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TRIAL OF COLOXI.L BLRR.
FEDERAL COURT.
H (Incft/.’ay, A/ay 27.
Pile proceedings of this day were extreme
ly iui-i't sling ; hut are oi too great a length to
ho detailed at present. Indeed, that part ol it
which embraces the criucitcu given in, at e for
obvious i<• ison impi op rto be publislted m this
stage ol the piosecii ion.
Mr. Hay com.u need with staring, that till
hope of an ..rrangement vvilli colonel Hun ’s
counsel to sc. use Ins pert on. and to avoid the
impropriety of a public examination, was at an
end. Colonel llinr would not consent to give
bail on the marge of ticason ; and Mi. 11. read
a lettei from his conn ei to that effect. lie
should, therefore, proceed to all examination
of the tetti uoiiy. In dt.iu i!.. ,, I<- should ob-
St >e a chronolo uufi order; take tlie cons|/iiacy
at it*, earliest < ,i a;, and iutioiluce the events as
tli y so; sequentiy arose.
An intctesu. g ills; u.ision look place upon
th •i. oprieiy ot; In . a .1 emeni. Col. Hurt ’s
counsel protested against it. I hey contended
tli.it there were avo things to he prove I : first,
an m ert act ot .1 treasonable c< msgiracy: second,
tie ! colonel Burr was c nnected wilii it. 11
the fi: >1 waiite i prool, tilt last was intgatorv.
1 in: r conleudi I. t la 1 re tore, that the overt act
ought first to be proved ;* before any other •i
----deuce was exhibited as to tlie intention or the
plan.
The chief justice left the order of the evi
dence to'thc judgment of the attorney of the
United .Mates.
>l.. I.y then offered general Wilkinson’s
aiir.la.it toll.: read— When a long (liscu. .ion
was entered into on tlie principles ol the el i
de.ire.
I he chief pistice said, that the most proper
course was, first to introduce the evidence as to
ttic overt act, and that general W ilkinson’s alii
(hit it was not at that i.ne to he read.
Mr. ll ty then called l’eior Taylor and
.Allbi ight, the first was Hlanncrlusseu’s aid- \
cner, the other worked on his island. Os their
tesiiniony, ii is tor the present improper to
make any statement. They were succeeded
by a letter partly in cypher and partly in Ger
man. addressed to a person in New-Orleans ;
winch Mr John Brown, (former secretary to
getter >1 Marshall on his e nbassy to Palis) and
Mr ll ibner, a most respectable German mer
chant nl tins city, were sworn to interpret lothe
best ot tlieii abilities, this interpolation to be
presen'ed to the court to-morrow.
Mr. I lay then brought forward an affidavit
of me Dubas, a srrjennt in the trmy ol the U.
Slates. 1 nis affidavit was represented by the
prosecution to be of the greatest importance,
but was (injected to by Ur Hurt’s counsel on
the ground of intnrmaiiiy. The affidavit ap
peared on ns lace to be taken before one
t’vnas, who signed himself a magistrate of the
town i,t Orleans. I bis signature was succeed
ed by governor Claiborne’s verification of the
f.u t, one day alter tile date ol the certificate.
Hut there was no caption to the affidavit, as
“ .Sew-Orleans, A'cV” nor any mention made
at the tool of it ot the place where it was
taken.
A long argument ensued upon its adnti.ssi
bhty ; and the court adjourned without gitiitg
any opinion.
It was finally rejected by the court next day.
Thursday , May* B.
The proceedings of yesterday we e read.
The grand jury ap) cared in court, and their
names being called oyer, they were adjourned
ti.i to-morrow 10 o’clock.
William Duane appeared as witness for the
United states.
Luther Martin, esq. appeared as counsel for
Mr. H, r He inq.fired of the coiut, whether
lie s .mild cpialify ?
(.’bit 1 Justice, it is the usual form ; but.
]t is not absolutely material. It may be dis
pensed with.
Mr. M irtin, I did suppose so ; and as I am
unwilling to take up the time of the court.
1 he court then proceeded to the considera
tion of the point made yesterday, relative to
Dubas’ affidavit. A desultory conversation
ensued between the counsel and the bar, on
the proceedings before the supreme court of
the Uni ed St ites and on a ease quoted from
Washington’s reports.
Air. M irtin observed, that in fact this point
had not been made before the supreme court
in Washington.
Mr. Hay. It seems that the able and intel
ligent counsel who were employed for the Uni
te i States did not deem it necessary to sta.e
this obicc ion. It passed sub silrnrio. It was
not once noticed, even in the material case of
general Wilkinson’s affidavit. Why was it
neglected: or why did the 1 able and zealous
counsel, vh” certainly spared no exertions in
the cause of their clients, omit to raise this ve
ry objection to the form of authentication ?
Mr. M irtin. Although 1 was counsel in
these cases before the supreme court of the
United States, 1 am confident that this o’ojec
ti iw is never raised. General Wilkinson
was known to be in New-Orleans, and the ma
yp ur.ee who certified his deposition, was known
to have been duly commissioned. In fact the
other objections to that affidavit were so mate
rial, that they wcie thought to he amply sutfi
ci nt : this one escaped our notice.
l‘ii;> Chief Insure then pronounced theopin
ion of the court, in the following words :
,)u to, part of the Unite l States, a patter
p . p.’f t a to be an affidavit has been offered
in t • kk-r.cc, to the reading of which two ex.
ceptions are taken :
Ist. That an affidavit ought not to be admit
ted, where Uic personal attendance of the wit*
ness could have been obtained.
2dly. That this paper is not so authentica
ted, as to entitle itsclt to be considered as an
atlidavit.
“1 hat a magistrate may commit upon affida
vits, has been decided in the supreme court of
the United States, though not without hesita
tion. ‘1 he presence of the witness to be exa
mined by the committing justice confronted
with the accused, is certainly to he desired ;
and ought to be obtained, unless considerable
inconvenience and difficulty exist in procur
ing his attendance. An ex-parte affidavit sha
ped. perhaps, by the person pressing the pio
sc’ ution, will always be viewed with some sus
pi< ion and acted upon with some caution, but
the court thought it would be gr ing too far to
i eject it altogether. If it was obvious that the
attendance of the witness was cosily attainable,
but that he was intentionally kept out of the
w. v. the question might he otherwise decided.
Hut the part icular case before the court does
not ap|a- itobe of this description. The wit
nev-. re ides at a great distance ; and there is
no evidence that the materiality of his testimo
ny was known to the prosecutors or to the ex
eat ive in time to have directed his attendance.
!‘ i , true that general instructions, which would
apply to any individual, might have been sent,
and ihr attendance of this or any other mate
rid witness obtained under those instructions :
hut i; would be requiting too much to say, that
the omission to do this ought to exclude an
affidavit. To is exception, therefoie, will not
prevail.
1 he 2d is. that the paper is not so suthenti
cated, a.-, to be iiitioduced as testimony /on a
question, which concerns the liberty of a citi
zen.
This obVction is founded on two omissions
in the certificate.
1! • fir ,t i . that the place at which the affi
davit was taken doe:, not appear.
five second, that the < crtificate of the go
vernor docs i ,t state the pet son who adminis
tered the oath to he. a magistrate, blit goes no
further than to say, that a person of that name
was a nuigisl. ate.
1 hat, for aught, appearing to the court, this
oath may or may nov in point of fact have been
legally admin’ iterecl, must be conceded.
l iie place, where the oath was administered,
not having been stated ; it may have been ad
mini .tern! where the magistrate ha ! no juris
diction, and yet tin- certificate he perfectly true.
Os consequence thete is no evidence before
the court, that the magistrate had power to ad
minister the oath and was acting in his judicial
capacity.
The effect of testimony may often be doubt
ful, and courts must exercise their best judg
ment in the case, but of the verity of the paper,
there ought never to be a doubt. No paper
writing ought to gain admission into a court of
instice as testimony, unless it possesses those
solemnities which the law requires. Its au
thentication must not rest upon probability, but
must be as complete as the nature of the case
admits of. This is believed to be a clear, legal
principle. In conformity with it, is, as the
court conceives, the practice of England and
of this country, as is attested by the books of
forms ; and no case is recollected, in which a
contrary principle has been recognised. 1 his
principle is m some degree illustrated by the
doctrine with rrsp, ct to ail courts of a limited
jurisdiction. I hem proceedings are erroneous,
if their jurisdiction he not conclusively shewn.
They derive no validity from the strongest pro
bability that they had jurisdiction in the case ;
none certainly front the presumption that be
ing a court, an usoipution of jutisdiclion will
not he presumed. The reasoning applies in
full force to the actings of a magistrate whose
jurisdiction is local. Thus in the case of a
warrant, it is expressly declared, that the place
where it was made ought to appear.
The attempt to remedy this defect by com
paring the date of the certificate given by the
magistrate, with that given bv the governor,
cannot succeed. The answer given at the bar to
this argument is conclusive. The certificate
wants those circumstances which would make
it testimony, and without them no part of it cun
he regarded.
The second objection is equally fatal. The
governor has certified that a man of the same
name with the person who has administered
the oath is a magistrate, but not that the person
who lias administered it, is a magistrate.
It is too obvious to be controverted, that
there may be two or more persons of the same
name ; and, consequently, to produce that cer
tainty which the case readily admits of, the
certificate of the governor ought to have ap
plied to the individual who administered the
oath. The propriety of this certainty and pre
cision in a certificate, which is to authenticate
any affidavit to be introduced into a court of
justice, is so generally admitted, that I do not
recollect a single instance in which the princi
ple has been departed from.
It has been said that it ought to appear, that
there are two persons of the same name, or
the court will not presume such to be the fact.
The court presumes nothing. It may or may
not be the fact, and the court cannot presume
that it is not. The argument proceeds upon
the idea that an instrument is to be disproved
by him who objects to it, not that it is to he
proved bv him who offers it. Nothing can be
more repugnant to the established usage of
courts.
How is it to be privet! that there are two
persons of the none ot'Cenas in the terribly
of Orleans? If with a knowledge of several
weeks, perhaps months, that this prosecution
was to be carried on, the executive ought not
to be required to prouuce this wiuiess, ought
the prisoner io be requited, with the notice of
a few hours, to prove that two persons of the
same name resides in New-Orleans ?
It has been repeatedly urged that a differ
ence exists between the strictness of laws
which would be applicable to a trial in chief ;
and that whi< h is applicable to a motion to
commit for trial.
Os the reality of this distinction, the present
controversy affords conclusive proof. At a
trial in chief, the accused possesses the valua
ble privilege of being confronted with his accu
sers. But there must be some limit to this re
laxation and it appears not to have extended so
far as to the admission of a paper, not purport
ing to be an affidavit and not shewn to be one.
When it is asked whether every man does
not believe that this affidavit was really taken
before a magistrate ; it is at once answered
that this cannot affect the case. Should a man
of probity declare a certain fact w ithin his own
knowledge he would be credited by all who
knew him, but his declaration could not be re
ceived as testimony by the judge who firmly
believed him. So a man might be believed to
be guilty of a crime, but a judge could not con
vict him. un’ess the tes irriouy proved him to
be guilty of it. This judicial disbelief of a pro
bable circumstance does not establish a wide
interval between common law arid common
sense. It is believed in this respect to show
their intimate union.
The argument goes to this, that the paper
shall be received and acted upon as an affidavit,
not because the oath appears to have been ad
nunirtered according to law, but because it is
probable that it was so administered
This point seems to have been decided by
the constitution :
“ The right of the people,” says that instru
ment “ to be secure in their persons, houses,
papers and effects against unreasonable search
es and seizm es, shall not he violated ; and no
warrants shall issue but upon probable cause
supported by oath or affirmation, and particular
lv describing the places to be searched and the
persons or things to bes ized.”
The causes of seizure is not to be supported
by a probable oath, or an oath that was proba
bly taken, but by oath absolutely taken. This
oath must be a legal oatli; and if it must be a
legal oath, it must legally appear to the court
to be so. ‘This provision is not made for a fin
al trial; it is made for the very case nqw un
der consideration. In the cool and temperate
moments ot reflection, undisturbed by that
whirlwind of passion with w hich in those party
conflicts which most generally produce acts or
accusations of treason, the human judgment is
sometimes overthrown, the people of America,
have believed the power even of commitment
to be capable of too much oppression in its ex
ecution to be placed without restriction even in
the hands of the national legislature. Shall a
judge disregard those barriers which the nation
has deemed it proper to erect ?
The interest which the people have in this
prosecution, has been stated ; but it is firnilv
believed, that the best and true interest of the
people is to be found in a rigid adherence to
those rules, which preserve the fairness of cri
minal prosecutions in everv stage.
If this was a case to be decided by principle
alone, the court would certainly not receive
this paper. But if the point is settled by deci
sions, they must be conformed to.
It has been said tube settled in the supreme
court of the United States by admitting the
affidavit of Wilkinson, to which an exception
was taken, because it did not appear that the
magistrate had taken the oaths prescribed by
law. It was said, that as by law he could not
act, until lie had taken the oaths and he was
found acting, it must be presumed, that this
pre-requisite was complied w ith ; that is, that
his acting as a magistrate under his commission
was evidence that he was authorised so to act.
It will not be denied that thereis much strength
in the argument; but the cases do not appear to
be precisely parallel.
The certificate that he is a magistrate and
that full faith is due to his acts, implies, that he
has qualified, if his qualification is necessary
to his being a complete magistrate, whose acts
are entitled to full faith and credit.
It is not usual for a particular certificate that
a magistrate has qualified to accompany his
official acts.
There is no record of his qualification, and
no particular testimonial ot it could be obtained.
These observations do not apply to the objec
tions which exist.
Rut it is said that the certificate is the same
with that in Wilkinson’s affidavit.
If this objection had been taken and overrul
ed, it would have ended tlie question Rut it
was not taken, so far as is now recollected, and
does not appear to have been noticed by the
court. It is not recollected by the judge, who
sat on that occasion, to have been noticed. A
defect, ifitbeone, which was not observed,
cannot be cured by being passed over in si
lence.
The case in Washington was a civil case
and turned upon the point; that no form iff’
the commission was prescribed, and conse
quently that it teas not necessary to appear on
the face of it, that it was directed to magis
trates.
That it was the duty of the clerk to direct
it to magistrates, and he should not be presum
ed to have neglected his duty, in a case in which
his performance of it need not appear on the
face of the instrument.
That the person intending to take this ex
ception. ought to have taken it sooner ard not
surprise the opposite pa. ty when it was too late
to correct it.
But the great difference is. that the privy
examination was a mere ministerial act —the
adn mistering an oath is a judicial act.
‘I he court is ol opinion, that the paper pur
porting to be an affidavit made by Dunbaugf,
cannot Le read, because it dees not appi ar *
be an oath.
Dr. FRANKLIN’S WORKS.
FROM THE AURORA.
A New-York paper contains the fol
low in paragraph :
The Paris Argus, of March 31, contains a letter of
William Temple Franklin, grandson of the late Dr.
Franklin, repelling the “ foul” charges of the “ Amei i
can Citizen,” that he had fold his grandfather’s manu
feript to the Britilh government, that they might be fup
prefftd. He dec ares that the original, with the copy
prepared for the press, are now in the hands of his ban
ker in I ot.don; that they are not loft to the world,
but wi 1 be published in a manner worthy his ancestor's
great name...that he had offered them to several emi
nent booklellersin London, but none wou.d undertake
to publifti them...affgning as a reason that the period
was not propitious lor their publication, owing to the
state of affairs in Europe, which occupied solely the pub
lic attention, so that no work of any extent wou.d
fell.
If any such charge as here mention
ed, was made in tlie American Citi
zen, we presume it was published up
on the authority of the Aurora— if the
charge is unfounded , none will rejoice
more than we shall. What we pub
lished was from the concurrent, opini
ons of the nearest relations of Dr.
Franklin in this country, and of the
best informed men ; as well as from an
honest conviction, that no other than
sinister and mercenary motives couid
have prevented the appearance of a
work which every friend of Dr.
Franklin, of America, and of human
nature, must have been anxious to pos
sess.
Indeed the excuses now’ offered for
its non-appearance are truly miserable;
such as a grandson worthy of such an
ancestor would not have offered— the
work was put up to the highest bidder ,
but no one would bid as high as the
possessor desired. Had there been a
magnanimous and disinterested effort
made in America, the work would have
been published long ago—but either
there was no disposition whatever to
publish, or avarice defeated its otvn
purpose. London, England is not the
place from which encouragement for
such a work was to have beci t expected;
the bookseller’s excuse too is false and
frivolous; every year books of equal
extent and much less merit are issued
from the press.
If the statement in the above para
graph is founded in truth, we can re
rctort the reproaches of tl ie London N
Edinburgh reviews, which up! raid the
American people with not patronizing
a good edition of the works of the
brightest ornament of the country —
let them know that the avarice of an
individual, or the hostility of the Bri
tisli government to the memoi y of Dr.
Franklin, and the consequent reluc
tance of the British booksellers to pub
lish, deprive Americans and the worid
of a legacy, that was bestowed for the
purpose and with the expectation of
benelitting the human race, not to be
put under the hammer of an auctioneer
or the counter of a banker. If indet and
a settled state of Europe is to be the
only terms on which these works are to
appear, the English government might
well have spared the expence of pur
chasing. They have as effectually
suppressed the work, and will conti
nue to keep it suppressed, as ifjt were
in the possession of any of the Wed
derburne school. Sixteen years have
the works and life of Dr. Franklin been
concealed from the world. His memo
ry has been defamed by American trai
tors and English hirelings, and the
means of putting calumny to the blush
totally disregarded by a grandson, who
is now said to have the honor of his an
cestor at heart. We most anxiously
desire, but have no expectation of see
ing, these works published in a manner
worthy of their author. The British
government influence of itself, u ill, v e
fear, be a stiff ient b rrier. In this
country, the publish r would find am
ple remuneration, such as would grati
fy even avarice itself.