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, I , A HAL IJOLI.n j . ' r TWCOOLLI. PfR AVW. lti ' ,.,. - I . ' . . ' - ".'ill PUBLISHED (weekly) BY WILLIAM BO YL AN. Vol.. 12. M LEIGH, ( Nr C.Y THURSDAY, SEPTEMBER 24, 1807 TKIAL OF (convinced.) Saturday S-ftembcr 12. 'iTe arguments were his day elofed rhe important queftionwliich has I j-jf iCVCI tli ui;a ait uuwu uuluuu lore Je court- ' MefiM.- Randolph, Martin and Wick jjj,,' everallv fpoke at - confiderable length. On Monday next it is ' hippof ai'the Chief Juftice will deliver his opi nion. v AVr.d 'y. stpt ember I The Chief iultice deliveredxthe fol Jovvipg opinion on the queftiohcon cniins 'he admiffibility of evidenceon the Client indidment, Tor a Mifde tiieitwr, againft Col. Burr. Ih United Mates ") f i On a Misdeaiaoor. nnn Brrr, j Theprefcnt motion is'particularlv di rected ay ainil .thcadmiflion of (he tefti monyof Neale, who is offered for the purfA l'e of provh.g certain converfuti ons k ween him!e:f a.nd Herman Biau Tie'riiairett. It is obje&id that fhe de- ciarations of 'Herman Hlannerhaffett ?.re f this time inaiinhTible onahis-in cidmcnt. The rule of evidence which rejects' r.).re henrlay telliinony. which excludes' irom 'rials o acri'niiiul cr civil nature 'the declarations of any other individual ihano! him "Jgainlt whom the proceed--iiiKS are inllituted, has been-gener.dly licnteJ a!) t lfi-mia! to the correft admi-niiira'ic-n oiju'tice.. I know not, why a (itdaraiion in court fiiould bc iinavail iugutilefs raau'e upon oath, if ildeclara tiuri out At court was to crimfr'ate others" hau him who made it,; nor why mxi ;himld have a coiiftiruficnal 'clim to be confronted with the witnefTes againft .him if mere verbal declarations made " in his a!)lence may be f evidence againit mn 1 know of no principle m the prt ft i vation of which all are mcrecon ccrnedlrknow none by undermining which, lift-, liberty and property, might dp mor endangered; -r It is therefore in- the confpi'racy belhe fole .charge ' as, it . ceps'crtmims would become admhUble on '3dly..lhe ad million of thedeclarati may bevthe queltion to be decided is j the trial of a perfonnot prelent whert " "ons of JMrBIannerhafiet may be inlli not whether the accufed has committed j they were made, unlefs thofe declarati i.Uited iipori i under the idea he was the a-. oris form a parr of te very trahfaclion charged m iheindiclment. it remains to be proved that the offence charged may not be committed'by a firigle individual. This may in lome meaiure depend on the epefitioh o1, the terms of the ft ; land it is to be aay particular faft, but whether he has confpired to commit it. Evidence of conl; iracy in luch a cale goes di redly to" fupport the iffue. It 'has therelore been determined that the nature of the confpiracy may be proved by the trans actions ofany.of the. conlpirators in fuitherance of the common defisn : the egree or guilt however- of the;partlcu, oblerved that this expotition rmilt . be Iar confpirator upon trial, mult Hill de- fixed. It cannot vary with the varying pend on his Own particular" condtitft.u alpect di the profecution at its differ In the cafe at bar he crime -confifts ent ftages. ' If, as has been laid, a tuiii not in intention bur in acts. 1 he acl of tary expedition f - begun or fet on foot congrefs does riot extend tothTe lecret j when a fingle foldier is enlilted for defign if not carried in'o open deed, nor i the purpofe, then unlefs it be begun to any coiilpiracy however extenfive if it ; as well by the foldier who enliftsas by do not amount jo a Deuinnine or fetting j the officer who enlifts him, a military on toot a military cxp dirion. The in- j expedition may be begurt by a fingle in- dictinent contains noallufi n toa con- ! dividual, o it thole who engage m miracy, and of confeqnence the iffue to i the enterprize follow their leader from beir ed by the jury is'not whe her any their confidence ni hlnv vVIthou any Rent of Co!. Burr. Ilo'w far the acts i'cf one man rriay affed another cT..ninah confpiracy has taken place : but whe ther the particular facts charged in the indidmcnt have been commi'ted. I do not hjean to admit that by any courfe wliich might have been jziven to coiiverte.d inro a pife vf confpiracy but moit;aflured!y ifxit wai itiiemfed to pfdvea confpiracrrimvf - to - let the protecutioti this could hae beetv valual. Should the term be evn fo ,r t Vi t j be co-niited. flill 11 -1 h f mea ns may, i n k nd of teftimony vh?ch iS 'sdn.iifiljje'j many cafes, be provided by a fingle in only in fuch a cafe, thcindicTnent ptl'ght I dividual. I he rule .then laid down by to have charged it. ,. -- the counfel for fhe profecution, if cor 1 have not been able TdfTrid in the ' red m'-jisclr, wpuld not comprehend' this caltf. 2dly. There are a'.fotaffS in the horVs where ads are in thfir .nature j hit and where the ;w attache;? the uuilt to all coneriKd in their comuiiffi. n, fo that the ad of cine is in truth the ud of others, vr hef 9 the co; dud of one per fon in the commiinn oi the fad court i- If in alt this J fliould be mi (taken yet ly, is a fuljed tor diffind confideratiom uur i oe'ieve mere is- uocaie, wnere.'ne wor, ' H an agtn t can be evidence againll his principal on a t;riininar'prii'et.ution. Could fuch teftimony be admiilir h-, the agency mult be. firft clearly eitablifl ed, not by the words of the agent bin by the ads of the principal, and the word mult be within the power prcvioufly fhown to have been given. 1 -he opinions of the circuit court rf ew York in trials of Smith k ()g?cn have beVn frequently mentioned. Al though 1 have not the" honour to know the Judge' who gave thole deciiions. f connder them a, the determination f a court o the .United States, and I Iiall not be lightly induced to difregarbl iliem, or bnnectffarily to treat them w'v h dif refpect. I do not howeyei percdve in the opinions of judge I'almadgeany.ex preflion indicating that die declarations of third perforrs could be received as teltimony again!! any individual who was proiecuted under this act. If he has given that opinion, it has ten ainly ef" caped my notice, and 'has rot been fug t i I ed -1 o - tli'- byc u n i-el. He- u vrq u elti on:;.bly fays in Pa.ee ol the trial knowledge ol the real objed, there is no confpitacjv and the criminal ad h the ad ofan fndividual. S too if this meani arcrv nieahs,thecrime may un- qtfettionably be committed by an indi- conltrued as to imply that all rhe tneans muli be provided before the offence can cvHiihcnt on courts to be watchful of e very ii'madon aprindple fo tfuely im portent. -1 .I.:..- 1 his rule as a general rule is permir fed tb ftand. but fome txceptin;s ro it have been introduced concerning the -extent of which jit difference of opinion prevails, and that difference produces die prtlent cjuemon. books a fingle deciljn. or aXdlitary didutn which would countenance the at.eaipf thatds jiow ma le to introduce as tftimonyvtht declarations of third per fons made in the abfence ol 'the perfon (tlitfal, under. the idea of a confpiracy where no confpiracy is all edged in the indidment. The reieTchej o the counfel for th been more luccefsiul. "mii ihev fuppofe this caie. though not win in 'he 'ettcr, to come clearly within the reaf ning of thole c ti'eS where this teflimony has been allowed. It has beth fud tliat wherever the crime may he comaiittsd.by a fingle" in dividual, rJthough tn point of fact more ie pro ecurion have" not tutes the crime of another perJon : but t'fsiul. Bui ihev fuppofe i this is diftind fro confpira-:y. than one fh u!d be: cone -rncd in it, a.H adsc.f allin in ah cates of felony, the nrofecution inuit beonduded in the uluil mode, an.t 1 he idtcjafiUi or s of third perfons cannot be intfoduced at a trial; but whenever the C! ime requi'-es more than one perfosi wf,e;e from its nature it .cannot be committed bv a fingle indivi dual, altho it mall conlilt, norm-con- If many oerfons combine to commit a murder, and all affift in it, and are adu ally orconH rudi'ely prefent, the ad of one is the act of all and is liifhcicnt lor the conviction of all. bo in. ads of levy, ing war, as in the cafes of Dainane and Purchafe, the ads of the mob were the fhowed a concurrence in thofe ads, and in. the general defign which the mob ' - that the refereiKe which. was, made - to the doctrine of confpiracy did not ap ply in that cafe." I. he reference allud ed to was The oblef vation of Mr. Km met who had Taid"" that if the objed was to ch nge Col. 'Sinirh with the ads of Capt. Lewis, they ought to httve laid the iriictmtnt for a conlpiracy." -1 he opinion ot the Judge that the dodrine ol conlpiracy had 'no application to the cafe, appears to me to te pel fed ly cor icd. .... '.; ' I feel therefore fo d.'fficulty in decid ing that the ttltimopy of Mr. Neale, unlets he can further than merely Hating the tlec'.raticiis made .to him by hhmncrhdlet i.s at prefent tnadmifiible. But the argument has. taken a much wider range, Thfe points made compre hend the excluiion of other reltmu.ny t ' ! AthofriiduitMutygefled bv I he attorney for the inured , iStates and the opinion ol the court up on the operation of teflimony. As ihere I 4 1 I fiir-ir-Tr K,ir In r:n AtxA If Ir. IrS n." ittnrhtn Yrt lht-if nft'niic i hf mil. rn-fnV, v dfePAn J v C?rif nieora cmiacy and evidence off dudoVeachconrribute, tb ffiew the na lS. W1C andf ' U If " fa,d the de larat-ons and afts .f third W- ' "re ofthisjoint crime ; and declarati felarr ofaI the co1- fons condeti u ith the ccukd.-mav be ons made uttring the tranf.dion are ex- may be Riven in evidence on the ti iil.t t any one of them, for the pur polei t. n'ing the confp racy, and this .'c:i!e, it is aliedged, cdmes. within the exceptions : r;. ) : t With regird to this exception a dill tmdion is taken in the '.books beween the admiflibility and one ration of tefti- rnony which is clear in point of law, but werecarrytng lntoexectuipn. x15nt .th.e!e . lulTjects ;.re etitireiy onnnct, gncs as tne., decif.onV-turn on a diftind priPciole! obit cTof the. motion-is the exejuiion ot 11 f from confpiracy. " 'I he crime is a joint 1 'Teftimony fuppofed fo be illegal, 1 mall irimf, and all thole who are prcient aid mp; in the conirniffion of it ..participat; ihTacother$;'.dions,,and4n the guilt received whether the iiididmrnt covers lu h teftimony or not. I mult confefs t harl do not feel the force of this diinctjon I cannot'TcTm cdve why, when number do in tritrh corTpheTo commit an act as murder or robbery, the rule fhould be tha ' the de cfararion of one of them is.no evidence 'YL .1..- I i I L l: "i I J not at all time, ealy to practice in -ad.' anotuer anu vet .rmeacc m. uu, ) is that ah! gh this teftimony be ad- than one for its commjfli- mitt . . .f.w ' h u fu-. on, t hat the doarat ions of one., perfon tAKii-A;.. k' --. .-:. become evidence aamlf another... lean- oFthis i .. I -a V4WV1r. nor nprreivp f hf -rexinn at --thin difhnrri- ounsor nisown conduct. j v . j i. r v " on; ur, auumcuig its jouuiry, i khow.. nor on w)jat gr 1 ro dilpenfe with chargintoriTrrdicttnent. th-combina-tion intended Ur be provexir Ifrhis com bin'ation may be proved by the ads or declarations' of third peffons made in1 the3bfence, oR the accufed. becaufe he fSHSoauiefti if in placatory of thf trajlfadion ; but I can not conceive that in ither cafi declara tions unconn;ted withahe tranfadion would have been evidence againft ai:y other than the perfon uho made them, or perfons in whofe prefence they wer confine my d'bfervations. to; that part of the 'argument whichtefpeds the adjnifli biiity of evidence of the delcription of 1 that prcpofed by the attorney for the United State?. The indidment charges the accufed in feparate counts with begmnir.g, with fetting ?n foot, wit h preparing," and wh h providing the means tor a .military ex- -pedition to be carried on againft a itati oil at peace with the United Mates. Any legal teliimony which appliesto any oiiei., i'ct-thefc-courts is revant. I hat whidi made If for example one of feveral, ; appiTesto nope of them muft be irrcT But the Queltion tohp rnnfidf fpd i. does. the exception comprehend this ..cale ?, Is this a cale-of -coTil'piracy ac cording to the well eltabhfned law weaning of the trrm ? ' , . , ' .Cafes of confpiracy tnayoe of two del'crintio'ns: ; i. . ltTVv heteT tje co.nfplfa'T cntne, in which cafe the crime iscom .plets: altho the -aft1 mould npVr he - fmed, k in fuch cafes it feveral be in- md, and all except one be acquitted, : that one cannotjfay the books, be con eil,;hecaiife ihe cannot cemfoire -.".a.- .VVhere thefime confift in the ntcRticii, and is proved hy a coiifpiracy, 1 --that.Ji.he convidion ot he - accufed r f -ay take nhirp mnn evhlpnr- tim he. j tonfpfi'ed to do any ad which ma -lii.eils thc: wicked intention la hoTn thfif flfpe rsn ie 1 Tir .fTf. ' .,i uai-va. mi. (iv.fc. ia fc.A.ifcA tialfo-the coin rMttionnhettrinTm -5cori piryt 'ij'-Jft charged C i h the in did -.Misfi, ground, of .peculation.;. If . confequence rf this connedion -ihe or dinafy rules of evTdfcnce; ''. are-to' he pro 1 ftrated, it- would feem tB"?me that the indictment mhTFj give- fome otice of hs connedi n. i . . " When the terms ufed ,in the indid menr rieceffarily imply ia conibination, men whei had united -in committing a, i murder inouici nave laia tnat ne witn o thers contemplated;lhe fad which was afterwa'ds commfttecl.. I know of no cafe which would warrant the admiiTion teltimony upon the trial of a per son who was not prefent when the vanr.- The expedition, the charnder aorl objed of that expedition, that the- de fendant bepan if, that he let it on foot, thai he provided and prepared the mears r -.'" . I . f. . . I - 1 tor carrying icon, ;:rean cuargeu ui indidment, and , ccnlequentlytixtc wordswere fpokeh. Soif Damane had v charges may be all fuppofteTjy .--any Te pVevio'uily declared t.at he had entered Tgal teltimbny. rBm tlup a military', ex- r into,? confederacy 'for the purpofe of pedition-vas begun, orTet "onjiot .byi-; ; pulling down alt meeting houfes, j can- thers, or that theineans were prcp.rv.i noi believe that this teftimony would or provided hy others, is not charged-.in :C nave ocen aamv oie: agamtra penou this indrtfttnentt is not a crink 'which;:' havincr no knowledge of the declafcatibn "Voifan be alledged againlt thederend?j)t, and civing no affent to it. Jiutd teftimonjito that .effect is therefor In f clonFthe-miilrToi the-pTineipaHtU-treleJit. -. :- rr- - -' " .11. n - taGhes to the accelTary, and therefore the nuilt of the DnncioalistDroved oiu , - -' r . the of the acceffary. In treafon all areprincipats and the guilt of him who ' has actually committed the trealon does, All teRimony:.wiich fervestoTiMvl expedition to have been mili.tar character,' as far tor inuancuH?lJiia: refpedihg their arms, and provifiphs, no VV matter by whom purchaled, their con- ' in England, attach to him whajwsad Vil- dud j noj matter, by whaturtded or itiwiil be admltredTiJat a tomhlnati trsatonJrCcjn-who -was' prelent,-ai I Ttal- teltiniof charged and may be which ierves;to ihow the:objedr( -V. 'ami C.arcf indidel for murder.' who has perpetraTeTTthelacTlmTt. ing D. Yet in fuch a cal e the dedara-'t examined on' the trial of him who' lias marching, againit4; Mexico, , any T?uoh2 fioa? of one; of the names nude m the adviiedor procured it. . Jbut in milde- i deciaiations tnaae. among tnemit-jveR abdence or the others ha;Vinever oeejv-. meanora Dy itatute, Avnerejpe coair.i:iv " itating tviexjcp.as. meirptyeci, any ma 3dm"tted;as evi ence aaTrttf t'He : Qthei s. 4- fion of a particular f conuifutesrrhe ;ritifeito toTn Iflhmthis in'lid'nff'it fho ttld evert im- i only crime i ounilhed bferthe Jaw, I be- ply that th? fact charged wis commitred py re thariJ-ori - perfo p , . I ca'inot cohceiveliat the decbratioi s of a fijrtil lieve therels no calewhee;jhe dec!a- .?atiori btt-farticeb trtrnmi canaffed any tereel into ny tnemtor luch an expeditt on. thele or Himflarrrads woutc!,be:j(M ceived to iitow ths-objetc ofc thu expe'-ti tiori,. . ! r. i X
The Raleigh Minerva (Raleigh, N.C.)
Standardized title groups preceding, succeeding, and alternate titles together.
Sept. 24, 1807, edition 1
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