The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-10-23


or oS deciding it, is conhded.
= Had theie proceeding. commenced with the
,,reisut motion founded on teitiDony iuch as is
now adduced, certainiy ihould have FELT no
dificu!ty in deciding on it, But the proceed
ings are not now commencing. The pertons
ag.inlt whom this motion is made have been
feized, one in the Midihppi territory, one in
Rentucky and one il the weitern parts OF Penn
fylvaua VI New-Yoik, and broughtto tnis place
fnr trial. An imneuie number of witneiles
have been 1fcmblcd, and very extersive invef-
tiystion of the trarfaftians alleged to be crimin
ri ha. taken place. The refut has been the
acc1uitt,, ~ one OF the accuied upon the prIn'
cip.c. that the offence, If committed any where,
was committed out Of the jurirli6,ion of this
corrt /; and nsle brolfqsi has been entered
with r>fptGt 70 the others. The wi.neiies, in
tended 70 ettsbliih the charge before jury, have
been examined, and the probability of obtain
ing tc,timony which can materially rary the cafe
Is admitted to I've very remote. The great per-
{ouai and peculiarly iufferings already iuitaincd
Inuf he allowed ALTO to furniih fome motives,
for re curing rather ftronger tettmony TO trani-
nit the accufrd to diltant fate for trial, than
would BE- required in the Etf uitarce. Il may
Ike BE- added as cotGdera'ion of fome
weight, hat the Judge who hears the motion,
tho fitting as an examining maEarate, is one of
thotc who is by law cntruited with ,he power of
on that account the LET'S realon tor referring the
party to difind tribunal on point, On " hich
a flight doubt may exit.
do not believe that in England, whence our
legal fytem is derived, juRice of alI/e and
nif priw, after hearing the whole teitimony,
would commit for trial in another county, a
man who had been tried in m improper county;
uuefs the probable cauie was much tronger
than would be required on ordinary occa6ons.
rr-, n "a. ,ta -i,-
render the queftions 70 be decided more ntri-
cate than they would be in different fate of
things. After weighing them have conceived
IL to be nv duty not to commit on flight
ground but at the fame time cannot permit
myfelf to be governed by the fame rules which
would regulate my conduct on trial in chief.
There are certain principles attached TO the
different characters of judge fitting as an ex-
amining magiarate and on trial in chiefwhich
mutt efentially influence his conduit even un-
der circumstances like thofe which attend the
prefent cafe. 1t is maxim universally in the
ory, tho fometimes neglected in practice, that
if in criminal PROHIBITIONS, there be doubts si.
Their as TO fa6t or law, the decition ought to be
in favor of The accufed. This principle NUT
be reverted on a queton of commitment. In
cafe lk, the preient, if the Judge has formed
clear opinion on the law or fact, which there
is not much reafon to iuppoie additional teft-
mony might he obtained TO change, it would be
iniunice to the public, TO the accuted, and to
that hoft of wtnefies who nluit be drawn from
their private avocations 10 the trial. G,ould ne
take Eep which in his Judgment could pro-
duce only vexAtiou and eXpence but it he en-
fertaiDs frriOus doubts as to the law or fact, it
is, j think. his duty even in cafe like this, not
20 diicharge, BIZ. 70 commit.
The charges ag1init the accuied are:
1T. That they have levied war again1 The U.
States at tie mouth of Cumberland river
in Ken;ucl:y; ard
2ly That they have begun and provided
the means for military expedition agairft
nation with which the United States were
ut peace.
With refpea to one of the accufed, preli-
rninary defence is made 10 the nature OF plea
of aufyef5i5 0egait.
If the eueltiou RATED by this defence was
one ON Which my Judgment was completely
Formed in favor Of the perfon by whom it is
made, it would certainly be improper for me TO
commit him; but if my judgment is not ablo-
lute!y and decidedly formed upon il, there
would he manifet improperly in undertaking
now to determine il. This does not arife from
my fear 10 meet great quettion whenever my
ltuRtioH ihall require ale 10 meet 1t. but from
belief that ought as well 20 avoid the ntru
sinn Of my opinions on my brethren in cafes
where duty does no. eujoin it on me to give
them, as the withholding of tho!e opinions
where my Guation may demand them. The
qucttol whether NK:rcJais 6cqMit will be good
plea in this cafe, is OF great magnitude and ought
TO be fylled by the united wifdom cf all the
Fudkes. Were it brought before me on a tria
j. chief won1, if in my power, carry it be-
fore the Guorerne court when brought before
me mecrly ? al examining magiArat,, fIou,d
deem IT yielf ia>xcufable were to decide, while
a ring't douat remained reipe3 cling tie correct
hefs Of that de,i!ion.
To fsttlc new and important gus ftons in our
criminal code, Especially where thofe qncfions
arc couG;utional, is iafs upon which fngle
;ilCe viii 1T any tine enter with reluctance :;
certainly, ne would not wngly engage IN it
Whiie a6ing as an examining magiArde. There
IS = decent i.nets which all muft feel in bringing
fuch dugitions, if practicable, before all the
Judges. L. Ereiand, trials waich are expected
to involve qnrniors Of treat magnitude, are fci-
dom aligned to one or TWO judges. ct that
intyreRing crifs when Hardy, Took, IhewaI
and oiflerG were indicted for treaion, Chef Juf-
ficc Eyre was aided aad iupported by four az
fociate Judges OF high talents aad character.
il would, ] have no doubt, in thar county be -
matter OF fIrprf; il any perlon, whateVcr might
be his aation il The judi, iary, f'iould undertake
to Tctte great ana no7el point on 4 q1ehion
of commitment. Autough, in the u States,
our fyacm does not admit Of commilion ai;-
thorizjnga majority Of the judge, 70 Co"Ntu,c
2 court for the trial Of f1eciai criminal CAFES,
yet it does admit ofcaTying doubtful aad iu