Below is the OCR text representation for this newspapers page.

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.