Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-03-03

oOjSN-, Htu OCSn procured, ana tor a con- |
siderable time, in repeated conversations
the whole efforts of Col Burr were direc-
tedtoprovc to the witness who was to have !
held a high command under him, the prac- {
ticability OF the enterprise, and in explain /
ing to him the means by which it was to be ,
effected.
This deposition exhibits the various !
schemes of col. Burr, and its materially de- !
ponds on connecting the prisoners at the /
bar IN such ofthosc schemes as were trea- |
sonable. For this purpose the affidavit of !
general Wilkinson comprehending in its |
body the substance of letter from Col. Burr !
has been offered and was received by the |
circuit court To the admission of this |
testimony great and serious objections have |
been made. 1t has been urged that it is a I
voluntary, or rather an eXtrajudcial afh- |
davit made before a person not appearing
to be magistrate, and contains the sub
stance only OF letter, of which the original
is retained by the person who made the aili-
davit
The objection that the affidavit is extrajudi-
cIal resolves itself into the question whether
one magistrate may commit on an affidavit
taken before another magistrate. For if hc
may, an affidavit made as the foundation of
4 commitment, ceases to be eXtrajudicial,
and the person who makes it would be as Ii
able to prosecution for perjury as if the
warrant OF commitment had been issued by
the magistrate before whom the affidavit
was made.
To decide that an affidavit made before
one magistrate would not justify commit
mcnt by another might in many cases be
productive of great inconvenience, and does
not appear susceptible of abuse if the veri-
ty of the certificate be established. Such
an affidavit seems admissible on the prin-
ciple that before the accused is put upon
his trial, all the proceedings are eXparte.
The court therefore ovcr-ruled this objec-
ton.
That which questions the character of
the person who has on this occasion admi-
nistcred the oath is next to be considered.
The certificate from the Office of the de-
partment of state has been deemed INSULT
Client By the council for the prisoners, be-
cause the law does not requil C the appoint
ment OF magistrates for the territory of n.
Orleans to be certified tothat office, because
, the certificate is in itself informal, and be-
cause 1t does not appear that the magistrate
had taken the oath required by the act of
congress.
The first ofthese objections is not support
ed by the law of the case, and the second
may be so readily corrected that the court
has proceeded to consider the subject as if
Ii were corrected, retaining however any
hnal decision, if against the prisoners, I'M
Il! the correction shall be made. With re-
gard to the third, the magistrate must be
presumed tohave taken the requisite oaths,
since he is found acting as a magistrate.
On the admissibility of that part of the af-
idavit which purports to be as near the
substance of the letter from Col. Burr to
J u LOT
! pref 1t, division of opinion has taken place,
IN the court. Two Judges are Of opinion
that as such testimony delivered in the pre-
Sence OF the prisoner on his trial, would be
totally inadmissible, neither can it be con-
sldered as foundation for a commitment.
Although IN making a commitment the ma
glstratc does not decide on the guilt of the
prisoner, Yeti does decide on the probab e
cause, and long and painful imprisonment
may be the consequence of his decision
his probable cause therefore ought to be
proved by testimony in itsclflegal, * which.
[ Though from the nature of the case it must
he eXparte, ought, in most other respects TO
be such as court and jury might hear.
| wo Judges are of opinion that in this in
! cIpent stage of the prosecution an affidavit
stating that the general purport Of letter
may be read, particularly where the per-
| O'' 81 PN'SS s9ioh VI IL - DIT 100 great q dis
tance to admit Of its being obtained, and that
! i commitment may be founded on it.
| Unucrthis embarrassment it was deemed
necessary to took into the affidavait for the
purpose OF discovering whether if admitted,
1t Contains matter which would justify the
commitment of the prisoners at the bar OH
| the charge of treason.
mat the letter from Col. Burr to Gen.
wilkinson relates to a military enterprise
meditatcd by the former, has not been ques-
TONED. Hthis enterprise was against Mex
leo, IT would amount to high misdemean-
or, IT against any of the territories of the
y. states, orif in its progress the subver-
SION OF the government of the United States
IN any oil their territories was mean clear
~ and necessarily to be employed, if such
mean formed substantive part of the plan,
the assemblage of body of men to effect it
would be levying war against the United
States.
The letter is in language which furnishes
no distinct view of the design of the writer
he cooperation, however, which is stated
70 have been secured, points strongly To
some expedition against the territories of
spain After making these general state
ments the writer becomes rather more ex-
plicit, AID says, "Yurr's plan of operations
IS to move down rapidly from the falls on the
10th ct November with the first 500 or 1 600
men in light boats, now constructing for that
purpose, to be at Natchcz between the 5th
Il 1 q -