The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-06-23

tween lndivi0uais anu the ". states, that col
lateral points iiIoaid o<cnr. IN which, teilinony
oarht t. be heard. Blu, If the T,iUs g,oes evi-
Hence b. productd, il win 4 al 20 IN unnecei-
fry coniuhon aud ware q. ;iTc. The regular
,>rsttire, therefore. is. Vhen an af thofe COL
hisrai points are G,sted, not 20 produce 2y:1s4
,'3ce tSit1ohy. but the affiJay;ts ct the witt
neilrs. Theie aifidavits are not made in court,
but before private magistrates. These being in
writing, mut neeeGariiy be written by one of
three descriptions OF periors by Judge or
rather masiterate, by the party himfelf, or
by his eouniel. In mgny cafes tbey cannot be
written by Iaagitrate, becaIfe he has no
clerk, and it would be too burtbcniome, il e.
very affidavit which was fworn TO before him
ihould be written By him and behdes many
man makes an able magiftrate who is very in
different clerS. II is not coRteuded, that the
parties themieives ought to write them be-
cauie fome OF them are not able to write at all.
They NUT Of courfe be written by their coun-
Eel or by ioaie agent but it is not every man
That has an agent at hand, ard if his council
performs the act, ne is to be cohlidered for the
time as an agent For the party fIagiRrates,
therefore, not being comparable the parties
not being able; and the countsl being exclud.
Sd by Mi. Hays doctrine, ,hefc afTidavits
would iedom be produced. Hence cufom
has prevailed among lawyers, to write their eli.
ehts aiiitaSits; and the gentleman hmief
confeiies that he has frequently done it. As to
the authority quoted by Mr.. II. i, mas no fort
CT force. From this cafe il appears that the
attorney for the protection had hinfelf adn1i.
nlltered the OATH. Now no rule is more facred
In law, than that magiitrate before whom the
oath is taken, .heu!d be tiiFintereted between
both the parties. If the masiitrate he arreRed,
Is 1t was in the cafe quoted, it viiaes the af-
hdavit. magitrate of this city has been fire.
4aently known 20 draw and adminifer the oath
even 10 his own cafe the frt is moi improper |;
but the sdmnitraticn of the oath is obyioufly
10.
Mr.. Burr obferved, that it would be much
more agreeable TO him, if every perion could be
orally examined but that he would dsferve
fhe rsbuke OF this court, If he in every cafe
departed from the .fabiiGlrd ufaee however.
ii the court would fuhmit to the Inconvenience.
IT would be perfectly agreeable to himHelf.-
AS to The origin OF this buiinefs, certain I'M.
founded hiinuatlons had been made; that Mr..
F>uoX had ccDe To him aud complained of the
Mage which lie had received; that one of his
counisl who was prefent during this interview.
mad joined him in the opinion that fome mo.
zion ought TO be taken of this proceeding :
that Tic h'f thought the better way would be
10 iaVite Mr.. Hays attention to il but that
he recoi'eeied that MIR. Hay being an intereft-
ed party, was perhaps, disqualified from, do
lug full Juice 10 the cafe: il was Mr.. Kno3's
own idea 10 come into court and make his
complaint.
Mr. Yrf obierved, that Mr.. Wickham was
tlght as 10 the practice, but Ne fecms 10 have
forgotten that this practice is funded in exDe.
diency. When the eypedeucy ceaies, TO does
the rule. The queftion then is, is it mott ex
pedient to follow the ufual pr ctce, or to have
fhe 1.Sa Teee teitinony produced. He trulled
that every man wifhed to come At q correa
or he. faSi ,
on for rule againt G. w It ought to be "a.
tishrd of the proprcty of granting this rule.
One lawyer lays, that the ufual practice is by
affidavit: another contends, that Il is he1 TO
determine The expedicncy by zlya q,oce teN;
rfony. The qusftion then is, which will beft
give iatstacton to the court an affidavit pen
ned by the party, or the witnef; Eim(eif? How
can The court belt know, whether the rule is
proper until they have had The wtnefs fairly
and faiy examined Has the conufe in draw
ing up theie affdavits ufed the words of the
witRes hinie!f; no doubt he has tried TO do
isaswall as he can : no doubt he has attempt
ed to wipe oil every bias from his mind but
it is impoihble that he could have perfectly
tucceeded; or that he could have preciieIy
drawn iuch an affidavit, as would have flowed
OF itie!f from the mind Of the witnefs. They
coud not have ufed prec(eIy the fame exoref.
Gons; andthis affidavit which fhouId exprefs
the colour OF the mind OF the wJtnefs, is necef-
fdriiy too mach tinged with the colour of the
n,iud Of the council.
Mr. Botfs. Yon mifnnderfand Col 3. Sir /:
lie ac9neiccs in your reafonS he feels he ex.
pediency Of your propolitiun and cheerfully
t0aitntsto the exhibition OF the yiqja gore tcf-
ti''ony tieif; though he regrets the inConveni-
e1cc and departure from ufsge, which it viii
Involve.
MI. Martin. IF the witnsfs himfelfis exam
ined, the clerk viii reduce the GBeRion. and
auf@ersto writing, to give il all the Effect of an
affidavit.
Mr. fay aPologiftd for frequently rnfunder-
Na0dng Col. L. NOW ilhaanding his dame
voice and emphatic manner. Their reips lt;ve
ftua:ions prevented him from being d,tinaly
head.
james Kaoz was then called, WHEN Mr..
NJ Rae addrciled the conrt lie flid thlt rs
this huiipcfs was &C comfortable importance to
The respectable gentlrsn &c. W. who was i'm
tlteiy interencd, it was extremely defrabIe
that he might he prefeut du'ipglihe exaninai.
on Of this ard the uth:r ritntncs who m gi,t
be exhibited on this location that thcfe " q
&c h.J been communicated to the oppofle
counfr but that ;hey h5d oije6led to any &c ay.
and hence he had un-de this application 10 tire
court that @. w. was now before The Grand
Jury, and would be IN = flIort time before fine
cont: that be knew G.. w. wilhed to be here
He therefore requefed that The court would
fulpend their examination fdr Mort time, I'm.
al re himfen could be preieni that perhaps
ga