James Madison Papers
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https://founders.archives.gov/documents/Madison/02-12-02-0156

James Madison, Henry Dearborn, and Robert Smith to the Judges of the Circuit Court of New York, 8 July 1806

James Madison, Henry Dearborn, and Robert Smith to the Judges of the Circuit Court of New York

City of Washington, 8th July, 1806

We have been summoned to appear on the 14th day of this month, before a special Circuit court of the U. S. for the district of New-York, to testify on the part of William S. Smith, and Samuel G. Ogden, severally, in certain issues of traverse between the U. S. and the said William S. Smith, and Samuel G Ogden.1 Sensible of all the attention due to the writs of subpoena issued in these cases, it is with regret we have to state to the Court, that the President of the U. S. taking into view the state of our public affairs, has specially signified to us2 that our official duties cannot, consistently therewith, be at this juncture dispensed with. The court we trust, will be pleased to accept this as a satisfactory explanation of our failure to give the personal attendance required. And as it must be uncertain whether, at any subsequent period, the absence of heads of departments, at such a distance from the scene of their official duties, may not equally happen to interfere with them, we respectfully submit, whether the object of the parties in this case may not be reconciled with public considerations by a commission issued, with the consent of their counsel and that of the district attorney of the U. S. for the purpose of taking, in that mode, our respective testimonies. We have the honor to be, With the greatest respect, Your most obt. servts.

James Madison,
H. Dearborn,
R. Smith.

Printed copy (National Intelligencer, 23 July 1806).

1For the case, see JM to Thomas Jefferson, 28 May 1806, PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (12 vols. to date; Charlottesville, Va., 1986–). description ends 11:622 and n. 2.

2An undated draft of this letter, written in Smith’s hand (3 pp.; DLC; dated 1806 and listed under New York District Court in the Index to the James Madison Papers), varies from the printed version in wording but not in substance. Filed with the draft is a one-page revision in JM’s hand, which begins from this point, as follows: “that our official duties can not at this juncture be dispensed with. The Court we trust will be pleased to accept this as a satisfactory explanation of our failure to give the personal attendance required of us. And as it must be uncertain whether at any subsequent period, the absence of Heads of Dept at such a distance from the scene of their official duties, may not equally interfere therewith, we respectfully submit, whether the object of the parties may not be reconciled with public considerations, by a Commission issued with the consent of their Counsel & that of the District attorney, for the purpose of taking our respective testimonies.” JM interlined “therewith,” and below it, “with them.”

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