The enquirer. [volume] (Richmond, Va.) 1804-1815, 1806-12-13

| 'nent and ciisgrin Sf crou,led audience nae
ne conceived, but the ritiicule and laughter
wnich followed was univerfaI. The public fem
TUNER. wnich mad ali along been ftronyiy in "a
Vor OF Col. Bnrr, now burif forth withcu, dif
guiie. There is not time to Comment on thief.
traniactions, but TWO or three facts NAV tend
10 dilcloie the motives of this PROSECUTION.
ON.
AT the time it was commenced it was b.liey.
ed that Col. Burr had left the Fate.
Mr.. Da'ieis iwcars that the information he
mad received, convinced his mind Of the trut,, Of
the charge ;-Vhy was not this infor ~ alton .
ven 10 the grand Jury?
The iubpGnas returned then the names cf
the twelve wt"eiles. all Of whom attended,
one more was delired by Mr.. Daviefs, this ors
was ny him Rated In be a gentleman ot Tr!f r.
,onv.ie, toppodte Louifville, on the Ohiu) WHO
"ao rome Gays previous gone to Vincenurs, to
a.!en1 the 'eglilature of the Indiana territory,
:! "''eA ne IS member; this legflature had
commenced on the 9Th inf. MIR. Davirfs did
not proteis to have had any communicated
vita TINS gentleman directly or indirectly
hence this tettinony could have no inHnenc.
with MIR. Davieis in giving his affidavit or in
'nitituting the proiecu,ion.
On Saturday Laa, cJfudge lines, del;4eys1 fbe
| JoHosolng opinion on ibe /abje9 of tie motion
Hs"''W Colonel Burr, maze by TIE FEDERAL at
f0''-cy Oh "e@neiaay preceding:
The Gueftion to be confdered,-Has this
court power to award proceis againft the ac-
cuted, ard 10 compel the attendance of wit
neiie' upon this motion---and il the court haa
iuch power, is the evidence adduced fufficicnt
to warrant the meafure.
Four kinds of proceeding have been know,
and purified in order to convict perfi,ns of
crimes and miidemeanors---1f, By an apDIica-
t,on to Juice or judge out of the court--ed,
By deTering an indictment to grand jurv--sd.
by preientnient of the grand jury-and 4th, By
information.
The preSent application is not embraced by
either of thefe modes of protecting. 1t i. a
new CAFE reling the lifcret;on OF the court.
ai.d as this drci.ion may be confdered rrc-
cedent in future, have thought it nv duty
to take time and r:aturc the iubiecf, becaufc
the proPo.ee. n.ealure being preven,afive-no
injury would ari,c By little delay. No nfance
has occurred (withn my recolection) iince I
have become acquainted with judicial proceed
ings, where crime or mifdeucanor has been
committed) OF nns,ion being made to court
to award p,oceis. to arrea the offender in tire
firf in,anoe i.;;,>r hare / knowledge Of the
e:;i!lercc OF law 70 autho-i:e It.
In any CAFE where court awards procefs il
is pTcdicated upon fome previous act already
cS"N, winch %iVS6 llS court COSillZGIlCe OF the
iuhjeG and brings the cafe in legal fiare be.
fore that tribunal; this being performed, the
power to adopt every neceilary meafure to at
tain tie obs CT aud end of the law and 10 per-
tett Juice is vcied in cours.
ne magnitude OF Tbs cafe, not only as it
relates 10 the com,nuni>y-but to the accufrd,
requires that tie proce edinss nc purified with
regularity. caution and circnr7fpe2inn. Ifthe
facts Rated ia tic affidavit be true, the proieSt
Tilty.f 81 y -
ed-Yet in doing this, tie regular legal aeps
pointed oGt o7 uiags or by law, ought to be
pur.led. IL on the other hand the accufcd be
innocent, the flroDg arm of power ought to be
confined within It's proper lilnits--the known
rules Of proceeding and on no location hut
s.eire'ge ascs5ft2 ought judge to heinduccd to
eZsrol!e power which REFS on iifcrction. The
law then becomes unknown, aud the len Judge
may DC conidered & tyrant, becaufe it then de-
ponds upon hia whim and caprice-It will not
be uniform, but is liable 10 change with the O.
Pinion of every judge.
Thief, reflections extend to the general prin-
c'p'e arihng out Of this cafe. Admit however
that they are erroneous--to award procefs
would be imProper--i' would he an aSt of OPP
preaon hecauie there is no legal evidence be-
fore the court to authorize an arrea OF the per-
fon accufed. The evidence ia the oath of 4
perioD, who has been informed by one not up
on oath, that TIE deponcnt believes the facf to
be true. have 10 doubt Of the truth Of the af-
idavit that is, that the dePoncnt has been in
formed of the fact ;tated and il ia pohible the
fact as itated istrue--yet il is not legal evil
dence. and not being legal evidence the court
cannot a6 upon it.
Upon this view ofthe fuhjeee, am compelled
to declare-that as the cafe is a new one-as
no precedent has been Glewn to junify fuch a
proceeding ; as the law is f'ent on the fuhied
and as there are two other modes of proceed
Ing which are regular and we'll underfood, viz.
by applying TO a judge out of court and OBJ
flaming warrant upon legal evidence-or by
the court ordering grand jury to be fummou-
ed iqfnnee5. and preferring an indiament-this
motion is overruled
III republican paper of exenGve circulation, it has
been Gated TIA, the judicial proceedings nRituted by
Nj. Davels againa COL Burr, were at the fpecial
inGauce Of the government Of the United States.
This hatement, we are aiFursd, is erroneous. How
ever foicous the PreEosent may have been to arreh
the progref' Of this detelable aociation, he,
authorized aliert, did advie the eourf- of pro-
ceedng purified by Mr.. Daveiis. In making this
remark we do not mean TO can any imputatiou on
the attorney of the difirSt. We applaud his feelings
and his motives at crifs 70 full Of dangers. His
excelIive ardour to Gay the Of f. daring snd 70
dangerous man, may have hurried him into cour,s
Of proceeding not eystfly reconciable to the ftra
principles Of law. The grea; iealouy Of our conitu-