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JAMES THOMPSON CALLENDER. 829

strate that the decision is right; for if the defendant be
found guilty when his witnesses are absent, and counsel
unprepared, the verdict will not satisfy the public mind of
his guilt.

Jvupez Case. It is wholly improper to go back to the
former motion. Gentlemen, you misapprehend the inten-
tion of the court in postponing the cause till today—you
ought to confine yourselves to the present motion. Two rea-
sons are assigned for postponing the trial: the first, that
Mr. Giles is absent, and it is inferred that the court, by not
ruling a trial before, admitted his evidence to be material.
The court did not enter into the question whether it be ma-
terial or not. It appeared that he was within a little dis-
tance of this place, and the cause was suspended till Mon-
day, that Mr. Giles might be summoned before that day, to
attend. On Monday, you asked for a postponement of the
trial for a few hours, and it was stated that perhaps he
might come in the course of the day. Instead of a few
hours, you had choice of continuing it till today. Mr. Giles
has been summoned, and does not attend. Regularly you
ought to take out an attachment against him for not attend-
ing after having been served with the subpoena and ap-
prised that his evidence was required by the traverser.
There is no reason to believe he will be here during the
term of the court: you do not expect him; if such excuses
as these authorize a postponement of the trial, it must be
evident that this cause will never be tried. It is not neces-
sary to say whether Mr. Giles, if present, could be sworn or
not; because the traverser is not entitled, on general prin-
ciples, to a continuance. Another reason assigned is, that
as the jury are to assess the fine, it is essenial that the
traverser should have the privilege of adducing testimony
to mitigate it. This may be the practice in your own state
courts. Your own court will be governed by your own
laws, but it does not apply to the Federal courts. The jury
are not to regulate the fine. It is a mistaken idea; they
have nothing to do with it. But it is stated that the coun-

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