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The Wheeling repository. [volume] (Wheeling, Va. [W. Va.]) 1807-1808, November 12, 1807, Image 4

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Persistent link: https://chroniclingamerica.loc.gov/lccn/sn86092519/1807-11-12/ed-1/seq-4/

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picion nr that of oth -rs, Black stotK*
•-•eld', “hut in both cases it is fill tug to
examine upon oath the party requiring
a v, arrant, as well to ascertain that
there is a felony or other crime actually
.•. .nmitted, without which no warrant
should be granted ; as t'so to pro\ • tlv.
cau ? and pro! ability ol usp th
parte against whom the warrant w as
But although tlv* existence, of a fact as
the foundation of the charge must he
proved before a magistrate can legally
imprison a citizen, it is not believe l to
be true that the • ante necessity exists
for ascertaining v. ith equal cl at ness the
full legal character of th ■ fact, c r the
degree of guilt which the law attaches
to it. On a charge oi murder, f r ex
ample, the homicide must he proved ;
hut the inquiry whether it be justifiable
or otherwise, is seldom made by an ex
amining mrgislrate. He could n t re
fuse to comtv.it. unh ss it was perfectly
clear that the act was innocent. An o
pii.ion that a jurv ought t< at quit! would
rot warrant a rt !us tl in his pen. to take
ihe ste ps which might bring the accused
before a iurv.
In c.'.tts \\ lure the legal eft< ct of the
act ah dyed to he criminal, is in any de
gree doubtlul, it \vt t Id giaatlv derange
• he regular course of j'.;. lice, and enable
many offend* rs to escape, should a ma
g - trate reiuse to arrest until he had re
ceived full proof of guilt. If the fact
*be ol such a character as perhaps tv) he
construed into a high and dangerous
crime with the aid of othi r testimony
■which the nature of the case admits, it
would seem to he a duty to secure tlu
pi rs >n to abide the judgment of the law.
Among the many reascu t which ma\
he cnumerati d lor committing in ;*
doubtful mise, :uv :
1st. That upon a cousi lerahlc portion
of a uituinal charge, it is tin peculiai
province < i a jury 10 dia l le.
2d. i . Idiiioual t jtimony is to be
exp-, ctcd : and
3d!*'. 1 hat th * person most common
ly making the com mi mint is a justice
>1 the you1, not tuith n _d finally to try
c oi’ , 1. ', and who conscqti'ndv.
• h. \ - r nva he the i/cL is not |)ia Mim
* so con ol the lav.
■ d th cas- , • 1," i , * j uh i.ht power
*. <1. deling 1 c ., 1-1.
Had th sc (tvf.ci • ys commenced
wi-hthepn ”t motion, 1- aided on t.
tim >ny s nil rs 1. no-*/ . dd ,• -d, I err
tainly si j dd i ( uo dn.uuht in
deckling cn it. lint the proceedings
are not now commencing. The pe rsons
against v. h >:r. tills motion i ^ made,have
been ah zed, one in the Mississippi ter
ritory, one in Kentucky, and one in the
western parts oi lk nnsylt ania or New
Vorl:, an I brought to th is place for tri d.
An immense number ot witnesses have
been n: t milled, md a vt r\ extensive in
vest! -lion t'l Uu trams ( t ons all- ged to
• be criminal, has taken place. The re
j suit has been t i acquit al of one ol the
j accused, upon the principle that the of
| lenc •, it committed any where*,was com
mitted out oi the jurisdiction of this
court ; and a nj!!e prosequi has been en
tered with respect to the otlurs. The
witn.sses intended to establish the
charge jefore a jury, have been i xa
mitwd, and tii probability of obtaining
testimony which can materially van the
case, i. admitted to be very remote.—
1 he great personal and pecuniary sui
tering already sn ,tnim d-imist be allowed
also to lurni-h some motives for requi
ring rather stronger testimony to trans
mit the accused to a distant state for
trial, train would be required in the lirst
instance. It may likewise he added, as
a consideration of some v. ei,Jit, that the
judge w ho hears the motion, though sit
tin as an . xumining magistrate, is one
ot tiiOae who are bv law tnt'tt ,tetl with
the ; owe rol di riding finallvon the case;
and there seems to he on that account
the l r.s reason h r referring the ; artv to
a distinct tribunal, on a point on which
a sli .ht doubt may exist.
I do not bdieve that m Kngland,
w he rum On legal system is tier ved, a
justice of u i'.c and nil piius, ail*, r
hearing the whole testimony, would
commit, lor trial m anothei eoutitv, a
man who had been tried in an improper
4n ty, uni ... . c a
much str g r than would be. req aieil
on <j dinar . r>. tasion:-.
To* se « • ! >. lug t- nsidf-r dions rc r
ink remh t t u qu st ions to be d cided
more intricate t ...n to y would be in a
diltercnt tu »t thin - . Aker wei. fl
ing- them. I have < outlived it to he inv
cl tu v not to <•■inii.it cm slight ground ,
- lit at the s um tan. 1 c moot pern r.
m_>'- 1; to be r, >\ erne, t bv the same rul ,
whii b would regti' t e my condu.t on .•
rial in duel.
i'h- re ire cert in p’ numbs altac •
! to th d.ti. ri nt dun ac u rs ol a judsii
• mg as an examining magistrate au i on
■ trial in chief, whii :i must ese mi dlv
i.iilucnre hii conduct even u.,.,cr cir
cumstar.cts Irkc those which attend the.
]>)• s.'nt c;;sc. It is a nv.ixim universal
in th« ory, though sometimes neglected
in practice, that it in criminal prosecu
tions th re he douhts either as to factor
lav., the decision ou. in to he in favour
of Ji ■ a cused. ’inis principle must he
l evers (1 or a quctHton of commitment.
In a -v i:k“ the present, if the judge
has :<r. nu-d a el nr opinion on the law
or h*ci,w hicht! • .* is not much reason to
su;ve ,e additional testimony might he
obtained to change, it would be injustice
'.o the pu . c, t th : accused, and to that
•lost 1 i witness'. . who must he drawn
horn their priv t • avocations to the tri
al, - mukl lie take a st p v.diieh in hi*
\v gneiit could produce onlv vex-.uio*.
and » \ ? use ; hut it he entertains serious
dou is as to the law or fact, it is, l think,
hi duyv even in a ease like this, not ta
disc harry, hut to commit.
i lie charges against the accused arc
1 st. I hat till y have levied war a gains*
tin l ’uited States at the mouth of Cum
ber! a ! river, in Kentuckv; and
2dlv. That they have begun and pro
vk;. i me means ni a military expedi
tion ag.iinst ri nation with which the LT
nit <1 States w< re ;.t peace.
V\ itli respect to one of the accused, *
prtl.mii-an defence is made in the nr.
itm «• a pit a of cnitrrjcit acquit.
li the (pi stion raised by this defence
was one on which my judgment watt
compl telv formed in l.tvotir of the per
son by whom it is made, it would cer—
i 'inly I e impioper for me to commit*
him. i - if m) judgment is not nbso
• l de< ■1 .• formed up< n it.
Id be a mm ifest impropriety
m und rta’.it'.g now to determine it.—
1 hi docs in: ale from my feat to
me t a at question win never my si
tu i.ion shad la- : u, re me to meet it; but
:r< :u i b li t) it I ought n> well to a
void ’he hum- n < . no opinions on mv
1 ty does not
enn ui it on me to give them, as the
with oi those opinions where my
■ • r> y deir *ik1 them. The ques-*
• • ’• tl • utr 1 it at quit will be a
'1 p! i in this *.:- , is of great mng
t- !e, and ou. !it to be settled bv the
in 1* d wisdom i .ni ih judges. Were
’noa hi ' fore me on a ti ■ d in chief,
1 v ' >d •, if in mv powt r, earn it before
•ne cn •; v hen brought before
'•» ;1 b as an t \ -.mining magistrate,
* *u Idtt m i i inexcusable,were I
t 1< c.dc 1 ih-; :p, :e <!< u! t r m?ii <i
* ti. de* correctness of that do
t is 'on

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