Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-06-24

voce /; and that those affdavits are gene.
rally written, under the directions Of the
witnesses, by the agent of the party on
whose behalf they are taken; magistrates
not being willing to submit to the druid
gerry; and witnesses frequently 200 igno-
rant to do it themselves.
Coz Burr said, it would be agreeable to
him II the witnesses were examined in o.
pen court (; but that he had thought it
would have been disrespectful to the court
to vary from the established practice
The origin of this business, he said, was
this. Mr.. Knox complained to me of ILL
usage from Gen. Wilkinson, and enquired
what step he ought to take-it occurred to
me at first, to refer him to Mr. Hay the
district attorney but, On reflection, | sup
posed Mr.. Hay not the most suitable per-
son, under present circumstances His af-
hdavit was therefore taken by one OF nv
counsel. believe Knox thought the mode
OF proceeding was for him to make his
complaint in person to the court.
Mr.. Uirt. The reason of the rule that
afhdavits are admissible to be read as e.
violence en- motions is founded i'm expedi-
ency; and the reason ceasing the rule
ought TO cease also. The enquiry then
ought TO be, whether it is more expedi-
ent IN this case to make use of the affi-
davits, or of the witnesses themselves. We
wish to come at the truth. The counsel
OF A ron Burr, zye hohe, wish TO come at
the truth. knozv 7ve do : we wish no
thing enveloped in darkness and mystery.
Where witness is absent, or the TING of
the court would be unnecessarily coEsum-
ed IN his examination, it is expedient
to admit his affidavit to- be read, on
motion for an attachment, or for a
continuance: but eXpediency here de.
mands different course. Which is best
to establish facts +? A written affidavit ia
ken eX-parte, or viva voce evidence
| When an affidavit is Introduced, the oues-
ton is important, was it written by the
witness himself, or by another person who
received general directions from him In
this case, the latter course was pursued.
The witnesses words were not put down,
but words written by persons under par
! ucular bias. Is it likely that an affidavit,
| colored by passing through the mind of :,
preIudiced person, will be better adapted
TO the discovery of truth, than the witness
himself.
Mr.. Bolts said that Col. Burr had no
objection to examining the witnesses viva
vCce.
| The Chief Justice said, "the objection
to reading the affidavits is not good In point
of law: the reason of the rule that affida-
Wits are received on motions of this nature
is to prevent the time of the court from
being unnecessarily occupied: but that
reason does not at present apply since the
court is waiting for the grand jury, and is
not occupied with civil business" Ee
therefore directed the witnesses to be exa-
| mined viva vcce.
Mr.. dl'Rae observed that, as this was
a melton OF consequence to the respectable
ltra tlau
racter was attacked, he wished him to be
present; that Gen. w. was then before the
grand jury, and short delay would enable
him to be present. 1t was possible facts of
some moment were kno WI to him, and not
to the counsel and he might suggest i'm
portant questions TO the witnesses Mr.
M'Rae also commended that witnesses ought
to be examined on both sides, that the
whole truth might be known.
a dispute of some length ensued; the
counsel Tor Col. Burr contending, that, as
this was only motion for rule to shew
cause neither Gen Wilkinson nor his
counsel ought to be heard upon it that,
hereafter, when he Came to shew cause a.
gainst issuing the attachment, he would be
permitted to exhibit evidence on his part,
and to cross examine the witnesses against
him; but not until then and the counsel
-'' - Nh' W AAH~'iooh a. Hua'6 Nlldl lllC court
ought to prefer full to a partial view o.
the evidence that his presence would a d
the court in asking the proper questions :;
and that, altho' he and his counsel were
not legally in court, they had right to be
heard as GnIici curiae that, as to The right
of introducing witnesses in his favor at
this stage of the business, it was the prac-
tice, where the party, against whom an
attachment was requested,) was not pre-
sent; to serve him with a rule to shew
cause but, where he was present with his
witnesses, he had right to slew cause
Immediately.
In the end, il was consented, that the
motion should be at once for an attach
ment, instead OF rule to shew cause and
that it should be postponed till Monday,
unless Gen. Wilkinson's examination by
the grand jury should be sooner finished.
The time ofthe grand jury on Friday and
Saturday was entirely occupied in examine
ing that gentleman.
MONDAY June 90.
Mr. Rdndoibb desired James Knox 10 be CAL
led, and said he was ready to proceed in his nlo-
| ton
| Mr. NJ Rae wished The motion 10 he farther
! POSITION ed, as Gen. Wilkinson was still engaged
| in riytuo HE fp-firraO1y o -,