The second, that the certificate of the governor does not state the person who administered the oath to be a magistrate; but goes no farther than to say, that a person of that name was a magistrate.

That, for aught appearing to the court, this oath may, or may not, in point of fact, have been legally administered must be conceded. The place, where the oath was administered, not having been stated, it may have been administered where the magistrate had no jurisdiction, and yet the certificate be perfectly true. Of consequence, there is no evidence before the court, that the magistrate had power to administer the oath, and was acting in his judicial capacity.

The effect of testimony may often be doubtful, and courts must exercise their best judgment in the case; but of the verity of the paper there ought never to be a doubt. No paper writing ought to gain admittance into a court of justice as testimony, unless it possesses those solemnities which the law requires. Its authentication 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. This principle is, in some degree, illustrated by the doctrine with respect to all courts of limited jurisdiction. Their proceedings are erroneous, if their jurisdiction be not conclusively shown. They derive no validity from the strongest probability that they had jurisdiction in the case: none, certainly, from the presumption, that being a court, an usurpation of jurisdiction will not be 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 comparing the date of the certificate given by the magistrate with that given by the governor cannot succeed. The answer given at bar to this argument, is conclusive: the certificate wants those circumstances, which would make it testimony; and without them no part of it can be 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 has 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 certainty, which the case readily admits of, the certificate. of the governor ought to have applied to the individual, who

administered the oath. The propriety of this certainty and precision 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 principle 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, and not that it is to be proved by him who offers it. Nothing can be more repugnant to the established usage of courts. How is it to be proved, that there are two persons of the name of Cenas in the territory 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 produce this witness,ought the prisoner to be required, with the notice. of a few hours, to prove that two persons of the same name reside in New-Orleans?

It has been repeatedly urged, that a difference exists between the strictness of law, which would be applicable to a trial in chief, and that which is applicable to a motion to commit for trial. Of the reality of this distinction, the present controversy affords conclusive proof. At a trial in chief, the accused possesses the valuable privilege of being confronted with his accuser. But there must be some limit to this relaxation, and it appears not to have extended so far as to the admission of a paper not purporting to be an affidavit, and not shown 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 within his own knowledge, he would be credited by all who knew him; but his declaration could not be received as testimony by the judge who firmly believed him. So a man might be believed to be guilty of a crime, but a jury could not convict him, unless the testimony proved him to be guilty of it. This judicial disbelief of a pro bable circumstance does not establish a wide interval between common law and 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 administered 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 instrument," to be secure in their persons, houses, papers, and effects, against un

reasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the places to be searched, and the persons or things be seized." The cause of seizure is not to be supported by a probable oath, or an oath that was probably taken, but by oath absolutely taken. This oath must be a legal oath; 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 final trial; it is made for the very case now under consideration. In the cool and temperate moments of reflection, undisturbed by that whirlwind of passion with which 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 execution, 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 firmly 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 criminal prosecutions in every 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 decision, it must be conformed to.

It has been said to be 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 he had taken the oaths, and he was found acting, it must be presumed that this prerequisite was complied with; 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 there is 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 of it could be obtained.

These observations do not apply to the objections which

UNIV

exist. But it is said that the certificate is the same with that in Wilkinson's affidavit.

If this objection had been taken and overruled, it would have ended the question; but 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, if it be one, which was not observed, cannot be cured by being passed over in silence.

The case in Washington was a civil case, and turned upon the point, that no form of the commission was prescribed, and consequently, that it was not necessary to appear on the face of it that it was directed to magistrates.

That it was the duty of the clerk to direct it to magistrates, and he should not be presumed 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 exception, ought to have taken it sooner, and not surprise the opposite party when it was too late to correct it.

But the great difference is, that the privy examination was a mere ministerial act: the administering an oath is a judicial act. The court is of opinion that the paper, purporting to be an affidavit made by Dunbaugh, cannot be read, because it does not appear to be an oath.

Mr. HAY observed, that as the examination of colonel Burr for treason had already taken up much time without any progress in the business, and, from the disposition manifested by his counsel, it might last not only ten days, but even ten years longer, he considered it his duty, from information which he had received that morning, to suggest to the court the propriety of binding colonel Burr in a further recognisance from day to day, till the examination could be ended. He stated, on the authority of a letter just come to hand from the secretary at war, that general Wilkinson, with several other witnesses, might be expected here between the 28th and 30th of this month. This circumstance, said he, renders it essential that he should be considered in custody, until he gives security that his person shall be forthcoming to answer the charge of treason against the United States. The gentlemen, who appear as counsel for colonel Burr, may be, and no doubt are, sincere in the opinion they have expressed, that he will not shrink from the charges exhibited against him, and will not, in any conjuncture of circumstances which may occur, fly from a trial; but those gentlemen must pardon me for saying, that I entertain a very different opinion. I must believe, that his regard

for the safety of his own life, would, if he perceived it in danger, prevail over his regard for the interest of his securities. I give notice therefore, that I consider him as being already in custody to answer the motion I have made for his commitment, and that he cannot be permitted to go at large without giving security for his appearance from day to day. His situation now is the same as that when he was first apprehended and brought before a single judge for the purpose of examination. Your honour at that time considered him as in custody, and bound him over from day to day; and I only contend, that the same course should be pursued at this time.

Mr. WICKHAM.-The gentleman thinks he has obtained the effect of his motion, merely by having made it. I cannot perceive the propriety of a motion to compel colonel Burr to give bail in any sum, before the probable cause to believe him guilty of treason has been shown. When he was brought before your honour for examination, you conceived the sum of 5000 dollars sufficient security for his daily appearance. But a recognisance has already been given in double that sum, binding him not to depart without the leave of this court. Yet now, although no probable proof of treason has been exhibited, Mr. Hay requires the court to demand of colonel Burr additional security! I trust that such a motion will not prevail.

Mr. MARTIN.-It has been already decided, by the supreme court of the United States, that not a single expression in Wilkinson's affidavit amounts to any proof of the charge of treason. The motion of the gentleman amounts to this: "We have no evidence of treason, and are not ready to go to trial for the purpose of proving it; we therefore move the court to in

crease the bail."

Mr. RANDOLPH.-The first motion of the counsel for the United States was to commit colonel Burr on the ground of probable cause only. This goes a step farther, and wishes the same thing to be done on the ground of a probable cause of a probable cause; but we trust that we shall not be deprived of our liberty, or held to bail on a mere uncertain expectation of evidence.

Mr. MAC RAE.-The gentlemen seem to consider the recognisance already taken as sufficient for all circumstances, and that colonel Burr will comply with it at any rate; but we have not the same expectation that he will appear, in case he discovers that sufficient evidence for his conviction has been obtained. When they speak of the sum in which he was bound on a former occasion, they do not recollect the circumstances