Alexandria daily advertiser. [volume] (Alexandria [Va.]) 1803-1808, 1807-03-11

he objection tnas tne amdaVlt Is extra.
judicial resolves itself into the question
whether one magistrate may commiI on an,
affidavit taken before another magistrate,
For if he may, an affidavit made as the
foundation of commitment, ceases to be
ea,raiudiciaI, aud the person who nszkasis
would be as liable TO a prosecution tor
perjury as if the warrant of commitment
had been issued blythe magistrate before.
whom the afidavif was made. IS
i To decide that au affidavit made before
one magistrate wcu!d not Justify a commit.
ment by another, might in many cases be
productive Of. great Inconvenience, aud
docs not appear susceptible Of abuse II the
variety of the certificate be established.
Sueh an affidavit seems admissible on the
principle that before the accusedis put up
on striai, all the proceedings are expar-
te. The court therefore over-sne this co.
j ection. ~.
That which questions the. character OF
i the persoa who has On this occasion ad-
m;aistefed The oath is nextto be considered.
The certificate f,om the Office ofthe dc.
partners, Of state has been deemed cuff
cieat by the counsel for the prisoners. be.
cause the law does no, require the appoint.
ment Of magistrates FOR the territory of N.
Orleans 20 be certified to that Office, be.
!, cause the certificate is 10 itself Internal, <
because it does 90, appear tia. the masia.
/. tsa,e had taken the oath required by the
&C, CT congress.
The first Of these objections is not sap.
ported by the Law Of the case, and the Sc.
cond may be so readily corrected tina. the
court has proceeded 10 consider the sub.
ject as if were corrected, retaining howe
yer any anal decision, if agains. the pris on.
ers, ueiil the correction shall be made
With regard TO she third the magistrate
must be presumed tohave taken the re.
9usise oashe, since heis found acting as a
magistrate.
On the admissibility OF that pare of tie
affidavit, which purporss to be as near ;hc
substance Ct tie letter from eel. Burr TO
general Wilkiuson, as the latter could IN.
serpre, it, division Of opicion has taken
place 10 ,.ae court. ;lvo judges are OF Cpl.
ynion that as such essimouy delivered in the
presence Of the prisoner OF his tsial would
be Totally inadniissibie, neither can it be
considered rs afouadalicn fer commit.
.aens Although 10 making conmitmeut
the Eaagis.ra;e does net decide On the guile
ofthe prisoner, ye,,he does decide on the
probable cause, and a long and painful I'M
Prisoamens May be the consequence of his
decision. 'Fhs probable cause therefore
oughsto be proved By testimony IN itself
legal, and which though froEa the nature
Of the Gaze it must &c eSparse, ought in
mos. other respects TO be such as a court
and jury might hear.
Iwo Judges ere of opinion that 10 this
recipient stays Of The prosecution an aida.
vis stating the gsosral purport of letter
may be read, particularly where the person
in possession Of j. is at too great a dis.
,anee to adni, CT its being obtained, and
that Commitments may be founded on it.
Under this embarrsssmea a /, was deem.
ed necessary to look into the affidavit fo1
the purpose Of discovering whe.herif sd.
mitsed, il coo.ains mater which would
justify the commitment Ct the prisoners a,
the bar on the charge OF treason.
Fha,she letter from col Burr to gen.Wil
kinssn relates to military enterprise, me
ditated BY the termer has not been ques.
,'oned- ltsh;s enterprise was against Mexi.
co il Woeld amour. to high misdemeaaor
lii against any Of the territories Of the y
ni,ed States, or if in its progress the sub
version Of the government OF the United
States ia any CT their territories vas :
mean clearly and necessarily to Be employ
ed, if such mean formed substantive par
of the plan, the asss nablage Of body OF
men to effect it wou!l be Ietyiog war a.
gainst the u. S.
The letter is in language which furnish