The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-08-18

"a nso't ttBe dItCF Ivy ndu concluded,
ne was about to proceed to- the examination OF
the witneifes Gen. Eaton was rworn :. WHEN
Mr.. Burr rofe and objected to this order of eX-
amans the wtnefies He faid, that Mr.. Hay
had not itated the nature of Mr.. Eaton's tefti-
mony but he prefumed that it related to GER
tain conversations at Wafhington.-Mr. Hay.
Our object is to prove by him what is contain
ed in his dePofiton. Mr.. Burr. Then we
call upon them firit to prove what the court
has already eftabliihed to be the courfe of pro-
ceed'ne, an overt act. Why waite or s weeks
TO no purPofe at great expence and great trou-
BILE and after all to know nothing which is re-
lcvant to the point at inue !
AN argument then enfued upon this queftop
which detained the court till>7 o'clock at night.
me'irs. Bolts, Wickham, Lee, and Martin ad-
vocated the Hece!:ity OF proving the overt act
hrlt. Mr.. Writ oppofed the motion.
lie hrt laid great ftrefs Upon the decifion
Formerly given by the court, relative to this
Lame point, on the motisn for holding COL b
to higher bail they itated that the order of C.
s'dence was part of the law of the evidence !;
that the court was to- judge of the competency
OF evidence, and that it had right to top any
evidence, which they deemed immateriaI; that
IL was OF no avail to prove intentions, before an
overt act had been efablifhed that AS in a
writ OF eJectment it would be ridiculous TO be-
GIN with the boundaries before the title was
proved, 10 1t was improper to begin with the
declarations of Col. b. or with any couverfati-
ors, until the overt aet was fhown tina, thefe
declarations could only be admitted AS confir-
matory evidence that it would be peculiarly
hard on aay individual for his whole life to be
e*Poied IN court, every conversation which
ne mad held, or every innocent declaration
which he had ever made, before it was known
whether any actual crime could be pro-
we'd againft him that if the profecutor was
thus proceeding to develope the evidence as to
intention only, the court had right to top
him, and require him to give evidence of the
act itielf that if it not 70, he might be 90
ing on To charge man accufed of murder with
malignant inteation, when the man faid to he
murdered was actually alive or of Arfon,
when the houfe was Handing. They cited a
variety of opinions and cafes Judge IrrdelI's
opinion in the cafe of Fries p. 81. Vaughan's
Gale St. Tr. p. 1922. MeGenger'S, S..
Ir. p. SIS. st. Tr. p. 2ls.
MIR. WTt contended, that from the 6rn
Foundation OF courts to this day, it was the
practice for the proecu,or who was fuppoied
to know the evidence beh, TO d fplay it in his
own way; and that it would be a difreipe9 to
the attorney for the U. States, to wave this
practice on the preient occaiion that the cbro
no'oe'cai order which the attorney was about
20 Puriue, was the lucid order of nature her
the minds of the jury was to take the confpira.
cy from its hrit birth to its condemnation :.
would man begin tale at the end of II ,
w ouId an hIltorian commence the American
Revolution at the iiege of York? That the
RUE was to bring In nothing which did not
!ouch the Hue but that the intention was an
important feature in that if1ue. And how are
the jury to be difPofed of ? The court knows,
tney nave no right to keep frorr them anv e.
violence touching the ifue. If the proiecutor
i'd'es that ne is about to proceed to the inten-
''o"' can the court lay, that it proves not the
Overt act, and then iend the jury out Ire
ue'ie q opinion in FrieS's cafe, o. l745 And
VINO Is to be the judge of the evidence to prove
.he overt act The court. Is the court 10
top the PROSECUTOR? Is then the court to u.
lu'P Inc right of deciding upon the esidence
h't" the former decihon of this court nh. r
were two circumstances to explain it IN. The
court wiihed TO avoid polfonine the public
mind by needlefs difpiay of evidence and call
ca upon The protecutor to prove the overt aei
hrt. 2dly. The court was then both Judge
and jury. 1t might fay when i, was flashed
with the evidence, and when it might ftop
1t but the jury is now to fit upon the ira
and the court is ftript of half its character.
The Chief JultICc will mott probably deliver
the opinion of the court this day (Wednefday. :
ADJOURNED TIL tomorrow 10 O'Clock
HaLfatfer 10 o'clock.
The Court has iuft decided that the ,ttorn.y
tor the profecution is at liberty to purfue hi,
wnjudgment and the court will arrea anv
evidence which does not appear at it's introduc.
ton TO be relevant to the point at ifue, The
opinion in our next.