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United States v. Lumsden.

It must, to authorize a conviction, be disproved by two witnesses, or one witness and corroborating circumstances. The facts will be for the jury to determine from the evidence. If they believe the defendant to have sworn willfully false in testifying, as alleged in the indictment, it will be their duty to convict. The prosecution relies upon the testimony of the three Chapins and Earl, and have also proved some confessions of the defendant made by him while in jail. Confessions of an accused person should always be cautiously received. The jury are the exclusive judges of the credibility of evidence. It appears from the testimony that the Chapins were implicated in a case arising out of the burning of the steamboat “Martha Washington,” and would be affected by evidence which would tend to establish their fraudulent conduct. Earl is a party to a suit against “ The Madison Insurance Company,” seeking to enforce its liability under a policy insuring this property about which the defendant testified in his deposition. Perjury is an odious crime, and the defendant, if guilty, merits the punishment inflicted by the law; but the jury should weigh well the evidence and act with great deliberation.

The jury returned a verdict of not guilty.


An examining court or judge will not require clear and indubitable proof

of the guilt of accused parties, to justify an order that they shall answer

further to the charge made against them. Section 6 of the neutrality act of April 20, 1818, punishing the offenses of

beginning or setting on foot, or providing or preparing the means for a military expedition or enterprise for the invasion of a country with which the United States is at peace, is not violated without the commission of an overt or definite act.

United States v. Lumsden.

Mere words written or spoken, though indicative of the strongest desire

and most determined purpose to do the forbidden acts, will not consti

tute an offense defined and punished by said section 6. If the means provided were procured to be used on the occurrence of a

future contingent event, no liability is incurred under the statute. If the intention is that the means provided shall only be used at a time

and under circumstances when they could be used without a violation

of law, no criminality attaches to the act. To provide the means for such unlawful expedition or enterprise implies

that such means must be actually furnished and brought together for

a criminal purpose. Proof of declarations made by a defendant is admissible to explain or

determine the character of acts ambiguous or unintelligible. Written and printed evidence containing no proof of an overt act, in viola

tion of said section 6, is admissible as confessions and declarations, and to such evidence the rule applies that those parts which admit of an interpretation favorable to defendants must be considered as well as those justifying the implication of guilt. Corwin f Probasco, and Geo. R. Sage, for United States.

Groesbeck, Piatt, Mallon, and O'Neill, for defendants. LEAVITT, J.

The evidence in this case being closed, after a very protracted examination, it is my duty to state the grounds of the order I propose to make. And I may premise, that sitting as an examining judge, the sole inquiry is, whether the evidence offered, and the law applied to it, make out such a probable case of guilt as will require the accused persons to answer further to the charge exhibited against them. In stating the conclusion to which I have arrived, it is not my purpose to notice at length all the facts adduced in evidence, or the numerous points made by counsel, in the extended discussion of the case. The duty I am to discharge is purely of a judicial character, and will be performed without any reference to popular opinion, or any outside pressure, which it is alleged has been brought to bear on the case. I should be utterly unworthy of the position I occupy, if these considerations could have the

, slightest influence on my action.

United States v. Lumsden.

It is undoubtedly a sound and well-settled rule, that an examining court or judge will not require clear and indubitable proof of the guilt of accused parties to justify an order that they shall answer further to the charge made against them. Whether thus held, or whether discharged unconditionally, the order is not conclusive. In the former case, the accused is remitted, first, to a grand jury for an inquiry into the facts; and it is only on their affirmation of the charge, by the return of a bill of indictment, that the party can be put on trial before a traverse jury. On the other hand, if the accused party is discharged by the examining officer, it is no bar to a subsequent prosecution for the same charge. If, however, after a full examination of the facts, the court or judge is satisfied, as a fair legal deduction, that no crime has been committed, it is his duty promptly to order the discharge of the party accused. It is the right of the party at once to be relieved from a position involving a suspicion of crime, which may seriously affect, not only his social standing, but his pecuniary interests. And it may be remarked that the healthful and efficient administration of criminal law is not promoted by prosecutions which, in the last resort, fail to produce the conviction of the person accused. As a general rule, such futile prosecutions tend more to the encouragement than the repression of crime.

The affidavit on which the warrant in this case issued was made on the 4th of January last. Twenty persons were included in the affidavit and warrant, of whom thirteen, namely, Samnel Lumsden, Joseph W. Burke, Edward Kenefeck, Bartholomew O'Keefe, David Reidy, Michael Noonan, James Murphy, James O'Halleron, John Hudson, Thomas Tiernan, William G. Halpin, Daniel Campbell, and John M. C. McGroarty, were arrested. The last-named person, on the motion of the counsel for the defense, and by the consent of the counsel for the prosecution, was discharged at an early day in the progress of this examination. The other twelve are now before the court. They are all na

United States v. Lumsden,

tives of Ireland, but naturalized citizens of the United States.

The complaint on which the warrant issued was sworn to by John Powers, a citizen of the United States; and sets forth that the persons named therein, “on or about the 28th day of December, 1855, at the city of Cincinnati, in the Southern District of Ohio, and at divers other times and places within said district, to wit: at sundry times since the 1st day of May, 1854, and at the city of Hamilton, and the town or village of Cumminsville, in said district, did begin and set on foot, and did provide and prepare the means for one military expedition or enterprise, to be carried on from thence against the territory and people of Great Britain, with whom the United States were, and now are, at peace.”

It is a fact developed in the progress of this examination, that although the affidavit, on which the warrant is based, was made by Powers, a citizen of the United States, the Hon. Charles Rowcroft, her Britannic Majesty's consul at Cincinnati, has had an active agency in this prosecution. This has been frankly admitted by that gentleman, in the presence of the court. He has advanced a large amount of funds in procuring evidence to sustain the prosecution, and has, in other ways, given it his sanction and support. This has been made the occasion of an assault on Mr. Rowcroft, by the counsel of the accused, characterized by great bitterness and severity. While I can not but regret that the obligations of courtesy were not more closely adhered to by counsel, the position of the gentleman named in relation to the prosecution afforded some palliation, certainly, for the course pursued, and rendered it improper for the court to interpose for his protection. But whether he has or has not transcended his legitimate sphere of official duty in this case, is not a question for the consideration of the court; since its action must depend, not on the conduct of the British consul, but on the facts in evidence and the law applicable to them.

United States v. Lumsden.

With these remarks, I proceed to the inquiry, whether the facts proved establish the legal probability of the guilt of the accused parties.

The charge against these defendants is based upon section 6 of the act of Congress of April 20, 1818 (3 vol. L. U. 8. 447). It declares “ that if any person shall, within the territory or jurisdiction of the United States, begin or set on foot, or provide or prepare the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district or people, with whom the United States are at peace, any person so offending, shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding three thousand dollars, and imprisoned not more than three years."

In the progress of the argument, frequent references were made to the early executive and legislative history of the country, illustrative of its policy respecting the preservation of its relations with foreign powers with whom we were at peace. In the year 1794, during the second administration of Washington, the attention of Congress was earnestly called to this subject, by the arrogant interference with our national affairs of a diplomatic agent of the French government, threatening to disturb our amicable relations with Great Britain. As the result of this, the law of 1794 was enacted. After some intermediate legislation on this subject, the act of 1818 was passed, repealing all former laws, and embodying in it most of the provisions of the previous acts. Section 5 of the law of 1794 was transferred to, and became section 6 of the act of 1818, before quoted.

In construing this section, the court is not essentially aided by previous judicial decisions. Of the few reported cases arising under it, none seem to have involved the precise questions now before the court. They were decided with reference to the facts in proof, but these facts were of such an unequivocal character as to leave little

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