PART 4. issued, for the arrest of offenders against the United States, to the marshal; and this is unquestionably the safer and most proper course. An affidavit made before one magistrate rant com another. CHAPTER III. OF THE EXAMINATION--BAIL-COMMITMENT-AND Examination.] In the case Ex parte Boleman and Ex parte Swartwout (4 Cranch, 75), the important may war question arose whether one magistrate could lawfully mitment by commit on an affidavit made before another magistrate. The question was decided in the affirmative, "on the principle that before the accused is put on his trial all the proceedings are ex parte." This decision was applied by Chief Justice MARSHALL in the case of The United States v. Burr, Burr's Trial, vol. 1, But should pp. 14, 97. But he was of opinion that such affidavits tiously ad- ought to be received and acted on with much caution. be cau mitted. The following are his remarks upon this point: "That the magistrate may commit upon affidavits has been decided in the supreme court of the United States, though not without hesitation. The presence of the witness, to be examined by the committing justice, confronted with the accused, is certainly to be desired, and ought to be obtained, unless considerable inconvenience and difficulty exist in procuring his attendance. An ex parte affidavit, shaped, perhaps, by the person pressing the prosecution, will always be viewed with some suspicion, and acted upon with some caution; but the court thought it would be going too far to reject it altogether. If it was obvious that the attendance of the witness was easily attainable, but that he was intentionally kept out of the way, the question might be otherwise decided." And he added, authentica that before a paper purporting to be an affidavit CHAP.3. could properly be received and acted on as such, its verity must appear to be established beyond a doubt. Its authentication must not rest on probability, but And its must be as complete as the nature of the case admits tion complete. of. On this ground the chief justice refused to admit an affidavit purporting to have been "taken on the fifteenth April, before B. Cenas, a justice of the peace," to which was appended a certificate of the governor of the territory of Louisiana, dated "at New Orleans the sixteenth of April, 1807," stating that "B. Cenas was a justice of the peace for the county of New Orleans;" first, because there was no designation of the place where the affidavit was taken, and the oath might therefore have been administered out of the county of New Orleans, and so beyond the jurisdiction of the justice; and secondly, because the certificate of the governor did not state that the person who took the affidavit was a magistrate; but only that a person of that name was a magistrate. entitled to on his ex at the ex pense of the United An act, passed at the second session of the first Accused congress, gives to persons "accused or indicted," the witnesses right to offer evidence in their defense. This act and amination a later one amplifying its provisions, will be more particularly noticed in the sequel. It is adverted to States. here, for the purpose of stating that according to the liberal interpretation, which, as I understand, has been practically given to it, a person arrested on a criminal charge is entitled to have witnesses summoned in his behalf to testify on his examination, at the expense of the United States; but that this privilege has been restricted by a subsequent act, forbidding the taxation against the United States, of the fees of more than four witnesses on the examination of criminal cases before a commissioner, unless their PART 4. issued, for the arrest of offenders against the United States, to the marshal; and this is unquestionably the safer and most proper course. An affidavit made CHAPTER III. OF THE EXAMINATION-BAIL-COMMITMENT-AND Examination.] In the case Ex parte Boleman and before one Ex parte Swartwout (4 Cranch, 75), the important magistrate rant com another. be cau tiously admitted. may war question arose whether one magistrate could lawfully mitment by commit on an affidavit made before another magistrate. The question was decided in the affirmative, "on the principle that before the accused is put on his trial all the proceedings are ex parte." This decision was applied by Chief Justice MARSHALL in the case of The United States v. Burr, Burr's Trial, vol. 1, But should pp. 14, 97. But he was of opinion that such affidavits ought to be received and acted on with much caution. The following are his remarks upon this point: "That the magistrate may commit upon affidavits has been decided in the supreme court of the United States, though not without hesitation. The presence of the witness, to be examined by the committing justice, confronted with the accused, is certainly to be desired, and ought to be obtained, unless considerable inconvenience and difficulty exist in procuring his attendance. An ex parte affidavit, shaped, perhaps, by the person pressing the prosecution, will always be viewed with some suspicion, and acted upon with some caution; but the court thought it would be going too far to reject it altogether. If it was obvious that the attendance of the witness was easily attainable, but that he was intentionally kept out of the way, the question might be otherwise decided." And he added, authentica that before a paper purporting to be an affidavit CHAP.3. could properly be received and acted on as such, its verity must appear to be established beyond a doubt. Its authentication must not rest on probability, but And its must be as complete as the nature of the case admits tion complete. of. On this ground the chief justice refused to admit an affidavit purporting to have been "taken on the fifteenth April, before B. Cenas, a justice of the peace," to which was appended a certificate of the governor of the territory of Louisiana, dated "at New Orleans the sixteenth of April, 1807," stating that "B. Cenas was a justice of the peace for the county of New Orleans ;" first, because there was no designation of the place where the affidavit was taken, and the oath might therefore have been administered out of the county of New Orleans, and so beyond the jurisdiction of the justice; and secondly, because the certificate of the governor did not state that the person who took the affidavit was a magistrate; but only that a person of that name was a magistrate. entitled to on his ex amination at the expense of An act, passed at the second session of the first Accused congress, gives to persons "accused or indicted," the witnesses right to offer evidence in their defense. This act and a later one amplifying its provisions, will be more the United particularly noticed in the sequel. It is adverted to States. here, for the purpose of stating that according to the liberal interpretation, which, as I understand, has been practically given to it, a person arrested on a criminal charge is entitled to have witnesses summoned in his behalf to testify on his examination, at the expense of the United States; but that this privilege has been restricted by a subsequent act, forbidding the taxation against the United States, of the fees of more than four witnesses on the examination of criminal cases before a commissioner, unless their PART 4. materiality and importance shall be certified to by the district attorney.1 Accused to be bailed ted for trial, &c. This enactment was designed to correct the prevalent abuse of unnecessarily summoning a multitude of witnesses in behalf of the United States. But it doubtless embraces the witnesses on both sides. This act (8) also forbids the allowance of witnesses' fees to any officer of the United States courts, including bailiffs, guards, or deputies of marshals, testifying before a court or commissioner. The accused (unless discharged) must, as already or commit stated, be "imprisoned or bailed, as the case may be, for trial before such court of the United States as by this act has cognizance of the offense." And the act proceeds to require that "copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses, for their appearance to testify in the case; which recognizances, the magistrate before whom the examination shall be, may require on pain of imprisonment." The means resorted to in the first instance to procure the attendance of a witness is a summons. If this be disregarded, a warrant secured. may be issued to bring the witness compulsorily. If Attend ance of witnesses, how the witness refuse to testify, he may be committed until he shall consent to do it, or shall be otherwise discharged by due course of law. He may be required to enter into a recognizance for his future appearance at the proper court, and be committed if 1Act of August 16, 1856, ch. 124, § 3: 11 Stat. at Large, p. 49. "It will be observed, that the recognizance for the appearance of the offender is not specifically mentioned as one of the papers to be transmitted to the clerk's office of the district to which the prisoner is to be sent. It can hardly be doubted, however, that this is the proper disposition of it, for it is only in the court of that district that the recognizance can be enforced or the penalty remitted. The omission was doubtless from inadvertence. |