The Wheeling repository — Wheeling, Va. [W. Va.], 1807-11-12 00:00:00, page 5

Tn s*ttlr new and important questions
:n our criminal code, especially v. her.
aos<: questions are constitutional, is a
t tsk which a single judge will at
env time enter with reluctanc certainly
1,1 would not willing]} engage in it
• hile acting as an examining magistrate.
I Mere is a decent fitness, which all must
itel, m bringing such questions, if prac
; a. able, be lore all the. judges. In Enr
htnd, trials which are expected to in
<()lye questions of great magnitude, are
. ‘c ,>m *'issigued to one or two judges.
■f,\L that interesting crisis, when Hardy,
rooke, Thel wall and others, were in
c.ictccl lor treason, chief justice Eviv
was d and supported hy four associ
ate judges oi high t il nts and character.
il would, I have no doubt, in that eon 1
try be a matter of surprise, if any per
son, whatever might be his station in
the judiciary, should undertake to settle
a gicat and novel point on a question of
commitment. Although in the United
States our system does not admit of a
commission authorising a majority of
the judges to constitute a court for the
u-ial ol special criminal cases ; yet it
ones admit of carrying a doubtful and
jin;,oitaut point before the supreme
court ; and 1. should not feed myself jus
tified, were I now to give an opinion an
ticipating such a measure.
l ‘Shan tiKTvlorc consider this motion
:«.s if no verdict had *been rendered for
either of the parties.
Hoth charges are supported bv the
same transaction and the same testimo
ny* 1 ils*«mblage at tne mouth of
Cumberland is considered as an act of
levying war against the United States,
and as a military armament collected
lor tii invasion of a neighbouring pow
er with whom the United States were at
peace.
I- rom the evidence which details that
t: ansaction, it appears that from sixty to
one hundred men, who were collected
from the upper parts of the Ohio under
the direction of Tyler and Flovd, had
descended the river, and reached the
mouth of Cumberland about the 25th of
December, 1805. The next clav they
went on shore, and formed a line, repre
sented by some as sonm what circular,
to receive col. llurr, who was introdu
ced to them, and who said that he ha i
intended to impart something to them,
"ir that he had intended to communicate
jo them his views, hut that reasons of
n:s own had induced him to postpone
‘Ins communication ; or, a<> uihsra sav,
ihnt there were then too manv Lycstand
ers to admit of a communication of his
objects.
The men assembled at the mouth of
Cumberland,appear to have considered
col. Burras then-chief. Whatever might
be ih- point towards which they were
n o\ ing, th y seem to h ivc looked upon
nun as their conductor.
d hev demeaned themselves in a peace
able and orderly manner. No act of vi
° cnee w 11 committed, nor was any out
rage on the laws practised. There was
no act ot disobedience to the civil au
thority, nor were there any military ap
pearances. i here were some arms, and
some, boxes which might or might not
contain ar ns. I here were also some
implements of husbandry, but they were
put chased at the place. X'hese men as
st mbled under contracts to settle a coun
try on the Red river. No hostile ob
jects were avowed ; and a^er continu
ing. a day or two on an island i:i the
mouth oi the river, the partv proceeded
down the Ohio.
-l here are some circumstances in this
transaction, which are calculated to cx
ritt attention and to awaken stusnicion.
li the exclusive object of those who
composed this meeting, i\ps to settle
lands, it would natiiraH)- form t)ie sub
jeet of puolic conv’t rsatiou, and there
w onlo most pro oably have been no im
pediment to a free communication re
specting it. The course of the human
nuncl would naturally lead to such com
munications. 1. iie silence observed by
tne haders on the subject, connected
with hints of ulterior views, seems cal
c ulated to impress oil the minds of the
peop.e themselves, that some other pro
ject was contemplated, and was proba
bly designed to make tb it impression.
1 hat tuc men should have been aimed
with rifles,was to be expected had their
smyle object been to plant themselves
on the Ouachita; but the musket and
oayom t. are perhaps not the species of
arms which arc most usually found in
out ii ,ntiiT settlements : nor were the
mdn iduals w ho were assembled, of that,
description ol persons who would most
naturally be employed for such a pur
pose 1 he engagement for six months
too, is a stipulation lor which it is difli
cuit to account upon the principle, that a
settlement of lands was the sole or prin
cip t1 object in contemplation.
1 ijfse are circumstances which excite
suspicion. How lar they may be ac
counted lor, by saying that ulterior e
venturi objects were entertained, and
ihat the event on which those objects
depended was certain, or nearly certain,
I need net determine : but I can scarcely
suppose it possible that it would be con
tended by any person, that the transac
tions at the mouth oi Cumberland do, in
themselves, amount to an act of levying
war. There was neither an act of hos
tility committed, nor any intention to
commit such act avowed.
Very early in the proceedings which
preceded this motion, I declared the o
pinion that war might be levied without
a battle, or the actual application of '
iorce to the object on which it was de
signed to act; that a body of men assem
bled for the. purpose of war, and bein'r
m a posture of war, do levy war ; and
lrom that opinion I have certainly felt
no disposition to recede. But the inten
tion is an indispensable ingredient in the
composition of the fact; and if war •
may be levied without striking the
blow, the intention to strike must be.
plainly proved.
i > piiivt- tnis intention, the prosecu
tor for the United States offers evidence
oi conversations held by the accused,or
some of them, with various individuals,
at different times, relative to the views
t> h:ch were entertained, and the plans
which had been formed ; and of certain
facts v.'hicn took place after leaving the
mouth of Cumberland. For although
it was decided not to be within the {low
er of this court to commit for trial in a
territory of the United States, yet every
transaction within a territory has been
given in evidence, in the expectation
that such testimony might serve to ex
plain the meeting at the mouth of Cum
la.land, and because it was believed to
be proper for an examining magistrate
to receive it.
1 iiat conversations or actions at a
different time and place, might be given
in evidence as corroborative of the overt
act of levying war, after that had been
proved in such a manner as to he left to
a jury, I never doubted for an instant:
but that in a case where the intent could
not be inferred from the fact, and was
not proved by declarations connected
with the fact,among which I should in
clude the terms under whinh those who
compost d the assemblage were conven
ed together, tins defect could be entirely
supplied by extrinsic testimony, not ap
plying the intent conclusively to the
particular fact, is a point on which 1 have
entertained doubts which are nut yet tn