THE UNITED STATES v. STEWART AND WRIGHT
2 U.S. 343

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U.S. Supreme Court

THE UNITED STATES v. STEWART AND WRIGHT, 2 U.S. 343 (1795)

2 U.S. 343 (F.Cas.) 2 Dall. 343

The United States v. Stewart and Wright Circuit Court, Pennsylvania District April Term, 1795

The Prisoners being brought to the bar, on separate charges of High Treason, Lewis read their depositions, stating the absence of material witnesses in both cases, and moved to postpone the trials 'till an opportunity was given, to procure the attendance of those witnesses from the Western Counties. He urged, the general inconveniency of a commitment and trial at so great a distance, from the scene of the criminal transaction; the friendless situation of the prisoners, and the poverty of the witnesses; and he alledged, that, under such circumstances, an immediate trial would be a mere ex parte proceeding. To shew the lenity with which persons thus charged have always been treated, he cited Fost. C. L. 1, and to account for the delay in procuring the witnesses, he observed, that as the act of Congress (1 Vol. p. 67. s. 29) declared, that 'in cases punishable with death, the trial shall be had in the County where the offence was committed,' if it could be done without great inconvenience, the prisoners might reasonably have expected that indulgence, until the motion for a Special Court had been refused, on account of the peculiar difficulties of the case, in opposition to the general inclination of the Judges. Nor could there be any preparation for trial 'till the charge was known, and the names of the witnesses who were to prove the indictments. By the practice under the Constitution and laws of Pennsylvania (and the case is the same here) a defendant cannot have compulsory process to bring in his witnesses, before he has sworn that they are material; and he cannot so swear 'till he knows the charge and the witnesses that support it. It is essential to the administration of justice, and to the feelings of humanity, that the defendants should have time to investigate the characters of witnesses, and to bring proofs in contradiction to the accusation. Hence, even in England, where the Counties are generally smaller than in this country, a period of ten days is allowed, between the time of furnishing lists of the witnesses and jurors, and the time of trial: 7 Ann. c. 21. 4 Bl. Com. 345. and altho' the act of Congress (1 Vol. p. 112. s. 29) only says that copies of the indictment and a list of the jury and witnesses shall be delivered to the prisoner 'at least, three entire days before he shall be tried,' yet it must certainly be the intention of the Legislature to afford an opportunity to canvass the characters of the

Page 2 U.S. 343, 344

witnesses, or the provision would be nugatory: that opportunity cannot be deemed to commence 'till he knows their names, and it cannot be deemed to be compleat, unless he has had time to send for information to the places in which they reside. The Court will, therefore, exercise a discretion as to the length of time to be allowed, in proportion to the distance; and, conformably to the case in Fost. 1, the time so allowed for preparation, will be subsequent to the delivery of the copy of the indictment, and the lists of witnesses. Rawle (Attorney for the District) premised, that an acquiescence in the present motion, would, probably, put off the trial for the term. He urged, that the prisoners must long ago have known the nature of the charge, and the proofs necessary to their defence; and ought to have made an earlier application for the aid of the Court to procure their witnesses. Due diligence has not been used, nor, indeed, is it so stated in the affidavits; and it is not only necessary to satisfy the Court that the witnesses are material; but also that the party applying has been guilty of no laches, or neglect, in omitting to apply to them and endeavouring to procure their attendance. 3 Burr. 1513. Ever since the 20th April, there has been an opportunity to make this motion; which was not the case in Fost. 1, as that arose before a Special Court, acting under a special commission, for special purposes. Nor can there be a just reason to object to the trial's coming on, because of the place at which the Court is held. On the motion for a Special Court, sufficient was disclosed to shew, that the indictments would be presented in Philadelphia; and it was a mere speculation afterwards to suppose that another place would be appointed for the trials; particularly as all the jurors and witnesses had been actually summoned. By the Court: The only argument of weight in support of the present motion, is that which relates to the period of furnishing the prisoners with the names of the witnesses; but it is, of itself, conclusive: for, unless an opportunity were afterwards given to investigate the characters, and trace the conduct of the witnesses, it would be nugatory and delusive to furnish the list of their names. The act directs notice to be given; this must be intended for the purpose alluded to, and, for the attainment of that purpose, time is, undoubtedly, necessary. It must, therefore, be considered as a rule in this case, and in all other cases of a similar nature, that a reasonable time shall be allowed, after a list of the names of the witnesses is furnished to the prisoners, for the purpose of bringing testimony from the counties in which those witnesses live. The trials of Stewart & Wright were, accordingly, postponed; and it was then agreed that they should not be brought on 'till the trial of the other prisoners, who were ready for trial, was [2 U.S. 343, 345]


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