Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-05-30

admitted, where the personal attcn-
dance oS the witness could have been
obtained:
2dN. That this paper is not so authcn-
ticated, as tn entitle itself TO be consi-
dered as an affidavit.
That magistrate NAV commit upon af-
tidavits, has been decided in the Supreme
Court of the United States, though not with
out hesitation. The presence of the witt
ness TO be examined by the committing ius-
tice confronted with the accused, is certain
ly to be desired; and ought TO be obtained,
unless considerable Inconvenience and diff
hculty exists in procuring his attendance
An ex-parte affidavit shaped, perhaps, by
the person pressing the prosecution, will al
ways be viewed with some suspicion and
ac,ed upon with some caution, but the court
thought it would be going too far to reject
it altogether. If it was obvious that the at
tendance OF the witness was easily attaina-
bic, but that he was Intentionally kept out
OF the way, the question might be other
wise decided.
But the particular case before the court
does not appear to be of this description.
L he witness resides at great distance
and there is no evidence that the matcr-
atty OF his testimony was known to the pro-
secutors or 60 the Executive IN time to
have directed his attendance 1t is true
that general instructions, which would APP
ply TO any individual, might have been
sent, and the attendance of this or-any o.
Their material witness obtained under those
instructions but it would be requiring too
much to say, that the omission to do this
ought to exclude an ;idavit.. This excep-
ton, therefore, will not prevail
The I'd is, that the paper is not so au-
thenucated, as to be introduced as tes-
tlmoDy on question, which concerns the
liberty of citizen.
This objection is founded on two omissi-
ons in he certificate.
The first is, that the place at which the
affidavit was taken does not appear
The second, that the certificate of the
governor does not state the person who
administered the oath to be Il magis-
trate, bat goes no further than to say,
that person Of that name was a ma
gistrate.
That, for aught appearing to the court,
this oath may or may not in point of fact
have been legally administered, must be
conceded.
The place, where the oath was admins
tered, not having been stated it may have
been administered where the magistrate
had no jurisdiction, and yet the cert fcate
be perfectly true. Ofconsequence there S
no evidence before the court, that the ma
gstrzte had power TO administer the oath
and was acting in his judicial capacity.
The effect of testimony may often be
doubtful; and courts must exercise the r
best Judgment in the case but of the veri-
" OF the paper, there ought never to be a
doubt. Nopaper writing ought to gain adj
mittance into Court of justice as testimo-
ny, unless it possesses those solemnities
which the law requires. les authenticate
on must not rest upon probability, but must
be as complete as the nature Of the case
admits of This is believed to be a clear,
legal principle. IN conformity with il, is,
as the court conceives, the practice Of En-
gland and OF this country, as is attested by
the books uf forms; and no case is recoi-
lected, in which contrary principle has
been recognised. This principle is in some
degree illustrated by the doctrine with
respect to all courts of limited lurisdicti-
or. Their proceedings are erroneous, if
their jurisdiction be not conclusively shown.
They derive ns validity from the strongest
probability that they had jurisdic ion in
the case: none certainly from the presump-
ton that being court, usurpation OF ju-
I1sdIction will not be presumed. The rea-
scning applies in f:li force to the actinrs
of a magistrate whose jurisdiction is local.
Thus in the case of warrant, it is ex-
pressly declared, that the place where it
was made ought to appear.
The attempt to remedy this defect BY
comparing the date oftbe certificate given
by the magistrate, with that given by the
governor cannot succeed. The en,gcr 81
ven a t bar to this argument is conclusive.
TIE cert feate wants those circumstances
which would make it testimony, and with
out them no part cf it can be regarded.
The second objection is equally fatal.
I he Governo has certified that man of
the same name with the person who has
administered the oath is a magistrate, bat
not that the person who has administered
| it, is magistrate.
1t is too obvious TO be controverted, that
there may be two or more persons Of the
same name, and, consequently, to produce
that certainty which the case readily adj
mits of, the certificate of the Governor
ought TO have applied to the individual
who administered the oath. The proprie-
~ Of this certainty and precision in a cer-
/ tihcatc, which is to authenticate any afli-
davit to be introduced into a court of JUS
| tee, is 50 generally admitted, that do
not recolect single instance in which
/ the principle has been departed from.
/ 1t has been said that il ought to appear
| that there are two persons of the same
name, or the court will not presume such
to be the fact. The court presumes no.