Mr. HAY objected to the introduction of these affidavits, be cause he understood that they had been written and dictated by the counsel of colonel Burr. He did not pretend to say, that they contained any thing which they did not believe to be true, nor did he know their contents; but he understood, that they were introduced for the purpose of strengthening some testi mony concerning general Wilkinson, or of showing improper conduct on his part; that he understood, that those witnesses had voluntarily gone and given information to the counsel, upon which the counsel had written or dictated the terms of those affidavits; that his idea was, that when affidavits are taken by the opposite counsel, though the court may be perfectly satisfied with the conduct of the counsel in taking them, yet ac, cording to universal practice the court would not permit them to be read; that the legal authorities showed, that a court would never issue an attachment founded on affidavits taken by the agent or attorney of the party applying for it; that this court would admit of no exceptions to this rule; the court of king's bench determined that "it was invariable and founded on the wisest and most obvious principles." Mr. Hay here cited the case of the King v. Wallace, in 3 Term Rep. p. 403., where the court had set aside an affidavit that had been sworn to before the attorney for the prosecution, and refused to grant an attachment; that the present case was stronger than that. The objection in that case was, that it was sworn to before the counsel; the objection here is, that it is penned by the counsel, and is therefore stronger and more within the scope of that policy on which the principle of the law is founded; that however he did not mean to reproach gentlemen for the course pursued in this instance; that he was sure that nothing like impropriety was thought of by them, and that perhaps he would have done the same thing in their situation.

Mr. BAKER.-May it please the court. I shall not undertake to say, what Mr. Hay would have done in our situation, nor do I feel much interested in knowing; but I rise solely for the purpose of correcting a mistake, which he has committed. He says, that these affidavits were originally written by colonel Burr's counsel. As to the affidavit of Knox, I know I can say nothing; but as to the affidavit of Lindsley, it was written by himself. The facts are simply these: He called upon me with his affidavit already written, I had never seen him before) to know whether it were correctly written or not. I read it, corrected some inaccuracies in the style, and wrote it over again: it was not sworn to when brought to me. After I had corrected those grammatical errors, and submitted it to Mr. Lindsley's inspection, he said that the statement was perfectly correct.

Mr. WIRT.-Do you know, Mr. Baker, who induced Mr. Lindsley to adopt that course?

Mr. BAKER.-Perhaps yourself, sir: I never saw Mr. Lindsley before.

Mr. MAC RAF.-I beg to add one observation to what has been already said on this subject. As the witnesses are now before the court, and can be examined viva voce, there is no inconvenience in the objection. If they were at a distance, so that they could not be personally examined, we should have found no difficulty in admitting their affidavits; we should have waived the objection, lest it might seem that we were afraid of them. I hope that it will not be believed, that we feel any such apprehension. I hope that it will seem to the court right, that the affidavits shall not be read, especially as our affidavits were objected to, when our witnesses were at New-Orleans. I hope that gentlemen will not insist on the necessity of discussing this point farther. If they wish to know the whole truth, they will consent to examine the witnesses in open court.

Mr. WICKHAM hoped that gentlemen would persevere in the course which they had this day begun; and instead of warm and desultory declamation, come at once to the law and authorities. They object to the reading of our affidavits, and the question is, whether in point of law, their objection will be sustained? It happens in many cases, and must happen in the progress of litigation, whether between individuals, or between the public and individuals, that collateral points arise, in which it is necessary that testimony should be heard: but if on every collateral question, viva voce testimony were to be introduced, great inconvenience would result; it would lead to an unne cessary confusion and waste of time: and the regular and established practice, therefore, is, when these collateral points occur, not to produce viva voce testimony, but affidavits in support of them. These affidavits are made before private magistrates; that is the authority by which they are taken. These being in writing, must necessarily be written by one of three descriptions of persons; by a magistrate or judge; by the party himself, or his agent; or by the witnesses. With respect to the necessity of their being written by a judge or magistrate, it will not be contended, that they are bound to submit to the drudgery of writing the affidavits, and most of them have no clerks. It is therefore usual to prepare the affidavits before, and for the magistrate to sign them thus previously prepared: and besides, a man may be an able magistrate, but a bad clerk. With respect to the parties themselves, it will not be contended, that they ought to write them, because a very great propor

tion of them are unable to write them. Who then is to write them? their counsel or agent, or some indifferent person. How can the party get an indifferent person to write his affidavits? The moment he calls for an indifferent person to write them, he becomes his agent, and is incapacitated from writing them: and according to the gentlemen's arguments, these affidavits could very seldom be produced. Hence, from the necessity of the case, a custom has prevailed among lawyers, to write their clients' affidavits; and the gentleman himself admitted fifteen minutes ago, that he has been in the habit of doing so himself.

As to the authority quoted by Mr. Hay, had he considered it but one tenth part of the time he has argued it, he would have seen that it did not apply. In that case, the affidavits, on which the motion for an attachment was founded, were sworn to before Lothian, who was the attorney, or agent, for the prosecution. Here the affidavit was written by the witness himself, and only corrected and copied by the counsel. Does the gentleman suppose, that the actual presence of the attorney would vitiate the affidavit? When a man writes an affidavit, he acts a mere ministerial part; but he who administers an oath, performs the judicial function of a judge, or justice of the peace. It is a sacred rule, that a magistrate who administers an oath, should be disinterested between the parties: and in the case referred to, he who administered the oath was not disinterested, but the attorney for the prosecution. I recollect an instance in this city, where a magistrate, who was also a practitioner of the law, drew an oath and administered it himself, even in his own case: the first was not improper, though the second was. Here Mr. Baker wrote the affidavit, but did not administer the oath. There is a substantial and plain reason, why the oath should be administered with impartiality, but no reason can be assigned why the agent of the party should not, as in this instance, copy, and correct, in point of language, at the instance of the witness, an affidavit prepared by the witness himself. As to the witness being present, it makes no difference. The practice, in such cases, is to read affidavits just as if the wit

nesses were absent.

Mr. BURR.-If it were perfectly agreeable to you, I should have no objection to an examination of the witnesses in court; although the practice is, on principles of convenience, otherwise: but if the court will submit to the inconvenience, it will be agreeable to me. As to the origin of this business, it is not perfectly understood, and some unfounded insinuations have been made concerning it. James Knox called on me, stated the usage which he had received; and asked, whether any redress could be obtained? One of my counsel, who was present at this inter

view, concurred in opinion with me, that some notice should be taken of this proceeding. We at first thought of referring him to Mr. Hay; but on reconsideration, we thought that, perhaps, Mr. Hay might think himself disqualified from acting. Mr. Knox's own idea was, that he ought to come into court, and complain, himself, of the treatment he had received.

Mr. WIRT.-Mr. Wickham says, that it is the practice to produce affidavits on such motions: but this practice is founded on expediency, and when it ceases to be expedient, the practice will also cease. The inquiry then will be, whether it will be most expedient to examine a number of witnesses openly, who are now in court, or take their affidavits and read them? The court would wish to come at the true state of facts. I hope the gentlemen on the other side, would also wish the same. You are called on, to make a rule, against general Wilkinson, to show cause, why an attachment should not issue against him; and to support this application, affidavits are offered, and said to be founded on expediency. We contend that viva voce testimony is better. Before you grant it, you must be satisfied that it is right. The question then is, which is most satisfactory to your mind, an affidavit taken by the party, or evidence stated by the witness himself? How can the court be satisfied till the witness be examined and fully heard? Was the affidavit written by the witness himself? Did it proceed from him? or, was it advised by him? or, did it contain his words? The counsel, no doubt, endeavoured to draw it as correctly, and as free from bias, as he could; but it was difficult to state it precisely as the witness would have done. The witness states his facts, but he states them in his own language. Is it likely, that when it is changed to the words of the attorney, the idea intended to be expressed by the witness, will be precisely retained? If you take the evidence, not from the fountain head, the witness himself, but from a statement taken by another, you run the risk of not being rightly informed: but if you examine the witness, there can be no mistake.

Mr. Borrs said, that colonel Burr had acquiesced, and consented that the witnesses should be examined in court, though he regretted the departure from usage established on principles of convenience.

Mr. MARTIN. If the witness be examined, the clerk will reduce what he shall say to writing, so as to give it the effect of an affidavit.

Mr. HAY apologised for frequently misunderstanding colonel Burr. He complained, that from their respective situations he could not hear the accused, notwithstanding his clear and distinct voice, and emphatic manner.

James Knox was then called, when

Mr. MAC RAE addressed the court. He said, that as the business was of considerable importance to general Wilkinson, it was extremely desirable, that he should be present at the examination of this and the other witnesses, who might be introduced on this occasion; that he was now before the grand jury, and he had applied to the gentlemen on the other side to postpone the motion till he could be present, but they objected to any delay. He therefore found it necessary to apply to the court, to suspend the examination for a short time, till the general could be present; that important facts, unknown to the counsel for the prosecution, might be within the knowledge of general Wilkinson, who therefore might materially direct their inquiries in this examination.

Mr. MARTIN said, that the gentleman did not seem to know in what stage of the business they were then engaged; that the question was, whether a rule should be granted to show cause; with which neither general Wilkinson nor his counsel had any thing to do, and were not, in fact, as much as supposed to be present; and that the court would take care that the witnesses should answer correctly.

Mr. WICKHAM complained, that they had been for a considerable time prevented from making the motion, by the delay of the gentlemen on the other side, and of general Wilkinson.

Mr. MAC RAE.-The gentleman from Maryland has said, that we were not present in court. I thought, that all the while he spoke, we were in court. The court were pleased to notice our presence, and we were heard and answered politely and respectfully; and what has the court said? That gentlemen on both sides in court, had a right to argue this question. It is now too late for them to say, that they are exclusively engaged in this motion, which we have an acknowledged right to discuss and oppose; and we shall be perfectly satisfied, if the court will take notice of our observations, although Mr. Martin should not. We hope, that if the reasons for desiring general Wilkinson's attendance appear as strong to the court, as to the counsel for the prosecution, it will consent to this short delay. We mean, with the leave of the court, to put some questions to the witnesses, and also, to produce some testimony ourselves; and we feel confident, that we can satisfy the court, that no just foundation exists for the present motion.

Mr. MARTIN. I thought I had assigned very sufficient reasons why the business should not be delayed. I knew they were personally present. I saw them; and if I had not, they took good