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

Mr. Hay. It feem, that the able and intellig-n,
council WHO were employed for the u. S. did
not deem it neceilary ate this ohetfiou IL paii-
ed jRb en,io. IL Was not noticed, even in the
material cafe ,of Ges. Wkinfons affidavit. Why
was it negeeied! or Why did the able and jealous
council. who certainly ipared exertions in the
eauie of their clients omit to rafe this very ohiec-
ton to the form of Authorization?
Mr.. Martin Although was council in theGe
cafes before the Supreme Court of the US. am
confident that this objection was never raifed.
Gen. Wilkinlon was known to be in New Orleans,
and the magiarate who certified his depoGton, was
known to have been duly CONDITIONED. In fact
che other objections to that affidavit were 70 mate
rial, that they thought to be amply fuHicent.
This one efeaped our notice ~
The Cbif Jgfiee then pronounced the opinion Of
the court, in the following words: 4.
On the part of the United States, paper
purPorting to be an affidavit has been offered
IN evidence, to the reading of which two ex-
captions are taken:.. ei
lit. That an affidavit ought not to be admit
ted, where the perfonal attendance of the
witnefs could have been obtained;
2dly. That this paper is not 70 authenticate
ed, as to entitle itlelf to be conlidered as an
affidavit.
That magifrate may commit upon affida-
Wits, has been decided in the Supreme Court
OF the United States, though not without heii-
tation. The prefence of the wituefs to be ex-
amined by the committing juHice confronted
with the accufed, is certainly to be delired aud
ought to be obtained, uncfs comfortable iu-
convenience and difficulty exits in procuring
his attendance. An ex-parte affidavit ped,
perhaps, by the perfon preffing the profecu-
ton will always be viewed with fome fufpicon
and acted upon with fome caution, but the court
thought it would be going too far to reject it
Okyio 4, al,
| dance of the witnefs was eafily attanable, but
that he was Intentionally kept out of the way,
the queition might be otherwife decided.
Butthe particular cafe before the court does
not appear to be of this Description. The wit
nets refides at great diftance and there is no
evidence that the matcriality of his teftimony
was known to the protectors or to the Execu-
| tive in time to have directed his attendance.
1t is true that general inftruetions, which would
| apply to any individual, might have been fent,
and the attendance of this or any other material
witneis obtained under thofe inftruetions but
| 1t would be requiring too much TO fay, that the
omflion to do this ought to exclude an affida-
Wit. This exception, therefore, will not pre-
vail.
The cd is, that the paper is not 70 authenti-
Gated, as to be introduced as teftmony on a
quetlon, which concerns the liberty of citi-
| zen.
| This objection is founded on two omllions
in the certificate.
| The hrft is, that the place at which the affi-
! davit was taken does not appear
| The tecond, that the certificate of the go
| vernon does not fate the perfon who adj
mnftered the oath to be magifrate,
| but goes no further than to fay, that a
Perion of that name was maginrate.
| That, for dught appearing to the court, this
! oath may or may not in point of fact have been
| legally administered, mutt be conceded
| The place, where the oath was administered
not having been itated it may have been adj
miniftered where the magiRrate had no iurif.
dietioD, and yet the certificate be perfectly
! true. OF coniequence there is no evidence be-
fore the court, that the magifrate had power
! TO adminiffer the oath and was acting in his u-
| dicial capacity.
me effect OF teftimony may often be doubt
rui and courts mutt exercife this beft iude
ment IN the cafe, but of the verity of the pa-
per, there ought never TO be doubt. No pa
per writing ought to gain admittance into a
court OF Juttice as teftimony, unefs it poGcffes
thoie iolemnties which the law requires. It's
authorization mutt not ref upon probability
but mutt be as complete as the nature of the
cafe admits of. This is believed to be clear.
legal principle. IN conformity with it. is. as
the court conceives, the practice of England
and OF this country, as is attefted by the book s
| OF forms; and no cafe is recollected, 10 which
contrary principle has been recognized. This
principle is in Tome degree illullrated by the
doctrine with reipeGt to all courts of limited
Jurlidiction. Their proceedings are erroneous.
IT their jurifdiction be not coDcufvely fhown.
They derive no validity from the ftroneeN pro.
liability that they had jurifdi6tion in the cafe
none certainly from the prefumption that be.
ing court, uiurpation of jurifdiclion will
not he preiumed. The reafoning applies in full
force to the aetings of magiftrate whole iurif.
dietlon is local. Thus in the cafe of warrant.
1t is expressly declared, that the place where
1T WAS made ought to appear.
The attempt to remedy this defe0 by COM
pairing the date of the certificate given bv the
maeiftrate, with that given by the governor
cannot fucceed. The anfwer given at bar IN
this argument is conclufve. The certificate
wants thoie circumstances which would make
1t teitimony, and without them no part of it can
be regarded.
The fecond objection is equally fatal. The
Governor has certified that man of the fame
name with the perfon who has administered the
oath is magiftrate, but not that the perfon
who has administered it, is a magtrate.
IL is too obvious to be controyerted, that
there may be two or more perfons of the fame
name, and, consequently, to produce that GER
talnty which the cafe readily admits Of the Ger.
IT, ate of the Governor ought to have applied
to the individual who administered the oath.
The propriety of this certainty and precihon
IN certificate, which is TO authenticate anv
affidavit IN he introducad int - .