges; (it was once so here); and this was a respectful expression of his opinion. The judge directed the measure, and the counsel acquiesced. He knew that his doubts would be of no sort

of consequence, and that Knox would be sent round. He knew that Wilkinson directed and controlled all. The gentleman then went on and assumed as a postulatum, that if no action would lie for this treatment to Knox, there could be no contempt of the court, for which an attachment would lie. It would be a most extraordinary doctrine, that the process of this court could be obstructed by the application of force, or even by the fear of violence, and yet that the court could not punish it by an attachment. But I will admit, for the sake of argument, that an attachment for a contempt will not lie, if no action can be maintained by the party injured. But what then? Will the admission strengthen his argument? Has the party aggrieved no redress? If to be taken up, confined, and transported as a felon, from one part of the country to another, for no crime, will not support an action, then our courts of justice may as well be shut at once. If an action could not be maintained for such treatment, for what would it lie?

"But he had good provisions." That is not the point at issue. "But he was at liberty after he was on board." He was not permitted to go on shore, and if he were not satisfied with his situation in the vessel, he was at liberty to walk overboard. The only sort of liberty which he had, was that of jumping into the sea, if he thought proper.

I will not go into the law of the case, because I am perfectly convinced it is unnecessary. We rely on the broad principle, that whenever the process of the court is abused, it will interfere. But you are advised to imitate the judge, who some time ago at Fredericksburg, directed it to be decided by a jury, whether a contempt of the court were intended. I will not undertake to undervalue the benefit of the trial by jury on any account; but there would be a disadvantage to general Wilkinson, in submitting it to a jury. It would not be a boon, but a probable injury. If he be in contempt, how is he to be exonerated? By his own oath, and not by the cath of a jury. He comes in and answers interrogatories on oath, and if he deny the facts charged, he is acquitted; or if he explain them to the satisfaction of the court, he is equally cleared; but if he refuse to answer, or if he admit the facts as charged, then only is he to be punished. But he is referred to his own oath, and to his own judgment, for a complete exoneration. Is this an advantage or a disadvantage? Is it not more beneficial than to refer it to the judgment and the oath of a jury. There can be no doubt that a motion for an attachment is sustainable, for the abuse of the process of the court, in any place where it can lawfully issue.

There is one difficulty which the gentlemen on the other side did not mention, and it is this; that the acts were not done in

this district, and that perhaps this court has no cognisance over them. But part of them was done in this district; force was used at Hampton; Knox was there continued on board against his will, and that gives the court jurisdiction.

But, sir, the process of attachment is auxiliary to that of subpœna. The process of subpoena goes throughout all parts of the United States; and that of attachment ought to be commensurate with it. It is in vain to give the power to issue process, without the power to enforce it; and wherever it is abused or improperly executed, the court can notice it and punish the party for not executing it according to law. This doctrine, I think, was sanctioned by the opinion of judge Patterson, in the case of Smith and Ogden, in the district of New-York. In the case of William Smith, a subpœna had issued, to summon the secretary of state, and the secretary at war. They failed to attend, though the process had been duly served on them. A motion was made to issue an attachment against them, for their contempt, on various grounds, explained by his counsel. The court differed in opinion. One of them, (I believe judge Patterson) was of opinion, that a rule to show cause, why an attachment should not be issued aginst them, ought to be granted. But it is unnecessary to dwell on this point, as the gentlemen on the other side took no notice of it. In every point of view, therefore, our motion for the attachment is sustainable, and I pray the court to award it.

Mr. HAY. I will set Mr. Wickham right as to one fact. He had attended so much to what he was going to say himself, that he did not attend to what we had said. Mr. Mac Rae did press the objection, and he was answered by Mr. Botts. My own opinion, however, is, that the power of the court to attach is commensurate with its process; and that those gentlemen who were summoned, would be liable to an attachment for not attending. I incidentally admitted the doctrine.

Mr. MARTIN. I shall make some few observations in addition to what has been said by the gentleman who preceded me. I shall endeavour to show, that it was a military transaction from the beginning, till the arrival of Mr. Knox at this place; and that its direct tendency has been to prevent justice. Let us examine the rights of parties in a court of justice, and the cause as between man and man. Each man has a right to compel the attendance of witnesses, to give evidence in support or defence of his rights, in any cause depending therein; one party has no more right than another, to compel the attendance of witnesses. How is the law in this respect, as between the United States and individuals accused of crimes? Suppose a person charged with an

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offence is arrested; the magistrate, before whom he is brought, is to hear the statement of the United States, and of the prisoner, and to examine the witnesses brought before him for the purpose of determining, whether the prisoner ought to be committed or not. He is then to bind the witnesses in a recognisance to appear before the proper tribunal, at the time appointed for the trial of the prisoner. But if a witness refuse to enter into such recognisance, he is to be committed to custody till the time of trial, in order to secure his evidence. But this can only be done by the examining magistrate; and this is all that can be done by the United States, with respect to the witnesses who happen to be present at the examination. But if the United States wish to have the privilege of further testimony, they are to apply to that court of justice, before which the trial is to be had, for subpoenas. These subpœnas must issue, be served, and returned executed. After which, if they fail to appear on the return-day, an attachment may be issued against them. This is the whole process in behalf of the United States. How is the defendant to get his evidence? His privileges are the same. He is to send subpoenas in like manner, for his witnesses; and if they do not attend after they are summoned, they are to be attached. They stand, in point of law, on equal terms; but the United States have superior advantages over the defendant, if they be compelled to resort to the same means of enforcing obedience. The power and influence of the United States command much greater diligence and alacrity on the part of the officers, who are to execute the process, than the means of any individual, labouring under the disadvantages of a public prosecution, can possibly procure. Whatever means are illegally used to procure witnesses for the United States, prevent the stream of justice from flowing purely; it is as much an interference with the equal administration of justice, as it is by illegal means to keep a witness away from the court. The law only ought to be resorted to on the part of the government and on the part of the prisoner: and it is as inconsistent with the law, that testimony should be brought by coercion, as that it should be illegally kept away. It is an act injurious to the prisoner, and if we examine which is the more oppressive and destructive to personal rights, we shall find, perhaps, that the former is more so than the latter. It is said to be "a singular case." It is indeed a singular case. I think on my conscience, that such a case was never heard of before; and that such pains were never taken to destroy a person who was charged with a crime. In addition to the means directly used by the government, many persons in order to ingratiate themselves with it, have used all the efforts in their power for the attainment of that object.

The secretary at war wrote a letter to lieutenant Gaines, who

was the commander of a fort, directing him to quit it and execute this business. It was a military command from the secretary at war, ordering him to undertake a military journey for civil purposes; to go to general Wilkinson; to deliver him a letter; to serve subpoenas, after filling up the names of the witnesses which he should point out; to obey the instructions of the attorney general, and then to come to Virginia. It was by a military command that he received and executed the subpoenas. It was by a military command that he was to summon himself, and obey the instructions of the attorney general at New-Orleans. Did he serve the subpœnas as a civil officer, or in obedience to the orders of the secretary at war? Did he receive information and directions from the attorney general at New-Orleans, as a civil officer, or pursuant to the directions of the secretary at war? By whose orders did he quit his garrison? To whom was he referred? To the same person to whom general Wilkinson was referred. Who is this attorney general? A man probably of respectability, but ready to be displaced unless he obeyed the government, and assisted in facilitating to the means of causing the witnesses to be brought hither.

General Wilkinson in the next place was to fill up the names of the witnesses. There have been complaints against Mr. Jackson for taking affidavits, but he did not compel men to give testimony; that was general Wilkinson's province at New-Orleans. He was to find out who were witnesses, and fill up the blanks in the subpoenas with their names. Has not Mr. Knox told us that Hall had a number of printed interrogatories? That he and Mr. Fort were called on to answer them on oath? And that their declining to answer them, was the cause of sending them to gaol? Knox has further informed us, that it was on Sunday evening that they were carried before the magistrate. It is well understood that Sunday is not a legal day for such purposes. As Knox declined answering those questions, he was committed that night to the custody of the sheriff, who was to bring him back on Monday morning, and to whom he gave security for his appearance accordingly. Knox says further, that the next day they appeared and were both interrogated; that he answered some of the questions, but with respect to the other interrogatories, he begged an opportunity to consult a lawyer, lest he should commit himself. Fort refused to answer any of them, and both were put into gaol with negroes and felons. It was by the warrant of the judge, that the sheriff carried him to gaol. And for what reason? Was it because he refused to appear before this court, to give testimony, or for refusing to answer the printed interrogatories before him? It was certainly for the latter. Did the subpana by which he was summoned to appear, before this court, require him to