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

possesses the valuable privilege of being
confronted with his accuser. But there
must be some limit to this relaxa;iar. md
IT appears not 70 have extended so far nc
to the admission of paper, not puroors-
ing to be an affidavit and not shown 70 I've.
one.
When it is asked whether every ma,
does notbclieve that this affidavit was re-
ally taken before q magistrate, it is az once
answered that this cannot affect the case.
Should man ofprobity declare a certain
tact within his own knowledge, he Yonlf
be credited by ali who knew him, bur his
declaration could not be received as ties
timony by the judge who firmly believed
him. Soa man might be believed tobe Gull
ty OF crime, but jury could not con-
Wet him, unless the testimony proved
him to be guilty oft. This iudicial disbelief
OF probable circumstance docs not cs
tablish wide interval between common
law and common sense. 1t is believed in
this respect to show their intimate UNI
on.
The argument goes to this, that the pa
per shall be received and acted upon as an
affidavit, not because the oath appcars
to have been administered according TO
law, but because it is probable that Ii was
so administered.
nlo p'll' T'tlfiS 10 nave DcSN decided
by the constitution:
The right OF the people" saws that
instrument, .'to be secure in their personx.
houses, papers and effects against unreason-
able searches and seizures, shall not be vi
olated and no warrants shall issue but
upon probable cause supported by oath or
animation, and particularly describing the
places to be searched and the persons or
things to be seized"
The Cause OF seizure is not to be suDnort
ed by probable oath. or an oath that way
probably taken, but by oath absolutely ia
ken. This oath must be legal oath and
II 1t must be legal oath, it must lcrally
appear to the court to be so. This pr vision
is not made for final trial; il is ma lie for
the very case now under consideration In
the cool and temperate moments of rrfec-
ton, undsturbed by that hirlwind ofpas-
sion with which in those party conflicts
which most general produce acts or ac-
cuSationS oftreason, the human Judgment 9
sometimes overthrow, the people OF Anne
rlca, have believed the power even of COM
mItment to be capable of too much oppres-
sion iii its execution, to be placed without
restriction, even in the hands of the natl
onal legislature. Shall d Judge disregard
those barriers which the nation has deem
ed it proper to erect?
The interest, which the people have in
this prosecution, has been stated; but it
is firmly believed, that the best and true
interest of the people is TO be found in a
rigid adherence to those rules, which pre-
serve the fairness ofcriminal prose cutions
in every stage.
lfthis was a case to be decided by prin-
ciple alone, the court would certainly not
! receive this paper. But if the point is set
tied by decision, they must be concerned
TO.
1t has been said to be settled in the Su-
preme Court ofthe United States by admit
ting the affidavit OF Wilkinson, to which an
exception was taken, because it did not aD-
pear that the magistrate had taken tie
oaths prescribed by law. twas said hat
as BY law he could not act, until he had IA
ken the oathS and he was found acting.
it nust be presumed that this prerequisite
was complied with that is, that his acting
as a magistrate under his commission was
evidence that he was authorised so to act.
1t VIII not be denied that there is much
strength IN the argument: but the cases do
not appear to be precisely parallel.
The Certificate iha, he IS a MAR strate
and that full faith is due 10 his acts, i'm.
plies, that he has qualified If his quai,G-
cation IS necessary TO his being CONF
! pie!e maSiettale, whose aclS are entitled
20 foil faith and credit.
1t IS not usual for particular cer'if-
cate that magistrate has qualified TO
accompany his official acts.
There is no record Of his qualification
AID no pa :icuar testimonial of it could
| be chained.
These observations DO not apply to the
objections which exist.
| But 1t IS SAID tina, the certificate il the
| same with that in Wlkinson's affidavit.
lfthis objec ttion had been taken and o.
yerruied, IL would have ended The ques-
,.on' But it was not taken, so far as is
now recoliecled, and does not appeal 10
ave been noticed by the court. il is net
recoilected by the Judge who sat on that
occasion to bave been noticed. defect,
| 1t 1t be one, which was not Observed,
/ cannot be cured by being passed over in
I silence.
The case in Washington was civil
case and turned upon The point; thai no
form Of the commission was prescribed,
AID equently that it was not nee s,a.
~ TO appear on the-face Of il, that it was
drecled 10 magistrates.
! hat 1t was the duly OF the clerk to de
recl it to magistrates, and he should not
~ pfaupV,ed h.,.o -, 4. 81 II - .l..,..