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done SO, it is to consider whether he may be discharged from further prosecution. For what? For every species of crime which might grow out of that fact. If they do not discharge him, they are to send him to the proper court to he tried. For what? For another offence. For a crime which does not grow out of the fact, to enquire into which the court was called! Certainly not; it must be for the criminal act, or in other words, the crime charged upon him by the commitment and summons which constitute the court, and no other; and yet they will send him to one or other of the courts, as the circumstances attending that fact, make the crime with which he is charged, more or less atrocious; as for instance, grand or petty larceny. By crime then, this law does not mean each separate grade of an offence, but the criminal act itself.

This it is believed, gives a satisfactory answer also, to the argument drawn from the interpolated reading of the various sections of this act.

The Court does not see the force of the argument drawn from the supposed tautology, which it is said, the construction contended for by the Attorney General, will produce. The expressions, acquitted, or discharged from further prosecution, were introduced into the third section very properly, out of caution, and are calculated to meet an argument pressed upon the court in this very cause; to wit: That if an examining Court should say, that a prisoner is not guilty and actually turn him loose, yet if it does not go on and say on the record, he is discharged from further prosccution, he may be prosecuted de novo.

The argument from analogy is also deemed inapplicable.The Grand and Petty Jury are sworn in a court, having general jurisdiction on the crime, and are by the statute and common law charged with every part of it: Not so the examining court; we have seen that its jurisdiction is limited.

Besides, it is not correct to say, that a grand jury can acquit. It is true, if they find ignoramus as to the murder, and a true bill as to manslaughter, the attorney cannot try the prisoner for murder on that bill. But if he obtains better testimony, he may send up another bill for murder, and try him upon that. One indictment cannot be pleaded in abatement of another, 2d Hale 239

nor can the return of ignoramus be pleaded in bar. It is said, that he will not be prepared to encounter the charge of malice, and therefore, will be taken by surprise. The answer is, that this can never happen, if the court send him up generally, for the homicide, as it ought to do.

"But the examining Court is an additional barrier, erected for the benefit of the accused," and so it is. No innocent man can now be kept in jail more than ten days, without a trial. And if his examining Court discharges him, he can never afterwards be questioned for the same crime; two great privileges which he did not enjoy by the Common Law. The inference drawn from the power to bail, stands on the same footing with that drawn from the power to discriminate between grand and petty larceny. It may not be improper, however, to add here, that this power to bail, was not given to the examining courts at the time, nor for the reason mentioned in the argument: those courts have possessed that power ever since the year 1777. Vide Chancellor's Revisal, chap. 17. sect. 58. p. 74. The history we have had of this law does not, it is believed, impugn, in the least, the construction given to it by the Court. From the passage of the first act upon the subject, up to the year 1786, we knew of no judicial decision upon this. point. For although Judge Mercer did, in the discussion of Sorrel's case, mention the case of the King against Davis, yet he did not make even a parol report of the circumstances of the case. He did not tell the term, not even the year, when it was adjudged, nor, which is very remarkable, did any of his brother judges, not even the judge who agreed with him, rely upon it, or mention it in their arguments-such a vague account, from mere memory, at a distant day, cannot be considered as authority, especially, as it was not so considered by the Court, to whom it was mentioned.

Sorrel's case then, was, so far as the Court can know, the first that has occurred upon this point, and that case settled the law, as now contended for by the Attorney General. This was the opinion of the General Court, and not one of its branches, and it is a mistake to say, that Judge Tazewell gave no opinion. He did give a pointed and able one. It is true, he added, if the question was

moved again, in arrest of judgment, he would be willing to hear it argued.

Neither was this a sudden opinion, given without consideration. The question was moved upon the fourth day of the Court, when the indictment was sent up to the Grand Jury. It was again discussed and decided on the sixth day of the court, when the prisoner had his trial.

This construction has, as we are told, been sustained by the District Courts in Bailey, and Shannon's cases. So that there and none, that

have be three judicial opinións in favour of it, we know of, against it.

From the year 1786, to the year 1804, (eighteen years) the Legislature left this law, thus explained and thus executed, untouched. If it had deemed this construction incompatible with the public good, would it have donc so? Certainly it would not.

In the year 1804, the Legislature did pass a new statute on the subject of Examining Courts. But was it moved to do so, in order to give them this discriminating power? If that was its intention, why did it not do so in express words? Why was it left to intendment and doubtful construction? The Legislature knew that this power had been denied to the examining courts for eighteen years, why then did it not put the question beyond doubt? For the best of all possible reasons, it did not intend to disturb it.

The truth is, that all the judges who sat in Sorrel's case, and most of the judges and lawyers in the state, had always admitted that these courts did possess the power of entire acquittal. This opinion, however, had lately been called in question by a book of respectable authority, and had in Shannon's case been actually resisted by a judge of the General Court. It was then to put an end to that question, and to secure to those courts that general power of acquittal which almost every body thought they did possess, that this third section of the act of 1804, was inserted.

Another argument was pressed upon the court in a late. stage of the cause drawn from the 12th sect. of the penitentiary statute.It will not however be contended, that if the legislature pass a law upon a supposition that that is law which is not, this mistake will

be equal to an enacting clause and call a new law into existenceif then the examining Courts did not before possess this discriminating power, this section could not give it to them.

But it is a mistake to suppose that when the legislature speak of a person's being charged with a crime, a charge made by a grand jury or examining court is necessarily meant. The word charge is often used to designate a charge made upon oath before a justice of the peace, and it is so used in both of the acts of assem. bly respecting examining courts.-The real intention of the legislature seems to have been, that when a man was sent forward for homicide, and the attorney, to whom the law directs the depositions to be sent, should perceive that the evidence charged him with involuntary manslaughter only, he should be at liberty to proceed in the manner pointed out by that section.

Upon the whole, the court is unanimously of opinion that a court of examination hath not power to acquit a prisoner charged before it with murder, or the murder with which he stands so charged, and to remand the said prisoner to be tried in a superior court for manslaughter on account of the same homicide; and that if such court does make such a discrimination, the prisoner is not thereby discharged from any part of the felonious homicide with which he stood charged but may be indicted for murder before the superior court.

TO THE EDITOR.

Can any case be cited where women have obtained a parliamentary or legislative divorce a vinculo matrimonii from their husbands for infidelity?

Can an instance be produced of a conviction and execution for MURDER by DUEL, where the party has behaved according to the generally received maxims of honour?

CIRCUIT COURT. VIRGINIA, 1811.

1

Livingston versus Jefferson.

IN TRESPASS QUARE CLAUSUM FREGIT.

Demurrer on a Plea to this Jurisdiction.

TYLER, J. This case, although so ably and elaborately argued on both sides, affords but a single question; and that may be drawn within a narrow compass; and while I freely acknowledge how much I was pleased with the ingenuity and eloquence of the plaintiff's counsel, I cannot do so much injustice to plain truth, as to say, that any conviction was wrought on my mind, of the soundness of the arguments they exhibited in a legal acceptation. It is the happy talent of some professional gentlemen, and particularly of the plaintiff's counsel, often to make "the worse appear the better cause;" but it is the duty of the judge to guard against the effects intended to be produced, by selecting those arguments and principles from the mass afforded as will enable him to give such an opinion at least, as may satisfy himself, if not others. These arguments and this eloquence, however, have been met by an Herculean strength of forensic ability, which, I take pride in saying, sheds lustre over the bar of Virginia.

But to proceed in the examination of the point before us; and that is, to enquire, whether this court has jurisdiction over this cause? And how it comes to be made a question at this day, I confess myself entirely at a loss to say; but as it is made, we must determine it.

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