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ttievarcned, that !,tate r ' s t,IC
loss nt that ?"me was the rule.
4li. That though riot before
s tinn brought, vet before lsf e '’
pleaded, the vessel ™ived in
oaft-rv at the port of her destina
tion, had p-rfotmed voyage*
and bad e°**>ied her freight, the
plaintiffs bid no right-to recover.
IntrersrM, HoplcinVon & Ti!gh*
mart for the plaintiffs, argueo,
Ist. That the capture of the Man
hattan bv the Busv William, was
not an exercise ot the acknow
ledged right of search, but a cap
ture as prize. Iler ctew w.is
taken out, British officers and
seamen put on board, she was
btnt to Bermuda, and libelled
ns prize. The plaintiffs V’ere
therefore, authorised to ao..r.don
on th 2d March.
2d, The state of the loss at
t!io time of the abandonment, is
todfeide the light ot rccovei}.
By the abandonment, the proper
ty is divested from the insured
and irstpd in the insurer, and a
subsequent order ot restoration,
restoies it not to the lormcr own
ers but to the underwriters. As
therefore, there wa3 a kiss at ‘be
time of the abandonment, the
plaintiffs mav recover.
Marshal, Chiel Ju tice, deliv
ered the opinion el the court
after stating the case die proceed
ed in substance as follows .
1. Had the insured a right to
abandon when the offer was
made ?
2. Have any circumstances
since seemed to effect liietr * ’gh l •
To give a right to abandon,
there must have existed a toial
loss bv one of the perils insured
against, either real and absolute,
or legal aad technical. A ta ! v
lure by one belligerent from a
rother constitutes a technical to
tal loss, arid gives an immediate
right to abandon, though the pro
petty may afterwards be restor
ed. So too of an embargo or tie
tention bv a foreign friendly
power on general principles, an I
on analogy, there is no difference
between the capture by a belliger
ent from a belligerent anti from a
neutral. In both it is made with
a design to deprive the owner ol
the distinction has
not been any adju led
cast in England ; and the best
general writers ai range them in !
the same (lass, y 1 lie learned j
judge then went through an (rX~
nminati. nos the English autho
rities and casts, and concluded
the first point, as follows :) It is
therefore the unanimous opinion
ofihe court, that where, as in
this case there is a complete tak
ing at sea, bv a btlligeietit wno
has token lull possession ol toe
vessel as ptize, and continues
that possession to the time oi the
abandonment ; there exists in
j oint of law, a total loss, f.'ud the
act of abandonment vests the
right to the thing abandoned in
the insurer and the amount ol
the insurance in the insured.
2d point. The assured in this
case has done nothing subsequent
to his offer to abandon, vv■hi-.b
csti be considered as a refin*
quiahment ot the right vested in
him by that act. Does the re
lease and return of the vessel de
prive the assured of his right, to
resort to the insurers tor a
loss which he acquired by the a
bandonment f i his point lias
neVei been settled in England,
la Hamilton vs. Mendez, lord
Mans fit'd leaves it undecided
whether the state ot loss ,at the
time cf abandon nit M, or at the
time Os action broug *t, or a: the
time of the ve d.ci, dta 1 h i me
-riglA to recover lor a partial or a
total loss; a majority ot the j udges
arc of opinion that the M..tc ct
the !os e.t the time ol the aban
donment must fix the light of the
parties to recover lu an action al
ter wards hi ought ; and die j udge
who doubts respecting u, is oi
( Utnion that in ibis case counter
security having been reined by
the insure!a, the question ol
freight H yet no-, pended. !c is
therefore the unanimous opinion
of the court,-that the plant!if.-in
mi, case arc entitled to recovery
tor a total io- 5 *
TRIAL OF COR BUltlt.
FEDERAL COURT—Rica jicnj.
Wednesday, May 27.
The proceedings of this day
were extremely interesting; but
are of too great a length to be
detailed at present. Indeed,that
part of it which embraces the e
videnee given in, are for obvious
reasons improper to be publish
ed in this stage ot the prosecu
tion.
Mr. Hay commenced with
stating, that ait hope of an ar
rangement with Colonel Burr s
counsel to secure his person, and
to avoid the impropriety of a
public examination, was at an
end. Colonel Burr would not
consent to give bail on the charge
of treason ; an.d Jlr. 11. real a
letter from his counsel to that ef
fect. He should, therefore, pro
ceed to an examination of the
testimony. In doing this, he
should observe a chronological
order ; take the conspiracy at its
eat best crisis, and introduce the
events a; they tubseq temly a*
rose.
An interesting discussion took
place upon the propriety of this
arrangement. Col. Burr’s coun
sel p ousted against it- i h:y
contended that there were two
things :o be proved : first an overt
act oi a treasonable conspiracy •
second, that colonel Burr wa*
connected with it. If the first
wanted rwoof, the last was nuga
tory- They contended, there
fore, iliat the overt act ought
first to he proved ; before any
other evidence was exhibited a#
to che intention or the plan.
The chief justice Kft the order
of ihe evidence to the judgement
of the attorney of the United
State-. •
Mr. Hav then offered general
Wilkinson’s affidavit to he read
—when a long discussion was
entered into on the principles ot
the evidence.
The chief justice said, that
the mo-t p oper course was, first
to introduce the evidence a- to
the overt act, and that general
Wilkinson’s affidavit w3 not at
that time to be read.
Mr. Hay then called P> ter
Taylor and Allbright the
first wa3 Blannerhasset’s gard
ener.the other h.ul worked on his
island. Os their testimony, it
is for the present improper to
m ike anv statement. They were
succeeded by a letter partly in
cypher and partly in German,
addressed to a person in Nevv-
Orleans ; which Mr. John Brown
(former secretary to generl Mar
shall or. his embassy to Paris)
and Mr. Hubner, a most respec
table German merchant of thi3
City were sworn to interpet to the
best oftheir abilities, this inter
petation to be presented to the
court to-morrow.
Mr. Hay then brought forward
an affidavit of one Dtihas, a ser
geant m the army ot the U. States
This affidavit was represented
by the prosecution to bool the
greatest importance, but was ob
jected to bv Mr. Burr’s counsel
on the ground of informality. ‘I iic
affidavit appeared on its face to
be taken before one Cenas, who
signed himself a magistrate ot the
town of Orleans. This signature
was succeeded by governor Clai
born’s verification of the fact, one
da y after the date of the cert vficate.
But there was no caption to tie*
affidavit, as “ New-Orleans, .S ct”
norany mention made at tlie toot
of it, of ihc place where jt was ta
ken.
A long argument ensued upon
its admi-vsibuity, and the court ad
journed without giving any opini
on.
Thursday , Alai/ 28-
The proceedings of yefterdav were read
—The Grand Jury appeared in court, and
tli'-ir names being called over, they were
a? journal till to morrow ten o'clock.
William Duane appeared as a wiincfs
for the United States,
lather Ma tin, Elq. appeared as connfel
tor iVir. Burr. lie enquired of theco.rt
whether he thoulci quant's !
Chief jul.icc. it is the ifu.il form; but,
it is not ahlolutely material. It n.ay he
difpenfid iHi.
Mr. Mai tin. I did suppose so; and as I
am unwilling io take up the time of the
coni’
r i he court then proceeded to the confide
ration of the point made yeftcrday.rdativ*
to Hollas’ affidavit. A desultory <■ i ver
faiion cnf'.ied hetwecu the counsel ad the
]’a-. on t’ c p ocee ,! ings before the Su
preme Coirt of thr TT it and State- and otl
a case quoted from Wafhingtan’s Reports.
Mr. Martin oMerved, th t in faft this
point H'd n■’ been mide before the Su
preme Uupin W Thing n.
Mr. Hay. It i ems that the able and
intelligent Counsel w,o were employed for
the tlni'ed St te did not deem t neceffia
rv to slate this obj.-dtion. !> P uT- and fnb fl
int io, I was not once noticed even in
the material case of Gener I Wdkinfon’s
affid vit Why was it ne j! e<3: d? or why
did the able and zealous counsel, who cer
t I dy spa-ed n ‘ cxerti n< in the cause of
their clients, omit no raise this very objec
tion to the form of authentication ?
Mr Mart n Although l was counsel
in th f • calf 8 before the Supreme Court of
the U itedSt.te.; I m confident that this
obj di >n was never raised. Ge >. Wilkin
son was known to be in N. w-0. leans and
the mag (Irate who certified his dep.ofition,
wa know.- to h.tve been duly commiffinn
cd In fclt 1 e other ohjcdli. ns to that
a® 1 vit were so ma'eria 1 t‘at t 1 cv w.-re
thought to be amp y fufficicnt: This one
escaped our n'tice.
I }-r Chief Justice hen pronounced the
opinion of the court in the following
word :
On the part of the United
.States a paper purporting to be
an affidavit has been offered in
evidence, to the reading of
which, two exceptions are
taken.
iff. That an affidavit ought
not to be admitted, where the
personal attendance of the wii
nefs could have been obtained,
idly. That this paper is not so
authenticated, as to entitle it
felf to be considered as an affi‘
davit.
That a magiffrate may com
mit upon affidavits has been
decided in the Supreme Court
of the United States though
not without hesitation. The
presence of the witness to be
examined bv the committing
jultice confronted with the
accused is certainly to be de
fired ; and ought to be obtain
ed, unless considerable incon
venience and difficulty exilts
in procuring his attendance.—
An ex'partc affidavit fhuped,
perhaps, by the person pref
ling the prosecution will al
ways be viewed withfomc fuf*
pic ion, and abted upon with
Time caution, but the court
tho’t it would be going too far
to rcjefl i: altogether. If it was
obvious that the attendance
of the witness was cafily attain
able, butthat he was intention
ally kept out of the way, the
queffion might be other wife de
cided.
But the particular case
fore the court docs not appear
to be of this defeription. The
witness resides at a great dis
tance ;and there is no evidence
that the materiality of his teffi
mony was known to the profe
cutois or to the Executive m
time to have direCltd hjs atten
dance. 11 is true that general
inff i-uCfions, which would ap.
plv to any individual, might
l ave been lent, and the atten
dance ol this or any other ma
terial win efs obtained under
those inllruQions ;butit would
be requiting too much to fay
that the omission to do this
ought to exclude an affidavit.
This exception'therefore, will
not prevail.
The ad is, that the paper is
not lo authenticated, as to be
introduced as tellimony on a
queffion, which concerns the
liberty of a citizen.
This objection is founded
on two omilfions in the cer
tificate.
The fuff is, that the place at
which the affidavit was taken
does not appear.
The fecund, that the
certificate of the governor
does not (late the perlon who
adminiffered the oath to be a
magiffrate, but goes no further
ttian to lay, that a perlon of
that name was a magiffrate.
That for aught appearing to .
the court, this oath may or
may not in point of fafct have
been legally adminiffered muff
be conceded.
The place, where the oath
•was adminiffered, not having
been Rated ; it may have been
adminiffeied where the magis
trate had no jurifdiClion, and
yet the certificate be perfeQly
true. Os consequence there
is no evidence before the court
that the magiffrate had power
to adminiffer the oath,and was
atling in his judicial capacity.
The effect of tellimony may
often be doubtful and courts
muff exercise their belt judge
ment in the calc, but of the
verity of the paper, there
ought never to be a doubt—
Nopaper writing ought to gain
admittance into a court of jus
tice as teffimony, unless it pos
sesses those fo'emnities which
the law requires. Its atuhenti
cation muilnot rest upon prolra
bility. but muff beas completeas
the nature of the case admits 01.
This is believed to be a clear,
legal principle. In conformity
with it, is, as the coutt con
ceives, the practice ot En
gland and of this country, as
is attested. by. the books ot
forms ; and no case is recol
leQed, ini which a contrary
principle has recognized.
This principle is in fome de
gree illuflratcd by thedoßrine
with refpcß to all courts of a
limited jurifdiQion. I'hcir pro
ceedings are erroneous, if their
jurifdifcf ion be not conclulively
ffiown. They derive no va
lidity from the strongest pro
bability that ihcv haa jurisdic
tion in the case; none certainly
from the presumption that be
ing a Court, an ufutpation of
juri f diclion will not be prefu’
med. The reasoning applies in
full force to the aßings ofa ma
gistrate vhofe jurifdißion is
local. Thus in the case of a
warrant, it is cxprUby declar
ed that the p'ace where it was
made ought to appear.
The attempt to remedy this
defect by comparing the date of
the certificate given by the ma
gistrate, with that given by the
governor cannot succeed. The
answer given at bar to this argu
men! is conclusive. The certi
ficate wants those circumstances j
which would make it testimony,
and witheut them no part of it can
be regarded.
The second objection is equal
b fatal. Ihe Governor has cer
t # and that, a man of the same
name with the person who has
administered the oathUsa ma
gistrate, bat not that the person
who has administered it, is a ma
gistrate.
It is tea obvious to be contro
verted, that therp may be two or
more persons of the same name,
and, consequently, to produce
that certainty which the case rea
dily admits of, the certificate c,f
the Governor ought to have ap
plied to the individual who ad
ministered theoath. The proprie
ty of this certainty &cprecison in a
certificate, which is to authenti
cate any affidavit to be introduc
ed into a court o! justice, is so
gener-ffly admitted, that I
recollect a single instance in
which the principle has been de
parted from.
It has been said that it ought
to appear, that there ere two per
sons 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 pre
sume that it is not. The argu
ment proceeds upon the idea that
an instrument is to be disproved
by him who objects to it. not that
it is to be provch'uy him who of
fers it. Nothing can be more
repugnant to the established u
sage of courts.
How m it to be
there are two persons of the
of Cenas in the territorv of ivi’
ansMfwith a knowledgeof
weeks, perhaps months, that thi
prosecution v. to be carried o „
the executive ought not , 0 !>•• re ’
q-.ired to produce this witnes”
ought the prisoner to be required’
with the notice of a f-.-w hj l;ts
prove that two persons of the
same name reside in New-Or.
leans ?
It has been repeatedly urged that
a difference exists between the
strictness, of laws which would
be applicable to a trial in chief •
and that which is applicable to
Motion to commit for trial.
Os the reality of this c!i .uncti
on ■ the present controversy jf.
fords conclusive proof. At atri
al ir. chief, the accused possesses
the valuable privilege 0 f being
confron td with his accuse.-. But*
there must be some limit to this
relaxation and it appears not to
have extended so i.u as to the ad
mission of a paper, not purport
ing to be an affiff-ou at.d not
she wn to be one.
When it is asked whether evt-l
ry man does not believe that this I
affidavi t was really taken before I
a magistral . ;ic is at once answer*l
ed that this cannot affect the case.l
Should a man of probitv declare!
a certain fact widnn hit own!
knowledge, he would be credited!
by all who knew Hi in, but bis d;.|
duration conld not be received ail
■testimony by the Judge who!
firmly belie ved bin-.. Sc a man!
might be believed lobe guiltyofl
a crime, hut a jury could notcoa*|
vici him, unless die testimony!
proved him to be guilty ot it.—!
rhis judicial disbelief of a proba-l
ble circumstance does nut estab.l
fish a wide interval between com*B
mon sense. It isbeiieved inthisß
t espect_to show their imi.nate u*l
mon. I
‘I he argument goe?tolhi',thjJ
the paper shall be received -nil
acted upon as *n affi Javit, not beJ
cause the oath appears to have!
beet: administered accuriiing 4
law, but because it is probable I
that it was so administered. 1
Thio point i?ema to bin been®
decided by the constitution'. I
“ The right of the people,’■
say# that instrument “ 1°
cecure in their persons, house®
papers and effects agiimt unß
reasonable searches a,id seizure®
shall not b; violated , ct no w> r !
rants shall issue but upon proba®
ble cause supported bv oath <>■
affirmation, artel particularly d*
scribing the places to be* searciu®
and the persons or things to b®
seized. a
The cause of seizure u nottß
be supported bv a prouffifo
or an oa'h that iva- probably ts®
cn, but hy oatli absolutely tA®
Tiiisoatlt must be a legal cue. fl
it must legally appear to me to®
to be so. ‘J’ltis provision 13 n J
made fora final trial, 11 iH in, “®
for the vesy case now unu.-ti co®
sidfi r ation. In the cool a ®
temperate mornen'S myi'fia'-ct' 0 ®
undisturbed by that 9P ' il ' r^Tir !
passion with which in taose P-®
conflicts ivlnch most
produce vets oractusa :u- 1 ' 01 ir ®
son, the human pjclyuis ll1 *’s®’ 5 ®'* 1 ®
times overthrown, titc ! , n i , ‘ e ®
America, have belie red t"C
even of coinmUment to be cap®
ble of too much oppression ‘D®
execution to be placed v.>j’> J ®
restriction even in a n d I' ll ' l ’ H
the national ■
the Judge. disregard liiosrJJf’ IB
which the nation lias ■
proper to erect? ■
The interest which the j'j ■
have in tins prosecution h'- 3
stated; but it is firm*?’
that the best and true ■
the people is to beso ,jn 4,1
gid adherence to ’'those ®
which preserve the foilocss
minal prosecutions in tj 1 ' ’
li this was a case to ot c J®
bv principle alone,the C'W.t ’ ■
certainly not receive tht- fob’ ■
but if tie: point is seitfon ®
ciaions, they must he tOll 0 ■
It lias been said to be
the supreme court ot tuc c ®
States by admitting rt ';"®
of Wilkinson, to vMta ‘ l ’ ■