The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-05-30

trial IN cbiet, the dccuted policies the valuable
privilege of being confronted with his accufer
But there NUT be iome limit to this relaxation s
II appears not to have extended 70 far as tn Ia,
), adniilion of a paper, not purportins to be ar
affidavit and not flown to be ore.
I When it is aiked whether every man does no,
believe that this affidavit was really taken before
a mSgi0rate; it is at once a1fwcred that this
cannot affeet the cafe. Should man of probity
declare certain fact within his own knowledge
he would be credited by all who knew him, but
hisdeclaration could not be received as teftimony
by the Judge who firmly believed him. So a
man might be believed to lie guilty of crime,
but a jury could not convict him, unlefs the
tcftimony proved him to be guilty of it. This
Judicial difbelief of probable circumstance
does not eftablifh wide interval between CON-
mon law & common fenfe. 1t is believed in this
reipect to thew their intimate union.
|. The argument goes to this, that the paper
ihall be received and aeted upon as an affidavit,
not hecautc the oath appears to have been admi-
niitered according to law, but becaufe it is pro-
babe that it was 70 administered.
This point feems to have been decided by the
contribution
The right of the people," fays that inftru.
ment "to be fecure in their perfons, houfes.
papers & effects againft objectionable fearches
and textures, fhall not be violated and no
warrants ihall ifiue but upon probable caute
Imported by oath or affirmation, and particu-
arly defcribing the places to be fearched &
the Perlons or things to be feized."
he cauie otfeiZure is not to be fupported by
a probable oath, or an oath that was probably
taken, but by oath abfoutely taken. This oath
mutt be legal oath ; and if it mutt be legal
oath. it mutt legally appear to the court to be
10. This provion is not made for final trial ;
1t is made for the very cafe now under confde-
L In
OF reelection, undfturbed by that whirlwind
of pailion with which in thofe party conflicts
which mott generally produce acts or accufati.
ons OF treaion, the human judgement is fome-
times overthrown, the people of America,
nave believed the power even of commitment
to be capable of too much opprelfion in its exc
cution to be placed without reftraion, even in
the hands of the national Legislature. Shall a
Judge dliregard thoie Barriers which the nation
has deemed IT proper to erect?
The interef, which the people have in this
Proiecuton, has been ftated but it is firmly
believed, that the bef and true in.ereit of the
people TO be found in rigid adherence to
thote rules, which preferve the fairnefs of Grim.
inal proiecutions in every fage.
1t this wasa cafe to be decided by principle
alone, the court would certainly not receive
this paper. But if the point is fettled by deci
fions, they muft he conformed TO.
1t has been faid to be fetted in the Supreme
Court of the United States by admitting the
affidavit OF Wilkinfon, TO which an exception
was taken, becauie it did not appear that the
magIltrate had taken the oaths prefcribed by
law. Ii was laid, that as by law he could not
act' until ne had taken the oaths and he was
found acting, it muf be prefumed that this
Prerequ6te was complied with that is, that
his acting as magiltratc under his comrniiion
was evidence that he was authorized 70 TO act.
1t will not be denied that there is much
itrength in the argument but the cafes do not
appear to be precifely parallel.
The certificate that he is a magitrate and
that full faith is due to hs acts, implies, that he
has qualified if his qualification is neceffary to
his being complete magiitrate, whole acts are
entitled TO full faith and credit.
II is not uiual for particular ccrtifca.ctb,t
a maelitrate has qualified to accompany his Of
fetal acts.
There is no record of his qualification and no
particular testimonial of it could be obtained.
Iheie obfervatons do not apply to the OBJ
ELECTIONS which exit
But it is faid that the certificate is the fame
with that in Wilkinlon's affidavit.
If this objection had been taken and overrnl.
ed, 1t would have ended the. quefiion. But it
was not taken 10 far as is now recolieGed, and
does not appear to have been noticed by the
Soui'' IL 10 MOI iecoieCted by the Judge who
lat on that occalon to have been noticed. A
/ defect, If 1t be one, which was not obferved.
cannot be cured by being pafTed over in (ilence,
The cafe in Warrington was civil cafe and
turned upon the point that no form of the
commiiiion was prefcribed and confeouentIy
that it was not neceGary to appear on the face
of it, that it was directed to magistrates.
That it was the duty of the clerk to direct
it to masi0rates, and he lhouId not be pre-
TUNED to have neglected his duty, in cafe in
which his performance OF it need not appear
on the face of the innrument.
That the perfon intending to take this ex-
ception, ought TO have taken it fooner and not
iurprife the oppolite party when it was too late
| to correct it,
But the greatidifference is, that the PRIV ex
animation was mere miniRerial a6t-thc ad-
miniltering an oath is judicial ACT.
The court is of opinion that the paper pur-
porting to be an affidavit made by Dunbaugh,
cannot be read, bscaufe it doesnot appear to
be an oath.
Mr. Hay then addrelIed the court. 1t is extreme-
ly uncertain, how long this examination will CONT
nue. whether it may occupy ten hours or ten DAYS
And it gentleman continue to make the fame can
tiOus objections, which they have already done ar
every fageo the enquiry, it is impolible to fore
lee any termination to it. All this time however,
Aaron Burr is at liberty, and he may depart from
this city, at any moment that he pleafes. On the
very iirit day that made this motion, he ought 10
ha se been held to bail or in cuhody, and day after
day, until the court fhould have given their deei-