• 
 
 * 
 j 
 
 \ 
 
 It 
 tv 
 
 [| 
 
 ' '■'. : !u .' ■ 
 
 ■ 'V ;' ' ' '■ 
 
 m ■•■,.. \\\\ 
 
 tSuPiiill 
 
 iiiiiiiililtliHlll 
 
 itet 
 
 HI
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 \s
 
 \J\v-r: 
 
 A 
 
 COLLECTION OF CASES 
 
 DECIDED BY THE 
 
 GENERAL COURT 
 
 VIRGINIA, 
 
 CHIEFLY RELATING TO THE PENAL LAWS OF THE 
 COMMONWEALTH. 
 
 COMMENCING 
 
 IN THE YEAR 1789, AND ENDING IN 1814. 
 
 COPIED 
 
 FROM THE RECORDS OF SAID COURT, 
 
 WITH 
 EXPLANATORY NOTES, 
 
 BY JUDGES BROCKENBROUGH AND HOLMES 
 
 PHILADELPHIA: 
 
 PUBLISHED BY JAMES WEBSTER, No. 318, MARKET STREET 
 
 William Fry, Printer 
 
 1815. 
 
 I 1
 
 : . 
 
 District of Pennsylvania, to wit: 
 ******** BE IT REMEMBERED, that on tlie twenty-second 
 
 * SF AT * d av °f J une > IU tne thirty-ninth year of the independence 
 
 * sc-au * of the United states of America, A. D. 1815, James 
 ******** Webster, of the said district, hath deposited in this office 
 
 the title of a book the right whereof he claims as proprietor, in the 
 words following, to wit: 
 
 " A Collection of Cases decided by the General Court of 
 Virginia, chiefly relating to the Penal Laws of the Common- 
 wealth. Commencing in the year 1789, and ending in 1814. 
 Copied from the Records of said Court, with Explanatory 
 Notes, by Judges Brockenbrough and Holmes. 
 
 In conformity to the act of the Congress of the United States, in- 
 tituled, " An act for the encouragement of learning, by securing the 
 copies of maps, charts, and books, to the authors and proprietors of 
 such copies, during the times therein mentioned." And also to tli£ 
 act, entitled " An act supplementary to an act, entitled • An act for the 
 encouragement of learning, by securing the copies of maps, charts, and 
 books, to the authors and proprietors of such copies during the times 
 therein mentioned,' and extending the benefits thereof to the arts oi 
 designing, engraving, and etching historical and other prints." 
 
 D CALDWELL, 
 Clerk of the District of Pennsylvania
 
 TABLE OF CASES. 
 
 A 
 
 John Alexander, The Commonwealth v. 15b 
 
 Jacob Andrick, Barnet Hendrick v. - - 267 
 
 Anonymous, - - - - 139, 144 
 
 B 
 
 John Bailey's Case, - - - 258 
 
 Henry Bedinger, The Commonwealth v. - 125 
 Anna Byrd, The Mutual Assurance Society v. 170 
 
 C 
 
 Arthur Campbell, William Edmiston v. - 16 
 
 Peter Case v. The Commonwealth, - 264 
 
 Samuel Clapham v . Lewis and Stover, - 182 
 
 Benjamin Crawley, Abner Osborne v. - 113 
 
 George Creel, Isaac Morris v. 335 
 
 The Commonwealth v. Preeson Richards, 1 
 
 — — - v. John Proctor, - 4 
 
 ' v. Hugh Dowdall, 7 
 
 v. John Whealand, 9 
 
 v. John Crane, * 10 
 
 v. William Williams, - 14 
 
 v. Arthur Campbell, 16 

 
 IV 
 
 The Commonwealth v. Philip Frye, - - 1<J 
 
 v. Christian Kearns, - 109 
 
 v. Stephen Stewart, - 114 
 
 v. Robert Mitchell, 116 
 
 v. Edward M'Guire, 119 
 
 v. David Hays, - 122 
 
 v. Henry Bedinger, - - 125 
 
 v. Highland Crowe, - ib. 
 
 v. Benjamin Vawter, - 127 
 
 v. John Blakeley, - 129 
 
 v. John Richards, - - 133 
 
 v. Moses M'Cue, - 137 
 
 v. Peyton Chapman, - 138 
 
 v. Martin Walton, - 142 
 
 v. George Wythe Swinney, 146,150 
 
 v. Heartwell Leath, - 151 
 
 v. Josiah M'Clenegan, - 155 
 
 v. John Alexander, - 156 
 
 The Commonwealth, Emanuel Temple v. - 163 
 
 v. William Crump, 172 
 
 v. John Morris, Jun. - 176 
 
 v. Jesse Calvert, - 181,265 
 
 v. Dolly Chappie, - 184 
 
 — v. William Strother, - - 186 
 
 v. Samuel Myers, - 188 
 
 v. Luke Ray, - - 262 
 
 . ■ v. Benjamin B. Jones, - 270
 
 The Commonwealth v. John M'Caul, 271 
 
 v. John Thomas, 
 
 v. Moses Mann, - 308 
 
 v. Benjamin Miller, 
 
 v. Richard M. B. Chichester, 312 
 
 v. Jacob Israel, - - 317 
 
 v. John Edloe Thompson, 319 
 
 v. John Feely, - - 321 
 
 v . William Waller Hening, 324,325 
 
 John Stokeley v. - 330 
 
 v. Thomas Lewis, - - 334- 
 
 v. William Horton, - 335 
 
 D 
 
 Hugh Dowdall v. The Commonwealth, - - 7 
 
 E 
 
 William Edmiston v. Arthur Campbell, 16 
 
 F 
 
 Denny Fairfax v. Robert Stephen, 3 
 
 v. David Hunter, ... ;/,. 
 
 John Feely, The Commonwealth v. - - 321 
 
 Jesse Fitz Randolph, Matthias Hite v . - 269 
 Philip Frye, The Commonwealth v. 
 
 G 
 
 Goodtitle, lessee of George Reed v. George See,
 
 H 
 
 Mary Hawkins, Peter Kamper v. - 20 
 
 David Hays, The Commonwealth v. - - 122 
 William Waller Hening, The Commonwealth v. 324, 325 
 
 Barnet Hendrick v. Jacob Andrick, - - 267 
 
 Turner R. Henley's Case, - 145 
 
 Matthias Hite v. Jesse Fitz Randolph, - 269 
 
 William Horton, The Commonwealth v. - 335 
 
 David Hunter, Denny Fairfax v. - - 3 
 
 I 
 
 Jacob Israel, The Commonwealth v. - - 317 
 
 J 
 
 John J. Jackson v. The justices of Harrison County, 314 
 
 Benjamin B. Jones, The Commonwealth v. - 270 
 
 K 
 
 Peter Kamper v. Mary Hawkins, 20 
 
 Christian Kearns, The Commonwealth v. - 109 
 
 L 
 
 Heartwell Leath, The Commonwealth v. - 151 
 
 Lewis and Stover, Samuel Clapham v. 182 
 
 Thomas Lewis, The Commonwealth v. - 334 
 
 M 
 
 John M'Caul, The Commonwealth v, - - 271 
 
 Moses M'Cue, The Commonwealth v. - 137
 
 Vll 
 
 Josiah M'Clenegan, The Commonwealth v. - 155 
 
 Edward M'Guire, The Commonwealth v. - 119 
 
 William Maitland v. Thomas M'Dearman, - 131 
 
 Moses Mann, The Commonwealth v. 308 
 
 Benjamin Miller, The Commonwealth v. - 310 
 
 John Millar v. James Marshall, - - 158 
 
 Robert Mitcht-11, The Commonwealth v. - 116 
 
 John Morris, Jun.,The Commonwealth v. - 176 
 
 Isaac Morris v. George Creel, - 333 
 
 The Mutual Assurance Society v. Anna Byrd, 170 
 
 Samuel Myers, The Commonwealths. - 188 
 
 N 
 Francis Neff v. Presly Talbot, - - 140 
 
 O 
 
 Abner Osborn v. Benjamin Crawley, - 1 1 
 
 P 
 
 John Proctor, The Commonwealth v. 4 
 
 R 
 
 Luke Ray, The Commonwealth v. 862 
 
 Preeson Richards, The Commonwealth v. - 1 
 
 John Richards, The Commonwealth v. 
 
 S 
 George See, Goodtitle, lessee of George Reed, p. 1 I 
 Thomas Sorrel's Case,
 
 vm 
 
 Robert Stephen, Denny Fairfax v. - 3 
 
 Stephen Stewart, The Commonwealths. - 114 
 
 John Stokeley v. The Commonwealth, - - 330 
 
 William Strother, The Commonwealth v. - 186 
 George Wythe Swinney,The Commonwealth v. 146, 150 
 
 T 
 
 Presly Talbot, Francis Neff v. - - 140 
 
 Emanuel Temple v. The Commonwealth, - 163 
 
 John Thomas, The Commonwealth v. - 307 
 
 John Edloe Thompson, The Commonwealth v. 319 
 
 V 
 
 Benjamin Vawter, The Commonwealth v. - 127 
 
 W 
 
 Martin Walton, The Commonwealth v. 142 
 
 John Whealand, The Commonwealth v. - 9 
 
 William Williams v. The Commonwealth, - 14
 
 COLLECTION OF CASES 
 
 DECIDED BY THE 
 
 GENERAL COURT 
 
 The Commonwealth against Preeson Richards. 
 
 '"in HE prisoner was indicted for burglary and larceny, 
 in the District Court, held at Accomack court-house, 
 in October 1789, before Judges Tazewell and Prentis, 
 and was found guilty by the jury. After the trial, he 
 produced an exception to the court in arrest of judgment 
 on the verdict; the exception was in the following 
 words: " Because the said burglary is not expressly laid 
 u to have been committed xvithin the jurisdiction of this 
 " court, or within the district composed of the counties 
 " of Accomack and Northampton." The indictment com- 
 
 A
 
 2 Cases decided in the 
 
 menced thus; "Accomack, set. the grand jury for the 
 " district of Accomack and Northampton, &c." and laid 
 the offence to have been committed " in the county of 
 " Northampton, at the parish of Hungars." The matter 
 of law arising on the exception taken in arrest of judg- 
 ment, was adjourned by the District Court, and at a Ge- 
 neral Court, held November 26th, 1789, present Judges 
 Parker, Tyler, and Bullitt, it was declared to be the opi- 
 nion of the court, " that the plea of the prisoner, and the 
 " matter therein contained, are sufficient in law to arrest 
 "the judgment on the said verdict." 
 
 Note. This case is referred to by Judge Tucker in his 
 Appendix p. 55, to 4th Blackstone. By an act passed 
 January 24th, 1804, it is enacted " that after the verdict 
 " of twelve men, no judgment on any indictment, or in- 
 " formation for felony, or any other offence whatsoever, 
 " shall be stayed or reversed for any supposed defect or 
 " imperfection in any such indictment or information, so 
 " as the felony, or offence therein charged to have been 
 " committed, or done, be plainly and in substance set 
 " forth with convenient certainty, so as to enable the 
 " court to give judgment thereupon according to the very 
 " right of the cause, any former law, custom, or usage to 
 " the contrary notwithstanding." 2d Vol. Revised Code, 
 p. 38, Sect. 6th. Under this act, an opinion was ex- 
 pressed by the five following judges, namely, W. Nel-
 
 General Court of Virginia. 
 
 son, White, Stuart, Coalter and Evans, to this effect: 
 " That after verdict in a criminal case, judgment ought 
 "not to be arrested for want of laying in the indictment, 
 " information, or presentment, an express day, or for not 
 " alleging expressly that the offence was committed 
 " within the jurisdiction of the court, when the offence 
 " is expressly averred to have been committed in the 
 "county over which the court hath jurisdiction: the 
 "verdict in such cases will be embraced and supported, 
 "by the act of Jeofails passed January 1804." This 
 opinion was given by those judges at a conference held 
 in June 1810. 
 
 Denny Fairfax against Robert Stephen. 
 
 The same agai?ist David Hunter. 
 
 HpHESE were cases depending on caveats, adjourned 
 by the District Court of Winchester, in April 1790, 
 for novelty and difficulty. The question adjourned, is 
 stated in the opinion of the court.
 
 4 Cases decided in the 
 
 June 20th, 1791. Present, Tazewell, Parker and Tyler, 
 judges. " This day came the parties by their attornies, 
 M who being heard, it is the opinion of this court that the 
 11 caveats of the several plaintiffs against the respective 
 " defendants, being entered by the clerk of the court, 
 " upon copies from the land office certified by the clerk 
 a thereof, and not by the register, are void, and ought 
 " for that reason to be dismissed." 
 
 The Commonwealth against John Proctor. 
 
 r T^HE prisoner was indicted in April 1791, in the Dis- 
 trict Court of Richmond, for having, on the 11th of 
 December, 1 790, feloniously and falsely made, forged and 
 counterfeited, and for having caused and procured to be 
 falsely made, forged and counterfeited, a certain writing 
 obligatory purporting to be a power of attorney signed 
 and sealed by one William Cosby, the tenor whereof is 
 stated as follows; " Know all men by these presents, that 
 " I William Cosby of the county of Chesterfield have 
 " requested, empowered, and appointed, and do by these
 
 General Court of Virginia. 5 
 
 " presents request, empower and appoint William Ni- 
 chols of the county of Dinwiddie to secure the money 
 "due me for my services in the Cavalry in the Conti- 
 "nental army which amounts to , to the onlv 
 
 "proper use and behalf of the said William Nichols. In 
 " witness whereof, I have hereunto set my hand and seal 
 "this 11th day of December 1790, William Cosby. 
 "Teste A. S. and G. S. Magistrates of Chesterfield 
 " County;" with intent to defraud the said William Cos- 
 by, against the form of the act of assembly, &c. 
 
 The prisoner was found guilty by the jury, and he 
 moved in arrest of judgment, and assigned the follow- 
 ing reason: " Because the offence charged in the indict- 
 "ment aforesaid is not a crime, within the meaning ol 
 " the act entitled " an act against forgery." The ques- 
 tion was adjourned for difficulty, and the general court 
 consisting of Tazewell, Tucker, and Tyler, judges, 
 entered the following judgment. "June 24, 1791. It is 
 " the opinion of the court that the offence as charged in 
 "the indictment against the defendant is not a crime 
 " within the meaning of the act entitled ' an act against 
 " forgery' and that judgment on the verdict ought I 
 " be arrested, and the said indictment quashed." 
 
 Note. "The act against forgery" under which I', 
 was indicted, was passed on the 25th November, I
 
 6 Cases decided in the 
 
 and is to be found in the acts of that year, chapter 19th. 
 It was copied verbatim into the revisal of 1792, and is 
 to be found in the 1st volume of the Revised Code p. 249, 
 and is the second section of the 133d chapter. 
 
 E. Conway, appellant, against Elisha Hall, appellee. 
 
 TN the County Court, Elisha Hall obtained a judgment 
 in an action of debt on a bond against Edwin Conway, 
 but it does not appear that any declaration had ever been 
 filed. An execution issued, and the defendant gave a three 
 months replevy bond, on which a judgment was regu- 
 larly obtained. The defendant obtained a supersedeas to 
 this last judgment: the District Court seemed to think 
 that there was no error in the last judgment, and were 
 doubtful whether it ought to be reversed on account of 
 the error in the preceding judgment, and adjourned the 
 question. The General Court, November 16, 1791, com- 
 posed of Tyler, Henry, Jones, and Roane, judges, certi- 
 fied the same opinion as was given in the case of Bird's 
 administrator against Scott, to wit, "That a subsequent 
 " judgment depending on a prior judgment, (which prior
 
 General Court of Virginia. 7 
 
 :t judgment is reversed) may be reversed without error 
 " apparent on the record of such subsequent judgment, 
 " other than the connexion between the subsequent and 
 " the prior reversed judgment." 
 
 The Commonwealth against Hugh Dowdall. 
 
 r THHE prisoner was indicted at the Dumfries District 
 Court, in October, 1791, for feloniously uttering and 
 passing in payment a counterfeit dollar, knowing the 
 same to be counterfeit and base; the indictment conclu- 
 ded " against the form of an act of the Convention of 
 " Delegates of Virginia in that case made and provided, 
 l - and against the peace and dignity of the common- 
 " wealth." 
 
 He was found guilty by the jury, and on his being 
 brought up to receive the sentence of the court, he ten- 
 dered the following reasons in arrest of judgment. 
 
 " 1st. Because the crime with which he stands charg- 
 " ed, and for which he is indicted, was made and de-
 
 8 Cases decided in the 
 
 " clared to be such by an ordinance of Convention, 
 " passed in May, 1776, intitled c An ordinance making 
 " it felony to counterfeit the continental paper currency 
 " and for other purposes therein mentioned.' " 
 
 " 2d. Because the said ordinance was passed subse- 
 " quent to the formation, and passing of the bill of rights 
 " of this commonwealth, and cannot have the force of a 
 " law of the legislature of this commonwealth." 
 
 " 3d. Because the said convention were not delegated, 
 " authorized and empowered by the good citizens of 
 " this commonwealth to legislate generally for them; 
 u more especially, to make penal laws to affect the lives 
 il of the citizens of this commonwealth." 
 
 u 4th. That the said indictment is insufficient and 
 4 wants form." 
 
 The District Court considering the case a new one, 
 with the consent of the prisoner adjourned it to the 
 General Court. On the 19th November, 1791, that court 
 consisting of Prentis, Tyler, Henry, and Roane, judges, 
 decided " That the indictment against the prisoner is 
 '* good and sufficient in law, and that the plea of the said 
 " prisoner in arrest of judgment on the jury's verdict 
 " ought to be overruled."
 
 General Court of Virginia 9 
 
 Note. It had been previously decided that a conclusion 
 " against the form of the act of Assembly," where the 
 offence was created by an ordinance of the Convention, 
 was not good. The following is the case in which that 
 point was determined. 
 
 •O' 
 
 The Commonwealth against John Whealand. 
 
 HTHE prisoner was indicted in May, 1789, at the Dis- 
 trict Court of Dumfries, for feloniously counterfeit- 
 ing and coining sundry pieces of base coin of the simili- 
 tude of dollars, and concluded " against the form of an 
 " act of the General Assembly of Virginia in that case 
 " made and provided, Sec." 
 
 The jury rendered a verdict as follows: " If the court 
 " shall be opinion that an ordinance of the General Con- 
 " vention, intituled ' An ordinance making it felony to 
 " counterfeit the continental paper currency, and for 
 tc other purposes therein mentioned,' ordained in the 
 u year 1776, in law is an act of the General Assembly, 
 " as recited in the indictment, then we find John Whea- 
 ts
 
 10 Cases decided in the 
 
 " land guilty of the felony as in the indictment is alleg- 
 " ed, otherwise we find him not guilty." 
 
 The matter of law arising on this verdict being ad- 
 journed, the General Court, consisting of Mercer, Parker, 
 Cary, Tyler, Bullitt and Tucker, on the 23d June, 1789, 
 certified it to be their opinion that the law was for the 
 defendant. 
 
 The Commonwealth against John Crane, the 
 younger. 
 
 nr^HIS prisoner was indicted at the District Court of 
 Winchester, in September, 1791, for the murder of 
 Abraham Vanhorn. On his trial, the jury found a special 
 verdict in the following words. 
 
 " We of the jury find that about three o'clock on the 
 " fourth of July, one thousand seven hundred and ninety - 
 M one, John Crane, the prisoner at the bar, was inform- 
 " ed by his reapers, that one Campbell's reapers had sent 
 " a challenge to his. That in consequence of this sup-
 
 General Court of Virginia. 11 
 
 14 posed challenge, the said John Crane went with others 
 44 out of his own field into the field of the said Campbell, 
 " which was adjoining to that of Crane's, and that the 
 44 said Crane did make use of threatening language, such 
 44 as he could whip any man in the field, meaning Camp- 
 M bell's reapers, amongst which was Abraham Vanhorn; 
 44 but after some altercation we find all parties appear to 
 " be reconciled; but before said Crane left the field, an- 
 " other dispute arose, in which Crane challenged them 
 " to fight, man for man, which Campbell's party agreed 
 44 to do, of which number the said Abraham Vanhorn 
 44 was one: when the parties came near together, they par- 
 " lied and disputed for some time, the issue of which was, 
 " that the prisoner at the bar swore that if he fought any 
 44 man that day, he would let out their guts, and likewise 
 44 that he would fight Joseph Vanhorn the next morning, 
 " for ten dollars, which the said Abraham Vanhorn was 
 " to bet him. The prisoner at the bar leaving Campbell's 
 " field, after some time a certain John Dawkins, one of 
 " Crane's reapers, suspected some insult given by Camp- 
 " bell's party and going to fight any one that would in- 
 44 suit him. The prisoner at the bar observing this, re- 
 41 quested the said Dawkins to get him a club, and he 
 44 would take his knife, which knife he took out of his 
 44 pocket, declaring they could clear their way through 
 " the whole of Campbell's party, upon which the said 
 u Dawkins desisted from prosecuting his intentions, and
 
 12 Cases decided in the 
 
 u likewise the prisoner at the bar. We find that between 
 " sunset and dark, that the said Abraham Vanhorn with 
 " several others passing through the field of John Crane, 
 " the prisoner at the bar, to confirm a bet which was to 
 " ensue the next morning, and also making a noise and 
 a singing, which the said Dawk ins conceived was an in- 
 " suit to the prisoner at the bar and his party. Thereupon 
 " Dawkins called out that he could whip Joseph Van- 
 " horn. Joseph Vanhorn replied, it would be no credit to 
 " him if he did, as he was a larger man; upon which the 
 " prisoner at the bar came out, and ordered them out of 
 " his field, or he would blow them through, upon which 
 " they immediately quitted the field; he then called for 
 " his gun, which was refused by his wife; he then called 
 " for his knife, and pursued them to the fence, exclaim- 
 " ing Abraham Vanhorn, you have used me ill, and I'll 
 " be damn'd if I dont have satisfaction. Then the said 
 " Abraham Vanhorn replied, not more so than you have 
 " used me. The prisoner then requested the said Abra- 
 " ham Vanhorn to come over the fence, and fight him; 
 " the said Abraham Vanhorn made answer, that he the 
 " said prisoner at the bar would use a knife or razor; 
 " the said prisoner at the bar replied, come over the 
 " fence, and I will give a fair fight: the wife of the said 
 " prisoner at the bar came down crying out, Mr. Crane, 
 " I am surprised you should demean yourself to fight 
 " with such a set of negrofied puppies. By this time the
 
 General Court of Virginia. 1 i 
 
 " prisoner at the bar, and the said Abraham Vanhorn, 
 " were much irritated; at which the said Abraham Van- 
 " horn, and Isaac Merchant, one of Campbell's reapers, 
 " had their shirts stripped off, which the prisoner at the 
 " bar had not: the prisoner at the bar and the said Abra- 
 " ham Vanhorn attempting to get at each other across 
 " the fence, who was prevented by John Dawkins. Then 
 " the said prisoner struck at Merchant, who struck the 
 " said prisoner at the bar, and turned him round, who 
 " immediately joined in combat with the said Abraham 
 11 Vanhorn. We find in the combat that the said Abra- 
 " ham Vanhorn threw the prisoner at the bar on the 
 " ground, and kept him there for some time; at length 
 " the prisoner at the bar seemed to get the advantage 
 " of the said Abraham Vanhorn, at which time the said 
 " Abraham Vanhorn cried enough, and said his guts 
 " were cut out. We do find that the said Abraham Van- 
 " horn did receive several wounds with a knife, or some 
 " sharp instrument, of which wounds the said Abraham 
 " Vanhorn died, and that the wounds were given by the 
 " prisoner at the bar. Upon the whole matter the jur\ 
 '* pray the advice of the court; and if the court should 
 " be of opinion that the prisoner is guilty of murder, 
 " then we of the jury do find the prisoner is guilty oi 
 " murder; and if the court shall be of opinion that th 
 " prisoner is not guilty of murder, but guilty of man 
 " slaughter, then we the jury do find the prisoner nut 
 " guilty of murder, but guilty of manslaughter. "
 
 14 Cases decided in the 
 
 The District Court not being advised what judgment 
 to give on this verdict, adjourned the question, with the 
 consent of the prisoner, to the General Court for diffi- 
 culty. 
 
 On the 21st November, 1791, the General Court, con- 
 sisting of Judges Prentis, Tyler, Henry, Jones, Roane 
 and Nelson, entered the following judgment. " This day 
 " came as well the attorney general as the counsel for the 
 " said Crane, and thereupon the question of law arising 
 " upon the special verdict in the transcript of the record 
 " of the said case mentioned, to wit, whether the said 
 " Crane be guilty of murder, or manslaughter, being ar- 
 " gued, it is the opinion of the court that the said Crane 
 41 is guilty of murder, which is ordered to be certified to 
 " the District Court of Winchester." 
 
 The Commonwealth against William Williams. 
 
 r T^ , HE prisoner was indicted for the larceny of a slave, 
 " of the goods and chattels of one Elizabeth Ed- 
 " wards, and out of the possession of the said Elizabeth 
 « Edwards."
 
 General Court of Virginia. 
 
 The jury found a verdict in the following words. 
 " We of the jury do find that William Williams, the pri- 
 " soner at the bar, did steal, take and carry away, the ne- 
 " gro slave Solomon, in the indictment named, on the 25th 
 " October, 1791, out of the possession of Thomas Ed- 
 " wards, to whom the said slave was hired for one year 
 " by Elizabeth Edwards, the right owner of the said 
 "negro slave Solomon. Now if the possession of the 
 " said Thomas Edwards be the possession of the said 
 " Elizabeth Edwards in law, we find the prisoner guilty of 
 " the felony, with which he stands charged, otherwise 
 " we find him not guilty." 
 
 The matter of law arising on this verdict was adjourn- 
 ed, and at a General Court, June 26, 1792, present, 
 Tazewell, Jones and Nelson, judges, it was resolved 
 " that the possession of Thomas Edwards, of the negro 
 " slave in the indictment named, is not sufficient in law 
 " to sustain the charge as laid in the said indictment, 
 " and that judgment thereon ought to be given for the 
 " defendant."
 
 16 Cases decided in the 
 
 William Edmiston, who as well for the Common 
 wealth, as for himself, prosecutes against Arthur 
 Campbell. 
 
 r THHIS was a qui tarn action of debt brought in the 
 District Court of Washington, by the plaintiff against 
 the defendant, to recover a penalty imposed by an act of 
 assembly. The whole case is stated in the following 
 special verdict: " We find that by a commission of the 
 " peace bearing date the 21st December, 1776, Arthur 
 "Campbell the defendent was appointed a justice of the 
 " peace for the county of Washington, and as such on the 
 " 28th January, 1777, being the day appointed by an act 
 " of assembly, for holding a court in said county, took 
 " the oaths of a justice of the peace, and a justice of the 
 " County Court in Chancer}'. That on the 31st day of 
 " August, 1 786, he the said Arthur was by virtue of au- 
 " thority of an act of assembly entitled ' an act to ex- 
 " tend the powers of the governor and council,' removed 
 " from the office of a justice of the peace for the county 
 " aforesaid, for misconduct, by the governor with the 
 " advice of the council of state: [it then sets forth the 
 " warrant of the governor, under the seal of the common- 
 11 wealth, removing him from office, in hccc verba] where.
 
 General Court of Virginia. 17 
 
 u upon the said Arthur ceased to act as a justice of the 
 " peace: that in the year 1787, an act was passed entitled 
 "' an act respecting the appointment of county court 
 M clerks, recommendation of surveyors, and for other 
 " purposes,' declaring the act entitled l the act to extend 
 " the powers of the governor and council' unconstitution- 
 " al, inasmuch as by the former act, there is an interfer- 
 " ence between the executive, and judiciary, which 
 " ought to be separate and distinct, so that neither exer- 
 " cise the powers, properly belonging to the other, and 
 41 therefore the same was repealed. Whereupon the said 
 "Arthur did on the 15th September, 1789, presume to 
 ," execute the office of a justice of the peace, in and for 
 " the county aforesaid, by exercising the authority and 
 " performing sundry duties and functions, pertaining to 
 "the same, without being qualified as the law directs by 
 " virtue of any subsequent commission. We therefore 
 "find for the plaintiff three hundred pounds current 
 " money of Virginia, being the penalty inflicted on any 
 " person, who shall presume to execute the office of a 
 "justice of the peace by an act entitled 'an act for 
 " establishing county courts, and for regulating and set- 
 " tling the proceedings therein,' without being qualified 
 "as directed by said act, if the law be for him; other- 
 " wise, we find for the defendant."
 
 18 Cases decided in the 
 
 The question arising on this special verdict was ad- 
 journed; and at a General Court held November 19th, 
 1792, present, Parker, Henry, Roane and Nelson, judges, 
 it was decided that " the law is for the defendant" 
 
 Note. This case is referred to by Judge Tucker in his 
 edition of Blackstone's Commentaries. See his appendix 
 to the 1st Vol. 1st part, page 125. The ordinance of con- 
 vention, which authorized the governor and council to 
 remove from office a justice of the peace, for misfeasance 
 in office, or disaffection to the commonwealth, on a full 
 and fair hearing of the parties, may be seen in the 
 Chancellor 's Revisal, p. 37. See also the same book, p. 81, 
 ch. 5th, sect. 4th, by which the governor and council is 
 empowered to remove justices of the peace for miscon- 
 duct, neglect of duty, or mal-practices. The act repealing 
 this last law, is only to be found in the acts of 1787, ch. 
 23. But although the executive cannot constitutionally 
 remove a justice of the peace from his office, yet he may 
 be removed for misbehaviour in office by judgment of 
 a superior court of law. See the case of the common- 
 wealth against John Alexander, decided by the General 
 Court, June, 1808.
 
 General (lour t of Virginia 
 
 The Commonwealth against Philip Frye. 
 
 HPHE defendant was indicted for a misdemeanor undo 
 the act of assembly, for receiving stolen goods, know- 
 ing them to be stolen. The jury found the defendant guiltv, 
 but did not assess his fine. The defendant prayed that 
 judgment might be arrested, for the following reasons: 
 " 1st, Because the indictment did not state, that the defen- 
 " dant feloniously took and received the goods: 2d, Be- 
 " cause the jury ought to have assessed the fine, which 
 a they have not done: 3d, Because it is not stated in the in- 
 " dictment, that the principal felons, or either of them, who 
 " are stated to have stolen the goods, in the indictment 
 M mentioned, had been convicted thereof: 4th, Because the 
 " indictment is informal and insufficient." The questions 
 of law arising from these alleged errors, were adjourn- 
 ed. The General Court, June 19th, 1793, consisting of 
 Judges Tucker, Tyler, Henry, Roane and Nelson, cer- 
 tified the following opinion: " That judgment of impri- 
 " sonment may be rendered against the defendant, al- 
 " though the jury have not assessed his amercement. 
 " which it was their province to have done." 
 
 Note. See 1st Vol. Rev. Code, p. 105, Sect. 2f>, b\ 
 which the juries are directed to assess the fine. T
 
 20 Cases deemed in the 
 
 first, and third reasons assigned in arrest of judgment, 
 are not noticed by the General Court; they are sufficiently 
 answered by the act of assembly itself, on which the pro- 
 secution was founded. See 1st Vol. Rev. Code, p. 206, 
 ch. 109, sect. 4th. 
 
 Peter Kamper against Mary Hawkins. 
 
 r T~ 1 HE adjournment of this case originated in novelty and 
 difficulty, touching the constitutionality, or judicial 
 propriety of the judges of the District Court, carrying 
 the following clause of an act of the General Assembly 
 into execution, which was conceived to be opposed to, 
 or in direct violation of the Constitution of the Common- 
 wealth of Virginia. 
 
 The title and clause of the said act are thus: " An act 
 'reducing into one, the several acts concerning the 
 "establishment, jurisdiction, and powers of District 
 u Courts." (Passed December 12, 1792.)
 
 General Court of Virginia. 21 
 
 "Sect. XI. Each of the said district courts in term time, 
 " or any judge thereof in vacation, shall, and may have 
 M and exercise the same power of granting injunctions 
 "to stay proceedings on any judgment obtained in any 
 " of the said district courts, as is now had and exercised 
 " by the judge of the high court of chancery in similar 
 " cases, and the said district courts may proceed to the 
 " dissolution or final hearing of all suits commencing by 
 " injunction, under the same rules and regulations as are 
 " now prescribed by law for conducting similar suits in 
 " the high court of chancery." 
 
 The Record, Arguments, and Decision, here follow. 
 
 At a District Court, held at Dumfries, the twenty- 
 third day of May, one thousand seven hundred and 
 and ninety-three — Present, the Honourable Spencer 
 Roane, Esq. 
 
 Peter Kamper, vs. Mary Hawkins. 
 
 Upon a motion for an injunction to stay the proceed- 
 ings on a judgment obtained at the last term held for this 
 district, by Mary Hawkins, against the said Peter Kam- 
 per, under an act of assembly, entitled, " an act reducing 
 " into one, the several acts concerning the establishment, 
 "jurisdiction, and power of district courts."
 
 22 Cases decided in the 
 
 The court is of opinion, that the said question should 
 be adjourned to the General Court for novelty and diffi- 
 culty, as to the constitutionality of the said law in this 
 behalf. Whereupon, 
 
 At a General Court held at the capitol in the city of 
 Richmond, on Saturday the ninth day of November, in 
 the year of our Lord, one thousand seven hundred and 
 ninety three — Present, Saint George Tucker. 
 
 And from thence continued by adjournments until 
 Saturday, November 16, 1793. — Present, St. George 
 Tucker, John Tyler, James Henry, Spencer Roane, 
 and William Nelson, jun. esquires, judges. 
 
 The honorable the judges, delivered their respective 
 opinions touching the case aforesaid, in the following 
 manner: 
 
 Judge Nelson. This is a motion for an injunction, 
 adjourned from the District Court of Dumfries on the con- 
 stitutionality of the eleventh section of the district court 
 law,* which gives the district court in term time, or a 
 judge thereof in vacation, the same power of granting 
 injunctions to stay proceedings on any judgment obtain- 
 
 * Passed in 1792.
 
 General Court of Virginia. 
 
 ed in a district court, and of proceeding to the dissolution 
 or final hearing of suits commencing by injunction, 
 under the same rules and regulations as are now pre 
 scribed to the high court of chancery. 
 
 I shall consider the question under two points. 
 
 First. Whether, if this clause be contrary to the con- 
 stitution of this commonwealth, it can be executed- 
 
 And, Secondly, Whether it be contrary to the consti- 
 tution. 
 
 I. As to the first point, although it has been decided 
 by the judges of the court of appeals, (whether judicially 
 or not is another question,) that a law contrary to the con- 
 stitution is void — I beg leave to make a few observations 
 on general principles. 
 
 The difference between a free and an arbitrary govern- 
 ment I take to be — that in the former limits are assign- 
 ed to those to whom the administration is committed, 
 but the latter depends on the will of the departments or 
 some of them. Hence the utility of a written consti- 
 tution.
 
 24 Cases decided in the 
 
 A Constitution* is that by which the powers of go- 
 vernment are limited. 
 
 It is to the governors, or rather to the departments of 
 government, what a law is to individuals — nay, it is not 
 only a rule of action to the branches of government, but 
 it is that from which their existence flows, and by which 
 the powers, (or portions of the right to govern,) which 
 may have been committed to them, are prescribed — It 
 is their commission — nay, it is their creator* 
 
 The calling this instrument the constitution or form of 
 government, shews that the framers intended it to have 
 this effect, and I shall presently endeavour to obviate the 
 objection arising from the want of their appointment in 
 form. 
 
 * In the American edition of the Encyclopaedia, " Constitution in 
 "matters of policy, signifies the form of government established in 
 any country or kingdom. 
 
 " Constitution also denotes an ordinance, decision, regulation, or 
 " law made by authority, superior ecclesiastical or civil." 
 
 That the word constitution in the title of the instrument under con- 
 sideration, is not synonymous with ordinance or law, (as seems to be 
 the opinion of the able author of " Notes on Virginia,") but is used 
 in the former sense, is evident from its being called " the constitution, 
 or form of government, Sic."
 
 General Court of Virginia. 25 
 
 The present question is whether an act of the legisla- 
 ture contrary to it, be valid? 
 
 * This is the paper by which the delegates and repre- 
 sentatives of the people, viewing with concern the de- 
 plorable situation to which this country must have been 
 reduced unless some regular adequate mode of civil polity 
 had been speedily adopted, did ordain and declare the fu- 
 ture form of government to be as there set forth. 
 
 This is the paper which divides the government into 
 three distinct departments, with one exception.! 
 
 This is the very paper under which there are two 
 branches of legislature now assembled. 
 
 This is the very paper under which they are to meet 
 once every year, or oftener. 
 
 This is the very paper which gives them their style— 
 of the General Assembly of Virginia. 
 
 * See second section of the Constitution. 
 
 f That justices of the County Courts are eligible to either House of 
 Assembly. 
 
 D
 
 26 Cases decided in the 
 
 This is the very paper which calls one house the house 
 of Delegates, and the other the Senate. 
 
 This is the very paper which declares that the former 
 shall consist of two representatives from each county, 
 chosen by freeholders, &c. 
 
 This is the very paper which fixes the number of the 
 senate to twenty-four — which defines the number that 
 shall compose a house of senate, — under which the state 
 is to be divided into twenty-four districts. 
 
 Which declares that each county shall vote for a sena- 
 tor, who besides other qualifications shall be twenty-five 
 years of age;— -that a comparison of polls shall be made 
 by the sheriffs, who are to return the person having the 
 greatest number of votes. 
 
 That a certain number are to be displaced by rotation. 
 
 That writs may issue from each house for supplying 
 vacancies.—- And — 
 
 That all laws shall originate in the house of delegates 
 subject to amendment by the senate, except money bills. 
 
 I ask then, whether the legislature do not sit under the 
 constitution?
 
 General Court of Virginia. 27 
 
 The answer in the affirmative to me is inevitable. 
 
 But it may be objected that, although the legislature 
 would be bound by a fundamental regulation, made by a 
 convention or other body delegated expressly for such a 
 purpose, the body who formed this, not having been thus 
 specially appointed, — this act possesses not sufficient 
 sanctity; but is an act equal only to those of a common 
 legislature, because some acts passed inthe same session 
 are confessedly so. 
 
 Here let it be remembered that the question is not 
 whether the people can change it; but whether the legis- 
 lature can do so. 
 
 As to the powers of the convention, this body seems 
 to have been appointed, not only to see that the common- 
 wealth sustained no injury, but also to consult in general 
 for the public good, and in such a crisis as that at which 
 our government was formed, those who are delegated 
 have authority more extensive than a legislature appoint- 
 ed under a government, one object of which is to re- 
 strain that as well as the other departments, — whereas in 
 the former case the people alone can decide whether 
 these powers have been strained too far. 
 
 As to some acts of the same session being temporan 
 and others revocable by the legislature. —
 
 28 Cases decided in the 
 
 I answer, that the subject-matter of them will evince 
 which are intended to be of this nature, and if any were 
 designed to be permanent, they must be so until changed 
 by the people, unless indeed calling these ordinances and 
 the other a Constitution,* sufficiently manifest a design 
 that this should be of higher authority than those. 
 
 It is confessedly the assent of the people which gives 
 validity to a Constitution. 
 
 May not the people then, by a subsequent acquies- 
 cence and assent, give a Constitution, under which they 
 have acted for seventeen years, as much validity, at least 
 so long- as they acquiesce in it, as if it had been previously 
 expressly authorized? 
 
 The people have received this as a Constitution. The 
 magistrates and officers down to a constable (for even the 
 mode of his appointment is directed) have been appoint- 
 ed under it. 
 
 The people have felt its operation and acquiesced. 
 
 Who then can change it? — I answer, the people 
 alone. 
 
 See note, p. 24.
 
 General Court of Virginia. 29 
 
 But it has been supposed that the legislature can do 
 this. 
 
 To decide this question, I have already stated that the 
 legislature derive their existence from the Constitution. 
 
 It may be answered that those members who passed 
 the law under contemplation were elected under the act 
 of 1785. 
 
 But who held the election? Who was to decide in case 
 of an equality of votes? and, who certified the persons 
 elected? — The sheriff under the law. Who appointed the 
 sheriff? — The executive. — By what authority? — Under 
 the fifteenth article of this Constitution, which the legis- 
 lature from their acts acknowledge to be inviolable. 
 
 If then the legislature were elected at an election hold- 
 en by, and were returned by a sheriff, who derives his 
 commission from the Constitution, does not that body 
 derive its existence from the same source? 
 
 And can the legislature impugn that charter undej 
 which they claim, and to which by their acts they them- 
 selves have acknowledged an obligation? — I apprehend 
 not, nor can any argument against this position be drawn
 
 30 Cases decided in the 
 
 from an acquiescence in some acts which may be uncon- 
 stitutional. 
 
 1st, Because we may presume, that if there be any 
 such, their unconstitutionality has not yet been discovered 
 by the legislature, which, if it had been done, (from the 
 instance before recited, and some other instances) we 
 have reason to think, would have produced a similar de- 
 claration from that body. — And 
 
 2dlv, Because no individual may have yet felt the ope- 
 ration of them, and consequently they have not been 
 brought to investigation. 
 
 But the greatest objection still remains, that the judi- 
 ciary, by declaring an act of the legislature to be no law, 
 assumes legislative authority, or claims a superiority 
 over the legislature. 
 
 In answer to this, — I do not consider the judiciary as 
 the champions of the people, or of the Constitution, 
 bound to sound the alarm, and to excite an opposition to 
 the legislature. — But, when the cases of individuals are 
 brought before them judicially, they are bound to decide. 
 
 And, if one man claim under an act contrary to the 
 Constitution, that is, under what is no law, (if my former
 
 General Court of Virginia. 31 
 
 position, that the legislature cannot impugn the Consti- 
 tution, and consequently that an act against it is void — bi 
 just,) must not a court give judgment against him?* 
 
 Nor is it a novelty for the judiciary to declare, whether 
 an act of the legislature be in force or not in force, or in 
 other words, whether it be a lazv or not. 
 
 * There are but three lines of conduct, one of which must be pur 
 sued on such an occasion, — either 
 
 1st, To refuse to decide the question at all, which would be a dere 
 fiction of duty; or 
 
 2dlv, To wait for the legislature to decide whether the act be un- 
 constitutional, which would be contrary to that article in the Constitu- 
 tion, which declares, that "the legislative, executive, and judicial}, 
 " departments shall be separate and distinct, so that neither exercise 
 " the powers properly belonging to the other."— Since to decide whe- 
 ther the plaintiff or the defendant under the existing laws have a right, 
 is a judicial act, and to decide whether the act be a void law as to a 
 right vested or in litigation, is in fact to decide which of the parties 
 have the right. 
 
 There remains therefore when the question occurs, but one thin- 
 to be done by the judiciary, — which is, 
 
 3dly, To decide that the act is void, and therefore that the claitl 
 under it cannot succeed.
 
 32 Cases decided in the 
 
 In many instances one statute is virtually repealed by 
 another, and the judiciary must decide which is the law, 
 or whether both can exist together. 
 
 The only difference is, that in one instance that which 
 was once in existence is carried out of existence, by a 
 subsequent act virtually contrary to it, and in the other 
 the prior fundamental law has prevented its coming into 
 existence as a lazv. 
 
 With respect to the idea that for the judiciary to de- 
 clare an act of the legislature void, is to claim a supe- 
 riority to the legislature, — if the legislative authority is 
 derived from the constitution, and such a decision be a 
 judicial act (as I have endeavoured to prove) this objec- 
 tion seems to be refuted. 
 
 For the reasons which I have given, I am of opinion 
 that the fundamental act of government controls the le- 
 gislature, who owe their existence and powers to it; — this 
 concludes the first point — 
 
 That if the clause under consideration be unconstitu- 
 tional, it is void. 
 
 II. The second point — whether it be unconstitutional, 
 is next to be considered.
 
 General Court of Virginia. 
 
 By the fourteenth section of the Constitution, " the 
 " two houses of assembly shall, by joint ballot, appoint 
 "judges of the supreme court of appeals, and general 
 " court, judges in chancery, judges of admiralty, Sec.' 1 
 
 I was at first inclined to think that the insertion of the 
 word judges between the general court and chancery, 
 evinced an intention that the judges of the general court 
 and those in chancery should be distinct persons; but per- 
 haps it would be unjustifiable to rest such an opinion on 
 so critical a construction. 
 
 However, this opinion is supported by the sixteenth 
 and seventeenth sections. 
 
 By the sixteenth, the governor and others offending 
 against the state, by mal-administration, corruption, &c. 
 are impeachable before the general court. And, 
 
 By the seventeenth, the judges of the general court 
 are to be impeached before the court of appeals. This 
 might prove then that a judge of the general court 
 could not, according to the Constitution, be a judge of 
 the supreme court of appeals, because all officers (ex- 
 cept the judges of the general court,) are to be tried 
 before the general court; but judges of the general 
 court, are to be tried before the court of appeals — and 
 
 E
 
 34 Cases decided in the 
 
 the Constitution intended to prevent a man being tried in 
 that court of which he is a member; because in causes 
 which might give rise to an impeachment, the judges of 
 a court might act jointly, and the influence of partiality, 
 or an esprit du corps, was to be guarded against. 
 
 However, to decide whether a judge of the general 
 court could be a judge of the court of appeals, would be 
 extrajudicial, as that question is not before the court; 
 but this research enables me to decide the question that 
 is before the court — that is, whether the same person 
 can, under the Constitution, be a judge in chancery, and 
 a judge of the general court? I think that he cannot, for 
 these reasons — 
 
 A judge in chancery is to be tried before the general 
 court.— A judge of the general court cannot be a judge 
 in chancery, because a judge in chancery must be tried 
 before the general court; but if a judge of the general 
 court be a judge in chancery, then he (a judge of the ge- 
 neral court) will be tried in the general court, which is 
 against the seventeenth article, which declares that a 
 judge of the general court shall be impeached before the 
 court of appeals. 
 
 My inference is, that a judge in chancery, and a judge 
 of the general court, were intended under the Constitu- 
 tion to be distinct individuals.
 
 General Court of Virginia. 
 
 This is one reason against the law; but there are others 
 also of force. Whoever is appointed a judge in chancery 
 under the Constitution, must be elected by joint ballot, 
 and commissioned by the governor; neither of which 
 requisitions have been complied with. 
 
 On the whole, I am for certifying to the court below, 
 that the motion for an injunction be overruled, the clause 
 under which it is prayed being unconstitutional. 
 
 Judge Roane. This great question was adjourned by 
 me from the district court of Dumfries. I thought it ne- 
 cessary to obtain the opinion of this court, for the go- 
 vernment of the several district courts, who might other- 
 wise have differed in their construction of the clause in 
 question, and the administration of the law in this in- 
 stance been consequently partial. 
 
 My opinion then was, upon a short consideration, that 
 the district courts ought to execute this law; for I doubt- 
 ed how far the judiciary were authorized to refuse to 
 execute a law, on the ground of its being against the 
 spirit of the Constitution. 
 
 My opinion, on more mature consideration, is changed 
 in this respect, and I now think that the judiciary may 
 and ought not only to refuse to execute a law expressh
 
 36 Cases decided in tkt 
 
 repugnant to the Constitution; but also one which is, by 
 a plain and natural construction, in opposition to the lun 
 damental principles thereof. 
 
 I consider the people of this country as the only sove- 
 reign power. — I consider the legislature as not sovereign 
 but subordinate; they are subordinate to the great consti- 
 tutional charter, which the people have established as a 
 fundamental law, and which alone has given existence 
 and authority to the legislature. I consider that at the 
 time of the adoption of our present Constitution, the 
 British government was at an end in Virginia: it was at 
 an end, because among many other weighty reasons very 
 emphatically expressed in the first section of our Consti- 
 tution, " George the Third, heretofore entrusted with the 
 " exercise of the kingly office in this colony, had aban- 
 " doned the helm of government, and declared us out of 
 " his allegiance and protection." 
 
 The people were therefore at that period, they were at 
 the period of the election of the Convention, which form- 
 ed the Constitution, absolved from the former kingly go- 
 vernment, and free, as in a state of nature, to establish a 
 government for themselves. But admitting for a moment 
 that the old government was not then at an end, I assert 
 that the people have a right by a convention, or other- 
 wise, to change the exiating government, whilst such ex-
 
 General Court of Virginia. 
 
 isting government is in actual operation, for the ordinary 
 purposes thereof. The example of all America in tl it- 
 adoption of the federal government, and that of several 
 of the states in changing their state constitutions in this 
 temperate and peaceable manner, undeniably proves my 
 position. The people of Virginia, therefore, if the old 
 government should not be considered as then at an end, 
 permitted it to proceed, and by a convention chosen by 
 themselves, with full powers, for they were not restrain- 
 ed, established then a Constitution. 
 
 This convention was not chosen under the sanction of 
 the former government; it was not limited in its powers 
 by it, if indeed it existed, but may be considered as a 
 spontaneous assemblage of the people of Virginia, under 
 a recommendation of a former convention, to consult for 
 the good of themselves, and their posterity. They esta- 
 blished a bill of rights, purporting to appertain to their 
 posterity, and a constitution evidently designed to be 
 permanent. This constitution is sanctioned by the con- 
 sent and acquiescence of the people for seventeen years; 
 and it is admitted by the almost universal opinion of the 
 people, by the repeated adjudications of the courts of this 
 commonwealth, and by very many declarations of the 
 legislature itself, to be of superior authority to any op- 
 posing act of the legislature. The celebrated Vattel in a 
 passage of his, which I will not fatigue this audience bj
 
 38 Cases decided in the 
 
 quoting, denies to the ordinary legislature the power of 
 changing the fundamental laws, " for, (says he,) it is ne- 
 cessary that the Constitution of the state be fixed." 
 
 But if the legislature may infringe this Constitution, it 
 is no longer fixed; it is not this year what it was the last; 
 and the liberties of the people are wholly at the mercy of 
 the legislature. 
 
 A very important question now occurs, viz. whose 
 province it is to decide in such cases. It is the province 
 of the judiciary to expound the laws, and to adjudge 
 cases which may be brought before them — the judiciary 
 may clearly say, that a subsequent statute has not chang- 
 ed a former for want of sufficient words, though it was 
 perhaps intended it should do so. It may say too, that an 
 act of assembly has not changed the Constitution, though 
 its words are expressly to that effect; because a legisla- 
 ture must have both the power and the will (as evidenc- 
 ed by words) to change the law, and it is conceived, for 
 the reasons above mentioned, that the legislature have 
 not power to change the fundamental laws. In expound- 
 ing laws, the judiciary considers every law which relates 
 to the subject: would you have them to shut their eyes 
 against that law which is of the highest authority of any, 
 or against a part of that law, which either by its words 
 or by its spirit, denies to any but the people the power
 
 General Court of Virginia. 
 
 to change it? In cases where the controversy before the. 
 court does not involve the private interest, or relate to 
 the powers of the judiciary, they are not only the proper, 
 but a perfectly disinterested tribunal; — e. g. if the legis- 
 lature should deprive a man of the trial by jury — there 
 the controversy is between the legislature on one hand, 
 and the whole people of Virginia (through the medium 
 of an individual) on the other, which people have de- 
 clared that the trial by jury shall be held sacred. 
 
 In other cases where the private interest of judges 
 may be affected, or where their constitutional powers arc 
 encroached upon, their situation is indeed delicate, and 
 let them be ever so virtuous, they will be censured by 
 the ill-disposed part of their fellow-citizens: but in these 
 cases, as well as others, they are bound to decide, and 
 they do actually decide on behalf of the people; for ex- 
 ample, though a judge is interested privately in preserv- 
 ing his independence, yet it is the right of the people 
 which should govern him, who in their sovereign cha- 
 racter have provided that the judges should be indepen 
 dent; so that it is in fact a controversy between the 
 legislature and the people, though perhaps the judges 
 may be privately interested. The only effect on the 
 judges in such case should be, to distrust their own 
 judgment if the matter is doubtful, or in other words to 
 require clear evidence before they decide in cases where 
 interest may possibly warp the judgment.
 
 40 Cases decided in the 
 
 From the above premises I conclude that the judiciary 
 may and ought to adjudge a law unconstitutional and 
 void, if it be plainly repugnant to the letter of the Con- 
 stitution, or the fundamental principles thereof. By fun- 
 damental principles I understand, those great principles 
 growing out of the Constitution, by the aid of which, in 
 dubious cases, the Constitution may be explained and 
 preserved inviolate; those land-marks, which it may be 
 necessary to resort to, on account of the impossibility to 
 foresee or provide for cases within the spirit, but without 
 the letter of the Constitution. 
 
 To come now more immediately to the question be- 
 fore the court; can those who are appointed judges in 
 chancery, by an act of assembly, without ballot, and with- 
 out commission during good behaviour, constitutionally 
 exercise that office? — The fourteenth article of the Vir- 
 ginia Constitution recites " that the people have a right 
 " to uniform government; and therefore, that no govern- 
 " ment separate from, or independent of, the govern- 
 " ment of Virginia, ought to be erected or established 
 " within the limits thereof." Here then is a general prin- 
 ciple pervading all the courts mentioned in the Constitu- 
 tion — from which, without an exception, we ought not to 
 depart. If those may be judges who are not appointed by 
 joint ballot, but by an act of assembly, the senate have in 
 that instance more power than the Constitution intend-
 
 General Court of Virginia. 41 
 
 ed; for they control the other branch, by their negative 
 upon the law, whereas if they mixed with that branch in 
 a joint ballot, a plurality of votes of senators and dele- 
 gates would decide. 
 
 If there can be judges in chancery who have no com- 
 mission during good behaviour, their tenure of office is 
 absolutely at the will of the legislature, and they conse- 
 quently are not independent. The people of Virginia in- 
 tended that the judiciary should be independent of the 
 other departments: they are to judge where the legisla- 
 ture is a party, and therefore should be independent of 
 it, otherwise they might judge corruptly, in order to 
 please the legislature, and be consequently continued in 
 office. It is an acknowledged principle in all countries, 
 that no man shall be judge in his own cause; but it is 
 nearly the same thing, where the tribunal of justice is 
 under the influence of a party. If the legislature can 
 transfer from constitutional to legislative courts, all judi- 
 cial powers, these dependent tribunals being the creatures 
 of the legislature itself, will not dare to oppose an uncon- 
 stitutional law, and the principle I set out upon, viz. that 
 such laws ought to be opposed, would become a dead 
 letter, or in other words, this would pave the way to an 
 uncontrolled power in the legislature. The constitution 
 requires the concurrence of the legislature to appoint, 
 and the executive to commission a judge: — but an ap- 
 
 F
 
 42 Cases decided in the 
 
 pointment by act of assmihlv, will invest with this high 
 power one who has rot the sanction of the executive; and 
 will throw a new office upon a man, without the liberty 
 of declining such appointment, if he thinks proper. For 
 these reasons, and others which it would be tedious to 
 enumerate, I am of opinion, that the clause in question, is 
 repugnant to the fundamental principles of the Constitu- 
 tion, in as much as the judges of the general court have 
 not been balloted for and commissioned as judges in 
 chancery, pursuant to the fourteenth article of the Con- 
 stitution. 
 
 Mr. Roane then said, " Although it is not in myopi- 
 " nion now necessary to decide, whether the offices of a 
 "judge in chancery and of the general court, may be 
 " united in the same person or not, supposing a consti- 
 " tutional appointment to have been made of the same 
 " person to each — yet in as much as this question is in 
 " some measure involved in the one just discussed, I 
 w will give my present impressions upon it, leaving my- 
 " self free to decide hereafter the one way or the other, 
 " should it come judicially before me. 
 
 The constitution has declared that the three depart- 
 ments of government should be separate and distinct. — 
 There are great political evils which would arise from 
 their union; — for example, if according to Montesquieu.
 
 General Court of Virginia. 
 
 the members of the legislature were also members of the 
 judiciary, the same man would as a legislator make a 
 tyrannical law, and then as a judge would enforce it tyran- 
 nically. This union, it is evident, would produce a com- 
 plete despotism. 
 
 It is therefore a fundamental principle not only of our 
 constitution, but acknowledged by all intelligent writers, 
 to be essential to liberty, that such an union should not 
 take place. 
 
 But is there any great political evil resulting from the 
 same person being a judge in chancery, and of the gene- 
 ral court? 
 
 Is there any constitutional impediment? — It would be 
 wise in the legislature to keep the offices separate; for an 
 union of several functions in one person, will put it out 
 of his power to be perfect in either, and the commonwealth 
 will be better served by dividing than by accumulating 
 the public duties. 
 
 But it has been said, and I confess with great force, 
 that in as much as the judges in chancery are to be tried, 
 on impeachment, before the general court, if the judges 
 of the general court are also judges in chancery, they 
 in their latter character must be tried before themselves
 
 44 Cases decided in the 
 
 in their former, and consequently there will be a defect 
 of an impartial tribunal. I can only answer this objec- 
 tion by saying, that the former court of appeals was 
 composed of the judges of the general court, court in 
 chancery, and admiralty. — The legislature might have 
 to organized the said courts as to have had nine-tenths of 
 the court of appeals members of the general court. 
 
 The judges of the general court are by the constitution 
 to be tried before the court of appeals, i. e. under that 
 organization, before themselves; — and the judges of ap- 
 peals before the general court, which would produce the 
 same dilemma. * 
 
 This case then is precisely similar to the case before us. 
 And yet the judges of the court of appeals did in the re- 
 monstrance of May, one thousand seven hundred and 
 eighty-eight, declare " that the forming the court of ap- 
 t * peals, so as to consist of all the judges, is no violation 
 " of the constitution;" thereby over-ruling the objection 
 which must have occurred in that case as well as in this. 
 
 Upon the whole I must say, that however inconvenient 
 and unwise it might be to unite these distinct offices in the 
 same person; — however in the case that has been suppo- 
 sed, there might be a defect of an impartial tribunal to 
 try an offending chancellor upon an impeachment;— still 
 not seeing any express provision in, or fundamental prin-
 
 General Court of Virginia. 45 
 
 ciple of, the constitution, restricting the power of the le- 
 gislature in this respect; and grounding myself upon the 
 above recited opinion of the former court of appeals as 
 to the constitutionality of the union of offices which then 
 existed in that body; — my present impressions are, that 
 there is no constitutional impediment, plainly apparent, 
 against uniting the two offices in the same person. 
 
 Judge Henry. This is an adjourned case from the 
 Dumfries District, and the question (iiexv and difficult) 
 referred to this court is, — Ought the district judges to 
 exercise that branch of chancery jurisdiction committed 
 to them by the last district law, of hearing and deciding 
 all causes brought before them by injunction according 
 to the rules prescribed by law for conducting similar 
 suits in the high court of chancery. 
 
 The difficulty and novelty of this case is, that the law 
 in question requires of the common law judges, to exer- 
 cise chancery jurisdiction, and that without a legal ap- 
 pointment, and without a commission. 
 
 The discussion of this subject is no less delicate than 
 it is important. — It is important as it brings in question 
 the rights of the legislature on one of the particular sub- 
 jects committed to them by the plan of government: i 
 is delicate, as the judges are compelled to examine •'
 
 46 Cases decided in the 
 
 powers, their duties, and the regularity of their appoint- 
 ments, and therefore, they may be considered, in some 
 sense, as judges in their own cause. — But be the subject 
 as delicate as can be supposed possible, and as important as 
 any which can ever come before a court, it is now before 
 us, and I embrace the opportunity, now offered me for 
 the first time, of publicly declaring my opinion. 
 
 The importance of the subject requires a particular at- 
 tention, and thorough examination. We will then have 
 recourse to the revolution and some of the history. 
 
 In the year 1776, the people of this country chose de- 
 puties, to meet in general convention, to consult of, and 
 take care for, their most valuable interests. These depu- 
 ties seem to have been complete representatives of the 
 people, and vested with the most unlimited authority. 
 Accordingly, having taken a careful review of the state of 
 their country, they found a number of instances of mis- 
 rule in the then existing government, and that our prince, 
 by abandoning the helm of government, and declaring 
 the people to be out of his allegiance and protection, had 
 produced a total dissolution of the social band. 
 
 When this was found to be our unhappy situation, our 
 deputies proceeded, (as of right they might), to prepare 
 that form of government for us they judged best.
 
 General Court of Virginia. 47 
 
 Accordingly, apian of government was agreed upon, 
 promulged, and accepted by the people, which has been 
 uniformly acquiesced under from that day to this time. 
 But previous to the promulging the plan of government, 
 these deputies declared that certain rights were inherent 
 in the people, which the public servants who might be 
 intrusted with the execution of this government, were 
 never to be permitted to infringe; — for example, the legis- 
 lative branch were declared to be restrained from inter- 
 fering with the right of trial by jury in criminal cases; 
 from meddling with the rights of conscience, in matters 
 of religion; and each of the three branches into which the 
 government was to be divided was declared incompetent 
 to any of the duties of either of the other two. 
 
 The judiciary, from the nature of the office, and the 
 mode of their appointment, could never be designed to 
 determine upon the equity, necessity, or usefulness of a 
 law; that would amount to an express interfering with the 
 legislative branch, in the clause where it is expressly for- 
 bidden for any one branch to interfere with the duties ot 
 the other. The reason is obvious, not being chosen imme- 
 diately by the people, nor being accountable to them, in 
 the first instance, they do not, and ought not, to represent 
 the people in framing or repealing any law. 
 
 There is a proposition which I take to be universally
 
 48 Cases decided in the 
 
 true in our constitution, which to gentlemen whose ideas 
 of parliament, and parliamentary powers, were formed 
 under the former government, may not be always obvious; 
 it is this — We were taught that Parliament was omnipo- 
 tent, and their powers beyond control; now this proposi- 
 tion, in our constitution, is limited, and certain rights are 
 reserved as before observed; — if this were always kept 
 in mind, it might free the mind from a good deal of em- 
 barrassment in discussing several questions where the 
 duty, and the power of the legislature is considered. 
 
 Our deputies, in this famous convention, after having 
 reserved many fundamental rights to the people, which 
 were declared not to be subject to legislative control, did 
 more; — they pointed out a certain and permanent mode 
 of appointing the officers who were to be intrusted with 
 the execution of the government. Though the choice of 
 the officers was intrusted to the wisdom of the legislature* 
 yet the manner of conducting this choice was fixed; hereby 
 declaring in the most solemn manner, the public will and 
 mind of the people to be, that the laws when made, should 
 be executed by officers chosen and appointed, as therein 
 is directed, and not otherwise; whereas under the former 
 government, the legislature seemed to have had no bounds 
 to their authority but the negative of the crown, and the 
 public officers were appointed and displaced at the plea- 
 sure of the governing powers which then were.
 
 General Court of Virginia, 
 
 I come now to the particular case before the court. 
 Kamper applied to the district court of Dumfries, for an 
 injunction to a judgment obtained at law in that court by 
 Hawkins, under the law which directs the district judges 
 to hear and determine all suits commencing by injunction, 
 under the same rules and regulations as are now prescrib- 
 ed by law, for conducting similar suits in the high court 
 of chancery. 
 
 The permanent will of the people, expressed in the 
 constitution, is that the legislature, by joint ballot of both 
 houses, shall appoint judges of the supreme court of ap- 
 peals and general court, judges in chancery, &c. to be 
 commissioned by the governor, and to hold their offices 
 during good behaviour. 
 
 It is alleged by some of my brethren, that the legisla- 
 ture are not warranted in appointing the same men to be 
 judges both at common law and in chancery. The words 
 of the plan of government are, " they shall appoint judges 
 " of the high court of appeals and general court, judges 
 " in chancery, &c." These words, 7W5W in chancery, are 
 supposed to design different persons from the judges of 
 the general court, and an argument to inforce this opinion 
 is drawn from sect. 16 and 17, where it is provided, that 
 any judge of the general court, offending against the state, 
 may be prosecuted in the high court of appeals; but a 
 
 G
 
 dO Cases decided in the 
 
 chancery judge offending must be prosecuted in the gene- 
 ral court; therefore it is alleged, a common law judge 
 cannot be a chancery, nor a chancery a common law 
 judge in our government. 
 
 This question has heretofore been alleged as one of the 
 reasons of the high court of appeals for declining to exe- 
 cute a very important law of the land; — without saying 
 any thing about the propriety or impropriety of that bu- 
 siness, it is sufficient for my present purpose to observe, 
 that the question did not then come before the court in 
 a judicial manner, — it was taken up as a general proposi- 
 tion, and when published, contained an appeal to the peo- 
 ple; this looked like a dissolution of the government, — 
 therefore I cannot view it as an adjudged case, to be 
 considered as a binding precedent. 
 
 It is much to be wished that the question had been then 
 decided, by calling a convention of the people. But un- 
 fortunately the legislature neither yielded the point nor 
 insisted, but adopted an expedient. — They new-model- 
 led the courts — The question then went to sleep, but the 
 legislature preserved the principle; they appointed judges 
 of the high court of appeals, with unlimited jurisdiction, 
 both in law and equity; they appointed judges of the ge- 
 neral court, and a judge in chancery.
 
 General Court of Virginia. 51 
 
 If the common law and chancery jurisdiction ought not 
 to be united in the same persons in the first instance, I do 
 not see how it can be justified in the appellate jurisdic- 
 tion. If the form of government has provided that jus- 
 tice at common law ought to be administered by one se 1 
 of men, and in chancery by another, it seems to me to 
 follow as a necessary inference, that the appellate, as well 
 as the original jurisdiction, ought to be separate and dis- 
 tinct, and that those gentlemen who now exercise the ap- 
 pellate jurisdiction have admitted the legislative construc- 
 tion of the form of government formerly objected to. 
 
 But I do not rest the question on this ground. Where 
 I am not bound by regular adjudications of the superior 
 court, I cannot rest on other men's opinions. I must and 
 will think for myself. 
 
 Our government is declared to be founded on the au- 
 thority of the people. The people, in convention, have or- 
 dered that a legislature shall be chosen, a governor and 
 council shall be chosen, judges shall be appointed. — All 
 these different characters are servants of the people, have 
 different duties, and are amenable to them. When the 
 legislature were intrusted with the appointment of judges, 
 I can find no particular characters, or any description of 
 men, declared to be ineligible, but those holding legisla- 
 tive or executive authority, who are forbidden to inter- 
 fere. To the discretion of the legislature is committed the
 
 52 Cases decided in the 
 
 choice of the judges, who shall fill all the superior courts, 
 and therefore, if they have chosen, or shall hereafterchoose 
 to appoint the same set of men to administer justice to the 
 people, both at common law and in chancery, I cannot 
 find any thing in the form of government to restrain 
 them. They are to appoint judges in chancery, at their 
 discretion; and for me to say I cannot act as a chancery 
 judge in any case, because if I should offend, I am to be 
 prosecuted for such an offence before my brethren in the 
 gem court, seems to be a strange reason for me to as- 
 sign for declining the office. 
 
 I am therefore very clear and decided in my opinion, 
 that the legislature were fully authorized by the form of 
 government, to appoint the district judges to exercise a 
 chancery jurisdiction in the case before us, and I do cheer- 
 fully embrace this public opportunity of declaring my 
 hearty approbation of the measure, and my willingness to 
 act when the appointment is regularly made. 
 
 This brings me to the second point in the case. Have 
 the legislature made the appointment in the manner pre- 
 scribed by the form of government? 
 
 I wish most seriously I could give an affirmative an- 
 swer to this question. It is provided by the form of go- 
 vernment, so often alluded to, that judges in chancery 
 shall be chosen by joint ballot of both houses, shall be
 
 General Court of Virginia. 53 
 
 commissioned by the governor, shall hold their office 
 during good behaviour, and to secure their independence 
 and remove them from all temptation to corruption, their 
 salaries shall be adequate and fixed. — It a chancellor in 
 any case must be chosen by ballot, be commissioned and 
 hold his office during good behaviour, surely it is proper, 
 it is necessary in all cases, that every judge shall be so 
 chosen, shall be so commissioned, and hold his office so 
 long as he behaves well. The business of hearing causes 
 originating in that court by injunction, is of a permanent 
 nature. To exercise this duty without the appointment 
 and commission prescribed by the constitution, would 
 be an exercise of a power according to the will of the 
 legislature, who are servants of the people, not only with- 
 out, but expressly against the will of the people. This 
 would be a solecism in government, — establishing the 
 will of the legislature, servants of the people, to control 
 the will of their masters, if the word may be permitted. 
 Till the appointment is made agreeable to the directions 
 of the constitution, I cannot think myself duly authorized 
 to take upon me the office. 
 
 Before I conclude, I wish to embrace the present op- 
 v 
 portunity of saying something about what may be called 
 
 inconsistency in my conduct. — It is well known I sat in 
 the former court of appeals, not being particularly bal- 
 loted for and commissioned. I have latterly obeyed the
 
 54 Cases decided in the 
 
 commands of the legislature, by sitting in the special 
 court of appeals without any such appointment or com- 
 mission. 
 
 When I was appointed a judge of the court of admi- 
 ralty, there was a standing law of the land, that every 
 such judge should of course be a judge of the court of ap- 
 peals, and an oath of office in both courts was prescrib- 
 ed. When I was balloted for, I considered myself as hav- 
 ing a general appointment to both the courts, and acted 
 accordingly: and had a commission been applied for as a 
 judge of the court of appeals, it is probable, it might have 
 been granted. However, the legislature, on reviewing 
 this subject, availing themselves of what was then in 
 their opinion judged to be an incomplete appointment, 
 thought themselves authorized to garble the commission, 
 and dismiss one half of the judges, without either giving 
 them notice, or assigning any reason, assuming a right 
 from their own omission, if it was one, to dismiss their 
 judges. — If the legislature were authorized to take this 
 step at that time, it surely furnishes all succeeding judges, 
 as they value their reputation and their independence, to 
 see that their appointment be regular, before entering 
 upon the duties of their office, in future. 
 
 This dismission was submitted to, though, in a short 
 time afterwards, the legislature seem to have forgotten
 
 General Court of Virginia, 55 
 
 the principle on which they grounded the dismission ot 
 the judges; for when public convenience seemed to 
 require a special court of appeals in cases where a ma- 
 jority of the judges of that court should be interested, 
 they commanded the judges of the general court to attend 
 in such special court, without either an appointment or 
 commission, which command I have more than once 
 obeyed: and I freely acknowledge, that I consider this 
 special court, with respect to me, who have been neither 
 appointed nor commissioned since the passing of that 
 law, as unconstitutional; but it is temporary. The case 
 cannot often happen; it is exceedingly disagreeable to be 
 faulting the legislature; and, perhaps, one particular mis- 
 chief had better be submitted to, than a public inconveni- 
 ence. These were my reasons for sitting in this special 
 court. 
 
 It is most devoutly to be wished, that the present sub- 
 ject, now become the topic of public discussion, may be 
 fully and generally understood, by the legislature, by the 
 judiciary, and by the public at large, that there be no 
 more of these unhappy differences of opinion between any 
 of the different departments of government. 
 
 It remains only for me to add, that where I have been 
 appointed and commissioned, I obey with alacrity,— 
 when a new appointment shall be made, and a commis-
 
 56 Cases decided in the 
 
 sion be directed, authorizing me to exercise the office ol 
 a judge in chancery, in any case whatever, I shall then 
 have it in my power to exercise the right of every other 
 free man, — to accept or refuse, — though I have no diffi- 
 culty in declaring, were the appointment perfect, that I 
 might hold during good behaviour, I should have no 
 objection to enter upon the discharge of those new 
 duties; — but until that it is done, injustice to the public, 
 whose rights are concerned, and to myself, as an indi- 
 vidual, I must decline the duty prescribed by the law in 
 question, not being as yet such a judge in chancery as the 
 people have said shall exercise that kind of jurisdiction. 
 
 Of course, my opinion is that the district court of Dum- 
 fries be advised to over-rule the motion for an injunction 
 in this cause. 
 
 Judge Tyler. I am saved much trouble in the inves- 
 tigation of this case, by the gentlemen whose opinions 
 have been already delivered with so much propriety and 
 sound reason, as it respects the question of the validity 
 of the Constitution. 
 
 It is truly painful to me to be under the necessity of 
 saying any thing in support of it at this day; but since I 
 am reduced to this necessity, I must be indulged with a 
 few observations on the subject.
 
 General Court of Virginia. 57 
 
 I know it has been the opinion of some critical and 
 speculative gentlemen of considerable merit and abilities 
 too, that our form of government was not authorised by 
 the people, inasmuch as no instructions were given by 
 the people to the convention at the time the Constitution 
 was established. 
 
 To investigate this subject rightly, we need but go 
 back to that awful period of our country when we were 
 declared out of the protection of the then mother country 
 — and take a retrospective view of our situation, and be- 
 hold the bands of civil government cut asunder, and 
 destroyed: — No social compact, no system of protection 
 and common defence against an invading tyrant — in a 
 state of nature, without friends, allies, or resources: — In 
 such a case what was to be done? 
 
 Those eminent characters to whom so much gratitude 
 is, and for ever will be due — whose names are enrolled in 
 the annals of America, recommended a convention of 
 delegates to be chosen for that purpose; who were to 
 meet together for the express design of completely pro- 
 tecting and defending the rights, both civil and religious, 
 of our common country. — The delegates were so elected 
 and convened. — What power had the people therefore 
 that was not confided to their representatives? All their 
 rights, all their power, all their happiness, all their hopes 
 
 H
 
 58 Cases decided in the 
 
 and prospects of success, were most indubitably entrusted 
 to their care. — They were not betrayed. — The people 
 did not say to their representatives, so far shall ye go, 
 and no farther. — Happy, indeed, for this country, that 
 no such restraint was laid on them. 
 
 In order to protect and defend the common cause 
 then, a system of social duties was formed. — Without 
 this what obedience could have been expected, and how 
 could a regular defence have been made? 
 
 A great variety of departments were established, and 
 those who were to execute them must have been made 
 responsible to some regular power: — And all this was to 
 complete the great work of liberty. 
 
 Has not this policy been sufficiently ratified by time 
 and action? And if it were possible to doubt, under these 
 circumstances, has it not been sealed with the blood of 
 this wide extended empire? And shall its validity be now 
 questioned? for what purpose? To revert back to our 
 former insignificancy? It cannot be. 
 
 Before I proceed to say any thing on the adjourned 
 case now under contemplation, I will beg leave to make a 
 few observations on the opinion that some gentlemen 
 have taken up, of the impropriety of the judiciary in de-
 
 General Court of Virginia. 
 
 ciding against a law which is in contradiction to the 
 Constitution. 
 
 A little time and trouble bestowed on this subject, I 
 am sure, would enable any person, endowed with com- 
 mon understanding, to see the fallacy of such sentiments. 
 
 What is the Constitution but the great contract of the 
 people, every individual whereof having sworn allegiance 
 to it? — A system of fundamental principles, the violation 
 of which must be considered as a crime of the highest 
 magnitude. — That this great and paramount law should 
 be faithfully and rightfully executed, it is divided into 
 three departments, to wit: the legislative, the executive, 
 and judiciary, with an express restraint upon all, so that 
 neither shall encroach on the rights of the other. — In the 
 Bill of Rights many things are laid down, which are re- 
 served to the people — trial by jury, on life and death, 
 liberty of conscience, &c. Can the legislature rightfully 
 pass a law taking away these rights from the people? Can 
 the judiciary pass sentence without a conviction of a citi- 
 zen by twelve of his peers? Can the executive do any 
 thing forbidden by this bill of rights, or the constitution? 
 In short, Gan one branch of the government call upon 
 another to aid in the violation of this sacred letter? The 
 answer to these questions must be in the negative.
 
 60 Cases decided in the 
 
 But who is to judge of this matter? the legislature only? 
 I h>pe not. — The object of all governments is and ought 
 to be, the faithful administration of justice. — It cannot, I 
 hope, be less the object of our goverment, which has 
 been founded on principles very different from any we 
 read of in the world, as it has ingrafted in it a better 
 knowledge of the rights of human nature, and the means 
 of better securing those rights. — And were I inclined to 
 borrow a sentiment from any man, in support of my opi- 
 nion, (not as authority, but merely argumentative) I 
 should make use of the following one from the celebrated. 
 Hume, in his essay on our government, — viz. " We are 
 "therefore to look upon all the vast apparatus of our go- 
 " vernment, as having ultimately no other object, or pur- 
 pose, but the distribution of justice, or in other words, 
 "the support of the judges. King, and parliaments, heads 
 " and armies, officers of the court and revenue, ambassa- 
 " dors, ministers, and privy-counsellers, are all subordi- 
 " nate in their end to this part of administration." — 
 Hence it may reasonably be inferred, that if the common- 
 wealth itself is subordinate to this department of govern- 
 ment at times, so therefore will necessarily be the acts of 
 the legislature, when they shall be found to violate first 
 principles, notwithstanding the supposed " omnipotence 
 " of parliament" which is an abominable insult upon the 
 honour and good sense of our country, as nothing is om- 
 nipotent as it relates to us, either religious or political, 
 Hut the God of Heaven and our constitution!
 
 General Court of Virginia. 61 
 
 I will not in an extra-judicial manner assume the right 
 to negative a law, for this would be as dangerous as the 
 example before us; but if by any legal means I have ju- 
 risdiction of a cause, in which it is made a question how 
 far the law be a violation of the constitution, and there- 
 fore of no obligation, I shall not shrink from a compari- 
 son of the two, and pronounce sentence as my mind may 
 receive conviction. — To be made an agent, therefore, for 
 the purpose of violating the constitution, I cannot con- 
 sent to. — As a citizen I should complain of it; as a pub- 
 lic ser\am, filling an office in one of the great depart- 
 ments of government, I should be a traitor to my country 
 to do it. But the violation must be plain and clear, or there 
 might br ciai.ger of the judiciary preventing the operation 
 of laws which might be productive of much public good. 
 These premises being admitted, as I think they must, I 
 will now draw a comparison of the law before us with the 
 constitution. The constitution declares there shall be 
 judges in chancery, judges of the general court, &c; and 
 the first question that occurs is this — Can the office of a 
 judge in chancery and common law be rightfully vested 
 in the same persons, provided the appointment be regu- 
 lar? — To which I answer, I see no incompatibility, in the 
 exercise of these offices, by the same persons — for although 
 they be distinct offices, possessing distinct powers, they 
 do not necessarily blend and run together, because thev 
 are placed in the same hands. The judge who knows th<
 
 62 Cases decided in the 
 
 powers and duties of both, will well know how to keep 
 them apart — like the rays of the sun, they radiate from 
 one common centre, and may run parallel for ever, with- 
 out an interference. — -But to this, an ingenious and sub- 
 tile argument is offered, and taken from the 17th article 
 of the constitution, wherein it is directed, that when the 
 judges of the general court are impeached, the court of 
 appeals shall set in judgment — but all other officers of 
 government, shall be impeached before the general court. 
 Therefore, the constitution meant to keep the offices dis- 
 tinct, in distinct hands, because it is possible that they 
 may try one another, and perhaps form a combination, 
 in favour of the fraternity. This is too nice a deduction, 
 and is a better argument in favour of an amendment 
 of the constitution, than of the question under conside- 
 ration. We cannot supply defects; nor can we reconcile 
 absurdities, if any there be; this must be done by the 
 people; and were we about the business of amendments 
 duly authorised, it might be well to consider this point. 
 But I cannot see why a judge in chancery, if he be a 
 judge also of the general court, may not be tried by the 
 court of appeals; for if he be convicted of such a crime, 
 as he ought to be displaced from office in either capacity, 
 he would hardly be allowed to hold the other; nor do I 
 see why the judges of the general court, cannot try their 
 brothers in chancery.
 
 General Court of Virginia. 
 
 The legislature having a knowledge of this case, chose 
 to trust the powers in our hands, as in the case of the 
 high court of appeals who possess both chancery and 
 common law powers, and are yet impeachable before the 
 general court, who ought not to have a stronger sympa- 
 thy or fellow-feeling for each other than for all the judges. 
 In this case we find the same possible inconvenience, 
 but it is barely possible to suppose that justice and the 
 law will not be the object of a court's decision, let who 
 will be the culprit, or object of trial. We find the county 
 courts possess these powers, and I do suppose, if the 
 doctrine contended for, on this point, was sound, they 
 would not have been suffered to have rested from the 
 beginning of the revolution to this day, in those courts; 
 and without arrogating much to ourselves, we may be 
 allowed to hope the trust would be at least as well exe- 
 cuted in our hands. — I have nothing to say with respect 
 to the policy of the measure, that will speak for itself; 
 and moreover, it belongs to the legislature to decide. 
 
 The next inquiry we are to make, brings us pointedly 
 to the comparison of the law now under contemplation, 
 and the constitution; and how does it stand? The consti- 
 tution says that judges in chancery shall be appointed by 
 jointballot of both houses of assembly, and commission- 
 ed by the governor during good behaviour — and for the 
 most valuable purposes ; to secure the independence of the
 
 64 Cases decided in the 
 
 judiciary.— -Contrary to this express direction, which 
 admits of no doubt, implication or nice construction, that 
 bane to political freedom, the legislature has made the 
 appointment by an act mandatory, to the judges, leaving 
 them not at liberty to acceptor refuse the office conferred, 
 which is a right every citizen enjoys, in every other case — 
 a right too sacred to be yielded to any power on earth. 
 But, were I willing to do it as it relates to myself, as a 
 judge I ought not; because it would frustrase that most 
 important object before-mentioned — intended by the 
 constitution to be kept sacred, for the wisest and best of 
 purposes — to wit, that justice and the law be done to all 
 manner of persons without fear or reward. 
 
 For how would the rights of individuals stand when 
 brought in contest with the public, or 'even an influential 
 character, if the judges may be removed from office by 
 the same power who appointed them, to wit, by a statute 
 appointment as in this case, and by a statute disappoint- 
 ment as was the case in the court of appeals. Might not 
 danger be apprehended from this source when future 
 times shall be more corrupt? and yet, thank Heaven, the 
 time has not arrived, when any judge has thus degraded 
 his office, or dignity as a man, by a decision governed by 
 fear or any other base motive; and I hope a long time 
 will yet elapse before this will be the case. But our con-
 
 General Court of Virginia. 65 
 
 tution was made, not only for the present da)', but for 
 es to come, subject only to such alterations as the people 
 ly please to make. Let me now compare the law and 
 2 constitution in the other point; that of the want of a 
 mmission during good behaviour, and the reasons will 
 lly or forcibly apply — when I receive, the commission, 
 >ee the ground on which I stand. I see that my own in- 
 jrity is that ground, and no opinions, but such as are de- 
 ed from base motives, can be sufficient to remove rac 
 >m office — in which case whensoever an appeal is made 
 me by an injured citizen, I will do him justice, as far 
 my mental powers will enable me to discover it, with- 
 t any apprehensions of an unjust attack — that if the 
 rudest sovereign on earth was in contest with the lowest 
 asant, that creeps through this vale of sorrow, yet 
 juld the arm of justice be extended to him also. 
 
 To conclude, I do declare that I will not hold an office, 
 lich I believe to be unconstitutional; that I will not be 
 ide a fit agent, to assist the legislature in a violation of 
 s sacred letter; that I form this opinion from the con-, 
 :tion I feel that I am free to think, speak, and act, as 
 ler men do upon so great a question; that as I never 
 1 sacrifice my own opinions for the sake of popularity 
 the various departments I have had the honour to fill, 
 wever desirable popular favour may be, when obtained 
 on honorable principles; so now that I am grown old 
 I
 
 66 Cases decided in the 
 
 I cannot depart from those motives which I have both ii 
 public and private life made my standard — I concu 
 therefore most heartily with my brothers, who have gont 
 before me, in the last two points, that the law is uncon 
 stitutional and ought not to be executed; the injunctioi 
 therefore must be over ruled — and this opinion I forn 
 not from a view of the memorials, nor from writers whe 
 knew not the blessings of free government, but as the) 
 were seen and felt through the prospect of future times 
 but from honest reason, common sense, and the grea' 
 letter of a Free Constitution! 
 
 Judge Tucker. This question was an adjourned cast 
 from the district court of Dumfries, and arose upon the 
 act of 1792, for reducing into one the several acts con 
 cerning the establishment, jurisdiction, and powers of th< 
 district courts. 
 
 Sect, third of that act declares it to be the duty of tw( 
 of the judges of the general court to attend each distric 
 court at their respective terms; and the said two judge; 
 shall constitute a court for such district, he. 
 
 Sect, eleventh provides " that each of the said distric 
 "courts, in term-time, or amy judge thereof, in vacation 
 "shall, and may have, and exercise the same power o 
 "granting injunctions, to stay proceedings on any judg
 
 General Court of Virginia. 67 
 
 nent, obtained in any of the said district courts, as is 
 io\v had, and exercised by the judge of the high court 
 f chancery, in similar cases, and the said district 
 ourts, may proceed to the dissolution, or final hearing 
 »f all suits, commencing by injunction, under the same 
 ules, and regulations, as are now prescribed by law for 
 onducting similar suits in the high court of chancery. 1 ' 
 
 Upon this clause, a motion was made in Dumfries 
 trict court, May 23, 1791, for an injunction to stay 
 >ceedings on a judgment obtained in that court, and 
 s adjourned hither for novelty and difficulty. 
 
 rhe question which it is now incumbent on this court 
 decide, seems to me to be shortly this — whether a 
 fge of the general court of this commonwealth, can 
 istitutionally exercise the functions of a judge in chan- 
 y? this calls upon us for a recurrence to fundamental 
 nciples, a duty which our bill of rights* expressly im- 
 ses upon all the servants of the commonwealth. And 
 s renders it necessary not only to investigate the 
 nciples upon which our government is founded, but 
 : authority by which it was established; inasmuch as 
 re are doubts in the breasts of many, whether our 
 
 * Bill of Rights, Art. 15.
 
 68 Cases decided in the 
 
 constitution itself is any more than an act of the ordina 
 legislature, revocable, or subject to alteration by the 
 in any manner, and at any time. 
 
 In considering this question, I shall first state my o^ 
 impressions, arising from the text of the constituuc 
 and the spirit of our government, only unsupported 
 any former judicial opinions on the subject— and, secor 
 ly, as founded on the authority and decision of the coi 
 of appeals. 
 
 I. Instating my own impressions, I shall consider: 
 
 1st Whether the constitution, or form of governm* 
 of this commonwealth, be an act of the ordinary legis 
 ture, and, consequently revocable, or subject to altera* 
 by the same authority; or something paramount there 
 
 2dly, Whether, according to that constitution, i 
 functions of * judge of the general court, and a judge 
 chancery, were intended to be distinct; or might 
 blended in the same person? 
 
 1st, Whether the constitution be an act of the ordin; 
 legislature; or something paramount thereto? 
 
 It will be remembered by all those who are 
 
 convers
 
 General Court qf Virginia. 
 
 with the history of the rise and progress oi' the late glo- 
 rious revolution, that the measures which led to the final 
 consummation of that important event, although they 
 originated, in most instances, with the legal and constitu- 
 tional assemblies of the different colonies, made but a 
 small progress in that channel, particularly in this state. 
 The dissolution of the constitutional assemblies, by the 
 governors appointed by the crown, obliged the people to 
 resort to other methods of deliberating for the common 
 good. — Hence the first introduction of conventions: bo. 
 dies neither authorized by, or known to the then consti- 
 tutional government; bodies, on the contrary, which the 
 constitutional officers of the then existing governments 
 considered as illegal, and treated as such. Nevertheless, 
 they met, deliberated, and resolved for the common good. 
 They were the people, assembled by their deputies; not a 
 legal, or constitutional assembly, or part of the govern- 
 ment as then organized. — Hence they were not, nor 
 could be deemed the ordinary legislature; that body 
 being composed of the governor, council, and burgesses, 
 who sat in several distinct chambers and characters: while 
 the other was composed of a single body, having neither 
 the character of governor, council, or legitimate repre- 
 sentative among thenar they were, in effect, the people 
 themselves, assembled by their delegates, to whom the 
 care of the commonwealth was especiallv, as well as un- 
 boundedly confided.
 
 70 Cases decided in the 
 
 To prove this distinction still farther. The power of 
 convening the legal assemblies, or the ordinary constitu- 
 tional legislature, resided solely in the executive: they 
 could neither be chosen without writs issued by its au- 
 thority, nor assemble when chosen, but under the same 
 authority. The conventions, on the contrary, were cho- 
 sen, and assembled, either in pursuance of recommenda- 
 tions from congress, or from their own bodies, or by the 
 discretion, and common consent of the people. They 
 were held, even whilst a legal assembly existed. Witness 
 the convention, held in Richmond in March, 1775: after 
 which period, the legal, or constitutional assembly, was 
 convened in Williamsburgh, by the governor, lord Dun- 
 more; and continued sitting until finally dissolved by him 
 in June or July, 1775. — No other legal assembly was 
 ever chosen, or convened under the British government. 
 
 The convention then was not the ordinary legislature 
 of Virginia. It was the bod)' of the people, impelled to 
 assemble from a sense of common danger, consulting for 
 the common good, and acting in all things for the com- 
 mon safety. It could not be the legitimate legislature, 
 under the then established government, since that body 
 could only be chosen under the permission, and as- 
 sembled under the authority of the crown of Great 
 Britain.
 
 General Court of Virginia. 7i 
 
 But although the exercise of the authority of the exe- 
 cutive government under the crown of Great Britain 
 ceased altogether with the dissolution of that assembly 
 in June, 1775, yet a constitutional dependence on the 
 British government was never denied, until the succeed- 
 ing May, nor dissolved until the moment of adopting the 
 present constitution, or form of government; an event, 
 which took effect by the unanimous voice of the conven- 
 tion, (elected after the final dissolution of the general as- 
 sembly, as above mentioned, and assembled in Williams- 
 burgh,) on the 29th of June, 1776, after six weeks delibe- 
 ration thereon,* and eight days before the declaration of 
 independence by the congress of the United States. This 
 was not then the act of the ordinary legislature that dis- 
 solved the bands of union between us. It was the voice 
 of the people themselves, proclaiming to the world their 
 resolution to be free; to be governed only by their own 
 laws; and to institute such a government, as, in their own 
 opinion, was most likely to produce peace, happiness, and 
 safety to the individual, as well as to the community. 
 
 * The convention came to a resolution to instruct their delegates in 
 Congress to move, that body to declare America independent on 
 15th of May, 1776, and the same day appointed a committee to p: . 
 the draught of the new constitution, or foi n ' See tl 
 
 journals oi the convention assembled in Wil
 
 72 Cases decided in the 
 
 It seems to me an observation of great importance, 
 that the declaration of independence by this state, was 
 jirst made in that instrument which establishes our consti- 
 tution. The instant that the declaration of independence 
 took effect, had the convention proceeded no farther, the 
 government, as formerly exercised by the crown of Great 
 Britain, being thereby totally dissolved, there would 
 never have been an ordinary legislature, nor any other 
 organized body, or authority in Virginia. Every man 
 would have been utterly absolved from every social tie, 
 and remitted to a perfect state of nature. But a power to 
 demolish the existing fabric of government, which no 
 one will, I presume, at this day, deny to that convention, 
 without authority to erect a new one, could never be pre- 
 sumed. A new organization of the fabric, and a new ar- 
 rangement of the powers of government, must instantly 
 take place, to prevent those evils which the absence of 
 government must infallibly produce in any case; but 
 more especially under circumstances so awful, and pros- 
 pects so threatening, as those which surrounded the peo- 
 ple of America, at that alarming period. It would there- 
 fore have been absurdity in the extreme, in the people 
 of Virginia, to authorize the convention to absolve them 
 from the bonds of one government, without the power 
 to unite them under any other, at a time when the ut- 
 most exertions of government were required to preserve 
 both their liberties and their lives: but since they are both
 
 General Court of Virginia. 73 
 
 in form and effect, only different clauses of the same act, 
 and necessary consequences of each other, to question 
 the validity of the one, is to deny the effect of the other. 
 The declaration of independence, and the constitution, as 
 the acts of the people, must therefore stand, or fall 
 together. 
 
 Here let me cite the opinion of an eminent lawyer on 
 the one hand, and of an enlightened politician on the 
 other, on the subject of two national revolutions, the 
 most familiar to us of any, except our own. 
 
 " The revolution of 1688," says judge Blackstone, 
 1 Com. 211, " was not a defeazance of the succession, 
 " and a new limitation of the crown by the king, and 
 " both houses of parliament: it was the act of the nation 
 " alone, upon the conviction that there was no king in 
 " being." 
 
 " The national assembly of France," says the ingenious 
 M'Intosh, p. 60. " was assembled as an ordinary legis- 
 44 lature under existing laws. They were transformed by 
 44 events into a national convention, and vested with 
 44 powers to organize a new government. It is in vain 
 44 that their adversaries contest this assertion by appeal- 
 44 ing to the deficiency of forms. It is in vain to demand 
 14 the legal instrument that changed their constitution, 
 
 K
 
 74 Cases decided in the 
 
 " and extended their powers. Accurate forms in the con- 
 " veyance of power are prescribed by the wisdom of the 
 " law, in the regular administration of states. But great re- 
 " volutions are too immense for technical formality. All the 
 " sanction that can be hoped from such events is the 
 " voice of the people, however informally and irregu- 
 " larly expressed." (Defence of Fr. Revo. 60.^ 
 
 Our case was much stronger than either of those. 
 There was at least the shadow of legal, constitutional au- 
 thority in the convention parliament of England in 1688, 
 as the ordinary legislature; and the national assembly of 
 France was constitutionally assembled under the autho- 
 rity of the government it subverted. The convention of 
 Virginia had not the shadow of a legal, or constitutional 
 form about it. It derived its existence and authority from 
 a higher source; a power which can supersede all law, 
 and annul the constitution itself — namely, the people, in 
 their sovereign, unlimited, and unlimitable authority and 
 capacity. 
 
 From what I have said, I am inclined to hope, that it 
 will appear that our constitution was not the act of the 
 ordinary legislature: a few words concerning its opera- 
 tion, authority, and effect, as the act of the people, may 
 not be improper.
 
 General Court of Virginia. 75 
 
 " A constitution," says the celebrated Paine, " is not a 
 " thing in name only, but in fact. It has not an ideal, but 
 u a real existence; and wherever it cannot be produced 
 " in a visible form, there is none. A constitution is a 
 " thing antecedent to government, and a government is 
 " only the creature of a constitution. It is not the act of 
 " the government, but of the people constituting a go- 
 " vernment. It is the body of elements to which you can 
 " refer, and quote article by article, and which contains 
 " the principles on which the government shall be esta- 
 " Wished, the manner in which it shall be organized, the 
 " powers it shall have, &c." See Rights of Man, part I. 
 p. 30. 
 
 Vattel, in treating of the fundamental laws of a state, 
 observes, " that a nation may entrust the exercise of the 
 " legislative power to the prince, or to an assembly, or to 
 " that assembly and the prince, jointly; who have then a 
 " right of making new, and of abrogating old laws. It 
 " is here demanded, whether if their power extends as 
 " far as the fundamental laws, they may change the con- 
 " stitution of the state? to this he answers, we may de- 
 " cide with certainty, that the authority of these legisla- 
 " tors does not extend so far, and that they ought to 
 " consider the fundamental laws as sacred, if the nation 
 " has not in express terms given them poxvcr to change 
 " them. For the constitution of the state ought to be fix-
 
 76 Cases decided in the 
 
 " ed; and since that was first established by the nation, 
 " which afterwards trusted certain persons with the le- 
 " gislative powers, the fundamental laws are excepted. 
 " from their commission. In short, these legislators de- 
 " rive their power from the constitution: how then can 
 " they change it, without destroying the foundation of 
 " their authority?" Vattel, p. 31. 
 
 That the legislature of this commonwealth have re- 
 garded our Constitution in this light, will appear from 
 more than one authority. I shall select the preamble of 
 an act passed in May session, 1783, c 32. Rev. Co. 204. 
 entitled an act to amend an act, entitled an act concern- 
 ing the appointment of sheriffs, which recites " that the 
 " former act was contrary to the Constitution, or form 
 " of government," for which reason it was repealed.— 
 A second instance may be found in the acts of 1787, c. 
 23. which recites " that a former act, entitled an act to 
 " extend the powers of the governor and council, Rev. 
 " Co. 81. appears to the present general assembly to be 
 " contrary to the true spirit of the constitution:" where- 
 fore it was repealed. — Two other instances may be found, 
 the first in the repeal* of the act of 1787, c. 39. for esta- 
 blishing district courts, whereby the judges of the court 
 of appeals were required to act as judges of the district 
 
 * 1787, ch 67.
 
 General Court of Virginia. 77 
 
 courts: the second, in an act of the last session, 1792, 
 ch. 28. providing for the republication of the laws of this 
 commonwealth, which directs " that the bill of rights, 
 " and Constitution, or form of government, shall be pre- 
 " fixed to the code of laws." — Other instances doubtless 
 may be found in our laws, where the legislature have 
 either expressly, or tacitly, recognized the Constitution 
 as paramount to their own legislative acts; so that rea- 
 soning, in this instance, is confirmed by precedent. 
 
 But here an objection will no doubt be drawn from the 
 authority of those writers who affirm, that the constitu- 
 tion of a state is a rule to the legislature only, and not to 
 the judiciary, or the executive: the legislature being bound 
 not to transgress it; but that neither the executive nor 
 judiciary can resort to it to enquire whether they do 
 transgress it, or not. 
 
 This sophism could never have obtained a moment's 
 credit with the world, had such a thing as a written Con- 
 stitution existed before, the American revolution. " All 
 " the governments that now exist in the world, (says a 
 " late writer,*) except the United States of America, 
 " have been fortuitously formed. They are the produce 
 
 * M'Intosh on the I r. Rev. 115.
 
 f 8 Cases decided in the 
 
 " of chance, not the work of art. They have been altered, 
 " impaired, improved, and destroyed, by accidental cir- 
 u cumstances, beyond the foresight or control of wisdom; 
 " their parts thrown up against present emergencies, 
 " formed no systematic whole." What the constitution of 
 any country was or rather was supposed to be, could only 
 be collected from what the government had at any time 
 done; what had been acquiesced in by the people, or other 
 component parts of the government; or what had been 
 resisted by either of them. Whatever the government, or 
 any branch of it had once done, it was inferred they had a 
 right to do again. The union of the legislative and ex- 
 ecutive powers in the same men, or body of men, ensured 
 the success of their usurpations; and the judiciary, hav- 
 ing no written constitution to refer to, were obliged to 
 receive whatever exposition of it the legislature might 
 think proper to make. But, with us, the constitution is 
 not an " ideal thing, but a real existence: it can be pro- 
 *' duced in a visible form:" its principles can be ascer- 
 tained from the living letter, not from obscure reasoning 
 or deductions only. The government, therefore, and all 
 its branches must be governed by the constitution. Hence 
 it becomes the first law of the land, and as such must be 
 resorted to on every occasion, where it becomes neces- 
 sary to expound what the law is. This exposition it is 
 the dutv and office of the judiciary to make; our consti-
 
 General Court of Virginia. 79 
 
 tution expressly declaring that the legislative, executive, 
 and judiciary, shall be separate and distinct, so that nei- 
 ther exercise the powers properly belong to the other. 
 Now since it is the province of the legislature to make, 
 and of the executive to enforce obedience to the laws, 
 the duty of expounding must be exclusively vested in the 
 judiciary. But how can any just exposition be made, ij 
 that which is the supreme law of the land be xvithheld from 
 their view? Suppose a question had arisen on either of 
 the acts before cited, which the legislature have disco- 
 vered to be unconstitutional, would the judiciary have 
 been bound by the act, or by the constitution? 
 
 But that the constitution is a rule to all the departments 
 of the government, to the judiciary as well as to the le- 
 gislature, may, I think, be proved by reference to a few 
 parts of it. 
 
 The bill of rights, art. 8. provides, that in all capital 
 and criminal prosecutions, the party accused shall be 
 tried by a jury of the vicinage, and cannot be found 
 guilty without their unanimous consent. 
 
 Suppose any future act of the legislature should abridge 
 either of these privileges, what would be said of a court 
 that should act in conformity to such an act 7
 
 80 Cases decided in the 
 
 Again; art. 9. declares that excessive bail ought not to 
 be required. The act* concerning bail, I apprehend, ex- 
 tends not to the superior courts; perhaps not even to the 
 county courts. Is this injunction a mere dead letter, be- 
 cause the legislature have not yet passed a law equally 
 extensive in its obligation? 
 
 Art. 10. declares that general warrants are illegal and 
 oppressive, and ought not to be granted. Is this too a 
 dead letter, because we have no act of the legislature to 
 enforce the obligation? 
 
 Art. 16. secures the free exercise of our religious du- 
 ties, according to the dictates of every man's own con- 
 science. Should the legislature, at any future period, 
 establish any particular mode of worship, and enact penal 
 laws to support it, will the courts of this commonwealth 
 be bound to enforce those penalties? 
 
 Art. 15. of the constitution, declares that the clerks of 
 courts shall hold their offices during good behaviour, to 
 be judged of and determined in the general court. Can 
 any legislative act give any other court cognizance of 
 such a case? Or can any impeachment be tried in any 
 court of this commonwealth, except this court, and the 
 
 1 1785, ch. 80.
 
 General Court of Virginia. 81 
 
 court of appeals, even should an act of the legislature (as 
 was once contemplated) erect a court for that especial 
 purpose? 
 
 From all these instances it appears to me that this 
 deduction clearly follows, viz. that the judiciary are 
 bound to take notice of the constitution, as the first law 
 of the land; and that whatsoever is contradictory thereto, 
 it not the law of the land. 
 
 And here I shall avail myself of the reasoning of one 
 of the ablest political writers that has appeared in Ame- 
 rica.* 
 
 " Some perplexity respecting the right of the courts to 
 u pronounce legislative acts void, because contrary to the 
 " constitution, has arisen," he observes, " from an imagi- 
 " nation that the doctrine would imply a superiority of the 
 "judiciary over the legislative power. It is urged that 
 u the power which can declare the acts of another void, 
 " must necessarily be superior to the one whose acts may 
 " be declared void. 
 
 " But there is no position which depends on clearer 
 " principles, than that every act of a delegated authority, 
 
 Pub. v. 2. p 
 
 L
 
 82 Cases decided in the 
 
 " contrary to the tenor of the commission under which 
 " it is exercised, is void. No legislative act therefore, 
 " contrary to the constitution, can be valid. To deny this 
 " would be to affirm, that the deputy is greater than the 
 " principal; that the servant is above his master; that the 
 " representatives of the people are superior to the people 
 " themselves. 
 
 " II it be said that the legislative body are themselves 
 " the constitutional judges of their own powers, and that 
 " the construction they put upon them is conclusive upon 
 " the other departments, it may be answered that this 
 " cannot be the natural presumption, where it is not to 
 " be collected from any particular provisions in the con- 
 " stitution. It is not otherwise to be supposed that the 
 u constitution could intend to enable the representatives 
 " of the people to substitute their will to that of their 
 " constituents. It is far more rational to suppose that the 
 " courts were designed to be an intermediate body be- 
 " tween the people and the legislature, in order, among 
 " other things, to keep the latter within the limits assign- 
 " ed to their authority. The interpretation of the laws is 
 " the proper and particular province of the courts. A 
 " constitution is in fact, and must be regarded by the 
 "judges, as a fundamental law. It therefore belongs to 
 " them to ascertain its meeting, as well as the meaning 
 " of any particular act proceeding from the legislative
 
 General Court of Virginia. S3 
 
 il body. If there be an irreconcileable variance between 
 " the two, that which has the superior obligation and va- 
 " lidity ought of course to be preferred; or, in other 
 " words, the constitution ought to be preferred to the 
 " statutes; the intention of the people to the intention of 
 " their agents. 
 
 " Nor does this conclusion by any means suppose a 
 " superiority of the judiciary to the legislative power. 
 " It only supposes that the power of the people is supe- 
 " rior to both; and that where the will of the legislature, 
 " declared in its statutes, stands in opposition to that of 
 " the people, declared in the constitution, the judges 
 " ought to be governed by the latter, rather than the 
 " former. They ought to regulate their decisions by the 
 " fundamental laws, rather than those which are not fun- 
 " damental." 
 
 " * It can be of no weight to say that the courts, on 
 " the pretence of a repugnancy, may substitute their own 
 " pleasure to the constitutional intentions of the legisla- 
 " ture. This might as well happen in the case of two 
 " contradictory statutes; or it might as well happen in 
 11 every adjudication upon any single statute. The courts 
 " must declare the sense of the law. The observation, if 
 
 • Publius, 295.
 
 84 Cases decided in the 
 
 " it proved any thing, would prove that there ought tobt 
 " no judges distinct from the legislative body. 
 
 Such is the reasoning of one of the most profound po- 
 liticians in America. It is so full, so apposite, and so con- 
 elusive, that I think it unnecessary to add any thing far- 
 ther on the subject, and shall now proceed to the second 
 point, viz. 
 
 2. Whether, according to the constitution of this com- 
 monwealth, a judge of the general court can exercise the 
 functions of a judge in chancery? 
 
 There again I must recur to one of the fundamental 
 principles of our government, a principle essentially and 
 indispensably necessary to its existence as a free govern- 
 ment, exercised by the immediate authority of the people, 
 delegated to the servants of their own choice, viz. the 
 separation of the legislative, executive, and judiciary de- 
 partments. 
 
 These departments, as I have before observed, our 
 constitution declares shall be for ever separate and dis- 
 tinct. To be so, they must be independent one of another, 
 so that neither can control, or annihilate the other.
 
 General Court of Virginia. 85 
 
 The independence of the judiciary results from the 
 Jenure of their office, which the constitution declares 
 shall be during good behaviour. The offices which they 
 are to fill must therefore in their nature be permanent as 
 the constitution itself, and not liable to be discontinued 
 or annihilated by any other branch of the government. 
 Hence the constitution has provided that the judiciary 
 department should be arranged in such a manner as not 
 to be subject to legislative control. The court of appeals, 
 court of chancery, and general court, are tribunals ex- 
 pressly required by it; and in these courts the judiciary 
 power is either immediately, or ultimately vested. 
 
 These courts can neither be annihilated nor discon- 
 tinued by any legislative act; nor can the judges of them 
 be removed from their offices for any cause, except a 
 breach of their good behaviour. 
 
 But if the legislature might at any time discontinue or 
 annihilate either of these courts, it is plain that their te- 
 nure of office might be changed, since a judge, without 
 any breach of good behaviour, might in effect be removed 
 from office, by annihilating or discontinuing the office 
 itself. 
 
 This has been proved in the case of the former court
 
 S6 Cases decided in the 
 
 of appeals.* The moment it was discovered that that 
 court was not constituted according to the directions of 
 the constitution, the legislature, without any charge of a 
 breach of good behaviour by any one of that court, re- 
 moved a majority of thejudges from their office, as judges 
 of that court, by netv modelling the court altogether* 
 
 I am far from considering this act of the legislature as 
 unconstitutional, for reasons that I shall hereafter men- 
 tion. 
 
 But it proves that the judiciary can never be indepen- 
 dent, so long as the existence of the office depends upon 
 the will of the ordinary legislature, and not upon a con- 
 stitutional foundation. 
 
 The district courts considered as independent of the 
 general court, and not a modification of it, are merely 
 legislative courts, and consequently may be discontinued, 
 or annihilated, whenever the legislature may think proper 
 to abolish them. And if thejudges of those courts held 
 their offices only as judges of the district courts, they 
 might be virtually, and in fact, removed from office, as 
 the judges of the former court of appeals were, by a le- 
 gislative act, discontinuing the courts, and transferring 
 
 * Virg. Actsvi. 1788, ch. 68.
 
 General Court of Virginia. 87 
 
 their jurisdiction to other tribunals, xvithout any breach 
 of good behaviour. 
 
 Hence arises a most important distinction between 
 constitutional and legislative courts. The judges of the 
 former hold an office co-existent with the government 
 itself, and which they can only forfeit by a breach of 
 good behaviour. The judges of the latter, although their 
 commissions should import upon the face of them, to be 
 during good behaviour, may be at any time discontinued 
 from their office, by abolishing the courts. In other 
 words, constitutional judges may be an independent 
 branch of the government, legislative judges must ever 
 be dependant on that body at whose will their offices 
 exist. 
 
 If the principles of our government have established 
 the judiciary as a barrier against the possible usurpation, 
 er abuse of power in the other departments, how easily 
 may that principle be evaded by converting our courts 
 into legislative, instead of constitutional tribunals? 
 
 To preserve this principle in its full vigour, it is neces- 
 sary that the constitutional courts should all be restrained 
 within those limits which the constitution itself seems to 
 have assigned to them respectively.
 
 88 Cases decided in the 
 
 What those limits are, may be collected from the 14th 
 article,* which provides for the appointment of " judges 
 " of the supreme court of appeals, and general court, 
 "judges in chancery, judges of admiralty" &c. This 
 specification of judges of several tribunals, would lead us 
 of itself to conclude, that the tribunals themselves were 
 meant to be separate and distinct. f This conclusion seems 
 to be warranted by two circumstances, the one extrinsic, 
 the other arising out of the constitution itself. Those who 
 recollect the situation of our jurisprudence, at the time 
 of the revolution, will remember that the union of civil 
 and eriminal, common law, and equity jurisdiction, all in 
 the general court, was one of the most obvious defects of 
 that system. In truth, nothing can be more dangerous to 
 the citizen, than the union of criminal courts, and courts 
 of equity. On the European continent, wheresoever the 
 civil law has been adopted, criminal and civil proceedings 
 have been conducted upon the like principles: the defen- 
 dant in civil cases might be examined upon oath by inter- 
 rogatories, to which if he gave not satisfactory answers he 
 might be committed until he did: this principle being ex- 
 
 " Const. Virg-. art. 14. 
 
 \ Since every word in that instrument, the constitution of the com- 
 monwealth, should be construed to have its effect; a rule applied to 
 all written instruments whatsoever, and more peculiarly applicable, I 
 should presume, to that which expresses the collective, and sovereign 
 
 '■V and intention of the pcopl«.
 
 General Court of Virginia. 89 
 
 tended to criminal cases, was denominated by the mo- 
 derate term of putting the person accused to the question: 
 but inasmuch as the forcing a criminal to accuse himself 
 on oath, might prove a snare to his conscience, the obliga- 
 tion to answer to the question was inforced by torture. To 
 separate for ever, courts, whose principles and proceed- 
 ings are so diametically opposite as those of the com- 
 mon and civil law, was, I should presume, one of the fun- 
 damental principles which the framers of our constitution 
 had an eye to. They, therefore, distributed the powers 
 of the then existing general court into three distinct 
 branches, viz. the court of appeals, the court of chancery, 
 and the court of general jurisdiction, at common law. The 
 repetition of the term, judges, shows that it was in con- 
 contemplation that both the tribunals, and the judges 
 should be distinct and separate. This is farther confirmed 
 by art. 16 and 17:* the former of which provides that 
 impeachments in general shall be prosecuted in this court, 
 the latter that impeachments against the judges of this 
 court, shall be prosecuted in the court of appeals. Nothing, 
 then, can be clearer than that the constitution intended they 
 should be distinct judges of distinct courts. And hence 
 I am satisfied, that the former court of appeals was un- 
 constitutionally organized. This reasoning, I apprehend, 
 
 Const. Virg. arts. 16 and IT 
 
 M
 
 90 Cases decided in the 
 
 will apply no less forcibly to the separation of the general 
 court from the court of chancery. A judge of the general 
 court, if impeached, can be prosecuted in the court of 
 appeals only; a judge in chancery only in the general 
 court: if these offices be united in the same person, it must 
 be by separate commissions; a judgment on impeachment 
 in the general court cannot vacate the commission of a 
 judge of that court, because the constitution has assigned 
 another tribunal, where a judge of that court shall be 
 tried; a judgment in the court of appeals cannot vacate 
 the commission of a judge in chancery, because he must 
 be tried, an such, in the general court. Hence it seems to 
 me we are driven to conclude that the constitution meant 
 that the two offices shall be separate and distinct. This 
 construction removes every difficulty, the contrary, I ap- 
 prehend, creates a multitude, and those insurmountable.* 
 In pursuance of this direction, contained in the constitu- 
 tion, the legislature, when it set about organizing the 
 
 * A curious question might here be propounded. Suppose a judge 
 of the general court, holding also a commission as a judge in chanee- 
 iv, and sitting as a judge of a district court, where his functions were 
 united, should receive a bribe from one of the parties to a suit depend- 
 ing there before him: that on the trial at law he shall endeavor to in- 
 fluence the jury, and shall after grant an injunction to the party from 
 whom he received the bribe: must there be two impeachments and 
 two trials, in different courts, in this case; or could one trial, and one 
 judgment, vacate both commissions'
 
 General Court of Virginia. 91 
 
 courts, distributed them as above-mentioned. The crimi- 
 nal and common law court, was separated from the court 
 of equity; and both from the court of appeals, in form, 
 though not in reality, until the legislature, by the act of 
 1788, c. 68. corrected its former error. And thus distinct 
 have they remained, until the act of the last session, which 
 hath not indeed united the constitutional courts, but hath 
 blended them in effect, by assigning the functions of a 
 judge in chancery to the judges of this court; and if car- 
 ried into effect may lead to the total annihilation of all the 
 courts which the constitution had in contemplation to 
 establish. 
 
 I have said before (p. 86,) that the district courts con- 
 sidered as independent of the general court, md not a 
 modification of it, are mere legislative, and not constitu- 
 tional courts. If they are a modification only of the ge- 
 neral court, it flows from what I have already said, that 
 the constitution prohibits the exercise of chancery juris- 
 diction therein. If they be mere legislative courts, it can- 
 not be the duty of any judge of a constitutional court, 
 merely as such, to exercise the functions of a judge of 
 these courts: and it is, I conceive, expressly contrary to 
 the duty of a constitutional judge of one court, to exer- 
 cise the functions of a constitutional judge of another dis- 
 tinct constitutional court.
 
 92 Cases decided in the 
 
 It appears then immaterial, whether, on the present 
 question, the district courts are to be considered as 
 branches of the general court, or not: yet it would be easy 
 to show, that as they are at present modified and organiz- 
 ed, they are nothing more than branches of that court; and 
 not distinct, independent, legislative courts; unless the 
 operation of the act in question should be construed to 
 affect and change their whole system and constitution. 
 
 But, if they are mere legislative courts, they may, at 
 any time, be organized at the will of the legislature: le- 
 gislative judges may be appointed, the tenor of whose 
 commission may import that their office shall be during 
 good behaviour, and yet that office be discontinued when- 
 ever the legislature may think fit. If the jurisdiction of the 
 court of chancery can be constitutionally transferred to 
 them, so may that of the general court, and of the court 
 of appeals. In fine these legislative courts may absorb all 
 the jurisdictions, powers and functions of the constitu- 
 tional courts. These last then must either be suppressed, 
 as useless, which the constitution forbids;* or the judges 
 of them will hold sinecures instead of offices, which is 
 expressly contrary to the bill of rights, art. 4, Add to 
 this that such an arrangement must ever render the judi- 
 
 Art. 14.
 
 General Court of Virginia. 95 
 
 clary the mere creature of the legislative department, 
 which both the constitution,* and the bill of rightst most 
 pointedly appear to have guarded against. 
 
 2. I shall now proceed to take a short view of the sub- 
 ject, as founded upon a solemn decision of the court of 
 appeals, on a similar occasion. 
 
 It will not, I presume, be denied that the decisions ot 
 the supreme court of appeals in this commonwealth, 
 upon any question, whether arising upon the general 
 principles of law, the operation or construction of any 
 statute or act of assembly, or of the constitution of this 
 commonwealth, are to be resorted to by all other courts, 
 as expounding, in their truest sense, the laws of the land; 
 and where any decision of that court applies to a case de- 
 pending before any other tribunal, that tribunal is bound 
 to regulate its decisions conformably to those of the court 
 ofappeals. This postulatum I conceive to be too obviously 
 founded upon the principles of our government to require 
 an attempt to demonstrate it. Proceeding upon this 
 ground, I shall take up the question upon the authority 
 of a previous decision of that court, on a similar ques- 
 tion. 
 
 Const. V. art. 3. t Bin of R'g 1 '^ al-t - &
 
 94 Cases decided in the 
 
 In the year 1787, the first act establishing district 
 courts was passed. This act " declared it to be the duty 
 " of the judges of the high court of appeals to attend the 
 " said courts, allotting among themselves the districts 
 u they should respectively attend; three judges to be 
 " allotted to each district, any two of whom should consti- 
 a tute a court." Ch. 39. sect. 3. 
 
 It should be remembered, that at that time the court 
 of appeals was composed of the judges of the high court 
 of chancery, judges of the general court, and judges ot 
 the court of admiralty. The office of the judge of the 
 court of appeals was, at that time, as it were, incidentally 
 annexed to their appointment to a seat on either of the 
 other tribunals. 
 
 A part of the duty assigned to the court of appeals by 
 that act was the appointment of clerks to the district 
 courts, which the act required should be a^ne at the 
 next succeeding session of the court of appeals. lb. 
 Sect. 2. 
 
 On the 12th of May following, the court made the fol- 
 lowing entry upon their records. " On consideration of 
 " a late act of assembly, entitled an act establishing dis- 
 trict courts, after several conferences, and upon ma- 
 " ture deliberation, the court do adjudge that clerks of
 
 General Court of Virginia. 95 
 
 M the said courts ought not now to be appointed, for rea- 
 sons contained in a remonstrance to the general assem- 
 bly:" — which remonstrance is likewise entered on re- 
 cord, and contains, among other things, the following 
 important passages. 
 
 "1. That in discussing the act establishing district 
 " courts, the court found it unavoidable to consider, whe- 
 " ther the principles of that act do not violate those of 
 w the constitution, or form of government, which the 
 "people, in 1776, when the former bands of their society 
 M were dissolved, established as the foundation of that 
 " government which they judged necessary for the prc- 
 " servation of their persons and property; and if such 
 " violation were apparent, whether they had power, and 
 " it was their duty to declare that the act must yield to 
 " the constitution? 
 
 " 2. That they found themselves obliged to decide, 
 " whatever temporary inconveniencies might arise, and 
 " in that decision to declare, that the constitution and the 
 " act were in opposition, and could not exist together, 
 "and that the former must control the latter. 
 
 " 3. That the propriety and necessity of the indepen- 
 " dence of the judges is evident in reason, and the nature 
 " of their office, since they are to decide between govern
 
 96 Cases decided in the 
 
 " ment and the people, as well as between contending 
 " citizens; and if they be dependent on either, corrupt 
 " influence may be apprehended. 
 
 " 4. That this applies more forcibly to exclude a de- 
 " pendence on the legislature, a branch of whom, in cases 
 " of impeachment, is itself a party. 
 
 " 5. To obviate a possible objection that the court, 
 " while they are maintaining the independence of the ju- 
 " diciary, are countenancing encroachments of that branch 
 " upon the departments of others, and assuming a right 
 " to control the legislature, it may be observed, that when 
 " they decide between an act of the people, and an act of 
 " the legislature, they are within the line of their duty, 
 '• declaring what the law is, and not making a new law, 
 
 " 6. That although the duties of their office were not 
 "ascertained at the time of establishing the constitution, 
 " yet in respect thereto, the constitution gives a principle, 
 " namely, that ' no future regulation should blend the 
 " duties of the judges of the general court, court of chan- 
 '* eery, and court of admiralty, which the constitution 
 " seems to require to be exercised by distinct persons.' 
 
 " 7. That the assigning to the judges of chancery and 
 "admiralty jurisdiction in common law cases, maybe 
 " considered as a new office."
 
 General Court of Virginia. 97 
 
 These declarations, according to my weak apprehen- 
 sions, comprehend the present question in the fullest ex- 
 tent. I should therefore he of opinion, upon the ground 
 of this authority, as well as upon the conviction of my 
 own mind, independent thereof, which, unless so fortified, 
 I might have mistrusted, that we ought to certify to the 
 district court of Dumfries "That in the opinion of this 
 "court, a judge of the general court cannot constitution- 
 "ally exercise the functions of a judge in chancery." But 
 the judges who have already delivered their opinions, 
 although some of them appear to dissent from me upon 
 this point, having unanimously concurred in another, viz. 
 That the functions of a judge in chancery can only be ex- 
 ercised by those who may be constituted judges in chan- 
 cery, in the manner prescribed by the constitution; I shall 
 concur in their unanimous judgment, without offering 
 any reasons on a subject which has been so fully and 
 satisfactorily discussed by them. 
 
 When the court unanimously agreed, and the certify 
 cate was in these words: 
 
 " Ordered, that it be certified to the said district court 
 " (Dumfries,) as the opinion of this court, " that the mo 
 " tion of the plaintiff, praying an injunction, to stay the 
 "proceedings on a judgment obtained against him in the 
 "said district court bv the defendant, ought to be over 
 
 N
 
 98 Cases decided in the 
 
 " ruled, because the powers and duties assigned to be 
 " performed by the eleventh section of the act of the last 
 " session of assembly, entitled ' an act reducing into one 
 " the several acts concerning the establishment, jurisdic- 
 " tion, and powers of the district courts,' can only be exe- 
 " cuted by those who may be constituted judges in chan- 
 " eery, in the manner prescribed by the constitution of 
 " this commonwealth." 
 
 Remonstrance of the Court of Appeals , to the 
 General Assembly. 
 
 At a court of appeals, held at the court house, in the 
 city of Richmond, on Tuesday, the twenty-ninth day of 
 April, one thousand seven hundred and eighty-eight, 
 and thence continued, by adjournments, until Monday, 
 the twelfth day of May, next following, then and there 
 present: 
 
 Edmund Pendleton, William Fleming, 
 
 George Wythe, Henry Tazwell, 
 
 John Blair, Richard Cary, 
 
 Paul Carrington, James Henry, and 
 
 Peter Lyons, John Tyler, Esquires, Judges.
 
 General Court of Virginia. 9<j 
 
 On consideration of a late act of assembly intituled 
 " an act establishing district courts," after several con- 
 ferences, and upon mature deliberation, the court do 
 adjudge that clerks of the said courts ought not now to 
 be appointed, for reasons contained in a remonstrance to 
 the general assembly, in the words following, to wit: 
 
 To the honourable the speakers and other members of 
 the senate and house of delegates of the commonwealth 
 of Virginia in general assembly. 
 
 The Respectful Remonstrance of the Court of Appeals. 
 
 The remonstrants finding themselves called upon by a 
 late act of the general assembly, intituled, " an act esta- 
 blishing district courts," to proceed at this session to the 
 appointment of clerks to the said courts, that whole act was 
 necessarily brought into their view; in considering whicli 
 they encountered many difficulties, of an ordinary nature: 
 such as whether their power of appointing now, though 
 directed by the 2d section, was not controlled by the 
 116th, declaring that the act should take effect, and be 
 in force, from and after the first day of July, in the year 
 1788, and not before; whether the district courts have 
 jurisdiction of any suits now depending in the general 
 court, of above thirty pounds value; whether any, and 
 what, provision was made for the trial of criminals who
 
 1 00 Cases decided in the 
 
 might remain in the public jail after the sessioti ol the 
 general court in June next, or who might be examined 
 and committed prior to the said first day of July; and 
 whether for want of precision in several other parts of 
 the law, it was, in the respective cases, to operate from 
 the time of passing, or from the first day of July. 
 
 (In other instances, particularly in the construction of 
 the late execution law, regularly brought before the court 
 this term, they have to lament the last difficulty, which 
 they found so great that nothing but the repose of the 
 community, and the necessity of having one uniform 
 system in that respect, could have induced the court to 
 decide upon it at last without further consideration.) 
 
 But in the progress of their discussion, they found it 
 unavoidable to consider more important questions, viz: 
 whether the principles of this act do not violate those of 
 the constitution or form of government, which the people 
 in 1776, when the former bands of their society were 
 dissolved, established as the foundation of that govern- 
 ment which they judged necessary for the preservation 
 of their persons and property; and if such violation were 
 apparent, whether they had power, and it was their duty, 
 to declare that act must yield to the constitution. 
 
 And here they have again to lament, that there should
 
 General Court of Virginia. 101 
 
 be occasion to decide those important questions in any 
 case, especially at a time when the minds of the citizens 
 are agitated upon other questions of great and national 
 concern, more so that the necessity should occur in a 
 case wherein their individual interests are involved, and 
 still more that a decision one way might suspend, though 
 for a short time, the beneficial effects of a law tending to 
 promote the speedy and easy administration of justice. 
 
 On this view of the subject, the following alternatives 
 presented themselves to the court; either to decide those 
 questions, or resign their offices. The latter would have 
 been their choice, if they could have considered the 
 questions as affecting their individual interests only; but 
 viewing them as relating to their office, and finding 
 themselves called by their country to sustain an impor- 
 tant post as one of the three pillars on which the great 
 fabric of government was erected, they judged that a 
 resignation would subject them to the reproach of de- 
 serting their station, and betraying the sacred interests 
 of society entrusted with them, and on that ground 
 found themselves obliged to decide, however their 
 delicacy might be wounded, or whatever temporary 
 mconveniencies might ensue, and in that decision to 
 declare that the constitution and the act are in opposi- 
 tion and cannot exist together, and that the former must
 
 102 Cases decided in the 
 
 control the operation of the latter. If this opinion declar- 
 ing the supremacy of the constitution needed any sup- 
 port, it may be found in the opinion of the legislature 
 themselves, who have in several instances considered the 
 constitution as prescribing limits to their powers as well 
 as to those of the other departments of government. 
 
 In forming their judgment upon both questions they 
 had recourse to that article in the declaration of rights, 
 that no free government, or the blessings of liberty, can 
 be preserved to any people but (among other things) by 
 frequent recurrence to fundamental principles; an article 
 worthy to be written in letters of gold. The propriety and 
 necessity of the independence of the judges is evident in 
 in reason, and the nature of their office, since they are to 
 decide between government and the people as well as be- 
 tween contending citizens, and if they be dependent on 
 either, corrupt influence may be apprehended, sacrificing 
 the innocent to popular prejudice, and subjecting the 
 poor to oppression and persecution by the rich; and this 
 applies more forcibly to exclude a dependence on the le- 
 gislature, a branch of whom, in cases of impeachment, is 
 itself a party. This principle supposed, the court are led 
 to consider, whether the people have secured, or depart- 
 ed from it, in their constitution or form of government. 
 In that solemn act they discover the people distributing 
 the governmental powers into three great branches, le-
 
 General Court of Virginia. 105 
 
 gislature, executive, and judiciary, in order to preserve 
 that equipoise which they judged necessary to secure 
 their liberty; declaring that those powers be kept sepa- 
 rate and distinct from each other, and that no person 
 shall exercise at the same time an office in more than one 
 of them. The independence of the two former could not 
 be admitted, because in them a long continuance in office 
 might be dangerous to liberty, and therefore they pro- 
 vided for a change, by frequent elections at stated periods; 
 but in the last, from the influence of the principle before 
 observed upon, they declared that the judges should hold 
 their offices during good behaviour. Their independence 
 would have been rendered complete, by fixing the quan- 
 tum of their salaries, which perhaps would have been 
 done, if the duties of office had been at that time ascer- 
 tained. But although it was not then done, yet in respect 
 to this, the constitution gives a principle, not to be de- 
 parted from, declaring that the salaries shall be adequate 
 and fixed, leaving it to the legislature to judge what 
 would be adequate when they should appoint the duties. 
 And when they had so done, they exercised their whole 
 power over the subject, and the salary was thenceforth 
 to be considered as fixed, while the duties should con- 
 tinue the same. And when public utility should require 
 an increase or diminution of duty, there should be a 
 analogous alteration of salary, with this restriction how- 
 ever, that such regulation should not blend the duti< is 4
 
 104 Cases decided in the 
 
 the judges of the general court, court of chancery, and 
 court of admiralty, which the constitution seems to re- 
 quire to be exercised by distinct persons; and the legis- 
 lature appear to have so considered it in the arrangement 
 of those courts. 
 
 The court of appeals, of whomsoever constituted, must 
 necessarily act upon the subjects referred to all the 
 others, and therefore the forming it so as to consist of all 
 the judges is no violation of the constitution; and that 
 mode, assimilated to adjournments of cases before all 
 the judges of England in the exchequer chamber, may 
 have been dictated by necessity. 
 
 The court then proceeded to consider what had 
 been done by the legislature in consequence of the con- 
 stitution. In the October session of 1777, they passed 
 two acts, organizing the general court and court of chan- 
 cery, giving to the former jurisdiction at common law, 
 in civil cases as well as criminal, and to the latter juris- 
 diction in all cases in equity. The duties of each were 
 distinctly pointed out, and a salary of five hundred 
 pounds to each judge was thought by the legislature to 
 be an adequate reward for those duties, and this previous 
 to the appointment of any judges. The election of the 
 judges followed, when four of those at present in office 
 were of the number elected; who, thinking as they still
 
 General Court of Virginia. 105 
 
 think the salary was adequate to the services, declined 
 other pursuits, and accepted their appointments, under 
 a confidence that the constitution would entitle them to 
 that salary, so long as they should perform the duty, in 
 an upright manner. 
 
 The nominal sum they conceived was to be paid them 
 in specie, or in something equivalent thereto, and they 
 have reason to believe the legislature so understood it, 
 from laws in force at that period, making it penal to de- 
 mand an allowance for the difference between specie and 
 paper money. 
 
 And though the other judges have been called into 
 duty by subsequent appointments, they may be supposed 
 to stand upon the same ground of original compact. The 
 court of admiralty, indeed, was not permanently consti- 
 tuted until the year one thousand seven hundred and 
 seventy-nine, and the judges then appointed; yet by 
 being made judges of the court of appeals, they have ever 
 since been put upon the same footing with their brethren 
 in point of salary. The various substitutions of paper mo- 
 ney and tobacco for specie, which was not to be had, the 
 judges considered as temporary expedients, which, 
 though operating greatly to the diminution of their sala- 
 ries, were not designed to affect their independence; and 
 therefore they acquiesced, content to share in the public 
 
 O
 
 1 06 Cases decided in the 
 
 calamities, in hopes of a recurrence to the constitutional 
 principle in better times. And they considered in the 
 same light the act of one thousand seven hundred and 
 eighty-one, stating the salary at three hundred pounds, 
 as dictated by necessity, and not proceeding from design, 
 and therefore, did not conceive it to be their official duty 
 to interpose. 
 
 But the act now under consideration, presenting a sys- 
 tem, which assigns to the judges of the chancery and ad- 
 miralty jurisdiction in common law cases, which so far 
 may be considered as a new office, the labour of which 
 would greatly exceed that of the former, without a cor- 
 respondent reward, and to the judges of the general court 
 duties, which though not changed as to their subjects are 
 yet more than doubled, without any increase of salary, 
 appeared so evident an attack upon the independency of 
 the judges that they thought it inconsistent with a con- 
 scientious discharge of their duty to pass it over. For 
 vain would be the precaution of the founders of our go- 
 vernment to secure liberty, if the legislature, though re- 
 strained from changing the tenure of judicial offices, are 
 at liberty to compel a resignation by reducing salaries to 
 a copper, or by making it a part of the official duty to be- 
 come hewers of wood and drawers of water, or if in case 
 of a contrary disposition, they can make salaries exorbi- 
 tant, or by lessening the duties render offices almost sine-
 
 General Court of Virginia. 107 
 
 cures; the independency of the judiciary is in either case 
 equally annihilated. The court, however, willing t< hope, 
 that in the present instance the legislature had no such 
 design, hut that inattention or some other circumstances 
 might occasion the deviation, and that upon a revision of 
 the subject, this law will be placed upon unexceptionable 
 ground, had only to consider what ought to be their con- 
 duct in the mean time. The result of which was that they 
 ought not to do any thing officially in execution of an act 
 which appeared to be contrary to the spirit of the consti- 
 tution, and therefore they declined to appoint the clerks 
 of the district courts under the said act. 
 
 To obviate a possible objection, that the court, while 
 they are maintaining the independency of (he judiciary, 
 are countenancing encroachments of that branch upon 
 the departments of others, and assuming a right to con- 
 trol the legislature, it may be observed that when they 
 decide between an act of the people and an act of the le- 
 gislature they are within the line of their duty, declaring 
 what the law is, and not making a new law. And ever 
 disposed to maintain harmony with the other members 
 of government, so necessary to promote the happiness of 
 society, the court most sincerely wish, that the present in- 
 fraction of the constitution may be remedied by the legis- 
 lature themselves, and thereby all further uneasiness on 
 the occasion be prevented. But should their wishes be dis
 
 108 Cases decided in the 
 
 appointed by the event, they see no other alternative for a 
 decision between the legislature and judiciary than an ap- 
 peal to the people, whose servants both are, and for whose 
 sakes both were created, and who may exercise their ori- 
 ginal and supreme power whensoever they think proper. 
 To that tribunal, therefore, the court, in that case, com- 
 mit themselves, conscious of perfect integrity in their 
 intentions, however they may have been mistaken in their 
 judgment. 
 
 It is ordered that the President of the court do deliver 
 the said remonstrance to his excellency the Governor, 
 with a request that he will be pleased to lay the same 
 before the General Assembly at their first session. 
 
 (Signed) EDMUND PENDLETON. 
 
 Subsequent to this Remonstrance, the whole of the 
 judges resigned, and afterwards re-qualified, under an 
 act for amending the act entitled, " An act constituting 
 the court of appeals," passed the 22d of December, 1788.
 
 General Court of Virginia. 109 
 
 The Commonwealth against Christian Kearns. 
 
 r THHE prisoner was indicted at the district court of 
 Winchester, in April, 1793. The indictment con- 
 sisted of' two counts. The first count charged that he 
 did feloniously forge, and counterfeit, and feloniously 
 did aid and assist in forging and counterfeiting, a 
 certain certificate, purporting to be a certificate issued 
 February 8, 1782, by Bowling Starke, and John Boush, 
 for the payment of money, (which said Bowling Starke 
 and John Boush, were then auditors of public accounts 
 authorized to issue such certificates) for and on behalf of 
 the said commonwealth, to a certain Thomas Scott, and 
 to entitle him to claim from the commonwealth 50/. spe- 
 cie in part for two years pay and subsistence on account 
 as a captain in the Virginia line on continental establish- 
 ment, payable 1st January, 1785, with six percent, inte- 
 rest, agreeably to an act of assembly, passed November 
 
 1781, and to be given under the hands of the said Bow- 
 ling Starke and John Boush, on the said 8th February, 
 
 1782, and to be subscribed by the said Bowling Starke 
 and John Boush, with their names: it then sets forth th< 
 certificate in hcec verba: with intention to defraud and im- 
 poverish the commonwealth, contra form: stat: &c.
 
 110 Cases decided in the 
 
 The second count is as follows: " And the jurors 
 u aforesaid, upon their oath aforesaid, do further pre- 
 " sent, that the said Christian Kearns afterwards, viz. 
 "on the said 13th November, 1792, with force and 
 u arms, at the said parish and county of Berkeley in the 
 " said district, and within the jurisdiction of this court, 
 " feloniously did transfer a certain other false, forged, 
 " and counterfeited certificate, purporting to be a certi- 
 " ficate issued on the 8th day of February, 1 782, by Bozv- 
 " ling" Starke and John Boush for the payment of money 
 " (they the said Bowling- Starke and John Boush, then, 
 " to wit, on the day and year last mentioned, being, and 
 " long before having been, auditors of public accounts 
 " for the said commonwealth, and authorized and direct- 
 " ed by the legislature of the said commonwealth, to set- 
 45 tie the claims of certain officers and soldiers, and to 
 " issue such a certificate or certificates, for and on behalf 
 " of the said commonwealth) to a certain Thomas Scott, 
 " and purporting that the said Thomas Scott is entitled 
 " to claim from the said commonwealth the sum of 50/. 
 " specie, in part for two years pay and subsistence on ac- 
 " count as a captain of infantry in the Virginia line and 
 " continental establishment, payable the 1st day of Janu- 
 " ary, in the year 1785, with an interest thereon, at the 
 " rate of six per cent, per annum, agreeable to an act of 
 " the general assembly, passed in the November session, 
 " in the year of our Lord 1781, and to be given under
 
 General Court of Virginia. Ill 
 
 " the hands of the said Bowling Starke and John Boush, 
 " on the said 8th February, 1782, and to be subscribed 
 " by the said Bowling Starke and John Boush, with the 
 " names of them the said Bowling Starke and John 
 " Boush, which said last mentioned false, forged, and 
 u counterfeited certificate for the payment of money was 
 " and is in the number, words, letters, and figures, fol- 
 " lowing, to wit: 
 
 5472. 
 " We the auditors of public accounts do hereby certify, 
 " that Thomas Scott, is entitled to the sum of fifty pounds 
 " specie, in part for two years pay and subsistence on 
 " account as a captain of infantry, payable the first day of 
 " January, 1785, with an interest thereon, at the rate of 
 " six per cent, per annum, agreeable to an act of assem- 
 " bly passed the November session, 1781. Given under 
 " our hands, this 8th day of February, 1782. 
 
 Si. int. B. STARK, 
 
 J. BOUSH. 
 " with intention to defraud the said commonwealth, he 
 " the said Christian Kearns, at the time he so transfer- 
 " red the said last mentioned false, forged, and counter- 
 " feited certificate, for the payment of money as aforesaid, 
 " well knowing the same to be false, forged and counter- 
 " feited, against the form of an act of assembly, Sec. 
 
 After the prisoner had pleaded, on the motion of the 
 attornev for the commonwealth, who informed the court
 
 112 Cases decided in the 
 
 that the witnesses summoned for the commonwealth were 
 not present, and could not be had at that term, the priso- 
 ner was remanded to jail, and the trial postponed till the 
 succeeding court. 
 
 At the April term, 1794, the trial was had, and the 
 jury found a verdict as follows: " We of the jury find the 
 " prisoner Christian Kearns, guilty of transferring the 
 " certificate specified in the indictment, knowing it to be 
 " forged; if the court shall be of opinion that parol proof 
 " of the appointment of Boiling Starke, and John Boush, 
 " to be auditors of the public accounts be sufficient, and 
 " that the variance between the name of Boiling Starke, 
 " heretofore one of the auditors of public accounts in this 
 " commonwealth, as proved by such parol testimony, and 
 " the name of Bowling Starke in the indictment mention- 
 " ed as a person authorized to grant certificates for the 
 " payment of money in behalf of the commonwealth, is 
 " not material; otherwise we find him not guilty thereof; 
 " and we find him not guilty of the felony charged in the 
 " first count." 
 
 The district court adjourned the question of law arising 
 from the points reserved by the verdict, a r id the general 
 court, on the 19th June, 1794, Judges Tucker, Henry, 
 and Nelson, being present, decided " that the law is for 
 " the defendant."
 
 General Court of Virginia. 1 IS 
 
 Abner Osborne against Benjamin Crawley, and 
 Alexander Jones. 
 
 HT^HE plaintiff having obtained a judgment, issued an 
 execution from the district court office of Peters- 
 burg, against the goods of Rice Newman, and Benjamin 
 Crawley, for 20,000 lbs. inspected tobacco, and the costs, 
 but to be discharged by payment of 10,000 lbs. like in- 
 spected tobacco, with legal interest thereon, from i20th 
 December, 1789, till payment and the costs. A forth- 
 coming bond was given by the parties, with Alexander 
 Jones as security. Notice having been given to the de- 
 fendants, a motion was made for judgment and award 
 of execution on the bond, and the district court ordered 
 " that the said motion be referred and adjourned to the 
 " general court for this novelty and difficulty, to wit, that 
 M the delivery bond, instead of reciting the quantity of 
 " tobacco appearing due by the writ of fieri facias, is 
 " taken for 585 pounds of tobacco, more than appears to 
 ** be due thereby, but this excess appears, by a calcula- 
 M tion made in court, of the sum due by the execution, 
 " and- not on the face of the delivery bond without such 
 <c calculation: and this court is in doubt whether judg- 
 " ment should be entered for the plaintiff on his releas- 
 
 P
 
 114 Cases decided in the 
 
 " ing the said 585 pounds of tobacco, which his counsel 
 " offered to do, or whether the motion should be alto- 
 " gether rejected, because the bond was not taken in 
 " pursuance of the act of assembly." 
 
 The general court, (on the 16th June, 1795,) consist- 
 ing of Judges Prentis, Parker and Nelson, certified their 
 opinion to be, " That upon the plaintiff's releasing to the 
 " defendants 585 pounds of tobacco, for which the forth- 
 " coming bond was taken, more than was due by the ex- 
 " ecution, by virtue of which it was taken, judgment on 
 " the said bond ought to be rendered for the plaintiff." 
 
 See Scot v. Hornsby, 1st Call. 41.; Bell v. Marr, ib. 
 p. 47, &c. 
 
 The Commonwealth against Stephen Stewart, and 
 Ephraim Potter. 
 
 ^TnHE prisoners were jointly indicted at the District 
 
 Court of Prince Edward, in September, 1795, for 
 
 feloniously stealing a horse of the price of 20/. of the
 
 General Court of Virginia. 1 1 5 
 
 goods and chattels of John Standfield; the time laid is 
 the 29th of September, 1793, and the place, Halifax 
 county, within the jurisdiction of the court, against the 
 form of the act, &c. 
 
 The prisoners pleaded, and were tried separately, and 
 each of them was found guilty by his jury. On being led 
 to the bar, and being severally asked why sentence of 
 death should not be pronounced against them, they seve- 
 rally prayed the benefit of clergy: whereupon, with the 
 consent of the prisoners, " the matters of law arising in 
 " this case are adjourned to the general court: and whe- 
 " ther, if it be the opinion of the general court, that the 
 " defendants aforesaid be entitled to their clergv, the 
 " court here shall proceed to sentence and execution 
 M thereof, or a new indictment for grand larceny be pre- 
 " ferred against them." 
 
 November 14th, 1795, the general court, consisting ol 
 Tucker, Parker, Tyler and Jones, decided " that the de- 
 " fendants are entitled to the benefit of clergy on the 
 " conviction in the proceedings mentioned; that the said 
 " district court ought to proceed to judgment thereon, 
 " and that no new indictment ought to be preferred 
 " against them."
 
 1 1 6 Cases decided in the 
 
 The Commonwealth against Robert Mitchell. 
 
 r "PHE prisoner was indicted at the Winchester District 
 Court, April 1796, for the murder of Frederick 
 Becktoll. The jury found a special verdict as follows: 
 
 " We the jury find, that on the evening of the 21st of 
 "January, 1796, the said Robert Mitchell the prisoner 
 " at the bar, came to his own house in the county of 
 " Berkeley, and within the jurisdiction of this court, in a 
 " state of intoxication; that he the said Robert Mitchell, 
 " then and there eat his supper, and then and there went 
 " to bed about six o'clock at night, and apparently went to 
 " sleep; that about a quarter of an hour after six o'clock, he 
 " then and there awoke, and desired his the said Robert 
 " Mitchell's wife to come to bed, which she not comply- 
 " ing with, a quarrel immediately ensued, and he, the 
 " said Robert Mitchell, then and there pulled his said 
 " wife by the hair of her head. That the deceased, the 
 " said Frederick Becktoll, then and there interposed to 
 " part them; that a scuffle ensued between the said Ro- 
 " bert Mitchell and the said Frederick Becktoll, the said 
 " Frederick JBecktoll then and there residing and board- 
 " ing with the said Robert Mitchell, whereupon the said 
 " Robert Mitchell then and there took down his gun, that
 
 General Court of Virginia. 117 
 
 " the said Frederick Becktoll then and there took the 
 " said gun away from the said Hubert Mitchell, and he 
 " the said Frederick Becktoll then and there put the said 
 " gun up again. That a second quarrel and scuffle again 
 " immediately then and there ensued between the said Ro- 
 " bert Mitchell and his said wife, that the said Frederick 
 " Becktoll again interposed to part them, and a second 
 " scuffle again then and there immediately ensued between 
 " the said Robert Mitchell and the said Frederick Beck- 
 "toll: that in the scuffle the said Robert Mitchell fell 
 " over a spinning wheel, which hurt his face so that it 
 " bled; that the said Frederick Becktoll, then and there 
 " immediately ran out of the house. That the moment 
 " the said Robert Mitchell recovered from his fall, he 
 " then and there ran and got his said gun again, the 
 " same being then, and before the said Robert Mitchell 
 " came home in the evening, ready loaded by the said 
 " Frederick Becktoll, to whom it had been lent some days 
 " before, but whether the said Robert Mitchell then and 
 " there knew the said gun to be loaded the jurors are 
 " wholly ignorant; and the said Robert Mitchell then and 
 " there instantly pursued the said Frederick Becktoll to 
 " the door of the house, and then and there standing at 
 " the door of the said house, he the said Robert Mitchell 
 " then and there instantly discharged the said gun to- 
 " wards the said Frederick Becktoll, the moon being then 
 " shining so that the said Frederick could be seen, ami
 
 118 Cases decided in the 
 
 " the ground covered with snow, he the said Frederick 
 " B-cktoll then and there being at the distance of be- 
 " tween twelve and fifteen yards from the said Robert 
 " Mitchell and going away from the house, and with a 
 M leaden bullet, as charged in the said indictment, from 
 " the said gun shot, did intentionally shoot and wound the 
 " said Frederick Becktoll then and there in the back, as 
 " in the said indictment is charged, of which wound the 
 " said Frederick Becktoll then and there instantly died. 
 " That soon after the said Frederick Becktoll fell, he the 
 " said Frederick Becktoll was carried into the house of the 
 " said Robert Mitchell. That the said Robert Mitchell 
 " directed his son to take the gun and lay it where the 
 " said Frederick Becktoll had fallen, in order that the 
 " people might be induced to believe that the said Frede- 
 " rick Becktoll had shot himself. That from the time the 
 " said Robert Mitchell first got out of his bed to beat his 
 " said wife as is aforesaid, to the time of the shooting the 
 " aforesaid Frederick Becktoll, was near one quarter of an 
 " hour; that during that whole period the said Robert 
 " Mitchell and his said wife, and the said Robert Mit- 
 " chell and the said Frederick Becktoll were quarrelling, 
 " or scuffling. We find that the said Frederick Becktoll 
 " was during the whole time, then and there unarmed, 
 " that there had not been any former quarrel or grudge 
 " between the said Robert Mitchell and the said Frede- 
 " rick Becktoll the deceased, so far as the jurors are in-
 
 General Court of Virginia. 119 
 
 " formed. And if upon the whole matter, the court shall 
 " be of opinion that the said Robert Mitchell is guilty of 
 " murder, then we the jury find the said Robert Mitchell 
 "guilty of murder; otherwise we the jury find the said 
 " Robert Mitchell guilty of manslaughter only." 
 
 The question arising on this special verdict was ad- 
 journed, and at a general court, November 16th, 1796, 
 present judges Prentis, Tucker, Tyler, Jones, White, and 
 Nelson, the following judgment was entered. " The 
 " question of law arising on the special verdict in the 
 " transcript of the record of the said case mentioned be- 
 " ing argued, it is the opinion of the court that the said 
 " Mitchell is not guilty of murder." 
 
 The Commonwealth against Edward M'Guire, 
 and James Tidball. 
 
 \ N indictment was found by the grand jury of the Dis- 
 trict Court of Winchester in October 1796, against 
 five persons, of whom the defendants were part. It charg- 
 ed James Heydon (being a dissolute and disorderly- per
 
 120 Cases decided in the 
 
 son, having no visible estate, profession, or calling, to the 
 jurors known, to support him, but supporting himself, so 
 far as was known to the jurors, by gaming only), with 
 being on the 30th July, 1796, at Winchester the keeper 
 and exhibiter of an unlawful gaming table called faro- 
 bank, and so being the keeper, with having exhibited the 
 same in the tavern of James Edmondson in Winchester, 
 to entice persons unlawfully to game and play at the said 
 unlawful game; it charged Edward IVTG lire the defend- 
 ant, Samuel Vowel, and J. Tidball the defendant, with 
 having played at the said unlawful game, and with hav- 
 ing won and lost divers sums of money; and it charged 
 that James Edmondson was then and there the master 
 and keeper of the said tavern, and was privy and con- 
 senting to the said unlawful gaming, and did not endea- 
 vor to prevent the same. 
 
 A venire facias issued against each of the persons 
 charged, and was executed on the two defendants, re- 
 turnable to the next district court. No appearance having 
 been entered for them, a capias was awarded against 
 them returnable October court, 1797. At that court they 
 appeared by attorney, pleaded separately not guilty, and 
 were each of them found guilty by the jury. During the 
 same term, they prayed that the judgment on the verdicts 
 might be arrested for the following reasons. " 1st. Be- 
 " cause the court aforesaid hath no jurisdiction of the of-
 
 General Court of Virginia. 121 
 
 " fence stated in the said indictment. 2d. Because if it 
 " has jurisdiction there is error in the issue and verdict, 
 " aforesaid, inasmuch as the court under the act of assem- 
 " bly are to try such offence in a summary way, without 
 " pleadings, or the intervention of a jury. 3d. Because 
 " the said indictment charges three different offences 
 " against three different persons which cannot legally be 
 "joined in one indictment, viz. One for exhibiting a faro 
 " bank by the defendant Heydon; one for playing at such 
 " bank by the defendants M'Guire and Tidball; and one 
 " against Edmondson, for suffering such conduct in his 
 " house." 
 
 The question of law arising on these reasons was ad- 
 journed, and the general court, June 16th, 1798, consist- 
 ing of Judges Parker, Jones, Tyler, Nelson, and White, 
 decided, " that the indictment against the defendants is 
 " good, and sufficient in law, and that the plea of the said 
 " defendants in arrest of judgment on the jury's verdict 
 " ought to be overruled." 
 
 Q
 
 122 Cases decided in the 
 
 The Commonwealth against David Hays. 
 
 r "T 1 HE prisoner was indicted at the Dumfries District 
 Court, in October, 1798, for larceny of a slave. 
 There were two counts; the first charged him with 
 having feloniously stolen, taken and carried away, a 
 negro slave named Tom, of the value of 100/. of the 
 property, and of the goods and chattels of John Hunter; 
 "from the possession of the said John Hunter" The 
 second count was precisely the same with the first, ex- 
 cept that it did not charge the slave to be taken from the 
 possession of any person: the words in inverted com- 
 mas being omitted. Neither count charged the offence 
 to have been " contra formam statuti." 
 
 The jury found a verdict as follows; " we, of the jury 
 " find the prisoner guilty of feloniously stealing, taking, 
 "and carrying away negro Tom, as charged in the first 
 "count, while the said slave was a runaway; if the law 
 "is against him, we find him guilty: if the law is not 
 "against him, we find him not guilty: we further find 
 "him guilty of the charge in the second count." 
 
 The prisoner moved to arrest the judgment, because.
 
 General Court of Virginia. 1 23 
 
 " the indictment against him, and the verdict thereupon, 
 " are insufficient in law." 
 
 The question was adjoorned, and the general court, 
 November 17th, 1798, consisting of Judges Prentis, 
 Tucker, Tyler, Nelson and Carrington, decided, "that 
 " the law is for the defendant, and that he ought to be 
 " acquitted of the offence charged in the first count, in 
 " the said indictment, the slave stolen being then a 
 " runaway, and not in the actual possession of the said 
 "John Hunter; and of the second, because the offence 
 " charged, is not an offence at common law." 
 
 Goodtitle, Lessee of George Reed and uxor, 
 against George See. 
 
 'T^HIS was an action of ejectment, instituted in the 
 County Court of Hardy, in September, 1796. In 
 the succeeding November, on the motion of the defen- 
 dant, the court ordered that the plaintiffs should give 
 security for costs, within sixty days thereafter, in default 
 whereof the suit should be dismissed: "it appearing to 
 " the court, that the said plaintiffs are not inhabitants of
 
 124 Cases decided in the 
 
 "this state — notice hereof being now given to the plain- 
 " tiffs' attorney." (See Vol. I. Rev. Code, p. Ill, sect. 
 23, which authorizes this proceeding.) The suit was 
 continued at March, August and November courts, 
 1797. At March court, 1798, on the motion of the de- 
 fendant, the suit was dismissed, the plaintiff having 
 failed to give security for costs within sixty days agreea- 
 bly to the order of court made November, 1796. The 
 plaintiff at the same time offered sufficient security for 
 costs, which the court then refused to receive, the sixty 
 days having passed. The plaintiff excepted to the opi- 
 nion of the court and appealed. The district court of 
 Hardy, stating that the decisions of the district courts 
 have been variant on this point, adjourned the cause to 
 the general court for difficulty. 
 
 June 14th, 1799. The general court, consisting of 
 Judges Tucker, Tyler, Henry, Jones and Nelson, gave 
 the following decision. " The court is of opinion, that as 
 " the plaintiff in this cause was ready to give security 
 " for the costs before the cause was dismissed, the county 
 " court ought to have permitted him to do so, and not 
 "to have dismissed his suit, and that the said suit ought 
 "to be reinstated in the said district court; and it is 
 "further the opinion of this court, that in all such cases, 
 " where there is no general agent or attorney in fact for 
 "the plaintiff known to the defendant, notice to the 
 " attorney prosecuting the suit is sufficient."
 
 General Court of Virginia. 125 
 
 The Commonwealth against Henry Bedinger. 
 
 f T , HERE were four cases against the defendant, for 
 misdemesnors, in which D. Hunter was prose- 
 cutor. On motion of the defendant, and on notice given 
 to the- prosecutor, the venue in these cases were changed 
 for pood cause shewn, from Winchester district court to 
 Staunton. November general court, 1799. 
 
 Note. The same course was adopted in the year 1790, 
 in a case of the Commonwealth against Robert Taylor 
 for a trespass. The defendant having given notice to the 
 prosecutor, the cause was removed from Suffolk to 
 Williamsburgh; and during the same court on motion 
 of the prosecutor, from Williamsburgh to Richmond. 
 
 The Commonwealth against Highland Crowe. 
 
 TN an indictment against the defendant for an assault, 
 in the County Court of Loudon, a judgment was ren- 
 dered against him for 50/. from which judgment an ap
 
 126 Cases decided in the 
 
 peal was taken to the district court of Dumfries. That 
 court adjourned the case to the general court, and pro- 
 pounded the following questions: " 1st. Whether upon 
 "prosecutions by indictment at the suit of the common- 
 "wealth, a defendant, against whom a pecuniary fine to 
 " the amount of one hundred dollars or more is assessed, 
 " have the right of appeal or not: 2d, Whether, if an ap- 
 "peal be allowable as of right in such a case, such appeal 
 " operates as a supersedeas to the judgment of the infe- 
 " rior court, from the time of granting the same." 
 
 The general court, November 13th, 1800, consisting 
 of Judges Prentis, Tucker, Tyler, Nelson, White and 
 Carrington, declared their opinion to be, " that the right 
 "of appeal does not extend to criminal cases, or prose- 
 " cutions by indictments in behalf of the commonwealth." 
 
 * # * See the following case decided at the same court 
 fey the same judges.
 
 General Court of Virginia. 12' 
 
 The Commonwealth against Benjamin Vawter. 
 
 A N information was filed against the defendant in the 
 County Court of Caroline, for retailing spiritous 
 liquors without license, to be drunk at the place where 
 sold. The defendant was found guilty by the jury, and 
 he moved to arrest the judgment, on the ground that the 
 town or county of the prosecutor or informer, with his 
 title or profession, were not indorsed at the foot of the 
 presentment. Judgment was, nevertheless, rendered 
 against him for thirty dollars, the penalty inflicted by 
 law for the offence. To that judgment the defendant 
 obtained a supersedeas, and the district court of Frede- 
 ricksburg adjourned to the general court, the following 
 points: " 1st. Whether an appeal, writ of error, or super- 
 " sedeas is grantable in any case, wherein the common- 
 " wealth is plaintiff upon a penal statute: 2d. Whether if 
 " an appeal, writ of error, or supersedeas be grantable 
 *' in any such, the same is grantable where the judgment 
 14 exclusive of costs, is for a sum under thirty- three dol- 
 " lars and thirty-three cents." 
 
 November 13th, 1800. The general court decided, 
 "that no appeal, or writ of supersedeas is grantable, in
 
 128 Cases decided in the 
 
 "any case wherein the commonwealth is plaintiff upon 
 " a penal statute, which is considered in the nature of a 
 " criminal prosecution." 
 
 *% * See the case of the commonwealth at the suit of 
 Temple, decided June, 1810, by which it appears that 
 the common law writ of error is allowable. 
 
 Miller Woodson against John Randolph, Jr. 
 
 f T 1 HE plaintiff instituted an action of debt in the Dis- 
 trict Court of Prince Edward, in September, 1798, 
 against the defendant on a bond conditioned for the 
 payment of 30/. The bond bore date the 18th July, 
 1798, and was not on stamped paper. The defendant 
 objected to the bond going in evidence to the jury, on 
 the ground that it was not duly stamped, pursuant to the 
 act of congress in such case made and provided: by con- 
 sent a juror was withdrawn, and the point was adjourned 
 to the general court for novelty and difficulty. 
 
 November 14th, 1800. The general court decided,
 
 General Court of Virginia. 129 
 
 u that the bond in the said record mentioned, ought not 
 " to be permitted to go in evidence to the jury on the 
 " trial of the cause, because the said bond is not stamped 
 " agreeably to the act of congress intituled, u an act 
 u laying duties on stamped vellum, parchment, and 
 " paper." 
 
 Note. The question in this case was, whether the act 
 of congress was constitutional or not. Some persons had 
 supposed, that congress had no power to change the 
 rules of evidence in the state courts: the general court, 
 however, were of opinion that, as congress had power to 
 lay and collect taxes, duties, imposts and excises, and to 
 make all laws necessary and proper for carrying into 
 execution the specified powers, the aforesaid act was 
 within the limits of their chartered authority. 
 
 ■*'.:-< 
 
 The Commonwealth agai?ist John Blakeley. 
 
 A T the District Court of Staunton in September, 
 
 1 800, the defendant was indicted for unlawfully, and 
 
 feloniously maiming one George King, by biting off both 
 
 his thumbs. The court awarded a capias against the de- 
 
 R
 
 130 Cases decided in the 
 
 fendant returnable immediately, which having been exe- 
 cuted, he was brought into court the next day, and he 
 pleaded not guilty. The trial was postponed to the 
 seventh day of the court; a venire facias was awarded, 
 to cause a jury to appear, returnable the said day, and the 
 defendant was bailed till that time. On the day to which the 
 cause was continued, the defendant appeared, and was 
 allowed to withdraw his former plea, and to plead a new 
 plea. He thereupon pleaded, that by the laws and usages of 
 the commonwealth, he was entitled to an enquiry before 
 a court of examination, before he can be indicted and 
 arraigned before the district court. The question arising 
 on this plea was adjourned to the general court. 
 
 November 15th, 1800. The general court, consisting 
 of Tucker, Tyler, Nelson, White and Carrington, de- 
 cided, " that the new plea, pleaded by the defendant, 
 " ought to be overruled by the district court, and that 
 " the said court ought to proceed in the trial of the de- 
 " fendant upon the presentment and indictment in the 
 u record mentioned." 
 
 *%.* The act of assembly passed January 24th, 1804, 
 Sect. 5th, (2d vol. of Rev. Code, p. 38,) provides, " that 
 " before any person charged with treason or felony, shall 
 " be tried before a district court, he or she shall be ex
 
 General Court of Virginia. 131 
 
 M amined in the manner prescribed by law, by the court 
 ** of the county or corporation wherein the offence was 
 " committed." 
 
 William Maitland, surviving partner, &c. against 
 Thomas M'Dearman. 
 
 f I ^HIS was an action of assumpsit by the plaintiff 
 against the defendant, brought on a store account. 
 The declaration claimed 65/. 2s. 6d. and a verdict was 
 rendered for 10/. 12*. 2d. only. The defendant moved 
 in arrest of judgment, on the ground that the verdict 
 was no more than the sum last mentioned. The dis- 
 trict court of Prince Edward, (in which the suit was 
 brought and the verdict rendered,) deeming the ques- 
 tion arising on the point of law in the case to be 
 difficult, adjourned the same to the general court. The 
 accounts exhibited on the trial, were copied into the 
 record. The first was an account raised against the 
 defendant by James M'Clellan, which begun in Novem- 
 ber, 1791, and ended in September, 1794, making a 
 balance against the defendant, of 51/. 15a-. 4V.
 
 132 Cases decided in the 
 
 The second was an account raised against the defen- 
 dant, by M'Clellan and Maitland, under the firm of 
 James M'Clellan and Co., beginning in October, 1794, 
 and ending in June, 1796; the first item in this account 
 was the above mentioned balance, transferred from the 
 first account. The amount of this second account was 
 65/. 2s. 6d. The third was an account raised by the de- 
 fendant against James M'Clellan " for sundries not cre- 
 dited in M'Clellan's account against M'Dearman," 
 and consisted of three items in each of the years 1795, 
 6, and 7, amounting to 56/. 10*. 5d. 
 
 The general court, consisting of judges Tucker, Jones, 
 and Stuart, November 15, 1802, decided " that judg- 
 " ment upon the verdict rendered in the said cause ought 
 " to be arrested, because it doth not appear from the re- 
 " cord, that the plaintiff's demand was reduced below the 
 " sum of one hundred dollars, by any set-off against the 
 " same offered on the part of the defendant at the trial." 
 
 Vid. Neff v. Talbot.
 
 General Court of Virginia. 135 
 
 The Commonwealth against John Richards. 
 
 HHHE defendant was presented by the grand jury, at 
 the District Court of Fredericksburg, in April, 1 799, 
 as follows: " We do present John Richards, publican, for 
 " having suffered unlawful gaming to be carried on in his 
 " dwelling house, and an outhouse on a lot in his occupa- 
 " tion, having permitted a faro-bank to be opened, held 
 " and played at in the same, within the space of the last 
 " six months." Process was issued to cause the defen- 
 dant to appear, and at the court in September, 1800, the 
 attorney for the commonwealth filed an information 
 against him consisting of six counts. 
 
 The first count charged the defendant with know- 
 ingly, &c. and openly permitting Thomas Haydon and 
 others to the attorney unknown (all being of idle, disso- 
 lute, dissipated, disorderly, and immoral habits, and of 
 evil fame and conduct) openly to play at cards, with dice, 
 and at a faro-bank in the said John Richards's public 
 house, tavern and ordinary, then occupied, held and kept 
 by him, to the general corruption of morals, to the evil 
 example of the citizens in general, and of the youth in par- 
 ticular, contrary to the principles of the public order, po- 
 lice and economy, and against the peace and dignity, &c
 
 134 Cases decided in the 
 
 The 2d count charged the defendant with permitting 
 B. Badger, T. Haydon and others to openly and publicly 
 exhibit, hold and play at for money, and to entice and in- 
 duce the unwary and the idle to play, &c. another faro- 
 bank in an outhouse on a lot, occupied by and in the pos- 
 session of the defendant. (Conclusion as in first count.) 
 
 The 3d count was on the Act of 1792 (1 Rev. Co. p. 
 204, sec. 9.) and charged him with suffering T. H. and 
 others to play at cards, and with dice and at a faro-bank 
 in the tavern of the defendant, in the possession and keep- 
 ing of the defendant a tavern keeper, and that the defen- 
 dant was privy and consenting to the said gaming, and 
 that he did not endeavour to hinder them the said players 
 from so playing, against the form of the act of assem- 
 bly &c. wherefore he prayed judgment for the pain and 
 penalty in that case provided. The 4th count was on the 
 same act, and charged him with permitting B. B. and 
 others to exhibt, hold and play at faro-bank in an out- 
 house on a lot, messuage and tenement, being in the 
 possession and keeping of the defendant as tavern keeper; 
 and that the defendant was privy, present and consenting 
 to the said unlawful gaming, and that he did not endea- 
 vour to hinder them from playing, against the form of the 
 act of assembly, 8cc. 
 
 The 5th count was founded on the act of 1 797, ch. 2 
 sect. 3 (1 Rev. Co. p. 373) and charged that the defen-
 
 General Court of Virginia. 135 
 
 dant M did knowingly and wilfully suffer another un- 
 " lawful game, to wit, the game of faro-bank with cards at 
 " a faro-bank to be played at his the said J. R's house, ta- 
 " vern and ordinary, at the time and place last mentioned, 
 " being occupied by the said J. R. against the form &cc. 
 " wherefore the said attorney (who for the commonwealth 
 " by this information sues for the forfeiture of one hun- 
 " dred and fifty dollars, by the said act declared and in- 
 " flicted) prays that the same maybe adjudged to the 
 " said commonwealth." The Gth count was on the said act 
 of 1797, and was like the 5th count, except that it charged 
 the gaming at faro to be carried on in an out house in 
 a lot held and occupied by, and in the possession of the 
 said John Richards. The defendant having pleaded "not 
 guilty," a trial was held, and the jury found a verdict 
 in the following words: "We of the jury do find the 
 " defendant John Richards guilty, in manner and form 
 " as in the fifth count in this information is charged, and 
 " we do find that he is not further guilty." 
 
 The defendant moved the court to arrest the judg- 
 ment, for the following reasons. " 1st. That by the act of 
 " general assembly, upon which the jury in their said ver- 
 " diet, found the said John Richards guilty, the forfei- 
 ** ture of one hundred and fifty dollars is given to the 
 " person who will sue for the same, to be recovered in 
 " any court of record, and ^oth. not give the remedy
 
 136 Cases decided in the 
 
 " therefor to the commonwealth by information, or 
 " otherwise, it not being an offence at the common law; 
 •' and because the said information is vague, uncertain 
 " and wants form." 
 
 In October 1802, the district court adjourned to the 
 general court, for novelty and difficulty, this point aris- 
 ing in this cause. " Whether the forfeiture of one hun- 
 " dred and fifty dollars declared by the act of 1 797, ch. 2, 
 " sect. 3, can be recovered for the use of the common- 
 " wealth by information in this court?" 
 
 The general court, November 12, 1803, consisting of 
 judges Tucker, Tyler, White and Carrington, certified 
 their opinion to be " that the forfeiture of one hundred 
 " and fifty dollars declared by the act of 1797, chapter 2d, 
 " sect. 3d, cannot be recovered for the use of the com- 
 u monwealth by information." 
 
 Note. June term, 1810, present Nelson, White, Stuart, 
 Coalter and Evans, it was decided that county court law, 
 authorizing presentments in those courts, by grand juries 
 for all offences, although the penalties should be other- 
 wise recoverable, and the act, Rev. Code, vol. 1, p. 373, 
 sect. 7, giving the district courts power to execute all 
 laws, for the purpose of suppressing gaming, as fully as 
 the county courts are authorized to execute said laws,
 
 General Court of Virgin ia. 137 
 
 the superior courts have therefore the right to sustain a 
 prosecution for the penalties of one hundred and fifty 
 dollars, on behalf of the commonwealth although given 
 to the informer. 
 
 The Commonwealth against Moses M'Cue, and 
 others. 
 
 r T 1 HE defendants were indicted in the District Court of 
 Staunton, for an assault and battery, &c. on Charles 
 Rogers and his wife; Rogers was the prosecutor, and peti- 
 tioned the general court to change the venue to the Sweet 
 Springs, or elsewhere. The application was founded on 
 an affidavit, that the public mind had been prejudiced 
 against the prosecution by the industrious misrepresenta- 
 tions of the defendants and their adherents. The defen- 
 dants were likewise heard by affidavit, and other evidence, 
 tending to prove that the application for a change of venue 
 was intended to force the defendants into a compromise 
 that had been offered; and that the public mind about the 
 Sweet Springs had been prejudiced against the defend- 
 dants. 
 
 The court, consisting of judges Jones, Nelson and 
 White, June 14th, 1803, decided that the venue should 
 be changed to the district court of Charlottesville. 
 
 S
 
 138 Cases decided in the 
 
 The Commonwealth against Peyton Chapman. 
 
 HHHE defendant was indicted at the District Court of 
 Fredericksburg, in May, 1803, for attempting to 
 bribe a deputy sheriff, and by a corrupt offer of money to 
 induce him to summon such persons on the jury, (which 
 at a former court was to be summoned for the trial of 
 the said defendant, on a felonious charge) as he the de- 
 fendant should name and designate. The defendant was 
 convicted, and fined by his jury 450 dollars. He moved 
 to arrest the judgment, because the offence, charged in 
 the indictment, was not an offence at common law, and 
 because it was not charged, that he offered any specific 
 sum of money, or other thing to the said deputy sheriff. 
 The district court overruled the motion, and gave judg- 
 ment against him for the fine assessed by the jury, and 
 committed him to the custody of the sheriff, until he 
 should pay the fine and costs. At the next term of the 
 court, to wit, in October, 1803, the defendant prayed to 
 be admitted to the benefit of the act made nd provided 
 for the discharge of insolvent debtors. The f • strict court 
 in order finally to settle the point, adjourned to the ge- 
 neral court this question: "Whether one so committed, 
 " (as the defendant,) can discharge himself under the said 
 "act." The general court, November 14, 1803, consist-
 
 General Court of Virginia. 139 
 
 mg of Judges Tyler, Jones, White and Carrington, de- 
 cided '* that a person convicted for a misdemesnor, and 
 "committed to the custody of a gaoler, until he shall pay 
 M the fine adjudged against him, cannot discharge himself 
 " therefrom, under the act made and provided for the re- 
 " lief of insolvent debtors." 
 
 Note. By an act passed December 28, 1803, persons 
 imprisoned for fines, or amercements, may take the oath 
 of insolvency, and be thereupon discharged. See 2d Rev. 
 Code, p. 27, ch. 24. 
 
 ANONYMOUS. 
 
 rpHE District Court of Fredericksburg, at its fall 
 -*- term, in 1803, adjourned to the general court this 
 question, " whether an attorney for the commonwealth, 
 " in a district court, hath right and authority to discon- 
 tinue prosecutions, on penal statutes, for misdemesnors, 
 " and in criminal cases, without previously obtaining the 
 u leave of the court for that purpose." The general court 
 consisting of five judges, at the fall term of 1803, unani- 
 mously decided, " that the district court attorney has not 
 " a right to enter a noli prosequi, in any case without the 
 " consent of the court first had."
 
 140 Cases decided in the 
 
 Francis Neff against Presly Talbot. 
 
 r T" , HIS was an action of assumpsit. In consequence of 
 an affidavit on the writ, setting forth the cause of 
 action, and that the party would probably abscond, bail 
 was demanded in the sum of eighty dollars. The suit was 
 instituted in the District Court of Winchester. The de- 
 claration contained many counts, of which the first was 
 general indebitatus assumpsit, and the rest were special. 
 The sum claimed in the special counts was 23/. 10s. the 
 value of a horse sold by the plaintiff to the defendant, 
 and for which, the defendant had given to the plaintiff an 
 order, or piece of paper, the consideration whereof was 
 said to have failed. By the general count two hundred 
 dollars were claimed. The damages were laid at five 
 hundred dollars. The jury impannelled to try the cause, 
 not being able to agree, a juror was withdrawn, and the 
 rest discharged, and the parties mutually submitted all 
 matters in difference between them in this suit, to the 
 final determination of six persons named, or in case of 
 their disagreement to the award of an umpire, to be by 
 them chosen; whose award or the award of such umpire, 
 they agreed should be made the judgment of the court. 
 The arbitrators disagreed, and chose an umpire, by whom 
 an award was made in favour of the plaintiff for 23/. 10*.
 
 General Court of Virginia. 141 
 
 and the award, under the hands and seals of the arbitra- 
 tors and umpire was returned to court, whereupon, the 
 case was adjourned to the general court. 
 
 November 14, 1803. The general court, consisting of 
 Judges Tyler, Jones, White and Carrington, certified the 
 following opinion. " It seems to the court that the writ 
 "[which laid the damages at five hundred dollars] and 
 "declaration in this cause exhibit a sufficient claim on 
 "behalf of the plaintiff to give the said district court 
 "jurisdiction, and the parties having by mutual consent 
 " submitted the determination of the cause t© arbitrators, 
 " and agreed that their award should be made the judg- 
 " ment of the said district court, it is the opinion of this 
 " court that the said award ought to be governed by the 
 " same reason that would have governed a confession of 
 "judgment, had such confession been made in the said 
 " court by the defendant and accepted by the plaintiff, 
 ",and therefore that judgment ought to be entered by the 
 " said district court for the plaintiff." 
 
 Vid. Maitland vs. M'Dearman.
 
 142 Cases decided in the 
 
 The Commonwealth against Martin Walton. 
 
 /^VNE John Spencer was brought before an Examin- 
 ing Court for the County of Louisa, in November, 
 1800, charged with having feloniously broken open the 
 dwelling house of Alexander Harvey, and stolen from 
 thence a silver watch of the value of twenty-two dollars, 
 and other articles. On his examination, the court were 
 of opinion, that he ought to be tried for the offence at 
 the next District Court of Charlotteville, and that he 
 might give security for his appearance at the said dis- 
 trict court. Thereupon, the said John Spencer, together 
 with the defendant, came before the said examining 
 court, and entered into a recognizance, conditioned for 
 the appearance of the said John Spencer on the first day 
 of the ensuing district court, to be then and there tried 
 for the felony with which he stands charged. 
 
 At the next district court, Spencer did not appear, 
 whereupon his default was recorded, and a scire facias 
 was awarded against Spencer and the defendant, re- 
 turnable to the next court. It was not executed, where- 
 upon at the ensuing court another scire facias was award- 
 ed, and was executed on the defendant, but not on Spen- 
 cer,- he having absconded. The defendant first pleaded
 
 General Court of Virginia. 143 
 
 " no such record," but afterwards withdrew the plea, 
 and at the district court, held in April, 1803, on the mo- 
 tion of the defendant, it was ordered that the attorney 
 for the commonwealth should shew cause if any he could, 
 why the said scire facias should not be quashed, on the 
 ground that the court had no jurisdiction thereof, the 
 recognizance having been entered into- before the court 
 of Louisa county. The question arising upon this rule 
 was then adjourned to the general court. 
 
 November 15th, 1803, the general court, consisting of 
 Judges Tyler, Jones and Carrington, decided *' that the 
 M said district court hath not jurisdiction of the scire 
 " facias in the record mentioned, and that the said scire 
 " facias, and the proceedings thereon, ought to be quash- 
 " ed." 
 
 Note. By an act passed January 24th, 1804, copies of 
 recognizances of prisoners let to bail, in the county, or 
 corporation courts, are to be transmitted to the dis- 
 trict courts, and if the prisoner does not appear, his de- 
 fault is to be recorded, and a scire facias awarded against 
 him, on which the same proceedings are to be had, as it 
 the prisoner had been bailed by the district court. See 
 2d Rev. Co. p. 3T, sect. 2.
 
 144 Cases decided in the 
 
 ANONYMOUS. 
 
 A T the District Court of Fredericksburg in October, 
 1804, the following entry was made in the order book. 
 " The question whether the court hath original jurisdic- 
 " tion to receive and sustain an indictment for felony 
 " before the indictee hath been examined by a court of 
 "justice in the manner prescribed by law, and to proceed 
 " to trial on the same indictment after the said indictee 
 " be removed to the jail of this district, by an examining 
 " court convened subsequent to the finding of the said 
 " indictment, is for novelty and difficulty adjourned to 
 M the general court?" 
 
 To which question that court consisting of judges 
 Tyler, White and Carrington, Nov. 15, 1804, made the 
 following answer: " The court is of opinion that the dis- 
 "trict court hath not original jurisdiction to receive and 
 " sustain an indictment for felony, before the indictee 
 " hath been examined by a court of justices in the man- 
 " ner prescribed by law, and that after the said indictee 
 " hath been examined before a court of justices, and sent 
 " to the jail of a district court, a new indictment must be 
 ' filed against him before his trial in the said court."
 
 Qeneral Court of Virginia. 145 
 
 Turner R. Henley's Case. 
 
 \ T a General Court, November 18th, 1805, present 
 judges White, Stuart, and Creed Taylor, the follow- 
 ing adjourned case from the district court of Richmond, 
 was read to the court. " The attorney general this day 
 " moved the court to direct the clerk to issue an execu- 
 " tion on a judgment yesterday entered in favour of Ro- 
 " bert Leonard against Turner R. Henley, on the con- 
 " viction of the said Turner R. Henley for larceny, 
 " but the court being of opinion that this is a case of no- 
 " velty and difficulty, doth adjourn the same to the gene- 
 " ral court for its decision, what execution ought to be 
 " issued to enforce the judgment in such cases." 
 
 On consideration whereof, the court decided, " that 
 " judgment ought not to have been entered in the said 
 " case for the money in the indictment mentioned, and 
 " therefore execution ought not to issue on the judgment 
 " entered therein."
 
 146 Cases decided in the 
 
 The Commonwealth against George Wythe 
 Swinney. 
 
 r T~ 1 HE defendant was indicted at the District Court of 
 Richmond, in September 1806, foramisdemesnor in 
 fraudulently obtaining from the bank of Virginia a bank 
 note of one hundred dollars. The indictment consisted 
 of two counts. The first charged that he did apply at the 
 bank of Virginia, and did falsely pretend and affirm that 
 he was authorized and directed by George Wythe to 
 apply to the cashier of the said bank for the sum of one 
 hundred dollars, for the use of the said George Wythe, 
 the said G. W. having money to a greater amount depo- 
 sited there, and that the defendant a certain false and 
 counterfeit letter partly written and partly printed in the 
 name of the said G. W., as a true letter of the said G. 
 W. falsely and fraudulently did deliver to a certain W. 
 D. teller of the, said bank Sec, by which said false and 
 counterfeit letter it was mentioned, that the said G. W. 
 directed the cashier of the bank of Virginia to pay to 
 himself or bearer, one hundred dollars; and the said W. 
 D. then and there believing the said counterfeit letter to 
 be he true letter of the said G. W. and the signature to 
 the said letter, and the writing in the body of the letter, 
 to be the hand-writing of the said G. W., did then and
 
 General Court of Virginia. 1 i , 
 
 there pay and deliver to the said G. W. Swinm-y, one 
 hundred dollars in a note of the bank of Virginia, where- 
 as in fact and truth G. W. never did write or send, m 
 cause to be written or sent, the letter aforesaid to che said 
 cashier, &c. And so the jurors, &c. do say that the said 
 G. W. Swinney on the said 27th day of May, 1806, by 
 colour of the said counterfeit letter, and by the said false 
 pretences, unlawful, falsely, fruadulently and deceitlully 
 did obtain and get into his hands and possession, of and 
 from the said W. D. teller, &c. the said sum of one hun- 
 dred dollars, in the said note of the said bank, of the 
 goods and chattels and monies of the president, direc- 
 tors and company of the said bank of Virginia, &c. &c. 
 contra formam statute, et contra pacem et dignitatem, &c. 
 
 The second count was exactly like the first, except that 
 the writing by which the note of one hundred dollars 
 was charged to have been obtained was described as u a 
 " false, feigned and counterfeit token, &c. to the simili- 
 " tude and likeness of a true check or order of him the 
 " said G. W. &c." 
 
 The prisoner was found guilty by the jury, whereupon 
 he moved to arrest the judgment, for the following rea- 
 sons: " Because the offence is not within the statute un- 
 " der which the indictment is laid, inasmuch as, 
 
 " 1st. The statute which was passed on the 18th No
 
 148 Cases decided in the 
 
 " vember, 1T89, (See Rev. Co. Vol. 1st, p. 45.) was 
 " intended to punish a pre-existing evil, which is re- 
 " presented as having become common, and which is 
 " minutely described in the preamble to the statute, to 
 u wit, * the falsely and deceitfully contriving, devising, 
 " and imagining, privy tokens an 1 counterfeit letters, in 
 " other men's names, unto divers persons, their particu- 
 " lar friends and acquaintances,' whereas banks were not 
 " introduced into this commonwealth, until many years 
 "after the said 18th November, 1 89, and therefore 
 " could not have been within the contemplation, any 
 " more than they are within the language of the statute. 
 " In like manner the 33 Henry 8, ch. 1. (of which our 
 " statute is a copy) was enacted more than a century and 
 " a hail before the existence of a bank in England. 
 
 " 2d. The phraseology of the statute precludes the pos- 
 " sibility of its application to banks: the terms * divers 
 " persons, their particular friends and acquaintances,' 
 11 can relate only to private individuals, not to a body 
 " corporate, an ideal body. The bank of Virginia is no 
 " more a person, than the commonwealth of Virginia; 
 " much less is it the particular friend and acquaintance 
 " of any one. 
 
 " 3d. The statute requires that the person who shall 
 " be punished under it, shall have gotten into his posses-
 
 General Court of Virginia. 149 
 
 ** sion the money, or goods of another: whereas, the cle- 
 " fendant is charged with having gotten possession ot a 
 " note of the bank of Virginia, which is neither the mo- 
 " ney or goods of the said George Wythe, because hav- 
 " ing been delivered under a check not drawn by him, 
 " the bank halh no right to charge it to his account: nei- 
 " ther is it the money, or goods of the bank: but simply 
 " the promissory note of the bank for the future pay- 
 " ment of money, and as to all legal purposes, merely on 
 " a footing with the promissory note of an individual." 
 
 The question arising from these reasons in arrest, was 
 adjourned to the general court. 
 
 November 17th, 1806. The court, consisting of Judges 
 Tyler, White, Carrington, Stuart, Brooke and Holmes, 
 decided that "judgment on the verdict in the record 
 " mentioned ought to be arrested."
 
 150 Cases decided in the 
 
 Second case against Svvinney. 
 
 r THHERE was another indictment against the said de- 
 fendant, founded on the said act of assembly, for 
 fraudulently obtaining from the bank, on the 11th April, 
 1806, by means of a counterfeit letter or privy token, the 
 sum of fifty dollars. The indictment consisted of two 
 counts, and was exactly like the indictment in the first 
 case above mentioned, except that in this case the de- 
 fendant was charged with having obtained, by the means 
 before mentioned, " fifty dollars in money current in the 
 " said Commonwealth of Virginia." 
 
 The defendant was found guilty on this indictment 
 also, and the same reasons were assigned in arrest of 
 judgment as in the other case. The case was also 
 adjourned. 
 
 The general court, composed of the same judges as in 
 the last case, and on the same day, decided "that the 
 " errors aforesaid are not good and sufficient in law, and 
 " that judgment, on the verdict in the record in the said 
 " case mentioned, ought to be rendered by the district 
 " court."
 
 General Court of Virginia. 151 
 
 Note. The two cases taken together, shew that the 
 two first reasons were overruled by the court: the third 
 reason was deemed sufficient to arrest the judgment in 
 the first mentioned case, on the ground (it is presumed) 
 that the obtaining of a bank note, as charged in the in- 
 dictment, is not the obtaining of u money" in the sense 
 in which it is used in the act; on the contrary, it was 
 deemed insufficient to arrest the second judgment, be- 
 cause it did not apply, the defendant having been charged 
 in the indictment with obtaining " fifty dollars in money 
 " current, &c." which could not be intended to mean a 
 bank note of that amount. 
 
 The Commonwealth against Heartwell Leath, and 
 Peter Leath. 
 
 r | ^HE prisoners were indicted, convicted, and sen- 
 tenced each to two years imprisonment in the jail 
 and penitentiary, for the offence of malicious stabbing of 
 A. B. on the 19th of February, 1805, by the District 
 Court of Petersburg, at the April term, 1805. At the 
 same term, two other indictments were found against 
 the same prisoners, the one for the felonious and mali- 
 cious stabbing of Turner Fear, and the other for the
 
 152 Cases decided in the 
 
 felonious and malicious stabbing of John Williams, both 
 on the aforesaid 19th February, 1805. Another indict- 
 ment was also found against the prisoner Heartwell 
 Leath alone, for the malicious stabbing of Daniel Lyon 
 on the said day, and two other indictments were also 
 found against the prisoner Peter Leath alone, for the 
 same crime committed against two other persons on the 
 same day. The prisoners were convicted by the jury on 
 each of the indictments, and the term of their imprison- 
 ment ascertained in each case. When they were brought 
 to the bar to receive their sentence, they moved to arrest 
 the judgment for the following reasons. 1st. Because the 
 defendants Heartwell Leath and Peter Leath have 
 already been found guilty of stabbing, and have been 
 sentenced to undergo a confinement in the penitentiary 
 house, and because no law of the land allows a man con- 
 victed, to be sentenced to undergo punishment at a far 
 distant day, after he shall have undergone punishment in 
 the mean time, for an offence of the like, or of a different 
 kind. 2d. Because the act of assembly passed in the year 
 1803, forbids a prisoner to be tried in the district court 
 until he shall have been examined in a countv or corpo- 
 ration court, and in this instance the said Heartwell and 
 Peter Leath were examined in the court below for a 
 single offence only, as by the record of their trial and 
 examination will appear, which record is in the words 
 following: ** At a called court held for the town of Peters-
 
 General Court of Virginia. 15o 
 
 " burg at the court-house on the said Tuesday, the 26th 
 "February, 1805, for the examination of Peter Leath 
 "and Heartvvcll Leath on suspicion of felony, present 
 " Paul Nash, mayor (also the recorder and four alderman 
 " by name.) The said Peter Leath and Heartwell Leath 
 " being brought to the bar in custody of the serjeant of 
 " this town, to whose charge for the aforesaid cause they 
 " had been committed, and upon examination, divers 
 u witnesses being sworn and examined on the premises, 
 " and the prisoners not having any thing to say in their 
 " own defence, on consideration it is the unanimous opi- 
 " nion of the court that the said Peter Leath and Heart - 
 " well Leath should be tried for the said supposed offence 
 " at the next District Court to be held in Petersburg the 
 " 15th April next, and thereupon they are remanded to 
 "jail." Whereas they have been tried in the district 
 court for several offences-— the offence on which testi- 
 mony was given in the court below, having been parcel- 
 led out and divided into several and distinct offences. 
 3d. Because in the third indictment the venire sum- 
 moned were not called so as to enable the prisoners to 
 elect such of the said venire as they might think proper. 
 The attorney for the commonwealth replied to this 
 motion and alleged: 1st. That the prisoners had been 
 tried and convicted for separate and distinct felonies, 
 and that for each of the said felonies, each of them was 
 liable by the law of the land to distinct punishments 
 
 u
 
 154 Cases decided in the 
 
 2d. That the record of the hustings court, shewed that 
 the prisoners were duly examined for all and every one 
 of the felonies for which they have been tried here. 
 3d. That the jury who tried the prisoners were in fact 
 elected by them, after having largely exercised their 
 right of challenge. 
 
 The district court being in doubt whether judgments 
 shall be entered against the said prisoners for the several 
 felonies aforesaid for which they stand convicted, ad- 
 journed the question to the general court for their deci- 
 sion. — That court, consisting of judges White, Carring- 
 ton, Stuart, Brooke and Holmes, on the 18th November, 
 1806, gave the following opinion. " The court having 
 " maturely considered the transcript of the record in this 
 " case, is of opinion that the said Heartwell and Peter 
 " Leath may be adjudged to undergo a confinement in 
 " the jail and penitentiary house of this commonwealth, 
 " upon the five convictions last in the record in the said 
 " case mentioned, although they have already been ad- 
 " judged to undergo such imprisonment upon the first 
 " conviction therein mentioned, agreeably to the former 
 " opinion of this court pronounced at June term 1800, in 
 " the case of the Commonwealth against Taylor; and each 
 "imprisonment ought to commence from and after the 
 " expiration of the imprisonment or imprisonments 
 ''• which may have been adjudged against them before the
 
 General Court of Virginia. 155 
 
 " rendition of such judgments respectively. — It is also 
 " the opinion of the court here, that the said Heartwell 
 "and Peter Leath have been duly examined in the cor- 
 " poration court of Petersburg for the several offences 
 "charged in the several indictments in the record in this 
 " case mentioned. — And the court is further of opinion, 
 " that if the said Heartwell and Peter Leath shall make 
 " it appear to the said district court that they have by any 
 " illegal means whatever been deprived of their right to 
 " elect at their trial the persons or either of them return- 
 " ed by the sheriff on the venire facias to him directed, 
 " that the said court ought in such case to set aside the 
 " verdict rendered in consequence of such deprivation, 
 " and to award a new trial." 
 
 The Commonwealth against Josiah M'Clenegan. 
 
 HT^HE point adjourned in this case sufficiently appears 
 from the opinion of the court. 
 
 June 11th, 1808, present judges Tyler, Nelson, White, 
 Stuart, Brooke and Holmes. " The court are unanimous- 
 " ly of opinion that where an indictment or presentment
 
 156 Cases decided in the 
 
 " is found by a grand jury against any person for a mis- 
 " dcmesnor to which the law has affixed an infamous 
 " or corporal punishment, the court before whom such 
 " indictment or presentment is found, may, in its discre- 
 " tion, award a capias in the first instance; and that upon 
 " indictments and presentments of an inferior nature, 
 "such court ought, after two venire faciases have been 
 "■ returned not found, to award a capias." 
 
 The Commonwealth against John Alexander. 
 
 'THHE defendant was indicted at the District Court of 
 Haymarket, "for taking his seat as a justice of the 
 " peace in the county of Loudon, the 9th of August, 1803, 
 M on the bench of the said county court, and acting as a 
 "justice and member of the court then and there sitting, 
 " in giving his vote upon a judicial question and exami- 
 " nation at the time depending in the said court, and in 
 " signing the minutes of its proceedings as presiding 
 "justice thereof, while he the said John Alexander was 
 " in a state of intoxication, from the drinking of spirit- 
 " ous liquors, which rendered him incompetent to the 
 " discharge of his duty with decency, decorum, and dis-
 
 General Court of Virginia. 157 
 
 "cretion, and disqualified him from a fair and full exer- 
 "cise of his understanding in matters and things at the 
 " time and place last mentioned judicially before him, to 
 "the great disgrace of the administration of public jus- 
 " tioe, and to the evil example of persons in authority; 
 " whereby the said John Alexander was guilty of mis- 
 " behaviour in his office of justice of the peace in and 
 "for the said county of Loudon, against the peace and 
 " dignity of the commonwealth." 
 
 The jury found the defendant guilty, and assessed his 
 fine to fifty dollars. The attorney for the commonwealth 
 moved for a judgment for the fine, and also that the de- 
 fendant be removed from his office of justice of the 
 peace for the said county. The district court " doubting 
 " whether it had authority to remove the defendant from 
 " his office aforesaid, and also whether evidence could be 
 "exhibited to the court after the discharge of the jury 
 " before whom the issue was tried, to prove the general 
 " ill conduct, and maladministration of the defendant 
 " in his said office, thereby to shew him to be a proper 
 " object for removal," adjourned the case to the general 
 court. 
 
 June 13, 1808. The court, consisting of Judges Tyler, 
 Nelson, White, Stuart, Brooke and Holmes, unani- 
 mously decided, "that judgment of amotion from the
 
 158 Cases decided in the 
 
 "office of justice of the peace ought to be rendered 
 " against the said John Alexander, and that no further 
 k< testimony is admissible before the district court." 
 
 John Miller against James Marshall, and 
 I. S. Woodcock. 
 
 A T the District Court of Winchester, in October, 
 
 1807, John Miller filed a suggestion in writing In 
 
 these words: "Virginia, district of Winchester, to wit, be 
 
 " it remembered, that on the day of October, 1807, 
 
 " at a superior court continued and held for the district 
 " composed of the counties of Frederick, &c. before, &c. 
 " comes John Miller by his counsel, and gives the said 
 <l court to understand and be informed, that whereas all, 
 " and all manner of pleas and plaints, involving the title 
 " or bounds of lands, or the right or title to any freehold 
 " estates within the said commonwealth of Virginia, and 
 " within the district aforesaid, arising and happening, to 
 " certain courts of record within the said district, that is 
 " to say, to the courts of quarterly sessions of the coun- 
 " ties and corporations within the said district respec- 
 rf tively, and to the court held according to law for the
 
 General Court of Virginia. 159 
 
 " district aforesaid, do belong and appertain; and whereas 
 " by the declaration of rights made by the representa- 
 " tives of the good people of Virginia assembled in full 
 " and free convention, at the capitol in the city of Wil- 
 " liamsburgh, on the 6th May, 1776, it is declared and 
 " established, that in controversies respecting property, 
 " and suits between man and man, the ancient trial by 
 " jury is preferable to any other, and ought to be held 
 " sacred; and whereas also an action of debt, account, or 
 " assumpsit will not lie for the recovery of a fee rent, or 
 " any fee simple estate or interest in an incorporeal here- 
 " reditament. Nevertheless, a certain James M. Mar- 
 " shall, Esq. not ignorant of the premises, but contriving 
 " him the said John Miller, wrongfully to aggrieve and 
 " oppress, and from the rights and jurisdictions of the 
 " courts of the said commonwealth to derogate, and the 
 " cognizance of pleas, which to the said courts of record, 
 " and among others to the said district court, and not to 
 *• the justices of peace out of court belongs; to another 
 " examination before a justice of the peace out of court, 
 ** to draw before one John S. Woodcock, a justice of 
 * v peace for Frederick county, within, &c. against the 
 " due form of law, and contrary to the laws, customs, 
 41 and usages of the land, for a certain supposed right, 
 " by the said J. M. Marshall claimed, to a certain free- 
 " hold estate of inheritance in an incorporeal heredita- 
 u ment, that is to sav, a certain yearlv rent claimed to be
 
 160 Cases decided in the 
 
 " issuing out of the lands and tenements of the snid John 
 " Miller, and payable to the said J. M. Marshall, as as- 
 " signee of Denny Fairfax, formerly Denny Martin, who 
 " was assignee of Thomas the late Lord Fairfax, hath un- 
 " justly drawn the said John Miller in a plea to answer 
 " to a certain account before the said John S. Wood- 
 " cock, Esq. against him the said J. Miller by the said 
 " James M. Marshall exhibited and stated, he, the said 
 " James M. Marshall, before the said John S. Wood- 
 " cock, craftily and subtilly stating his demand and sub- 
 " stance as follows: ' John Miller to James M. Mar- 
 " shall, &c. &c. [Here an account is copied by which 
 " Miller is charged with nine years rent, from 1797 to 
 " 1805 inclusive, of a lot in Winchester, amounting to 3/.] 
 " which said rent is reserved by a deed under seal, con- 
 
 " veying the said lot, designated by the letter C, to 
 
 u signed by the said Lord Fairfax, and dated now 
 
 " in the custody of the said John Miller, to him the said 
 " Thomas Lord Fairfax, his heirs and assigns for ever, 
 " and which said rent the said James M. Marshall by 
 " divers good and sufficient conveyances in the law has 
 " now a right to demand and have, but the payment of 
 M which he the said John Miller refuses to make: where - 
 " fore he the said James M. Marshall prays judgment,&c.' 
 " [The suggestion then sets forth that a warrant was is- 
 " sued by Woodcock, summoning Miller to appear and 
 u answer the complaint; which was executed, and was
 
 General Court of Virginia. 161 
 
 " then depending and undetermined.] And the said John 
 " Miller says that the rent reserved to the said Lord 
 " Fairfax, and his heirs and assigns by the deed afore- 
 " said, under which the said James M. Marshall claims 
 " the rent aforesaid, was a freehold estate of inheritance 
 " in an incorporeal hereditament in the said Lord Fair- 
 " fax, and that the said J. M. M. claims the said rent as 
 " issuing out of the said lot, and payable to him and his 
 *' heirs and assigns for ever, and the said John Miller 
 " further saith, that the said demand, claimed and de- 
 " manded by the said James M. Marshall of him the said 
 " John Miller, by warrant before the said JohnS. Wood- 
 " cock, and the account stated and claimed by him as 
 " aforesaid, is the same with the aforesaid rent, and not 
 " other or diiferent therefrom, and the said James M. 
 " Marshall him the said J. Miller before the said John S. 
 " Woodcock as a justice of the peace as aforesaid, of and 
 " upon the premises to appear hath wrongfu 11) bliged, 
 " and the said J. Miller thereupon there to answer, and 
 " in the premises to cause to be condemned with all his 
 " power and endeavours, and daily contrives in contempt 
 " of the authority of the courts of record of the said com- 
 " monwealth, against the laws and customs of the com- 
 ** monwealth, and to the manifest prejudice, damage, and 
 " grievance of him the said John Miller, and this he is 
 " ready to verify, with this that the place [named in the 
 " warrant of the justice where Miller was to appear] is 
 
 X
 
 162 Cases decided in the 
 
 " in the county of Frederick aforesaid, &c. &c. and that 
 " the said Marshall and Woodcock are both of said 
 " county, &c. and the said lot of ground out of which the 
 M said rent is claimed to issue, and the said J. Miller, 
 u and all the persons and things concerned, &c. are 
 " within the county of Frederick, and within the juris- 
 " diction of this court, and subject to its rules and pro- 
 " cess; wherefore the said John Miller, the aid of this 
 " court most respectfully demanding, prays remedy by 
 " the commonwealth's writ of prohibition to the said 
 " John S. Woodcock, justice of the peace as aforesaid, 
 " or other justices in form of law to be directed to pro- 
 " hibit him and them from holding the plea aforesaid, 
 M of and concerning the premises aforesaid, farther be- 
 " fore him or them, &c." The matters of fact contained 
 in this suggestion were sworn to. 
 
 The district court adjourned the cause to the general 
 court for novelty and difficulty, and that court, on the 
 13th June, 1808, present, Jt dges Tyler, Nelson, Stuart, 
 and Brooke, decided " that the District Court of Win- 
 " Chester ought to award the writ of prohibition in the 
 " said record mentioned."
 
 General Court of Virginia. 163 
 
 Emanuel Temple against the Commonwealth. 
 
 TN this case the District Court of Petersburg adjourn- 
 ed to the general court, the following questions. " 1st. 
 " Whether any judgment of any inferior court in favour 
 " of the commonwealth, on a prosecution for a misde- 
 " mesnor, can be reviewed and reversed by a district court 
 " either on an appeal or by a writ of supersedeas: and 
 ** 2dly, Whether according to the correct interpretation 
 " of the act of general assembly, intitled ' an act to re- 
 " duce into one the several acts concerning the establish- 
 44 ment, jurisdiction and powers of district courts,' the 
 " costs be a part of the value of a judgment so as to give 
 ** a district court jurisdiction, and power to reverse it." 
 
 June 25, 1810. The general court, consisting of Judges 
 Nelson, W T hite, Stuart and Coalter, decided, " That no 
 "judgment of an inferior court on a presentment for a 
 " misdemesnor can be reviewed and reversed by a supe- 
 " rior court either upon appeal, or supersedeas, the com- 
 '* mon law writ of error being the only way in which 
 " such judgment can be reviewed and reversed; which 
 " writ of error may issue without any regard to the costs 
 "or value of the judgment, and xvithout the assent of the 
 " attorney for the commonwealth."
 
 164 Cases decided in the 
 
 The Commonwealth against John Somerville. 
 
 r "pHE defendant was indicted at the District Court of 
 M:>rgan Town, in May, 1808. The indictment con- 
 sisted of three counts, of which the first and third only 
 were found true. The first count set forth that the defen- 
 dant bearing in his heart great and rancorous malice, and 
 ill will towards John G. Jackson, made an assault on the 
 said John G. Jackson, and him did beat, wound and ill 
 treat, "and that the said John Somerville with a certain 
 " hickory club which he the said John Somerville in his 
 u right hand then and there had and held did give and 
 M strike the said John G. Jackson a grievous blow on the 
 " right side of the head of him the said John G. Jackson, 
 " thereby maiming and disabling him the said John G. 
 " Jackson by fracturing the scull of him the said John 
 " G. Jackson, and other wrongs and enormities to the 
 " said John G. Jackson then and there did to the great 
 " damage, terror, and danger of him, &c. against the 
 " peace and dignity of the commonwealth." The second 
 count was a charge for a simple assault and battery. 
 
 The defendant, in September, 1808, filed a plea to the 
 jurisdiction of the court, which set forth as a cause why 
 the district court should not take further cognizance of
 
 General Court of Virginia. 165 
 
 ihe bill of indictment, that the assault and battery in the 
 last count charged is the same maiming and disabling by- 
 fracturing the scull as in the first count is contained and 
 charged, and that the offence, if committed, was done in 
 Harrison county, and that after the commitment of the 
 offence, an examining court for Harrison county was 
 held on the said defendant, on a charge of having feloni- 
 ously, by lying in wait, disabled the head and right arm 
 of Jackson with intent to disable and kill, and that the 
 examining court were of opinion that he was not guilty of 
 the several charges alleged against him, and acquitted 
 him of the same, and further ordered him to enter into a 
 recognizance to appear at the next quarterly term of 
 Harrison court, to answer such charges as might then be 
 brought against him, and also for his good behaviour; 
 that the defendant entered into the recognizance, and 
 also appeared at the next quarterly term for Harrison 
 county in discharge of his recognizance: profert of the 
 record of the examining court was then made, and the 
 defendant further averred that the fact for the examination 
 whereof the said examining court was held, and the 
 fact charged in the indictment, are one and the same and 
 not several; that the charge for the answering whereof 
 he was recognized, and the offence charged in the indict- 
 ment are one and the same and not several, and therefore 
 the said defendant for plea saith that the offence charged 
 in the indictment is cognizable in Harrison county court 
 and not elsewhere, and concludes with a verification.
 
 166 Cases decided in the 
 
 The record of the examining court is copied into the 
 record, by which it appears that he was examined as set 
 forth in the plea, and acquitted, and recognized to appear 
 at the next quarterly court for Harrison county. The re- 
 cord of his appearance at the next quarterly court for 
 Harrison county is also copied into the record; it merely 
 states that he appeared, and the prosecutor not appearing 
 he was discharged. 
 
 To this plea to the jurisdiction the attorney for the 
 commonwealth demurred, and there was joinder. 
 
 The district court sustained the demurrer, and there- 
 upon the defendant pleaded not guilty, and issue was 
 taken on it. 
 
 At the circuit court held for Harrison county in May 
 1809, the defendant appeared and filed a special plea to 
 the indictment. It was a plea of autrefoits convict, and 
 set forth that Jackson had presented a bill of appeal in 
 Harrison county court for the said mayhem (with which 
 the indictment charged him) against the said John So- 
 merville and others, and had recovered damages to the 
 amount of 388 dollars, against the said Snmerville, and 
 therefore that the said defendant was formerly conv'cted 
 of the said mayhem, and prays judgment and that he be 
 discharged. There was no replication to this plea, but at
 
 General Court of Virginia, 167 
 
 the October term, 1809, a case was agreed by the prose- 
 cutor and the defendant, by which it was stated " that an 
 action wa* prosecuted by the prosecutct J'>hn G. Jackson 
 against the defendant John Somerville for the same of- 
 fences charged in the indictment of which the following 
 is a record copy, and submit to the court if it be a bar 
 to the prosecution on the indictment." Then follows the 
 record of the action which consists of a declaration, plea, 
 issue, verdict and judgment. The declaration contained 
 two counts, tht- first whereof charged the defendants, that 
 they assaulted the plaintiff in the night time, secretly, 
 and by lying in wait, with force and arms, to wit, clubs, 
 guns, pistols, &c. and beat, wounded, and ill-treated him, 
 to wit, by giving him so many and grievous wounds, 
 blows, and bruises on the head, right arm, and body of 
 the plaintiff, that they broke and fractured his scull, and 
 bruised and disabled his right arm, by reason whereof he 
 was greatly injured and disabled and his life despaired 
 of, and his business neglected, and great expense was in- 
 curred in and about his recovery. The second count 
 charged a simple assault and battery. Upon this agreed 
 case being argued, the court overruled the plea of autre- 
 fois convicts. 
 
 At the same term another special plea was offered by 
 the defendant. It set forth that he had been examined for 
 the offence charged in the indictment, by a court of jus-
 
 168 Cases decided in the 
 
 tices for Harrison county, and that upon such examina- 
 tion he was acquitted. This plea of former acquittal, was 
 also overruled by the court. Whereupon the defendant 
 was tried on his plea of not guilty; the jury found him 
 guilty, and assessed his fine to twenty dollars. 
 
 The circuit court then adjourned the case to the ge- 
 neral court, for their consideration, on the following 
 points. 
 
 1st. Whether the first count of the indictment be good. 
 
 2d. Whether any plea of a former acquittal of the 
 offences contained in the first and third counts, or either 
 of them is supported by the record of the examining court 
 of Harrison; which record is certified. 
 
 3d. Whether, if such plea mentioned in the second 
 point could have been so supported, the reception thereof 
 was precluded by the plea in the record contained and 
 overruled by the district court at Morgan Town. 
 
 4th. Whether the agreed case and record therein refer- 
 red to and herewith certified, will support the plea filed 
 of a former conviction upon an alleged appeal in Harri- 
 son county court.
 
 General Court of Virginia. 1 69 
 
 The general court, November 13th, 1810, consisting 
 of Judges William Nelson, White, Carrington, Brooke, 
 Holmes, Coalter, Hugh Nelson, and Brockenbrough, 
 declared it to be their unanimous opinion, " 1st. That the 
 " first count in the indictment in the record referred to, 
 " is not a good count for mayhem, but that it is good as 
 " a count for an assault of an aggravated nature." 
 
 " 2d. That any plea of a former acquittal of the offences 
 " in the first and third counts, or either of them, is not 
 " supported by the record of the examining court of Har- 
 " rison county." 
 
 " 3d. That it is unnecessary to decide the third point 
 " adjourned, as any plea of a former acquittal is not 
 " supported by the record." 
 
 " 4th. And as to the fourth point, that the agreed case 
 " and record referred to, will not support the plea of a 
 " former conviction upon an alleged appeal in Harrison 
 " county court."
 
 170 Cases decided in the 
 
 The Mutual Assurance Society against AnnaByrd. 
 
 T)HILIP Barraud had under his hand and seal, bear- 
 ing date 18th April, 1796, declared for assurance of 
 a house situated in Williamsburg. He afterwards con- 
 veyed the property to the defendant by a deed which 
 was regularly recorded in April, 1801. Barraud did not 
 assign to her the policy of assurance. A half quota, 
 amounting to thirteen dollars and seventeen cents, be- 
 came due on this property the first day of June, 1805, 
 under the declaration of Barraud. The society moved 
 against the defendant for judgment for the said half 
 quota, and the Circuit Court of James' City adjourned 
 the case. 
 
 The general court, November 16, 1810, consisting of 
 Judges White, Coalter, Hugh Nelson and Brockenbrough, 
 certified their opinion to be, " that the defendant appear- 
 " ing by the evidence to be a purchaser from P. Barraud 
 " of property actually assured, a recovery by motion may 
 '" be had against her for the half quota due, under the 
 " declaration of the said Barraud, although it does not 
 " appear that the said Philip Barraud had assigned his 
 u policy to her, if the evidence be sufficient in other res- 
 " pects to support such motion."
 
 General Court of Virginia. 171 
 
 Note: The question in this case arose under the eighth 
 section of the act of 1794, which directs that the subscri- 
 ber of any insured property, shall apprise purchasers and 
 mortgagees of the insurance, and endorse the policy to 
 them. The section further declares, that in every case 
 of such change the purchaser or mortgagee shall be con- 
 sidered as a subscriber, in the room of the original, and 
 the property shall still remain liable for payment of the 
 quotas in the same manner, as if the right had remained 
 in the original owner. The sixth section had provided 
 that the subscribers should engage for themselves, their 
 heirs, and assigns, that the property insured should be 
 pledged for the payment of quotas. It was contended that 
 as the policy was not endorsed to the defendant, accord- 
 ing to the directions of the act, she was not to be consi- 
 dered as a subscriber; but the court thought that the first 
 part of the eighth section was a mere direction to the ori- 
 ginal subscriber, and that an omission on his part did not 
 affect the right of the society, to consider the transferee of 
 the property as a subscriber, and the property insured as 
 pledged for payment of the quotas.
 
 172 Cases decided in the 
 
 The Commonwealth against William Crump. 
 
 A 
 
 N information was filed against the defendant by 
 the attorney general, at the District Court of Hen- 
 rico, for a misdemesnor in carrying a challenge from 
 T. L. Smith to William Fenwick, to fight a duel. The 
 defendant being summoned, appeared by his attorney in 
 September, 1808, and pleaded not guu'ty. The cause was 
 further continued at April, 1809, and at the Circuit Court 
 of Henrico, in September, 1809, a trial was had, the jury 
 found him guilty, and assessed his fine to three hundred 
 dollars. A capias was thereupon awarded against the 
 defendant, returnable at the next term, ad audiendum 
 judicium. At the next term, in April, 1810, the capias 
 not being returned, an alias capias was awarded against 
 the defendant, returnable at the next term. At the term 
 of the said circuit court in September, 1810, the defen- 
 dant not being in court, his counsel moved the court to 
 set aside the verdict rendered on the information afore- 
 said, and to grant him a new trial thereon. The circuit 
 court adjourned the motion to the general court for their 
 opinion thereon, as well as on this point, whether a judg- 
 ment in this case can legally be rendered against the de- 
 fendant until he shall be in court to hear such judgment.
 
 General Court of Virginia. \ 75 
 
 In the general court, November 1810, Wirt for the 
 defendant, said that the first point to be considered was, 
 whether a new trial in a criminal case could be granted 
 at a subsequent term after the verdict, but before judg- 
 ment was rendered. In England the rule is, that all new 
 trials must be moved for within four days of the begin- 
 ning of the term of the court of king's bench; this relates 
 to causes tried in the vacation of that court. The rule 
 applies as well to criminal as to civil cases; but it is fre- 
 quently dispensed with. To prove this he referred to 
 Birt v . Barlow, Douglass, 170. He referred to 5th Term 
 Rep. 436, Rex v. Holt, to prove that although the defen- 
 dant in a criminal case cannot regularly move for a new 
 trial after the four days, yet if the court incidentally dis- 
 covers afterwards, that substantial justice has not been 
 done, the verdict will be set aside; and the defendant's 
 counsel will be allowed to offer any thing to shew that 
 justice has not been rendered to him. He also referred 
 to Doug. 797, Rex v. Gough, which shews that on the 
 report of the evidence if the court thinks the defendant 
 ought not to have been convicted, they will for ever post- 
 pone pronouncing judgment, or will grant a new trial. 
 As to the second point, whether judgment can be enter- 
 ed against the defendant in his absence, that depends 
 upon the nature of the judgment; if the judgment be for 
 a fine only, it may be rendered in his absence; but il it 
 be for imprisonment, the defendant must be personally
 
 174 Cases decided in the 
 
 present. {Hawk. P. C. book 2. ch. 48. sect. 17. Salkeld, 56. 
 400.) He contended that in case of misdemesnors, it was 
 discretionary with the court whether they would imprison 
 or not. To prove this position, he referred to 1 Siderfin, 
 186. Keble, 694. Hobart y 120. See Noy's Reports, 103, 
 for the offence of suppressing a will, a fine only was im- 
 posed, lb. p. 99, sundry cases of misdemesnor where fine 
 only was imposed. Cro. Jac. 497-8, a case of cheats, in 
 which the party was neither fined, nor imprisoned, but 
 pilloried. 
 
 The attorney general said that it would be an ex- 
 tremely inconvenient practice, to sustain motions for 
 new trials at the second, third, or fourth term after trial: 
 by such delay evidence would frequently be lost, and in- 
 justice done. The defendant could not complain if his 
 motion was not heard, since he could always appear at 
 the time of the trial, or at an early day afterwards, and 
 shew cause why the verdict should be set aside. 
 
 \ In this case, he said, the defendant did not properly 
 
 come before the court to ask for a new trial. Such an ap- 
 plication should never be made in a criminal case, unless 
 the party be personally present in court. 
 
 He referred to 4 Blackstone 150, and to Haxvk. P. C. 
 Book 1st, Ch. 63, Sect. 3. to shew that the offence with
 
 General Court of Virginia. 175 
 
 which the defendant was charged, was one of a high na- 
 ture, and was punishable by fine and imprisonment, and 
 that consequently, the party ought to be present to hear 
 judgment against him, the court being bound to imprison 
 him, if found guilty. 
 
 Wirt. In the case of Rex v. Gough, several years 
 elapsed between the conviction by the jury, and the day 
 when he was brought up to hear judgment, at which time 
 a new trial was granted. 
 
 November 21st, 1810. The court, consisting of Judges 
 William Nelson, White, Coalter, Hugh Nelson, and 
 Brockenbrough, gave their opinion, " that the superior 
 " court of law for Henrico may grant a new trial in this 
 u cause, although the said motion was not made until 
 "the second term after the said verdict was rendered: 
 " The court is further of opinion that as the courts of 
 " this commonwealth may, in cases like the present, in 
 " the exercise of a sound discretion, render judgment 
 " for the fine only, so if that should seem to the said su- 
 perior court to be the proper judgment in this case, 
 "such judgment may be rendered in the absence of the 
 "defendant. But that in no case whatever, except where 
 " some statute hath otherwise directed, can judgment ot 
 "imprisonment, or any other corporal punishment b< 
 " rendered, unless the defendant be present in court. 1 '
 
 1 76 Cases decided in the 
 
 The Commonwealth against John Morris, Jr. 
 
 \ N information was filed against the defendant in the 
 Superior Court of law, for Cabell county. It set 
 forth that the defendant, " being a person of an envious, 
 " and evil, and wicked mind, — and wickedly, malicious- 
 tl ly, and unlawfully, contriving and intending, as much 
 " as in him lay, to injure, oppress, and vilify the good 
 " name, fame, credit, and reputation of a certain Thomas 
 " Ward, a good citizen of this commonwealth, and 
 " sheriff of the county of Cubell, and to bring him into 
 " contempt, infamy and disgrace, and to represent him 
 " as a corrupt officer, &c. a certain scandalous and libel- 
 "lous writing, maliciously and scandalously did write 
 " and publish, and then, &c. did cause to be written and 
 " published, in the form of a petition addressed to the 
 " honourable the speaker and members of the general 
 "assembly of this commonwealth, in which said libel 
 " are contained, divers scandalous, scurrilous and mali- 
 " cious matters according to the tenor following, 'but the 
 " said Major Ward being desirous of having it (mean- 
 ing the seat of justice for Cabell county) on his own 
 " plantation where it was first held, has and now is cir- 
 " culating a petition in this county, addressed to your 
 *' honourable body for that purpose. Your petitioners
 
 General Court of Virginia. 177 
 
 " beg leave to state that the said Major Ward is actua- 
 M ted only by selfish and interested motives, and is by no 
 " means governed by a desire for the promotion of the 
 "convenience and welfare of a majority of the people of 
 "this county; that the place he proposes is on his own 
 "land; that it is not onlv rendered almost inaccessible 
 " by reason of the hills and mountains surrounding it, 
 " but is not near the centre of population or territory, so 
 "that it is among the most inconvenient places that could 
 " possibly be thought of, and that the said Major Ward 
 14 uses base and dishonourable means to forward his 
 " views, for that he, being high sheriff of this county, 
 " and of course has the collection of the public revenue 
 " and taxes, he persuades ignorant and illiterate men to 
 " sign his petition, frequently stating that for so doing, 
 "he will indulge them a time, and not be over strenuous 
 " in his collections; that the people of this county are 
 " generally poor, and as there is very little money in cir- 
 " culation among them, an indulgence of this kind is to 
 "them a great favour; that the said Major Ward does 
 " not present his petition at any public collection of the 
 " people, when the merits of it might be enquired into 
 " and discussed, but procures signers to it, as he rides 
 "through the county, in his office of sheriff, in secret and 
 " and hidden places,' to the great scandal and damage of 
 " the said Thomas Ward, to the evil example of all others 
 
 2*
 
 178 Cases decided in the 
 
 w in like cases offending, and against the peace and dig- 
 nity of the commonwealth." 
 
 The defendant pleaded not guilty, on which issue was 
 joined, and also tendered two other pleas. They were as 
 follow: " And for further plea, the said defendant says 
 " that it was lawful for him to write, and publish the 
 " paper writing charged in the information to have 
 "been written and published by him, because he saith 
 " that all the charges therein set forth against the said 
 " Thomas Ward are true, and all the acts therein charg- 
 " ed to have been done and committed by the said Tho- 
 " mas Ward, were in fact and in truth done and com. 
 " mitted by the said Thomas Ward, and this the said 
 " defendant is ready to verify, wherefore, &c." the other 
 plea was also a plea of justification, and differed only 
 from the first in this that it recited, " that the said 
 " Thomas Ward, at the time of the writing being written 
 "and published, and before that time, was a public 
 " officer, to wit, high sheriff of the county of Cabell," 
 and then set forth that the charges were true as in the 
 first special plea. 
 
 The attorney for the commonwealth objected to the 
 reception of these pleas, " because the matters therein al- 
 " leged can neither be pleaded, nor given in evidence on 
 " the general issue."
 
 General Court of Virgin ia. 179 
 
 Whereupon the court ordered " the question arising 
 " on the said objection to be adjourned to the general 
 "court, and requested the decision of that court on the 
 " following points, viz. 
 
 "1st. Whether the defendant to an indictment or in- 
 " formation for a libel can in all cases plead the truth of 
 "the libel in justification? 
 
 " 2d. If not, whether he can give the truth of such 
 " libel in evidence on the plea of not guilty. 
 
 " 3d. Whether in this particular case, the defendant 
 " can in either way, and which, give evidence of the truth 
 " of the matters stated in the writing alleged to be libel- 
 " lous." 
 
 At a general court, June 12th, 1811, present Judges 
 Nelson, White, Holmes, Brockenbrough, Johnson, Carr 
 and Smith, the following opinion was given. " It is the 
 " unanimous opinion of the court that by the common 
 " law, truth is no justification of a libel, and cannot as such 
 " be given in evidence on an indictment or information 
 " for the offence. In this commonwealth, the second article 
 " of the bill of rights having declared, ' that all power is 
 « vested in, and consequently derived from the people, 
 " that magistrates are their trustees and servants, and at
 
 180 Cases decided in the 
 
 " all times amenable to them,' it follows as a necessary 
 " consequence that the people have a right to be informed 
 "of the conduct and character of their public agents. In 
 "the case of an indictment or information for a libel 
 " against public officers, or candidates for public office, 
 "truth is a justification, and may be given in evidence as 
 " such under the general issue, and this forms an excep- 
 " tion to the gt neral rule established by the common law, 
 " but even in such case any libellous matter which does 
 "not tend to shew that the person libelled is unfit for the 
 "office cannot be justified because it is true. In case of 
 " individuals, who are neither officers, nor candidates for 
 " office, truth is no justification of a libel, [on an indict- 
 " ment, or information,] but in all such cases it may be 
 "given in evidence in mitigation of the fine. In the case 
 " now before the court, the truth may be given in evi- 
 "dence in justification, it being lawful for a petitioner to 
 " state to the legislature the facts set forth in the peti- 
 " tion charged in this case as a libel. In no case is it ne- 
 " cessary, or proper, that the defendant, against whom 
 " there is an indictment, or information for a libel, should 
 " plead the truth." 
 
 Note. Although in a criminal prosecution for a libel, 
 the truth forms no justification in P^ngland, in any case 
 whatever, yet in mitigation of the fine, it may be shewn 
 to the court, after the verdict rendered. See 4th Bacon by
 
 General Court of Virginia. 181 
 
 Gwyllim, p. 456. In Virginia the truth may be given in 
 evidence before the jury in mitigation of the fine, because 
 here it is rendered, by act of assembly, the duty of the 
 jury to assess the fine. 
 
 It has been often decided that false and scandalous 
 matter contained in a petition to parliament, and the de- 
 livery of such petition to the members, or in articles ex- 
 hibited to the justices of peace, or in an affidavit before a 
 court of justice, is not libellous. See 4th Coke 14. b.; also 
 Lake v. King, 1st Williams' Saunders, p. 131; Astley v. 
 Young, 2 Burrow, p. 810, and 4th Bacon, p. 454. 
 
 The Commonwealth against Jesse Calvert. 
 
 r_ p , HE defendant was indicted for perjury, in the Supe- 
 rior Court of law of Frederick county. He was charg- 
 ed with having wilfully, and corruptly, and falsely taken the 
 oath prescribed by the act of assembly intituled, " an act 
 " for further continuing and amending the act, intituled 
 " an act for reducing into one the several acts concerning 
 "executions, and for the relief of insolvent debtors," 
 commonly called the insolvent debtor's oath. Sec 1 Rev.
 
 182 Cases decided in the 
 
 Co. p. 303, sect. 38. The indictment concluded against 
 the form of the statute. 
 
 The defendant moved the court to quash the indict- 
 ment, alleging that the matters and things therein con- 
 tained and charged, are not punishable by the common 
 law, nor by any statute of the commonwealth, and the 
 court adjourned the said question to the general court, 
 for its opinion and advice. 
 
 The general court, June 12th, 1811, consisting of the 
 same members as in the case of Morris, declared it to 
 be their " unanimous opinion that the matters and things 
 " contained in the indictment, for taking a false oath as 
 " an insolvent debtor, are punishable, and that such false 
 " oath is perjury at common laiv." 
 
 Samuel Clapham, Executor of Josiah Clapham, 
 against Lewis and Stover. 
 
 HE defendants had obtained a judgment by motion 
 against the plaintiffin the county court of Loudon, in 
 September, 1809, for the sum of twenty three dollars, 
 
 T
 
 General Court of Virginia. 183 
 
 with interest thereon, to be computed at the rate of 15 
 per centum per annum, from the 20th day of November, 
 1795, until payment. The plaintiff obtained a supersedeas 
 to this judgment, and at the circuit court of Loudon in 
 March, 1811, the defendants contended that the superse- 
 deas was improvidently awarded, inasmuch as the prin- 
 cipal sum for which the county court gave judgment, 
 (being 23 dollars with 15 per cent, per annum interest,) 
 did not give jurisdiction to this court; but the court con- 
 sidering the question, whether the said interest ought 
 not to be added to the principal to give jurisdiction, one 
 of novelty and difficulty, the same was adjourned to the 
 general court for its advice thereon. 
 
 June 12th, 1811, the general court, composed of the 
 same members as in the last case, decided unanimously, 
 "that the supersedeas did not issue improvidently, and 
 "that the interest at the time of the judgment mentioned 
 " in the case adjourned being added to the principal, 
 " gives the circuit court jurisdiction." 
 
 Note. The question arose under the 55th section of 
 the district court law, 1st Rev. Co. p. 82, which autho- 
 rizes a supersedeas, where the va/ut- of the judgment is 
 thirty-three dollars, thirty-three cents.
 
 184 Cases decided in the 
 
 The Commonwealth against Dolly Chappie. 
 
 r "p 1 HE prisoner was indicted at the Circuit Court of 
 Henrico, in April, 1811, for the malicious stabbing 
 of a slave. She was found guilty by the jury, and she 
 moved to arrest the judgment on the ground u that the 
 " person charged in the indictment as stabbed is a slave, 
 " as appears by the said indictment." 
 
 The matter of law arising on this motion was, with the 
 consent of the prisoner, adjourned to the general court 
 for its opinion on this point, " whether an indictment for 
 " the malicious stabbing a slave, can be supported under 
 " the third section of the act passed the 28th January, 
 " 1803, intituled ' an act to amend the laws heretofore 
 " made, amending the penal laws of this commonwealth,' 
 " that being the act under which the said Dolly Chappie 
 " was indicted." 
 
 Note. The doubt in this case arose from the provision 
 that a part of the punishment to be inflicted on the per- 
 son stabbing is a fine, whereof three-fourths are to be for 
 the use of the party grieved. It was contended that as a 
 slave could not legally hold property, no part of the fine 
 could go to him, and therefore the legislature could not
 
 General Court of Virginia. 185 
 
 be supposed to include the offence of stabbing when per- 
 petrated against a slave. On the other hand it was argued 
 for the commonwealth, that there is nothing in the law 
 which shews clearly that an injury to a slave was not in- 
 tended to be made punishable: that there were no words 
 of exclusion, or exception, and that a slave in this coun- 
 try has been frequently decided to be legally and techni- 
 cally a person, on whom a wrong can be inflicted; that 
 the giving a portion of the fine to the party grieved was 
 intended to benefit him, and that his incapacity to take, 
 ought not to skreen the prisoner from punishment: that 
 femes covert could not take the fine, and it would be 
 monstrous to contend that the act did not include inju- 
 ries to them: and that there was no difficulty in render- 
 ing judgment against the accused for the whole fine as- 
 sessed by the jury, although the person grieved might 
 not be able to obtain his portion. 
 
 It was also argued, that as the 4th section of the law 
 provided that the person grieved shall be a competent 
 witness, if the act could be construed to extend to may- 
 hems committed on slaves, they might be introduced as 
 witnesses against free white persons. To this it was an- 
 swered, that the 4th section only intended to render 
 those persons competent who would have been rendered 
 incompetent in consequence of th^ir interest in the fine, 
 and was in fact enacted because a person maimed, and 
 
 2 A
 
 186 Cases decided in the 
 
 who was entitled to a part of the fine under the act of 
 1796, had been decided by the district courts to be an 
 incompetent witness: that this 4th section did not intend 
 to make a person, who was incompetent from any other 
 cause than his interest in the fine, (as a person convicted 
 of perjury, Sec.) a competent witness. 
 
 The general court, composed of the same members as 
 in the last case, June 13, 1811, decided unanimously 
 " that an indictment fnr the malicious stabbing of a slave 
 " can be supported under the third section of the act 
 " passed the 28th of January, 1803, intituled, ' an act to 
 " amend the laws heretofore made amending the penal 
 " laws of this commonwealth.' " 
 
 The Commonwealth against William Strother. 
 
 r I ''HE defendant was a member of a grand jury at the 
 Circuit Court of Madison, in September, 1810, and 
 was himself presented by the grand jury for unlawful 
 gaming. At the next term he appeared, and filed his plea 
 by which he prayed that the presentment might be 
 quashed, " because he says that he the said William
 
 General Court of Virginia. 187 
 
 "Strother, one of the grand jury who found the present- 
 " ment aforesaid, at the time of finding the same, held 
 " an office, or appointment under the authority of the 
 "United States, viz. an appointment to take the census 
 "for the. county of Madison, and this he is ready to 
 "verify, &c." The attorney for the commonwealth de- 
 murred to the plea, and set forth the following causes of 
 demurrer: 1st, That if William Strother was appointrd to 
 take the census, it does not thereby vitiate a present- 
 ment made by a grand jury, of which he was a member: 
 2d, It is not set forth that he was ever sworn into the 
 office, or that he ever acted in it: 3d, That the said plea 
 is one in abatement, and ought to be sworn to: and 
 4th, That it is double, uncertain, and wants form. The 
 circuit court adjourned the following questions to the 
 general court: 1st, Whether an appointment under a law 
 of congress, to take the census of the county of Madison, 
 disqualifies the person appointed, from serving on the 
 grand jury: 2d, If the person holding this appointment 
 shall be deemed disqualified, can he take advantage of 
 it, by plea to a presentment made by the grand jury, of 
 which he was a member, notwithstanding it was com- 
 posed of twenty one, exclusive of himself. 
 
 November 15, 1811. Present, Judges White, Carring- 
 ton, Stuart, Holmes, Brockenbrough, Smith, and Allen. 
 The court decided unanimously, " that an appointment
 
 188 Cases decided in the 
 
 " under a law of congress to take the census of the county 
 "of Madison, does not disqualify the person appointed 
 " from being a member of the grand jury." It was 
 deemed unnecessary to answer the second question. 
 
 The Commonwealth against Samuel Myers. 
 
 f I ^HE prisoner was indicted at the Circuit Court, held 
 for Norfolk county, in October, 1811, for the wilful 
 and malicious murder of Richard Bowden. 
 
 Being arraigned, the prisoner filed three pleas, which 
 are as follow. 
 
 " 1st Plea. And the said Samuel Myers in his proper 
 " person comes, and defends the force, felony, and mur- 
 " der, &c. and whatever else he ought to defend, and for 
 " plea saith, that he the said Samuel Myers ought not 
 " now to be charged with the murder aforesaid of the 
 " said Richard Bowden aforesaid mentioned in the in- 
 " dictment aforesaid, because he saith that the borough of 
 " Norfolk is a borough of the commonwealth of Virginia 
 " duly and legally incorporated, having a legal corpora-
 
 General Court of Virginia. 189 
 
 " tion court held by a mayor, recorder, and aldermen, who 
 "are justices of the peace of the said commonwealth for 
 "the said corporation; that any one of the said mayor, 
 " recorder and aldermen is duly authorized and required 
 " by law take cognizance of treasons, murders, felonies, 
 "or other crimes or offences whatsoever against the said 
 " commonwealth committed or done within the said cor- 
 " poration, and have authority to commit any person, 
 "not being a slave, who shall be charged before him 
 " with any such treason, murder, felony, or other crime 
 "or offence whatever against the said commonwealth 
 " committed or done within the said corporation, to the 
 "jail of the said corporation, if in his opinion such of- 
 " fence ought to be enquired into in the courts of this 
 " commonwealth; that upon such commitment the said 
 " mayor, recorder, or alderman is directed by law to 
 " issue his warrant to the Serjeant of the said corporation 
 "requiring him to summon at least eight if so many 
 " there be of the justices of the said corporation, to meet 
 " at their court-house on a certain day, not less than five 
 " nor more than ten days after the date of the said war- 
 " rant, to hold a court for the examination of the fact, 
 " which court consisting of five members at least are 
 " required by law to consider whether as the case mav 
 " appear to them, the prisoner should be discharged 
 "from further prosecution, or may be tried in the cor- 
 " poration or superior court. And the said Samuel
 
 J 90 Cases decided in the 
 
 " Myers further saith, that hr the said Samuel Mvers 
 " being a free white person, and not a slave, heretofore, 
 " to wit, on the twenty-fifth day of May, one thousand 
 "eight hundred and eleven, at the borough aforesaid, 
 " was charged by the name and description of Samuel 
 41 Myers before John E. Holt, esquire, one of the alder- 
 " men of the said borough, with having on the twenty- 
 " fifth day of May, in the year of our Lord eighteen 
 "hundred and eleven, between the hours of six o'clock 
 " and eight o'clock in the morning, in the store house of 
 " Richard Bowden in the said borough of Norfolk, felo- 
 " niously, wilfully, and of his own malice aforethought 
 "killed and murdered the said Richard Bowden, who 
 " was then and there in the peace of God, and of the 
 " commonwealth, and being so charged before the said 
 " John E. Holt as an alderman of the borough aforesaid, 
 " it was the opinion of the said John E. Holt as alder- 
 " man aforesaid, that the said offence with which the 
 " said Samuel Myers was then and there charged before 
 " him the said John E. Holt as alderman as aforesaid, 
 " ought to be enquired into in the court of the said corpo- 
 " ration (which said court is one of the courts of this com- 
 " monwealth,) whereupon he the said John E. Holt as 
 "alderman aforesaid, afterwards to wit, on the same day 
 " and year aforesaid at the borough aforesaid, and within 
 " the corporation aforesaid, took the recognizance of all 
 " material witnesses to appear before the court of the
 
 General Court of Virginia. 191 
 
 " said corporation, to give evidence against him the said 
 "Samuel Myers, and immediately by his warrant com- 
 " mitted him, the said Samuel Myers, to the jail of the 
 " said corporation, and moreover issued his warrant to 
 " the serjeant of Norfolk Borough requiring him to sum- 
 " mon the aldermen of the said borough, to meet at the 
 "court house, on Friday, the thirty-first day of May, 
 " one thousand eight hundred and eleven, and then and 
 "there, to hold a court for the examination of the fact, 
 " with which the said Samuel Myers stood charged as 
 " aforesaid. And the said Samuel Myers further saith, 
 "that at the coun so summoned, and held on the said 
 "thirty-first of May, one thousand eight hundred and 
 " eleven, and in the thirty-fifth vear of the commonwealth, 
 " for the examination of him, the said Samuel Myers, so 
 "charged with the murder aforesaid, of him the said 
 " Richard Bowden, which said court consisted of more 
 "than five members, ro wit, of William B. Lamb, mayor, 
 " John Nevison, recorder, and William Vaughn, Luke 
 "Wheeler, Miles King, John E. Holt, Richard E. Lee, 
 " and Miles King, Jun. aldermen, he the said Samuel 
 " Myers was set to the bar of the said court in custody 
 " of the jailor of the said corporation, and charged with 
 " the murder aforesaid, whereupon sundry witnesses 
 " were sworn, and examined in the premises, and the 
 " said Samuel Myers heard in his own defence by his 
 " counsel, on consideration whereof it was the opinion
 
 192 Cases decided in the 
 
 " of the said court that he the said Samuel Myers was 
 "not guilty of the murder aforesaid, with which he stood 
 " charged as aforesaid, and ought not to be remanded to 
 " the superior court for trial therefor, which he the said 
 " Samuel Myers is ready to verify, and prove by the 
 " record thereof. 
 
 " And the said Samuel Mvers further saith that the 
 " said Richard Bowden named in the indictment and 
 " the Richard Bowden named in the record are one, 
 "and the same, and not different persons; that he the 
 "said Samuel Myers named in the indictment, and the 
 " said Samuel Myers named in the said record, and ac- 
 " quitted as aforesaid by the said corporation court of 
 " the murder aforesaid, are one and the same person and 
 " not different persons, and that the murder charged upon 
 " him the said Samuel Meyers before the said corpora- 
 " tion court, and the murder charged upon him the said 
 " Samuel Myers in the indictment aforesaid, are one and 
 " the same, and not different acts, and this he is ready to 
 " verify; wherefore since he the said Samuel Myers 
 " hath already been heretofore acquitted of the murder 
 " of the said Richard Bowden aforesaid, he prays the 
 "judgment of the court here, if he the said Samuel 
 " Myers should be again charged with the same murder 
 "of which he hath once already at another time been ac- 
 quitted."
 
 General Court of Virginia. 193 
 
 :2c! Plea. [This plea is precisely like the first in all its 
 averments, until it comes to the opinion of the examin- 
 ing court, when it proceeds thus:] " In consideration 
 " whereof, it was the opinion of the said court, that he 
 " the said Samuel Meyers was not guilty of the murder 
 " aforesaid, with which he stood charged as aforesaid, 
 " and ought not to be removed to the superior court 
 " therefor, but ought to be tried for the offence of man- 
 u slaughter before the superior court of law directed to 
 u be holden in the town of Portsmouth, in the county of 
 " Norfolk, on the 22d day of October, then next follow- 
 M ing, which he the said Samuel Myers is ready to verify, 
 " and prove by the records thereof." 
 
 [This plea then concludes with the same averments as 
 to the identity of Bowden, Myers, and the act of murder 
 as are contained in the first plea.] 
 
 3d Plea. " And the said Samuel Myers for further 
 " plea (by leave of the court) saith that he ought not 
 " now to be charged with the murder and felony afore- 
 " said, charged upon him in the indictment aforesaid, 
 " because he saith that he the said Samuel Myers, by the 
 " name and description of Samuel Myers heretofore to 
 " wit, at a court of alderman of the borough of Norfolk, 
 " summoned according to law for the examination of the 
 " said Samuel Myers for the murder and felony aforesaid, 
 * and held on the 31st day of May, in the year of our 
 
 2B
 
 I 94 Cases decided hi the 
 
 "Lord 1811, at the court-house of the borough afore- 
 " said, before William B. Lamb, mayor, John Nevison, 
 " recorder, William Vaughan, Luke Wheeler, Miles 
 " King, John E. Holt, Richard E. Lee, and Miles King, 
 " Jun. aldermen of the said borough, was duly charged, 
 " examined and tried for having, on the 25th day of 
 " May, 1811, between the hours of six and eight o'clock 
 " of the morning of that day, in the store house of Richard 
 " Bnwden in the said borough of Norfolk, feloniously, 
 " wilfully, and of his malice aforethought, killed and 
 " murdered the said Richard Bowden, who was then 
 " and there in the peace of God, and of the common- 
 " wealth, and that he the said Samuel Myers, upon this 
 " trial and examination was duly and legally acquitted 
 u by the said court, of the said murder and felony with 
 " which he was then and there so charged, and was ad- 
 " judged by the said court not to be guilty thereof, and 
 " this he the said Samuel Myers is ready to verify and 
 " prove by the record of the said Borough Court of Nor- 
 " folk. And the said Samuel Myers further saith, that 
 " the said Richard Bowden named in the said indict- 
 " ment, and the said Richard Bowden named in the said 
 " record of acquittal, are one and the same, and not dif- 
 " ferent persons; that he the said Samuel Myers named 
 " in the said indictment, and the said Samuel Myers 
 " named in the said record and acquittal as aforesaid 
 " by the said corporation court of the felony and murder
 
 General Court of Virginia. 195 
 
 " aforesaid, are one and the same, and not different per- 
 " sons, and that the felony and murder charged upon 
 " him the said Samuel Myers before the said corpora- 
 " tion court, and the felony and murder charged upon 
 " him the said Samuel Myers in the indictment afore- 
 said, are one and the same, and not different felonies; 
 " and this he is ready to verify. Wherefore since he the 
 " said Samuel Myers hath already been heretofore ac- 
 " quitted of the felony and murder of the said Richard 
 " Bowden aforesaid, he prays the judgment of the court 
 " here, if he the said Samuel Myers should be again 
 u charged with the same felony and murder of which he 
 "hath once already, at another time, been acquitted." 
 
 To these pleas the attorney for the commonwealth de- 
 murred generally, and the prisoner joined in demurrer. 
 
 The court adjourned to the general court these ques- 
 tions for their consideration. " First, whether a court of 
 " examination hath power to acquit a prisoner charged 
 " before them with murder, of the murder with which 
 M he stands so charged, and to remand the said prisoner 
 " to be tried in the superior court for manslaughter on 
 u account of the same homicide. Secondly, whether a 
 " prisoner acquitted by the examining court of murder, 
 " and remanded to be tried before the superior court for 
 " manslaughter on account of the same homicide, but in-
 
 196 Cases decided in the 
 
 " dieted in the said superior court for murder on account 
 " of the same homicide, is entitled to be bailed by 
 " such superior court alter the discharge of the grand 
 "jury, who found no other indictment against him." 
 Not only these questions, but generally " any and all 
 " the other questions of law arising upon the said plead- 
 " ings" were adjourned by the circuit court to the general 
 court, u with the consent of the said Samuel Myers the 
 " prisoner." 
 
 This case was argued at the November term, 1811, of 
 the general court, by Nicholas, attorney general for the 
 commonwealth, and by Taylor, Tazewell, and Wirt for 
 the prisoner. 
 
 Nicholas. The first and most important point to be 
 discussed is, whether the examining courts can discrimi- 
 nate between the higher and lower offences — can acquit 
 of the higher grade, and send on for the lower. This 
 question arises from the second plea filed by the prisoner. 
 
 The plea of autrrfoits acquit must consist of two mat- 
 ters, 1st. Matter of record, to wit, the former indictment 
 and acquittal and before what justices, and in what man- 
 ner by verdict or otherwise. 2d. Of matter of fact, to wit, 
 the identity of the person acquitted, and of the fact of 
 which he was acquitted. 2 Hale P. C. p. 241. As to the
 
 General Court of Virginia. 1'.'', 
 
 first matter he referred to Hawkins, B. 2,ch. 35, sect. 1st. 
 to shew that to make the plea good, the defendant must 
 shew that he has been found " not guilty" on an indict- 
 ment free from error, and well commenced beiore a court 
 having jurisdiction of the cause. 4 Black. Com. 325. also 
 proves that the plea cannot be good unless the court 
 had competent jurisdiction of the offence, fie contended 
 that the examining courts hail not competent jurisdiction 
 finally to acquit, before the act of Jan. 1804, gave them 
 that power. Before that period they were merely intend- 
 ed to examine into offences, and to prevent an innocent 
 man from be harassed by enquiries beiore single justices. 
 They ciuld not acquit, because they could not condemn. 
 See Tucker* s note to 4 Black. 335. The life of a prisoner 
 was never brought into jeopardy by an examination be- 
 fore the county court, and therefore the plea of autrefoiss 
 acquit was not a good one. The principle on which that 
 plea is allowed by common law, is that a man should not 
 be brought into danger of his life for one and the same 
 offence more than once. Hence it is that the finding ig- 
 noramus on an indictment by a grand jury does not ope- 
 rate as an acquittal, 2 Hale, 246, and he may be again in- 
 dicted, for he has not been legitimo moclo acquietatus. 
 So also, in the case of a coroner's inquest, finding facts 
 not amounting to felony, he may notwithstanding be in- 
 dicted. So it is, where the party has been acquitted on 
 an insufficient indictment, there the plea of autrr-foits ac-
 
 iyy Cases decided in the 
 
 juit is not good. lb. 243. Thus it was in Virginia before 
 the act of 1804. What difference does that act make? 
 The only new provision in that act is to be found in the 
 3d section, (2 Rev. Co. 38.) by which it is declared that 
 if any person " be acquitted, or discharged from further 
 u prosecution" by the proper examining court, he shall 
 not be again examined, or tried for the same offence, but 
 may plead such acquittal or discharge in bar. It is un- 
 derstood that this provision was introduced in conse- 
 quence of decisions of the district courts that a discharge 
 by the examining courts was no acquittal. That section 
 then containing anew principle, and the examining courts 
 being unknown to the common law, and deriving their 
 whole authority from the statute, the prisoner must bring 
 himself within the letter of the law. Although the exam- 
 ing courts are now vested with the acquitting power, it 
 does not follow that they have the power of discrimina- 
 ting between different grades of the same offence. The 
 statute gives the one power; it does not give the other, 
 nor can it be implied. The examining court is directed 
 to consider, " whether the prisoner may be discharged 
 u from further prosecution, or may be tried in the county, 
 " or corporation, or district court." The power to dis- 
 charge from further prosecution does not involve the 
 power to discriminate. If they do not consider that he 
 ought to be discharged, two other alternatives present 
 themselves: viz. to send on for trial either to the inferior,
 
 General Court of Virginia. 199 
 
 or to the superior court. In ascertaining which of these 
 two alternatives should be adopted, he admitted it might 
 be necessary to discriminate, so far as to ascertain whe- 
 ther the prisoner should be tried in the one court or the 
 other, and so far that power is given, on the principle that 
 it is necessary to carry power actually given (to wit, the 
 power of remanding) into effect. But where the whole 
 crime and every grade of it, as is the case with every grade 
 of felonious homicide, is triable in the superior courts 
 only, there the power to discriminate between those dif- 
 ferent grades is not given, either expressly, or impliedly, 
 because it is not necessary to carry into effect the given 
 power of remanding to the superior court for trial. 
 
 He urged as a strong circumstance, that the court was 
 to be held "for the examination of the fact" which 
 seemed to exclude the idea of their being empowered to 
 distinguish between different degrees of criminal motive. 
 The terms u discharge from further prosecution" clearly 
 import, a total discharge, and not a partial one, except in 
 the cases already mentioned. In a case like this, said Mr. 
 Nicholas, the first thing that the examining court has to 
 enquire into is this, " Shall the prisoner, who is charged 
 " with felonious homicide, be discharged from further 
 " prosecution?" If they think that he is not altogether 
 innocent, if they think that he is guilty of manslaughter 
 only, they cannot discharge him from further prosecu- 
 tion. The next enquiry is, " to what court shall he be
 
 200 Cases decided in the 
 
 sent for trial?" In answering this question, it is not ne- 
 cessary to decide on the grade of homicide, because 
 each grade of it is to be tried in the superior court. He 
 argued that the very construction of the courts, prove 
 that they are not vested with this important power of 
 discriminating between different degrees of an offence. 
 The courts are composed of plain men not versed in the 
 nice distinctions of the law: they are to meet within ten 
 days at the most, after the commitment, so that if their 
 decision be absolutely final on the higher grades of 
 offences, the accused will frequently escape merited 
 punishment, because there is not time to collect evidence 
 entirely satisfactory, which may more easily be done 
 when the superior court has general cognizance of the 
 whole offence. Grand juries and petit juries, it is true, 
 have the discriminating power, but it is by them exer- 
 cised under the control of judges supposed to be well 
 acquainted with legal distinctions. For these reasons he 
 thought that the demurrer to the second plea ought to 
 be sustained, and that this court ought to certify that the 
 examining court have no power to acquit for murder, 
 and remand for manslaughter. 
 
 2dly. He objected to this court giving any opinion on 
 a point not specially adjourned. An adjourned case is 
 not like an appeal. In the latter, the whole record must 
 be looked into; in the former only the point adjourned. 
 He therefore thought it improper to go into the enquirv.
 
 General Court of Virginia. 201 
 
 whether the attorney for the commonwealth did right 
 in demurring to the first and third pleas, or whether he- 
 ought not to have pleaded nul tiel record, or whether he 
 ought not to have objected to the reception of the pleas 
 themselves, on the ground that the record did not sup- 
 port them. 
 
 3dly. But if the whole record is to be looked into, then 
 it became his duty to contend that the first and third pleas 
 were bad on demurrer. A demurrer admits such facts to 
 be true as are well pleaded, but the matter of the first and 
 third pleas is not well pleaded, and therefore is not ad- 
 mitted to be true. A general demurrer in criminal cases 
 is the same with a special demurrer in civil cases. The 
 statute which declares that no defect in point of form 
 shall be regarded, unless the causes be specially set forth 
 in the demurrer, does not apply to criminal cases. \ r ou 
 may therefore regard, in this case, all the defects in the 
 pleas, although they are not specially set forth. At com- 
 mon law a party might take advantage of any objection, 
 however trifling on general demurrer, except duplicity: 
 1 Chitty, 639. This common law doctrine is still in force 
 in criminal cases. The first defect to be noticed in these 
 pleas is, that the record of the proceedings of the exa- 
 mining court is not made apart of the plea. The prisoner 
 ought to plead the record certain, and have the record in 
 court, "for it is port of the prisoner's plea." (See •■ 
 
 2 C
 
 202 Cases decided in the 
 
 Hale, 243. 2 Hawk. ch. 35, s. 2.) How can the court 
 judge whether the acquittal be by a court of competent ju- 
 risdiction, unless they see the record? Every plea must be 
 certain and so pleaded as to be capable of trial. (1 Chitty, 
 513, 520.) Now these pleas are not capable of trial, be- 
 cause the record of the examining court is not a part oi 
 the plea, as it should be. Again, the pleas are* defective 
 in not stating that the party was discharged from further 
 prosecution. They only aver that the court was of opi- 
 nion, that he ought not to be sent on to the superior 
 court. In Rastall's Entries, the plea is that the prisoner 
 was, " in an adequate manner acquitted" there is no such 
 averment in the first and second pleas, and although in 
 the third plea there is such an averment, yet the record 
 is not made a part of the plea. He objected to the first 
 plea, because it did not state the whole substance of the 
 record: it garbled it, by averring that it was the opinion 
 of the court, that he ought not to be sent on to the supe- 
 rior court for murder, and by omitting to aver that they 
 considered he ought to be sent on for manslaughter. 
 Another reason why the record of the examining court 
 ought to be a part of the plea, is that oyer could not be 
 demanded of the record. (5 Bac Abr. 1 Term Re- 
 ports, ) A false plea is cause of demurrer, if it ap- 
 pear by the pleader's own shewing. (1 Chitty 521.) Now 
 here the first and third pleas are false, because they state 
 an absolute acquittal, whereas the record shews that 
 there was none such, as would have been manifest if the
 
 General Court of Virginia. 20;> 
 
 record had been part of the plea. He also objected to 
 there being three distinct pleas of autrefoits acquit. At 
 common law, he said, the defendant could not plead 
 several pleas as of right, (1 Salk. 218, Willes, 533.) and 
 that the statute which gives the right of pleading double, 
 applies only to civil cases. He objected lastly to these 
 pleas, because they were repugnant one to the other: the 
 one stating, that it was considered that he was not guilty 
 of murder; another that he was not guilty of murder, but 
 guilty of manslaughter. Repugnancy in pleas is not ad- 
 missible. (3 Wilson, 145. W. Black. Rep. 905. 5 Bar.. 
 447.) Pleas of an inconsistent nature may be pleaded by 
 the statute of Anne, but that applies only to civil cases. 
 He referred to 2 Strange 1044, where it was decided that 
 a defendant could not plead double in a qui tarn action on 
 the statute of gaming, the statute for the amendment of 
 the law excluding popular actions. 
 
 Robert B- Taylor for the prisoner, premised that the 
 question respecting the discriminating power ot the 
 examining courts need not in reality be discussed at the 
 present time, because it is now admitted on all hands that 
 those courts have at this time the power of general ac- 
 quittal, and the demurrer to the first and third pleas 
 admitted the truth of them; that is, admitted that the 
 prisoner had been generally acquitted of the murder, and 
 of the murder and felony with which he stood charged.
 
 204< Cages decided in the 
 
 But as the question respecting their discriminating 
 power, bad been specially referred to the circuit court, 
 and had been here argued, he would proceed to investi- 
 gate that subject. The second plea avers that the exa- 
 mining court did discriminate by acquitting the prisoner 
 of the murder, and sending him on for trial for man- 
 slaughter, and the demurrer to that plea, properly brings 
 on the question as to their power of doing so. To make 
 the plea of autrefoits acquit good, three things must 
 concur, first that the offence of which he has been ac- 
 quitted is identically the same as that for which he is in- 
 dicted: secondly, That the court be competent to acquit; 
 and thirdly, That there has been an acquittal. In this 
 case they all concur. The prisoner was indicted for the 
 murder of Bowden, the plea avers that it is the same 
 murder of which he had been formerly acquitted; the 
 court was competent, and the plea set forth an acquittal. 
 He contended that a court of record has no right, inci- 
 dentally and collaterally to look into the grounds of a 
 judgment of another court of record even if it is inferior; 
 the decisions of all tribunals are presumed to be right 
 until they are reviewed, and reversed by a superior tri- 
 bunal in some legal way, such as by writ of error, super- 
 sedeas, or appeah Hence he inferred that the circuit 
 court has no right to find fault with the judgment of the 
 examining court: the circuit court must presume the 
 judgment of the examining court to be right, and must
 
 General Court of Virginia. 205 
 
 cake up that subject where that court has left it: it must 
 say that the prisoner is acquitted of murder, because the 
 record says so. To say that he is not acquitted of mur- 
 der is to contradict the record, and to review and reverse 
 the judgment of the examining court in an incidental 
 manner, when it is not brought up to be reviewed and 
 reversed. He admitted that if a tribunal exercises an 
 usurped jurisdiction, all acts done by it are void, and 
 coram non judice, but if it has jurisdiction, then its acts 
 must be presumed right until reversed. If an admiralty 
 court gives a judgment in ejectment it is void, so if a 
 common law court gives judgment in a prize cause it is 
 void, because in each case the jurisdiction is usurped; but 
 an erroneous judgment of a legal jurisdiction is not void, 
 but voidable merely. If a court which does not possess 
 appellate jurisdiction, could enquire into the judgment of 
 another court incidentally, that very enquiry would give 
 such court an appellate jurisdiction. Now the circuit courts 
 can by no means be considered as appellate courts in capi- 
 tal cases; they have original jurisdiction only, and must 
 always take up the subject where the examining courts 
 have left it, the records of which furnish to the circuit 
 courts the charter of their authority, but the power now 
 contended for, would make them appellate. He said that 
 whenever the tribunal is the dernier tribunal, its deci- 
 sions however erroneous are never examinable, or re- 
 versible. This position is true, not only as it regards the
 
 li06 Cases decided in the 
 
 supreme court of appeals, but also as to the circuit courts 
 where their judgment is final, and even as to single ma- 
 gistrates whose judgment is under ten dollars. The ex- 
 amining courts exercise their power of acquittal finally: 
 there are no proceedings known to the law by which the 
 judgment of an examining court can be reviewed. The 
 means to reverse it being denied, it follows that the end 
 is not provided for. The writ of error at common law is 
 allowed to a prisoner to reverse a judgment against him, 
 but there is no common law, or statutory writ by which 
 to reverse the judgment of an examining court. The writ 
 of error is not allowed to the crown, because an acquittal 
 on an erroneous indictment is no bar to a future prosecu- 
 tion. There is a good reason why a writ of error cannot 
 issue to an examining court, for as soon as the decision 
 is made, the court is at an end, and there is no court to 
 certify its proceedings. But if the proceedings are rever- 
 sible, then the circuit court must say that the proceed- 
 ings are either right or wrong, or partly right or partly 
 wrong. If the decision of the examining court for Nor- 
 folk borough has been wholly right, then you must 
 adhere to that decision, and every departure from it is 
 wrong; you must therefore indict for manslaughter only. 
 If the decision has been wholly wrong, then it is void; 
 you must act as if they had done nothing, and therefore 
 you cannot indict at all. But if the decision be partly 
 right and partly wrong, then reject what is wrong and
 
 General Court of Virginia. 207 
 
 retain the right. What part is wrong? If the part 
 which acquits for murder be wrong, then reject it, and 
 what remains? Only the part which sends on for man- 
 slaughter. Then you can only indict for manslaughter. If 
 the acquitting part be right, and the part which sends on 
 for manslaughter be wrong, then reject the latter part, 
 and there is a final acquittal of the murder. 
 
 Mr. Taylor insisted that the examining courts have 
 the power by law to discriminate between the grades of 
 offences, and to acquit partially. The arguments and the 
 authorities of the attorney general go to shew that a court 
 has not competent authority to acquit unless it has also 
 power to condemn; but such arguments cannot apply to 
 examining courts because they have express authority by 
 statute to acquit, and no power to condemn. It is true 
 that the law does say that a court shall be held " for the 
 "examination of the fact," and also declares that if they 
 are of opinion that " the fact" may be tried in the county 
 court, &c. the party shall be sent there for trial. But it is 
 not thence to be inferred that the court has not power to 
 consider law, as well as fact. There are several terms in 
 the act which prove that the court must consider the law, 
 and must determine whether the "fact" be lawful or un- 
 lawful. u Criminal offence" is used in the same section, 
 which certainly involves the idea of law as well as fact, 
 for " offence''' means an act contrarv to law. So the word
 
 208 Cases decided in the 
 
 " offence" is used in the 4th section. So it is said in the 
 1st section " as the case may appear to them," they shall 
 decide. The case is certainly compounded of law and fact. 
 But the word fact in the one clause is explained by the 
 same word in the next. How is a person to be tried for a 
 fact unless it be contrary to law? Suppose a sheriff charg- 
 ed with the fact of homicide. Positive proof is produced 
 that he hung a man. If the examining court can only en- 
 quire into the fact of the homicide, he must be sent on 
 for trial, although he has in his hand, a record of a com- 
 petent court, sentencing him to be hung, and appointing 
 him the executioner, which completely justifies the act. 
 The justice of peace who commits, and the grand-jury 
 who find the bill have both power to decide on the law; 
 why shall not the examining court so decide? Why should 
 a restriction exist with regard to a court possessing a 
 power to acquit, when it does not exist with regard to 
 other tribunals who have no such power? 
 
 The examining courts have the general power of ac- 
 quittal expressly given to them by statute. Where is the 
 clause by which that power is limited? There is none, and 
 hence it is to be inferred that no restriction on that ac- 
 quitting power does exist. The greater power includes 
 the lesser: the power to acquit altogether, includes the 
 power to acquit in part. Suppose an acquittal of each
 
 General Court of Virginia. 209 
 
 grade of the offence from the highest to the lowest, would 
 not that be the same as a general acquittal? 
 
 The analogies of the law prove that the examining 
 courts may discriminate. The grand jury may find igno- 
 ramus as to murder, and "a true bill" as to manslaugh- 
 ter. The petit jury may acquit of murder, and find the 
 party guilty of manslaughter. Why not these courts? 
 There is no danger in granting the power. Is it more 
 dangerous to give the general power, than the lesser? 
 
 He contended that the third section of the act of 1804 
 proved that they had the discriminating power. It is not 
 to be supposed that the legislature would use tautologous 
 words. The words" acquitted or discharged from further 
 " prosecution" in that section, do not mean the same 
 thing. A man may be " acquitted" of the particular crime 
 charged, but not " discharged from further prosecution" 
 of every part of the offence. 
 
 Mr. Taylor said, if acts are to be done, which cannot 
 be done without exercising the discriminating power, the 
 power itself is given. He illustrated the position, by sup- 
 posing the case of a man charged with stealing a pocket 
 handkerchief from the person. It is either petty larceny 
 or it is robbery. In the former case, he must be sent to 
 the quarter sessions; in the latter, he must be remanded 
 
 2 D
 
 210 Cases decided in the 
 
 to the superior court. The examining court must here 
 discriminate, because otherwise they cannot decide where 
 the prisoner is to be tried. The court mast also decide 
 whether he shall be bailed or not. If he is guilty of rob- 
 bery, bail is refused; if of larceny, it will be granted: here 
 they must again discriminate. 
 
 He referred to Sorrel's case decided in the general 
 court in 1786. It was there decided that the examining 
 courts had a power of general acquittal, and Judge Mer- 
 cer said that in the case of the King v. Davis it was de- 
 cided by the general court that they had the power of 
 partial acquittal. From that day it had been generally 
 supposed that they had the power, till Judge Tucker's 
 note to Blackstone p. 435 was seen, which induced the 
 legislature in January, 1804, to silence the question by- 
 passing the third section of the law already mentioned. 
 
 Tazexvell for the prisoner. He contended that the cir- 
 cuit court did right in receiving the three pleas. He 
 would venture to hazard an assertion that the court of 
 King's Bench allowed double pleading in all cases before 
 the statute of Anne, but it was unnecessary to consider 
 whether it would be allowed in civil cases and therefore 
 he declined the discussion on that subject, but with re- 
 spect to criminal cases, and more especially those which 
 are capital, he strenuously urged that double pleading is,
 
 General Court of Virginia. 211 
 
 in England, the birth right of the subject: from the earliest 
 periods of English law, from the days of Alfred to this 
 time, it was the absolute right of the prisoner to plead as 
 many pleas as were necessary and proper for his defence, 
 and he boldly challenged any lawyer to produce a single 
 dictum of the worst of the English courts, in the worst 
 of times, to prevent a prisoner from pleading doubly in 
 Oar of the prosecution. The reason on which the statute 
 of Anne purports to have been made is, that as duplicity 
 was not allowed in any one plea, and it was frequently 
 proper that several defences should be made, it was 
 deemed right to allow those several defences to be made 
 in several pleas. The reason applies as strongly to criminal 
 as to civil cases, for what can be more reasonable than that 
 a prisoner who has been formerly convicted of the sutne 
 offence with which he is charged, and who also knows 
 that he has not been guilty of the offence at all should be 
 allowed to plead " not guilty," and " autrefoits convict" 
 at the same time? If then the common law had not given 
 the right of double pleading to prisoners, surely the 
 courts ought by a liberal construction of the statute of 
 Anne, to extend the benefit of it to criminal cases. 
 
 But at common law double pleading is allowable. If a 
 prisoner has been convicted, and has craved the benefit 
 of clergy which has been extended to him, this circum- 
 stance may be pleaded at the same time that he pleads
 
 212 Cases decided in the 
 
 "not guiltv." So a pardon may be pleaded with the ge 
 neral issue. Ht referred to Coke's Entries, 355. a. 356. a. 
 and to Crorvn Circuit Assistant, p. — , to shew instances 
 of double pleading. 1 Hale, 467, on an indictment for 
 murder, the prisoner may plead not guiltv as to the mur- 
 der, and a pardon for the interfectio felonica, or man- 
 slaughter. 2 Hale, 239; ib. 248. If a special plea, whether 
 of law or fact, as a plea of pardon in an indictment, or a 
 release in an appeal, or autrefoits acquit, or attaint, be 
 found against the prisoner, he shall be allowed to plead 
 over to the felony not guilty, and this in favorem vitce. 
 If then a prisoner may plead a special plea in bar, and 
 the general issue, whv not plead several special pleas in 
 bar? 2 Hawkins, ch. 23, sect. 128 — 137, and ch. 34, was 
 cited by him to prove that a prisoner might plead as 
 many several pleas in abatement as he thought proper, 
 unless they be repugnant to each other — that they may 
 be all pleaded at the same time even though they do not 
 require the same kind of trial, as one by the record, an- 
 other by the country; that if the pleas in abatement are 
 all triable by the country, the defendant must, at the same 
 time, plead with them all his matters in bar, and also plead 
 over to the felony; and that by the better opinion, where 
 the matter in abatement is to be tried by the record, the 
 defendant ought at the same time to plead over to the 
 felony; that divers pleas in bar may be pleaded at the 
 same time with the general issue, and that in appeals of
 
 General Court of Virginia. 213 
 
 death, a release and not guilty may be pleaded, and the 
 plea of " autrtfoiis convict on the party's own confes- 
 sion," and " not guilt) " may also be pleaded. RastalPs 
 Entries, 49. a. />. Two pleas in abatement, and two spe- 
 cial pleas in bar were pleaded at the same time. In this 
 country the practice in the district courts has been to 
 allow stveral pleas in bar, and the general issue at the 
 same time. In Baiiey's case before the district court of 
 Williamsburg, in 1798, the prisoner pleaded two several 
 pleas in bar and the general issue: the pleas were receiv- 
 ed, and the attorney for the commonwealth replied nul 
 tiel record to the two special pit-as. He said that the cases 
 cited by Mr. Nicholas from Salkeld^ Willes, and Strange 
 were not applicable to this case, because they were all in 
 fact civil cases. 
 
 Mr. Tazewell controverted the proposition laid down 
 by Mr. Nicholas, viz. that in criminal cases, defects in 
 point of form may be noticed on general demurrer; on 
 the contrary he insisted that no defects of form in the 
 pleas ought to be taken advantage of, on demurrer, un- 
 less they are alleged specially as causes of demurrer. It 
 is true that in indictments, great strictness has always 
 been observed, and that the statutes of jeofails do not ex- 
 tend to indictments, and therefore an indictment defec- 
 tive in point of form is not aided by a verdict; but the 
 reason why they do not so extend, is to be found in thr
 
 214 Cases decided in the 
 
 tenderness felt by the courts for the lives of the subject: 
 that rule is adopted in favorem vitce. But it does not fol- 
 low that because the statute of jeofails in favorem vita 
 don't apply to the accusation, therefore it don't apply to 
 the defence; that construction would be againxt life. If 
 defects in point of form might be taken advantage of 
 against the prisoner on general demurrer, the conse- 
 quence might be that his life might be endangered by 
 mispleading, which is not allowable. 2 Hale, 257. He 
 might be entrapped by the commonwealth. The plea of 
 not guilty is generally put in ore tenus — no regard is paid 
 to form: the attorney might demur generally, and the 
 court regarding form on this general demurrer would 
 decide against him on this plea, on the decision of which 
 his guilt or innocence depends, and thus hang him for 
 his mispleading. From these considerations, he inferred, 
 that even if double pleas are not allowable, the fault can- 
 not be noticed by the commonwealth, because that is not 
 specially assigned as cause of demurrer. He also observ- 
 ed that it is now too late to object to the pleas because 
 double, for this reason, that they have been received by 
 the court, and the question before this court is not whe- 
 ther they ought to have been received, but whether each 
 plea is in itself good. 
 
 As to the repugnancy of the pleas; repugnancy is 
 matter of form and cannot be noticed on general demur-
 
 General Court of Virginia. 215 
 
 ver. The demurrer must be considered as a separate ge- 
 neral demurrer to each plea, and as such the truth of each 
 plea is admitted; there cannot therefore be a repugnance 
 between them, because if so, one of them must be false. 
 Besides it is too late to object to them for repugnancy; if 
 repugnancy is a fault, it is a ground for not receiving 
 them, but here they have been received. He contended 
 however that repugnancy in pleas in bar was in fact no 
 objection at all: it results from the right to plead doubly, 
 that the prisoner has a right to plead repugnantly. In 
 England, payment and non est factum cannot be pleaded 
 to a deed, because the defendant cannot plead two pleas 
 without leave of the court who will take care not to per- 
 mit him to plead inconsistently; but here the right to 
 plead doubly is given in civil cases by the statute, and 
 does not require the permission of the court; here there- 
 fore a man may plead payment and non est factum. In 
 criminal cases, as before shewn, the defendant has a right 
 to plead doubly without asking permission, therefore he 
 may plead repugnantly. The pleas of" autrefoits convict" 
 and u not guilty" are certainly repugnant. So also the plea 
 of a release (on an appeal) and not guilty, and yet they 
 may of right be pleaded together. 2 Hale 255, 6, 7. 
 Haxvk. ut supra. In Bailey's case Judge Tucker dissuaded 
 the attorney from demurring, and advised him to reply 
 nul tiel record, which shewed that he had no objection to 
 receiving repugnant pleas. The cases cited by Mr. Nicho
 
 216 Cases decided m the 
 
 las from 3 Wilson, 2 W. Black. Rep. and Bacon, were 
 civil cases in which the defendants asked a favour, and 
 the court would not allow the pleas because repugnant; 
 this was on motion, not on demurrer, and they do not ap- 
 ply for the reasons above stated. He contended that it 
 was the fair exposition of Hawkins's doctrine (lit supra) 
 that repugnancy would onlv vitiate pleas in abatement, 
 and not pleas in bar: this was strengthened by Stanford 
 p. 82. Pleas in abatement are dilatory, and do not go to 
 the merits of the question, and therefore ought not to be 
 contradictory. But are these pleas repugnant? The first 
 avers that he was acquitted of murder, but remanded for 
 manslaughter. There is no repugnancy here. The one 
 affirms more than the other, but they are not contradic- 
 tory. The third plea avers an acquittal of the murder and 
 felony; if there is a repugnance between the second and 
 third pleas the court must elect the one which is most 
 favourable for the prisoner, that is, the third plea which 
 is admitted to be true. 
 
 He then examined each plea separately, and contended 
 that each was good. As to the first: it is urged by the 
 attorney general " that the record should be made a part 
 u of the plea." It is not the duty of the prisoner to pro- 
 duce the record which authorizes the district court to try 
 him; that is the duty of the commonwealth. The court 
 itself and its officers ought to see that they have autho-
 
 General Court of Virginia. 2 1 7 
 
 i-ity to try him, and ought to produce the record remand- 
 ing him for trial, and if by the record he is acquitted, all 
 that can be required of him is to produce the record of 
 acquittal in evidence to support his plea, but not to make 
 it a part of his plea. According to the attorney general's 
 argument, the verification by the record at the end of the 
 plea, makes the record apart of the plea: if this rule is 
 good, then a verification by any thing else makes the 
 proof a part of the plea: in debt on bond, the defendant 
 pleads that he has paid the debt, which he is ready to 
 verify by the receipt of the plaintiff. Does this make the 
 receipt a part of the record? S,o in the trial by battle, the 
 defendent verifies by the champion. Is the champion a 
 part of the record? 
 
 A profert in curia, and oyer are the only means by 
 which the instrument relied on to prove the plea can be 
 made a part of the record. A profert is never made of a 
 copy, but always of an original paper. Here the original 
 was in the borough court of Norfolk, and could not be 
 produced by the prisoner. And as to oyer, the prisoner 
 cannot crave oyer of a paper on which he himself relies. It 
 is not necessary that the record should be a part of the 
 plea; for if it was, the commonwealth could not reply 
 nul tiel record, which is the proper replication by which 
 a variance between the plea and the record can be taken 
 advantage of. If a record be pleaded in bar, in the sam^ 
 
 2 E
 
 218 Cases decided in the 
 
 court, the other party shall not plead nul tiel record, but 
 shall have oyer, but if it be in another court he shall plead 
 nul tiel record, and a day given to procure the certificate 
 of the record. 2 Hale 241. All that Hale means by say- 
 ing that the record is part of the prisoner's plea is that 
 the contents of the record, and not the record itself, 
 should be made a part of the plea. The record is evidence 
 to prove the plea, but not a part of it. In Rastal, p. 361. 
 the conclusion is merely a verification, and not a verifi- 
 cation by the record. It is admitted that the record should 
 be set forth in certainty, but it is not necessary that it 
 should be set forth totidem verbis: its effect is sufficient. 
 
 (3 Saund. ) Neither is it necessary that a discharge 
 
 in technical language, or the " quod eat sine die," should 
 be stated. If it was stated in the plea, and the record 
 should not support it, then upon the replication of nul 
 tiel record, the plea would be destroyed. A man's life 
 might then be a second time jeopardized in consequence 
 of the ignorance of the clerks of examining courts, who 
 do not know how to record a discharge in technical 
 language. In this plea, the opinion of the court is set 
 forth, and then his acquittal of the murder, and surely 
 this is enough. But however necessary the " quod eat 
 sine die'''' may be in England, it is not necessary here as 
 applicable to the examining courts; the court itself is sine 
 die; it is functus officio, and expires as soon as the business 
 for which it was convened is done. At any rate, both of 
 these defects (if they are defects) of not making the re-
 
 General Court of Virginia. 219 
 
 tord a part of the pica, and of the want of a technical dis- 
 charge are merely formal, and cannot be noticed on gene- 
 ral demurrer. 
 
 As to the second plea: this involves the power of the 
 examining courts to discriminate between different grades 
 of offences. He contended that it must be presumed that 
 what the examining court has done is correct, if they 
 have done an act within the scope of their jurisdiction; 
 there is a difference between a court with jurisdiction 
 giving an erroneous judgment, and a court giving a judg- 
 ment, even though a right one but without any jurisdic- 
 tion. In the latter case the judgment is void, and need 
 not be regarded by any other court; but in the former 
 case, the judgment must be deemed right unless it is re- 
 gularly and directly reversed by a competent tribunal. 
 The examining court of Norfolk borough had authority 
 to discharge, or to remand to the district court or to the 
 county court; they have done both in part, their judgment 
 is therefore within the limits of their jurisdiction. These 
 courts must discriminate in certain cases in which they 
 must decide whether the prisoner shall be sent on to the 
 district or the inferior court. They must decide whether 
 an act is burglary, or petty larceny only: so whether an 
 act be robbery or petty larceny. Murder and manslaugh- 
 ter are species of the same offence— parts of the same 
 act, as much as burglary and larceny, or robbery and lar- 
 ceny. There is no more difficulty in discriminating be-
 
 220 Cases decided in the 
 
 tween murder and manslaughter, than between the other 
 two species of offences. The examining courts give the 
 superior courts a license to try the offence, how then can 
 they try a man for a greater offence than the examining 
 courts authorize him to be tried for. A prisoner must 
 be taken by surprise, if he is to be tried for malicious 
 homicide, when he is only sent on for manslaughter. 
 
 The analogies of the law are in favour of the discri- 
 minating power. The grand jury discriminate: on a bill 
 for murder, they may find ignoramus as to murder, and 
 billa vera as to manslaughter. In such case you cannot 
 try the party for murder. The grand jury have less power 
 than the examining court; they cannot acquit and yet 
 they are supposed to possess nicer discriminating facul- 
 ties. The petty jury discriminate; they may acquit of 
 murder, and find guilty of manslaughter. In England the 
 two tribunals must concur, here the three must concur 
 before a man can be condemned. 
 
 The greater power includes the less: the power of 
 general acquittal includes the subordinate power of par- 
 tial acquittal. If there are exceptions to this general 
 power of acquittal, let them be pointed out in the act. 
 Mr. Tazewell said, it was a curious matter of judicial 
 history to trace the progress of these examining courts. 
 They had always been a favourite with the people, and
 
 General Court of Virginia. 221 
 
 with the legislature, but the general court seemed to dis- 
 like them, and by various decisions the judges had un- 
 dermined their authority. They had existed in this 
 country since 1705, and perhaps before. In the case of the 
 King v. Davis, it was admitted that they had the right of 
 acquitting partially. SorrelPs case came on in 1786, when 
 a strong disposition was evinced in some of the court to 
 deny to them that right. In that same year of 1786, the 
 legislature vested them with the power of bailing a priso- 
 ner; if they deemed him to be guilty of murder he was 
 not to be bailed, but if of manslaughter only, then they 
 might direct him to be bailed. They thereby gave them 
 directly the power of discriminating in this very case, 
 and consequently disaffirmed the judgment of some of 
 the judges in SorreWs case. Thus it stood till 1798, when 
 Bailey's case was brought on before Judges Prentis and 
 Tucker, of whom the latter advanced the monstrous po- 
 sition that as these courts had not the power to condemn, 
 they therefore had not the power to acquit. He put this 
 idea into a note in his edition of Blackstone. Then came 
 on Shafinon's case, in which Judge Parker said that an 
 acquittal by an examining court was not worth a rush, 
 and in Blakeleifs case from Staunton, the general court 
 decided that an examining court was not an indispensable 
 prerequisite to a trial in the superior court for felony. 
 Thus the power of these courts was reduced to its lowest 
 ebb. The legislature took the alarm, and by the third sec-
 
 222 Cases decided in the 
 
 tion of the act of 1 804 put the question as it was supposed 
 to rest for ever. 
 
 As to the third plea, Mr. Tazewell referred to his 
 arguments on the first to shew that it was good. The pro- 
 ceedings are substantially set forth. As to its being a false 
 plea, the demurrer admits it to be true. That is said to 
 be a false plea which contains some contradiction in it- 
 self, which is not the case here. 
 
 Wirt on the same side, with great ability, enforced the 
 arguments of Taylor and Tazewell, but it is deemed un- 
 necessary to report his argument so far as it coincided 
 with those of his associates. He examined SorrelVs case: 
 he insisted that the question was not deliberately decided; 
 it seemed to have been a mere conversation amongst the 
 judges on the question whether the indictment for mur- 
 der was proper: it could not be considered as a decision 
 at all, for Judge Tazewell was willing that the matter 
 should be brought on again in arrest of judgment, if the 
 prisoner should be convicted, and the other four judges 
 were equally divided. If it was a decision, it was directly 
 contrary to the decision in the King v. Davis y reported 
 by Judge Mercer. The case is not like this, for there the 
 examining court did not directly acquit of murder, but 
 here they did. By the law of 1748, manslaughter of a 
 slave by the owner is not punishable, and yet the examin-
 
 General Court of Virginia, 223 
 
 ing court sent Sorrellon for manslaughter, and not being 
 discharged from further prosecution for the murder, the 
 general court put him on his trial for murder. But Sor- 
 rell's case is in some degree favourable to the prisoner, 
 for all of the judges there agreed that it was a settled 
 point that the examining court might finally acquit, and 
 therefore the opinions subsequently given by the district 
 Courts in Bailees and Shannon'' s cases, and perhaps that 
 given by the general court in Blakeley y s oase, were con- 
 trary to law. 
 
 He contended that it was clear from the phraseology 
 of the first and third sections of the act of January 1804, 
 (2 Rev. Co. 37 — 38) that the examining courts have 
 power to acquit for murder and remand for manslaughter. 
 The first section declares " that when any person, not 
 " being a slave, shall be charged before a justice of the 
 " peace with any treason, murder, felony or other crime 
 " or offence whatsoever, &c." Here murder is not consi- 
 dered as a grade of any species of offence, but as a dis- 
 tinct species: it is placed per se. The third section de- 
 clares " that if any person charged with any crime, or 
 " offence against the commonwealth shall be acquitted, 
 " or discharged, ike. &c." The terms " crime or offence" 
 in this section evidently have reference to the enumera- 
 tion in the first section. Let us then transfer the words of 
 the first section to the third, and it will read thus: " that
 
 224 Cases decided in the 
 
 " if any person charged with any treason, murder, felony, 
 " or other crime or offence against the commonwealth 
 " shall be acquitted, or discharged, &c. Sec." he may plead 
 the acquittal in bar. Thus giving to the examining courts 
 by the very terms of the act, the power to acquit for 
 murder, whatever else they may think proper to do as to 
 the felonious killing. 
 
 Nicholas in reply. SorreWs case is clearly a strong case 
 for the commonwealth; a majority of the court certainly 
 decided that the examining courts had no power to dis- 
 criminate. Judge Lyons's argument that the prisoner 
 might be taken by surprise has nothing in it, for murder 
 and manslaughter both resulting from the same fact, and 
 the degree of guilt merely depending on the motive with 
 which the act is done, the prisoner must be ready with 
 the same evidence in the one case as in the other. The 
 same judge was mistaken when he supposed that a man 
 sent up for felony might be tried for treason. The two of- 
 fences do not result from the same fact (except in the 
 case of petty treason) and therefore such a consequence 
 cannot ensue. The case of Rex against Davis was loosely 
 and orally reported by judge Mercer, and made no im- 
 pression on the minds of his brother judges. Why then 
 should it operate on the minds of this court? After the 
 decision of the general court in SorreWs case, why did not 
 the legislature give to the examining courts the power to
 
 General Court of Virginia, 225 
 
 discriminate, if they were anxious that they should have 
 the power? — It seems obvious from the act of assembly, 
 that the power given to these courts to acquit, is contrast- 
 ed with their power to remand. They cannot do both at 
 the same time. They have no power but what is expressly 
 given by statute, or necessary to carry a given power into 
 effect. For this reason, the commonwealth cannot be call- 
 ed on to point out any exceptions to their general acquit- 
 ting power. — He admitted that if a court having compe- 
 tent jurisdiction gives an erroneous judgment, that judg- 
 ment cannot be collaterally called in question; but here 
 they have gone beyond their jurisdiction, and so far as 
 they have done so, their decision is absolutely void. He 
 deprecated the consequences of a decision giving to them 
 the power to discriminate; by their very constitution they 
 had not time to deliberate on the nicer shades of offences, 
 and they were not in the habit of consulting books for the 
 purpose. 
 
 On further reflection, he was disposed to admit that 
 in capital cases a man may plead more than one plea at a 
 time, but he insisted that they ought not to be repugnant, 
 and that repugnancy was matter of substance, and there- 
 fore may be noticed on general demurrer. 
 
 Tazewell urged that by the 12th section of the peni- 
 tentiary law of 1796, when a person is charged with in- 
 
 2F
 
 226 Cases decided in the 
 
 voluntary manslaughter, the attorney may waive the 
 felony, and proceed against him for the misdemesnor, 
 or he may proceed against him in the same indictment 
 for both the felony and trespass. By whom is he thus 
 charged with involuntary manslaughter? Not by the at- 
 torney, because he does not charge him, until he elects 
 for what he shall indict him. Not by the grand jury, be- 
 cause they do not act until the attorney has filed his bill. 
 He is then charged by the examining court, and this 
 charge pre-supposes that they have the power of discri- 
 minating not only between murder and manslaughter, 
 but between the different grades of manslaughter. 
 
 This case was argued before, and decided by Judges 
 White, Carrington, Stuart, Holmes, Brockenbrough, 
 Smith, and Allen, on the 19th of November, 1811, and 
 Judge White, the presiding member of the court, deli- 
 vered the following opinion. 
 
 Samuel Myers was indicted before the superior court 
 of law for the said county, for wilfully, maliciously, and 
 of his malice aforethought killing and murdering Richard 
 Roxvden. 
 
 Being set to the bar, he pleaded three pleas in bar of 
 the indictment. In substance —
 
 General Court of Virginia. 227 
 
 First — That he had been acquitted by an examining 
 court duly constituted, of the murder for which he stood 
 indicted as aforesaid. 
 
 Secondly — That he had been acquitted by an examin- 
 ing court, duly constituted, of the murder charged upon 
 him by the said indictment, and remanded to take his 
 trial for manslaughter, committed by killing the said 
 Richard Bowden. 
 
 Thirdly — That he had been acquitted by an examin- 
 ing court, duly constituted, of the murder and felony 
 charged upon him by the said indictment. 
 
 To all these pleas the attorney prosecuting for the 
 commonwealth demurred generally — and Myers join- 
 ed in demurrer— ^A.nd because that court was not ad- 
 vised what judgment to give of and upon the premises, 
 and considered the questions arising therefrom, and par- 
 ticularly two, which are specially stated, both new and 
 difficult, it, with the consent of the said Samuel Myers, 
 adjourned the said questions, particularly stated, and all 
 and every other question of law, arising upon the said 
 pleadings, to this court. 
 
 By the tenth section of the act concerning the general 
 court, and the sixteenth section of the act establishing the
 
 228 Cases decided in the 
 
 late district courts, those courts had, and of course the 
 circuit courts now have, a right, with the consent of the 
 prisoner, to adjourn any question of law arising in a cri- 
 minal case, to this court, to be argued and decided 
 therein. 
 
 The power of this court on such adjourned cases, is 
 derived altogether from those sections, and cannot be 
 carried beyond a fair and liberal construction of them. 
 We cannot, therefore, decide any question, which may 
 grow out of the record before us, unless it plainly ap- 
 pears upon that record, liberally construed, that the cir- 
 cuit court intended to ask our opinion upon such point. 
 Therefore as the questions submitted to this court are: 
 First, those specially stated, and secondly, those that 
 arise upon the pleadings, any questions which did, or 
 might have arisen in the circuit court before the making 
 up of those pleadings, are not before this court. 
 
 However as questions of that kind have been argued 
 with great ability, by the gentlemen on both sides, and 
 as they seem to be in some measure connected with those 
 actually submitted to us, the court will not withhold its 
 opinion upon them. 
 
 First — It is alleged by the attorney general, that a pri- 
 soner cannot plead more than one plea in bar, if the pleas
 
 General Court of Virginia. 22, ( j 
 
 offered to be pleaded be, in contemplation of law, repug- 
 nant to each other. 
 
 Secondly — That the record pleaded in each of these 
 pleas, or a certified copy thereof, ought to have been 
 produced to the court, to enable it to see that such a re- 
 cord diil actually exist, and that in point of law, it offer- 
 ed a complete bar to the indictment. Although these 
 points are somewhat connected with the questions sub- 
 mitted to us, and very important in their nature and 
 consequences, yet it is believed that they do not arise 
 upon the pleadings, as they stand upon this record. How 
 can they be taken advantage of upon a demurrer? The 
 demurrer confesses the truth of the pleas. Suppose then 
 for the present, that these pleas are otherwise good, and 
 offer to the court substantial bars to the indictment. Can 
 any thing be more monstrous than to say, that a man 
 shall be hung, when the attorney has confessed upon the 
 record, that he has three different matters of defence, 
 either of which, although they may appear somewhat re- 
 pugnant, is sufficient in law to forbid it? Or, that he shall 
 forfeit his life for not producing a record, the existence 
 of which the attorney hath in like manner confessed? 
 Besides, as to the repugnancy, how can the court per- 
 ceive it? This demurrer must be considered as a demur- 
 rer to each plea, and considering it as such, the court 
 cannot, when applying it to one plea, look into any other.
 
 230 Cases decided in the 
 
 But as to the first of these points, 2d Hale, 239, 248, and 
 2 Hawkins, 276, 277, section 128 — the same book, 283, 
 section 137, are complete authorities to shew, that 
 although a person indicted of a capital offence, may not 
 plead two pleas, deemed by law repugnant, in abate- 
 ment, yet with respect to pleas in bar, when the court is 
 satisfied of their truth and e fficacy, although they may 
 appear somewhat repugnant, if they do not directly con- 
 tradict each other, he shall be indulged. For what two 
 pleas, not absolutely incompatible with each other, can 
 be more repugnant than autrefoits convict, on the prison- 
 er's own confession, and not guilty? Yet when we recol- 
 lect how often ignorant and timid men have been coerced 
 or deluded to make such confessions in open court, (as 
 for instance in the case of witchcraft) we shall admit not 
 only the humanity, but the justice of the indulgence. 
 
 As to the second of these points, the allegation of the 
 attorney, as now modified, seems to be correct; but can- 
 not avail at this time, in this court. Speaking of the plea 
 of autrefoits acquit, 2 Hale, 241, says, " Stamford tells 
 " us that the prisoner need not have the record of his ac- 
 " quittal in poigne, because the plea is not dilatory but 
 " in bar." "But," adds Hale, " if that should be law, it 
 " would be in the power of any prisoner to delay his 
 " trial as he pleaseth, by pleading autrefoits acquit or at- 
 " taint, in another court, and so put the king to reply mil
 
 General Court of Virginia. 231 
 
 " til record, and then day given over to the next gaol- 
 u delivery to have the record, &c. For regularly, if a 
 " record be pleaded in bar, or acted upon in the same 
 " court, the other party shall not plead nul til record but 
 " have oyer of the record: but if it be in another court, 
 " he shall plead nid til record, and a day given to procure 
 •* the certificate of the record, or the tenor thereof: — But 
 " it seems that for the avoiding of false pleas, and sur- 
 " mises, and to bring offenders to speedy trial in capital 
 11 causes, the prisoner must shew the record of his acquit- 
 " tal, or vouch it in the same court." He then proceeds 
 to shew how either may be done. 
 
 The first he tells us may be effected, by having the re- 
 cord removed into chancery by certiorari, and having it 
 inpoigne. Or by having it sent to the justices suo pede 
 sigilli. And then goes on to say, if the trial is in the 
 King's Bench, the second may be done, by the court's 
 granting " a writ of certiorari, to remove the record 
 4< before that court, in which case the court will respite 
 " his plea until the record is removed, that he may form 
 " his plea upon it, for the record is a part of his plea, 
 u thereupon his plea is put into form, setting forth the 
 " record in certain, (as the attorney general has said 
 " ought to have been done in this case) by saying, " For 
 " this he voucheth the record of the acquittal aforesaid — 
 " At the command of the King himself sent here
 
 232 Cases decided in the 
 
 " King % and now before the King 1 remaining." So that the 
 amount of the authority is, that to prevent delay and 
 false pleas — whenever the plea of autrefoits acquit^ or 
 autrefoits convict, in another court, is pleaded, the pri- 
 soner shall be ready to prove on the spot the truth of his 
 plea, so far as it respects the record of the former trial. 
 For the record is a part of his plea, and the truth of that 
 part must be proved to the court, by a transcript of the 
 record duly certified, or the record itself properly 
 brought before the court, and that if this proof is not 
 instantly given, the court will overrule the plea, although 
 for good cause shewn it will give him time to plead until 
 the record can be procured. 
 
 There is, then, no doubt with the court, but that the 
 transcripts of the records pleaded, or the records them- 
 selves ought to have been produced to the circuit court 
 when these pleas were pleaded. Nor can the court doubt 
 but that they were so produced, not only because the 
 court did not overrule the pleas for want of them, but 
 because the attorney has demurred to the pleas and 
 thereby admitted their existence. 
 
 Having disposed of these preliminary points, it seems 
 most proper to take up the questions actually adjourned, 
 in the order in which they are presented by the record",
 
 General Court of Virginia. 233 
 
 The first of these questions, a question which involves 
 considerations of the utmost importance to the criminal 
 jurisprudence of this country, as wtll as the fate of the 
 second plea contained in this record, comes before us in 
 this shape: 
 
 " Whether a court of examination hath power to ac- 
 '< quit a prisoner charged before them with murder, of 
 "the murder with which he stands so charged, and to 
 " remand the said prisoner to be tried in the superior 
 ** court, for manslaughter, on account of the same 
 " homicide.'"' 
 
 Before we enter upon this subject, it may be necessary 
 to observe, that the attorney general has never asserted, 
 nor has it entered into the mind of any member of this 
 court, either that the circuit courts possess an appellate 
 jurisdiction over the decisions of the examining courts, 
 or that any court whatever has a right to annul or disre- 
 gard the unreversed judgment of another court, be it 
 ever so erroneous, when brought incidentally before it, 
 if such judgment was within the jurisdiction of the court 
 which pronounced it. The positions laid down by the at- 
 torney general, were these: " That the discriminating 
 " power contended for is not given to the examining courts 
 " either expressly, or by implication, and is not within 
 " their jurisdiction. And that not being within their juris- 
 
 2G
 
 234 Cases decided in the 
 
 " diction, if they do attempt to exercise it, their decisions, 
 " as to that, are merely void, and binding upon nobody." 
 And surely if the premises are correct, the conclusion 
 cannot be denied. 
 
 When entering into the consideration of this important 
 question it is necessary to premise that these courts of 
 examination are courts unknown to the common law: 
 That they are the mere creatures of the statute law, and 
 cannot upon any principle, exercise any power or juris- 
 diction which has not been expressly conferred on them 
 by that law, or which does not result to them as the means 
 necessary to carry the jurisdiction expressly given to them 
 into effect. These powers they do and must possess, but 
 no more. 
 
 What then is the statute law upon this subject? What 
 are the powers which it hath given to these courts? And 
 what other powers are necessary to the due exercise of 
 the powers given? 
 
 Has the statute law given to these courts as it has to 
 the county and corporation courts, with certain specific 
 exceptions, "jurisdiction to hear and determine all causes 
 " whatsoever at common law, or in chancery, within 
 " their respective counties and corporations?" Or has it 
 given to them, as it did to the district courts, and 
 of course now gives to the circuit courts, " Full
 
 General Court of Virginia. 235 
 
 u power to hear and determine all treasons, murders, fe- 
 " lonies and other crimes or misdemeanors whatsoever 
 " committed or done within their districts?" It is believ- 
 ed it has not. Let us look into the acts of assembly and 
 see. 
 
 By an act passed on the 24th of January, 1 804, (2d 
 Vol. of the Revised Code,page 36, chapter 34, section 1,) 
 it is enacted, " That from and after the commencement 
 " of this act, when any person not being a slave, shall be 
 " charged before a justice of the peace with any treason, 
 " murder,| felony, or other crime or offence whatever, 
 u against the commonwealth, if in the opinion of such 
 "justice, such offence ought to be enquired into in the 
 " courts of this commonwealth, such justice shall take the 
 M recognizance of all material witnesses, &c. And, more* 
 " over, shall issue his warrant to the sheriff of the county 
 " or sergeant of the corporation, requiring him to sum- 
 " mon at least eight, if so many there be, of the justices 
 " of the county or corporation, to meet at their court- 
 M house on a certain day, not less than five nor more 
 " than ten days after the date thereof, to hold a court 
 " for the examination of the fact — which court consist- 
 " ing of five members at the least, shall consider whe- 
 11 ther, as the case may appear to them, the prisoner may 
 " be discharged from further prosecution, or may be 
 " tried in the county or corporation, or in the district 
 " court, and shall thereupon proceed in the manner as
 
 236 Cases decided in the 
 
 "prescribed by the act, entitled an act, directing the me- 
 u thod of proceeding against free persons charged with 
 " certain crimes," &c. 
 
 Let us stop here and enquire, whether this section gives 
 to the examining ourt general jurisdiction over the fact 
 and offence charged upon the accused? Surely it does not. 
 It has not general jurisdiction over the offence unless it 
 can hear and determine it — which no person will pretend 
 to say it can do. For the moment it has decided that an 
 offence has been committed by the prisoner, it becomes 
 its duty to send him on to another court for trial. Its 
 jurisdiction, then, must be limited. Let us see to what it 
 is limited. What can this examining court do? So far as 
 this section is concerned, it can do one of three things — 
 first, it is to consider whether the prisoner may be dis- 
 charged from further prosecution. If the court thinks so, 
 he is discharged accordingly, and there is an end to the 
 matter — but if the court does not think that he ought to 
 be discharged from further prosecution, is it authorized 
 to entertain that prosecution further, to go on further with 
 the examination of the fact? it is not; on the contrary, in 
 that event the court is expressly directed to enquire in 
 the second place, in what court he may be tried,or in other 
 words, further prosecuted. And having ascertained that, 
 the court is expressly directed in the third place, in pursu- 
 ance of the act to which the section now under conside-
 
 General Court of Virginia. 237 
 
 ration refers, to take proper measures to bring him before 
 that court for trial. It is believed that this is a correct 
 statement of those statutes, and if it be so, is it possible 
 not to perceive, that as the attorney general has observed, 
 the power to discharge/ron further prosecution and the 
 power to remand for further prosecution are contrasted 
 with each other? That the latter is not intended to be, and 
 in fact cannot be, exercised until the court has decided 
 that it ought not to exercise the former. 
 
 As, however, the great weight of the argument in fa- 
 vour of this discriminating power, rests upon the true im- 
 port of this authority, to discharge from further prosecu- 
 tion, let us examine a little more minutely, what is the 
 natural, correct and necessary meanings of the phrase, 
 discharge from further prosecution. Let us then suppose 
 that a man is charged before a justice of the peace, with 
 brtaking and opening a house, and stealing a pocket 
 handkerchief: the justice, being of opinion that the offence 
 amounted to burglary, commits him for that offence, and 
 summons an examining court. But that court, after hear- 
 ing all the evidence, is satisfied that although the crime 
 was committed, it did not amount to burglary, but to pet- 
 ty larceny only. Or let us suppose that a man is, in like 
 manner, committed for a grand larceny, and the examin- 
 ing court should think him guilty of the fact, but that it 
 amounted to petty larceny only — What would be done
 
 238 Cases decided in the 
 
 with these men? They would be remanded for trial in 
 the county court. Here is an exercise of the discriminat- 
 ing power, but is there a man alive who can prevail upon 
 himself to believe, that this is a discharge from further 
 prosecution? Or that it proceeds from or is done in con- 
 sequence of the power to make such discharge? So far 
 from being so, it is an express order that he shall be fur- 
 ther prosecuted, and is derived, as will be shewn hereaf- 
 ter, from a different source. How then does this power 
 to discharge from further prosecution prove that the ex- 
 amining court, when it has refused to exercise it, and has 
 actually sent the accused on to another court for trial, 
 has a right to forestall the opinion of that other court in 
 which the law and its own decision has said that trial 
 ought to take place? 
 
 But it is said, the major includes the minor; that the 
 power to discharge from further prosecution is the major 
 power, the power to discriminate the minor, and of course 
 included in the other. But it is believed, that he power 
 to acquit generally, is not the major, but the m nor power. 
 It is believed to be a self-evident truth, not to be denied 
 by any man conversant in the law, tba? the power to as- 
 certain the various shades and grades of an offence, which 
 has been committed, is a power infinitely more difficult 
 to execute, and more important in its nature and conse- 
 quences, than the power to decide, whether any offence
 
 General Court of Virginia. 239 
 
 whatever has been committed, and that this is more em- 
 phatically true, as it respects the crime of felonious ho- 
 micide, than any other. How then can it he said, that the 
 former is the major, and the latter the minor power? It 
 is believed, that the converse of the proposition is true. 
 
 But it is further said, that these courts have and do 
 exercise the power of discriminating between the grades 
 of certain offences, as for instance, those which have been 
 mentioned, burglary and larceny. And this is true, but 
 it is not easy to see how it affects the argument — no one 
 doubts but that they may do any act necessary and pro- 
 per for the due exercise of the power actually given to 
 them. They are expressly directed to send the accused, 
 if guilty, to the court in which by law he ought to be 
 tried; but, in these cases, it is impossible to ascertain in 
 what court the trial ought to be had, without first ascer- 
 taining whether the offence be or be not petty larceny, 
 and so far they may and must discriminate. But how 
 does that prove that in a case not necessary to the exer- 
 cise of a power actually given, they may discriminate for 
 the purpose of interfering with, and controlling the opi- 
 nion of that court to which, by direction of law, they 
 send the prisoner for further trial? 
 
 We are also told that this power is given by the third 
 sect, of the act of 1804. That section enacts " that if any
 
 240 Cases decided in the 
 
 " person charged with any crime or offence against the 
 «* commonwealth shall be acquitted or discharged from 
 " further prosecution by the court of the county or cor- 
 " poration, in which the offence is, or may by law be ex- 
 " aminable, he or she shall not thereafter be examined, 
 " questioned or tried for the same crime or offence; but 
 " may plead such acquittal or discharge, in bar of any 
 " other or further examination or trial for the same 
 " crime or offence, any law, custom, usage or opinion to 
 41 the contrary in any wise notwithstanding." 
 
 Now upon what principle of construction can this sec- 
 tion be said to give a power to acquit or discharge? Is it 
 not most clearly and palpably predicated on the idea that 
 the power had already been given? And is it not mani- 
 festly intended to declare what shall be the result of that 
 acquittal or discharge, which the court already possessed 
 a right to pronounce? To find, then, the extent of that 
 power to acquit or discharge, we must look into that part 
 of the law which gives it. And when we do so, we dis- 
 cover it is this very power to discharge from further pro- 
 secution, out of which the present question has arisen, and 
 which, it is believed, has already been proved not to con- 
 fer the discriminating power contended for. 
 
 But the construction put upon this section is attempted 
 to be further supported, by stating, that any person charg-
 
 General Court of Virginia. 24 1 
 
 cd with a crime or offence, who is acquitted or discharged 
 by the examining court, shall not be questioned for the 
 same crime or offence, and then stating every degree of a 
 crime which grows out of an unlawful act, as forming 
 by itself a separate and distinct crime, and not as form- 
 ing different degrees of the same crime. Consequently it 
 is inferred, that murder and manslaughter are distinct 
 crimes or offences, although they are alleged to grow out 
 of the same unlawful homicide. And that therefore, if 
 the examining court acquit a man charged befere it with 
 murder, but go on to say that he is guilty of manslaughter, 
 by perpetrating the same felonious homicide, for which 
 he was charged with the murder, he is thereby acquitted 
 of the crime wherewith he stood charged, to wit, the mur- 
 der; and may plead that acquittal in bar, by virtue of this 
 third section. But this is an incorrect understanding of 
 the word crime and offence, as they are used, both by the 
 common law and the statute under consideration. In legal 
 acceptation those words are synonymous terms, although 
 the word crime is often used to denote offences of the 
 higher grades. 1 Haw. page 1, Blac. Com. page 4 and 5. 
 In the same fifth page of 4 Blackstone's Commentaries, 
 we are told; — that crime consists in doing an act, in vio- 
 lation of a public law; and in the second page of the same 
 book, that the law teaches the grades of every crime, and 
 adjusts to u, its adequate and necessary punishment. 
 Crime or offence, then, is the doing an act, in violation 
 
 2H
 
 212 Cases decided in the 
 
 of a public law; and the different degrees of atrocity 
 which may attend its commission, fix the degree of the 
 crime. The killing of a human being, in any case not 
 specially allowed or excused, is a crime distinguished by 
 the name of felonious homicide. But as that crime may 
 be attended with greater or lesser degrees of guilt, these 
 degrees are distinguished by different names and punish- 
 ments. But still they all constitute the same crime, felo- 
 nious homicide. And murder being the highest grade, 
 includes all the others. So that a man charged with mur- 
 der, is charged with every vSpecies of felonious homicide. 
 Blackstone, after having in his fourth volume, disposed 
 of sundry crimes of a different nature, in his 14th chap, 
 comes, as he says, to consider " those crimes which in a 
 " more particular manner affect or injure individuals." 
 
 And in the 188th page he proceeds to consider the 
 crime of felonious homicide, that " being, as he says, the 
 " killing of any human creature, of any age or sex, with- 
 out justification or excuse, and this, he adds, maybe 
 " done by killing oneself or another man." He then goes 
 on to describe the various species of that crime, and their 
 respective punishments, clearly shewing that in his opi- 
 nion, felonious homicide was the crime, and murder, 
 manslaughter, &c. &c. its various grades. 
 
 The meaning put upon these words by the statute
 
 General Court of Virginia. 243 
 
 under consideration, is precisely the same. When any 
 person is charged before a justice of the peace with trea- 
 son, murder, felony or other crime or offence, he is to 
 summon a court to inquire into the fact, which is suppos- 
 ed to constitute that crime; when the court has done so, 
 it is to conr.id< r whether he may be discharged from fur- 
 ther prosecution. For what? For every species of crime 
 which might grow out of that fact. — If they do not dis- 
 charge him, they are to send him to the proper court to 
 be 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 
 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 construe-
 
 244 Cases deckled in the 
 
 tion 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 prosecution, he may be prosecuted de novo. 
 
 The argument from analogy is also deemed inapplica- 
 ble. The grand and petty jury are sworn in a court having 
 general jurisdiction of 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 ob- 
 tains better testimony, he may send up another bill for 
 murder and try him upon that. — One indictment cannot 
 be pleaded in abatement of another, 2 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 an-
 
 General Court of Virginia. 245 
 
 swer 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 in- 
 nocent 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 know of no judicial deci- 
 sion upon this point. For although Judge Mercer did 
 in the discussion of SorreWs case, mention the case of 
 the K'vig against Davis, yet he did not make even a 
 parol report of the circumstances of the case. He did 
 not tell the term, nor even the year when it was adjudged, 
 nor, which is very remarkable, did any of his brother
 
 246 Cases decided in the 
 
 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 con- 
 sidered by the court to whom it was mentioned. 
 
 SorreWs 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 
 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, he would be willing to hear it argued. 
 
 Neither was this a sudden opinion, given without con- 
 sideration. 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's and Shannon's cases. 
 So that there have been three judicial opinions in favour 
 of it, and none that we know of against it. 
 
 From the year 1786 to the year 1804, eighteen years,
 
 General Court of Virginia. 247 
 
 the legislature left this law, thus explained and thus exe- 
 cuted, untouched. If it had deemed this construction 
 incompatible with the public good, would it have done 
 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 con- 
 struction? The legislature knew that this power had been 
 denied to the examining courts for eighteen years, whv 
 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 in SorrelPs case, and 
 most of the judges and lawyers in the state, had always 
 admitted that these courts did possess the power of en- 
 tire acquittal. This opinion had, however, been lately 
 called in question by a book of respectable authority, and 
 had in Shannorfsca.se been actually resisted by a judge of 
 the general court. It was then to put an end to that ques- 
 tion, and to secure to those courts that general power of 
 acquittal which almost every body thought they did pos- 
 sess, that this third section of the act of 1804, was 
 inserted.
 
 248 Cases decided in the 
 
 Another argument was pressed upon the court in a 
 late stage of the cause, drawn from the 12th section 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 existence — if 
 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 legis- 
 lature speak of a person's being charged with a crime, a 
 charge made by a grand jury or examining court is ne- 
 cessarily meant. The word charge is often used to desig- 
 nate a charge made upon oath before a justice of the 
 peace, and it is so used in both of the acts of assembly 
 respecting examining courts. The real intention of the 
 legislature seems to have been, that when a man waa 
 sent forward for homicide, and the attorney to whom 
 the law directs the depositions to be sent, should per- 
 ceive 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, of the murder 
 with which he stands so charged, and to remand the said 
 prisoner to be tried in the superior court for mauslaugh*
 
 General Court of Virginia. 249 
 
 ter 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 ho- 
 micide with which he stood charged, but may be indicted 
 for murder before the superior court. 
 
 Judge White at the close of his opinion, added, that 
 there was one point which the court had not yet under- 
 taken to decide; viz. whether the commonwealth could 
 mend its pleadings, that is, withdraw its demurrer and 
 put in a new plea. This point was waved by the bar, and 
 it was understood to be one which would fairly lay over 
 for the court below. 
 
 The following order was then entered on the record, 
 and directed to be certified to the Norfolk circuit court. 
 
 The superior court of Norfolk county having with the 
 assent of the prisoner, Samuel Myers, adjourned to the 
 general court the following questions of law, viz. 
 
 First: Whether a court of examination hath power to 
 acquit a prisoner charged before them with murder, of 
 the murder with which he stands so charged, and to re- 
 mand the said prisoner to be tried in the superior court 
 for manslaughter on account of the same homicide. 
 
 31
 
 250 Cases decided in the 
 
 Secondly: Whether a prisoner acquitted by the ex- 
 amining court of murder and remanded to be tried before 
 the superior court for manslaughter on account of the 
 same homicide, but indicted in the said superior court 
 for murder on account of the same homicide, is entitled 
 to be bailed by such superior court after the discharge of 
 the grand jury who found no other indictment against 
 him. 
 
 And any and all the other questions of law arising 
 upon the pleadings. 
 
 The court having maturely considered the said ques- 
 tions of law after the argument of the attorney general 
 and counsel for the prisoner; are unanimously of opinion, 
 and do decide: 
 
 First, That a court of examination have not power to 
 acquit a person charged before them with murder, of the 
 murder with which he stands so charged, and to remand 
 him to be tried for manslaughter in the superior court on 
 account of the same homicide. 
 
 Secondly, It is further the unanimous opinion of the 
 court, that the examining court being legally incompetent 
 to control the proceeding of the superior court upon the 
 case of the prisoner remanded by the examining court to
 
 General Court of Virginia. 251 
 
 the superior court for a felonious homicide, it was lawful 
 to indict the prisoner for murder, notwithstanding the 
 discrimination by the examining court as to the grade of 
 of homicide, and being so indicted, the said prisoner was 
 not entitled to be bailed on the ground of no indictment 
 being found against him for the offence of manslaughter. 
 
 The prisoner having pleaded three pleas in bar, by the 
 leave of the court, in substance as follows: 
 
 1st. That the prisoner was charged with the murder ot 
 Richard Bowden, examined for the same before a court 
 legally constituted and found not guilty of the murder, 
 and that he ought not to be remanded to the superior 
 court for trial therefor. 
 
 2d. That the prisoner was charged with the murder 
 of Richard Bowden, examined for the same before a court 
 legally constituted, and found not guilty of the said mur- 
 der, and that he ought not to be remanded to the superior 
 court therefor, but ought to be tried for the offence of 
 manslaughter in the superior court of law to be held at 
 Portsmouth, &c. 
 
 3d. That he was duly charged^ examined and tried for 
 the murder of Richard Bowden before a court legally 
 constituted, and upon this trial and examination was duly
 
 252 Cases decided in the 
 
 and legally acquitted of the said murder and felony with 
 which he stood charged, and was adjudged by the court 
 not. guilty thereof: To each of which pleas, the attorney 
 for the commonwealth demurred generally and the priso- 
 ner filed a joinder thereto, and the matters of law arising 
 thereupon having been duly considered} the court doth 
 decide: 
 
 That the first plea affording matter in bar of the indict- 
 ment, and well pleaded, the demurrer thereto ought to 
 be overruled, and the plea held good. 
 
 That the second plea, stating a proceeding by the ex- 
 amining court which the court has decided, in answer to 
 the first question, to be one exceeding the jurisdiction of 
 that court, does not afford matter in bar of the indictment, 
 and therefore as to that plea the demurrer ought to be 
 held good and the plea overruled. 
 
 That the third plea affording matter in bar of the in- 
 dictment and well pleaded, ought to be held good, and 
 the demurrer thereto overruled — Which is ordered to be 
 certified to the Superior Court of Norfolk county. 
 
 During the arguments of the above case the two cases 
 nf Sorrell and Bailey were so often referred to, that it is
 
 General Court of Virginia. 253 
 
 thought adviseable to annex them hereto. The former was 
 reported in MS. bv Saint George Tucker, Esq. whilst he 
 was at the bar, and a copy of his report was shewn to the 
 general court during Myers's trial; the latter was also re- 
 ported by him: it will be observed that Bailey's case was 
 not quoted or relied upon as authority, it having been 
 decided by a tribunal inferior to the general court. 
 
 THOMAS SORRELL'S CASE, 
 
 In the General Court, April Term, 1786. April 6th. 
 r THHE prisoner was examined before the County Court 
 of Westmoreland, for the murder of a slave, the pro- 
 perty of one Ebenezer Moore. The court adjudged him 
 guilty of manslaughter, and sent him on for further trial. 
 It was moved that he should be discharged, as he could 
 not be punished under the act of 1748, ch. 31, sect. 23. 
 Motion overruled, the court (absent Lyons and Mercer) 
 being of opinion, he might be indicted for murder. The 
 grand jury found the bill against him for murder. Lyons 
 and Mercer being now present, made some objections to 
 the indictment, wishing the point to be reconsidered. 
 
 Randolph, attorney general, took the distinction where 
 the manslaughter of a slave is committed by the master 
 of him, the examining court may acquit the criminal fi-
 
 254 Cases decided in the 
 
 nally. But where it is by a stranger, though the court 
 should conceive the offence to be manslaughter only, vet 
 the acquittal can only after an indictment be upon a trial 
 in this court; for in this instance, the examining courts 
 have no authority to discriminate between murder and 
 manslaughter. 
 
 Mr. Lyons. Can you indict a man for a greater offence 
 than the examining court have adjudged him guilty of? 
 
 Mr. Attorney conceived he might, for the point whether 
 murder or manslaugher can only be determined here. 
 
 Mr. Mercer mentioned the case of the King against 
 Davis, some years ago, in which it was adjudged that it 
 could not be done. 
 
 Mr. Attorney. The county courts cannot discriminate 
 between murder and manslaughter in any case except the 
 homicide of a slave by his owner. This power they de- 
 rive from the particular words of the very clause. They 
 may discharge the prisoner, and such discharge is final, 
 and may be pleaded in bar of any future prosecution for 
 the same offence, but they cannot ascertain the quantum 
 of guilt in his case except in the single instance above 
 mentioned.
 
 General Court of Virginia. ^55 
 
 Mr. Lyons. According to this doctrine, a man sent 
 hither on a charge of felony may be tried for treason. 
 How is he to know the nature of the indictment you mean 
 to prefer against him, if it rests with the attorney general 
 to charge him as he pleases? Suppose he had applied to 
 be bailed, could any judge of this court have refused it 
 on a view of the record. Surely then he ought not to be 
 indicted for an offence for which he was not bailable. 
 
 Mr. Lee for the prisoner. The slave was hired to the 
 prisoner at the time of the homicide. He was therefore 
 sub modo his property. This brings him within the attor- 
 ney's distinction in favour of owners. An overseer hav- 
 ing an interest in the labour of a slave he conceived to be 
 within the policy of the rule. 
 
 Mr. Lyons. In the case of an owner, positive and ex- 
 press malice must be proved to convict of murder. But 
 in that of an overseer, implied malice is sufficient; but 
 neither of these cases, (were the law the same in both) 
 will apply. The court delivered their opinions seriatim. 
 
 Tazezvell Judge. There is no question with me but 
 that an examining court may acquit finally, and discharge 
 a prisoner upon any criminal prosecution, and that such 
 an acquittal may be pleaded in bar of any future prosecu- 
 tion tor the same offence. But in this case the court have
 
 25 G Cases decided in the 
 
 not acquitted him, but have given an opinion on a point 
 which they cannot judicially determine. For it exceeds 
 their power of determining on the homicide, whether 
 murder or manslaughter, the law not authorizing them to 
 make such a distinction except in the case of an owner. 
 The prisoner was not the owner of the slave, and there- 
 fore rightly sent here for trial. Can this court discharge 
 him without a trial? Would it not be nugatory to indict 
 him for an offence not punishable by law? The record 
 shews that it appeared to the examining court, that he 
 hath been guilty of an actual homicide, and though they 
 have exceeded their power by giving a name to the of- 
 fence, yet he conceived he might be indicted for mur- 
 der, and that the indictment ought to be sustained. Should 
 the prisoner be convicted, he was willing the matter should 
 be brought on again by a motion in arrest of judgment. 
 
 Mercer. There is no difficulty in this case if the power 
 of an examining court be attended to. If they can acquit, 
 they may decide the measure of guilt, and the nature of 
 the offence. No man in this state can be indicted for any 
 offence unless three jurisdictions concur in the opinion 
 of his guilt. The examining court have said he is not 
 guilty of murder; should the jury convict him of murder, 
 the verdict will be insufficient for his condemnation, not 
 being founded on a precedent conviction of the same na- 
 ture by the examining court. He concurred with Mr.
 
 General Court of Virginia. 257 
 
 Lyons as to the bailing him, and concluded by saying 
 the prisoner ought to be indicted for manslaughter only. 
 It was certainly a crime for which the court should try 
 him, though no punishment attended it in this case. He 
 likewise concurred with Mr. Lyons in his distinction as 
 to express malice, in the case of an owner, being required 
 to be proved; implied malice in the case of an overseer 
 or another person, would be sufficient to constitute the 
 crime of murder in the case of a slave, as well as of a 
 white person. 
 
 Fleming. The examining courts have no power to make 
 a distinction between murder and manslaughter in this 
 case. This must be done by a jury. 
 
 Lyons. The county court having declared the nature 
 of the offence, he said he would not agree to increase it. 
 It was a dangerous precedent. Where the prisoner is sent 
 up for further trial generally, the attorney general may 
 charge him as he pleases; not so where the offence is de- 
 fined by the examining court. He was for trying him for 
 manslaughter. The punishment is nothing to the court 
 but they are to enquire into the offence. 
 
 Carrington, Chief Justice. The examining court have 
 unquestionably the power of finally acquitting, and dis- 
 charging a criminal, but where they are of opinion, that 
 
 2 K
 
 258 Cases decided in the 
 
 a homicide has actually been committed, they must re- 
 mand the prisoner for further trial except in the case of 
 the owner of a slave. This court cannot judge whether 
 the offence be murder or manslaughter but by the ver- 
 dict of a jury. He thought the indictment for murder 
 strictly proper. 
 
 The prisoner was immediately put on his trial, and 
 acquitted, as I thought (says Mr. Tucker) directly con- 
 trary to evidence. 
 
 JOHN BAILEY'S CASE. 
 
 T TE was indicted in the Williamsburg District Court, 
 September term 1798, before Prentis and Tucker, 
 judges of the general court, for the murder of Richard 
 Whitaker. The indictment being read he presented a 
 paper containing the following pleas: 
 
 1st. That at an examining court held in James' City 
 County, September 1st, 1798, he was arraigned for the 
 murder of R. W. and that the court upon consideration 
 of that charge " were of opinion" that he was not guilty 
 of the murder of the said R. W. as by the record &c. here 
 produced in court will appear: and avers that the said 
 R. W. in the record, and the said R. W. in the indict-
 
 General Court of Virginia. 259 
 
 ment are the same person, &c. 2dly. That at an examin- 
 ing court held (as above) he was arraigned for the mur- 
 der of R. W. and that the court upon consideration of 
 that charge " were of opinion" that he was not guilty of 
 the murder of the said R. W., but that he ought to be tried 
 for manslaughter on account of the killing of the said 
 Whitaker, as by the record, &c. and avers, &c (as before) 
 wherefore he prays judgment if he ought again to .je 
 charged with the same death, &c. 3dly. He pleaded not 
 guilty to the indictment. 
 
 The first of these pleas is a plea of autrefoits acquit 
 as to murder, the second autrefoits convict as to man- 
 slaughter. The attorney for the commonwealth (Mr. 
 Saunders) had leave till Monday to reply. Note: There 
 was no averment that he was the same John Bailey in the 
 record mentioned: but herein the plea was amended. 
 
 Some doubts may arise as to the manner in which the 
 court ought to proceed in this case. Sir M. Hale lays it 
 down as a rule, that if a record be pleaded in bar, or de- 
 clared upon in the same court, the other party shall not 
 plead nid tiel record, but have oyer of the record j but if 
 it be in another court he shall plead nid tiel record, or the 
 tenor thereof: and in that case the court will award a cer- 
 tiorari to remove the record before them, and respite the 
 plea till he can remove his acquittal into court.— But it is
 
 260 Cases decided in the 
 
 to be observed that the record must be removed by writ; 
 for although the king's bench may take an indictment, or 
 other record of the justices of the peace, prcprns mam- 
 bus when it is to be proceeded on for the king, yet they 
 cannot take a record of acquittal to serve the prisoner's 
 plea without a writ. (2 Hale, 241, 2.) 
 
 It would seem then proper to award a certiorari in this 
 case; because a record can only be tried by inspecting the 
 record itself, and though the court is possessed of a copy 
 of a record, from the court below, yet inasmuch as that 
 record does not accord with the plea, and as the plea 
 vouches the record to prove that the matter therein set 
 forth is true, it seems indispensably necessary that the 
 record itself should be before the court. 
 
 Monday, October 1st. Mr. Saunders pro repubheo re- 
 plied nul tiel record, and thereupon a subpoena duces tecum 
 was issued to the clerk of James' City county returnable 
 forthwith. The record being produced is, as to the mate- 
 rial parts, in these words: " It is the opinion of the court 
 " that the prisoner ought to be tried for manslaughter, at 
 " the next district court, &c." 
 
 Tucker Judge. The essence of a plea of former acquittal, 
 or conviction is, that he was legitime modo acquietatus, &c. 
 Here then it is necessary that the party should have been
 
 General Court of Virginia. 261 
 
 uitted or convicted not only in due form, but by a court 
 haying competent jurisdiction. 1st. As to due form. Here 
 is nothing in this record that amounts to an acquittal or 
 conviction of either murder or manslaughter. The party 
 was not arraigned; — he was not even indicted; — there can 
 be no acquittal or conviction, but in consequence of both 
 these modes of proceeding. 2 If. H. P. C. 216. 4 Bl. 
 322. 
 
 2d. The court had not competent jurisdiction; the court 
 has no jurisdiction in criminal cases beyond the letter of 
 the act. That act authorizes the court only to do one of 
 three things; viz. to consider, whether as the case may 
 appear to them the prisoner may be discharged from fur- 
 ther prosecution; may be tried in the county or cor- 
 poration court, or must be tried by the district court. 
 Now the act establishing county courts is express, that 
 these courts shall not have jurisdiction in any case, where 
 the judgment in case of conviction shall be for life or 
 member. 
 
 3d. The record produced does not support either of 
 these pleas. An acquittal must be final: so must a con- 
 viction: the court have neither acquitted, nor convicted; 
 for they have sent him hither to be tried for the offence 
 of manslaughter. Here then the opinion of the court is 
 neither an acquittal nor a conviction, but merely an opi-
 
 262 Cases decided in the 
 
 ?iion that he must be tried before a court having compe- 
 tent jurisdiction of the case, who may thereafter acojjit 
 or convict as the case shall appear before them. 
 
 Prentis Judge, dissented from the junior judge as to 
 the record's not supporting the pleas. He thought it did. 
 support them. Therefore the court being divided the 
 judgment of the court was necessarily in favour of the 
 prisoner, (See the district court law, ch. 66, sect. 16.) 
 viz. that there is such a record. But as he concurred in 
 the opinion that the county court had no right to discri- 
 minate betwen murder and manslaughter, the prisoner 
 was put upon his trial upon the indictment for murder, 
 and found guilty of manslaughter. 
 
 The Commonwealth against Luke Ray and Sarah 
 his wife. 
 
 HPHE defendants were jointly indicted in the Superior 
 Court of law for Bedford county, for an assault 
 and battery committed on T. Minor. They pleaded 
 jointly " not guilty," and the jury found the following 
 verdict. " We of the jury find the defendants guilty and
 
 General Court of Virginia. 263 
 
 " assess their fine to one hundred dollars." They moved 
 to arrest the judgment for these reasons, " that the hus- 
 " band and wife ought not to be joined in an indictment 
 " for the same offence. 2d. That joint damages ought not 
 " to be assessed against two defendants, but that the jury 
 "ought to have assessed the amercement against each, 
 " according to the degree of their offence." 
 
 The case was adjourned on this motion, and the gene- 
 ral court, June 1 3th, 1812, present judges Nelson, White, 
 Stuart, Holmes, Brockenbrough,Semple, Johnston, Smith 
 and Randolph, decided " that the first reason alleged in 
 " arrest of judgment, is insufficient to arrest it, it being 
 " lawful to join a husband and wife in such indictment.; 
 " but that the second cause assigned is sufficient, because 
 " the fine ought to be assessed against each defendant 
 " separately." 
 
 See 1st Call, p. 555. Jones vs. The Commonwealth,
 
 264 Cases decided in the 
 
 Peter Case against the Commonwealth. 
 
 nnHIS was a writ of error obtained from the Hamp= 
 shire Circuit Court, for the purpose of revising and 
 correcting a judgment of the county court obtained by 
 the commonwealth against the plaintiff. 
 
 He had been indicted for retailing spiritous liquors, 
 to wit, a half pint of whiskey, to be drank at the place 
 where sold, without having obtained the license of the 
 law. The defendant's counsel on the trial filed two bills 
 of exceptions to the opinion of the court. In the first, it 
 was stated that the defendant's counsel asked the witness 
 a question tending to his own discredit, which question 
 the court declared improper, and refused to let him an- 
 swer it. The defendant therefore excepted. In the second, 
 it was stated that the only evidence produced against the 
 defendant, was that he had sold brandy, whereas the in- 
 dictment charged that he had sold whiskey, and that the 
 jury found for the commonwealth on such evidence ; 
 whereupon the defendant moved for a new trial which 
 the court refused, to which refusal the defendant ei- 
 epted.
 
 General Court of Virginia. 265 
 
 In the circuit court, the counsel for the plaintiff in 
 error admitted that this being a criminal case, the court 
 below was not obliged to sign the bills of exceptions, but 
 contended that as the court had actually signed them, 
 they became a part of the record, and that the superior 
 court was bound to take notice of any error which they 
 disclosed, and to reverse the said judgment if the error 
 so disclosed was sufficient. That question was adjourned 
 to the general court for its advice. 
 
 The general court, June 13, 1812, decided that as the 
 county court was not obliged to sign a bill of exceptions 
 in any criminal case, although the county court has in this 
 instance signed the bills, they do not thereby become a 
 part of the record, and the superior court for Hampshire 
 county was not bound to take notice of any error stated 
 in the said bills of exceptions. 
 
 The Commonwealth against Jesse Calvert 
 
 rpHE defendant was indicted in the Frederick Circuit 
 
 Court for wilful and corrupt perjury in taking the 
 
 oath of an insolvent debtor before the county court of 
 
 Frederick on the 5th day of September, 1809. The defen- 
 
 2L
 
 266 Cases decided in the 
 
 dant's counsel moved the court to quash the indictment 
 on the ground that the county court had not at the time 
 when the oath was charged to have been taken, legal and 
 competent authority to administer the same. (Note; the 
 executions on which the defendant had been taken, were 
 all issued from the office of the county court of Fre- 
 derick.) 
 
 The question in this case arose from the 2d and 13th 
 sections of the act of 1794, amendatory of the execu- 
 tion law, (see 1 Rev. Co. ch. 176, p. 324 and 326), and 
 their operation on the 38th section of the execution law 
 of 1793. (See p. 303.) The law of 1793 provides for 
 bringing the person charged in execution before the court 
 itself (\l sitting) in which the suit was commenced or 
 prosecuted, or (if not sitting) before two judges, or jus- 
 tices of the said court, (as the case may be); which court, 
 judges or justices many administer the insolvent debtor's 
 oath. The 2d section of the act of 1794 provides for 
 bringing the person charged in execution, before any two 
 justices of the county or corporation, to whose jail he 
 may be committed, and the said justices shall have power 
 to administer the oath. The 13th section of the last men- 
 tioned law repeals so much of the 38th section of the act 
 of 1793 as " is contrary" thereto. So that in this case the 
 question was whether the power vested in the courts 
 themselves to administer the oath by the act of 1793 was
 
 General Court of Virginia. 267 
 
 taken away from them by the act of the next year, and 
 confided exclusively to the two justices. The general 
 court, June 13, 1812, decided "that the county court of 
 " Frederick had not on the 5th day of September, 1809, 
 " legal .aid competent authority to administer the oath 
 " prescribed in the case of insolvent debtors." 
 
 Barnet Hendrick, who as well for the Common- 
 wealth as for himself, sues against Jacob An- 
 drick, and Robert Renick. 
 
 ■5 
 
 r TT , HIS was a qui tarn information exhibited in the Su- 
 perior Court of Law for Greenbrier county against 
 the defendants. They were charged with having, on the 
 2d January, 1810, felled thirty trees, on the common- 
 wealth's highway and public road leading from the upper 
 navigation of James' river, to the upper navigation of 
 Kenhawa river, within the county of Greenbrier, and 
 with having permitted them to lie and remain from the 
 said second to the eighth day of January upon the com- 
 mon highway aforesaid, to the grievous and common 
 nuisance of all the citizens of Virginia passing, riding, 
 and travelling upon and through the highway aforesaid,
 
 268 Cases decided in the 
 
 against the form of the act of assembly in such case 
 made, &c. 
 
 The defendants pleaded not guilty, and the jury found 
 them guilty of one of the offences in the information 
 charged agnJnst them. The defendants moved in arrest 
 of judgment, and assigned the following reason: u be- 
 " cause by law a qui tarn information does not lie to re- 
 " cover the penalty imposed by the act of assembly for 
 " obstructing a public highway. 1 * 
 
 The act of assembly inflicts a penalty often pounds on 
 the act of felling a tree on the public highway, and per- 
 mitting it to remain forty-eight hours, and declares that 
 one moiety of the penalties inflicted by the act for the 
 several offences enumerated in it, shall be to the infor- 
 mer, and the other to the use of the county, recoverable 
 with costs, on warrant, petition, or action, as the case may- 
 be. The only question in this case was, whether a qui tarn 
 information was included in the remedies provided for by 
 this act. [See 1 Rev. Code, p. 28, sections 9th and 11th.] 
 The question was adjourned by the circuit court, and the 
 general court decided, June 13, 1812, " that an informa- 
 " tion qui tarn does not lie to recover the penalty impo- 
 ** sed by the act of assembly for obstructing a public high- 
 " way."
 
 General Court of Virginia. 269 
 
 Matthias Hite against Jesse Fitz- Randolph. 
 
 r T ,, HE plaintiff had obtained a judgment in the Circuit 
 Court of Law for Harrison county against the de- 
 fendant. The defendant thereupon applied to the county 
 court of Harrison, on the chancery side thereof, for an 
 injunction to stay proceedings thereon, which was grant- 
 ed him. The plaintiff, not regarding the injunction, pro- 
 ceeded to carry his judgment into effect, on which the 
 defendant obtained from the county court an attachment 
 for his contempt in disobeying the order in chancery of 
 the county court, by virtue of which the plaintiff was 
 taken into the custody of the sheriff of that county. The 
 plaintiff then applied to the judge of the superior court, 
 during its session, for a habeas corpus, to bring his body 
 before the court to do, submit to, and receive whatsoever 
 should then be considered in this behalf, which was grant- 
 ed. The question before that court was whether the plain- 
 tiff was legally detained in custody, which depended on 
 the point whether a county court can injoin the judgment 
 of the superior court. It was adjourned to the general 
 court. That court, June 15th, 1812, decided, " That 
 " Matthias Hite the plaintiff ought to be discharged, the 
 " county court having no right to make an order restrain- 
 " ing him from proceeding on his judgment at law ob- 
 " tained in the superior court of law 
 
 .r '»
 
 270 Cases decided in the 
 
 The Commonwealth against Benjamin B. Jones. 
 
 r I ^HIS case was adjourned from the Circuit Court of 
 James' City County. The judge of that court during 
 its session in April, 1811, brought into court the follow- 
 ing certificate, which was ordered to be entered. 
 
 "Virginia to wit. On the 25th day of January, 1811, 
 " I, William Nelson, one of the judges of the general 
 " court, and judge of the circuit court of James' City 
 " county, having taken the affidavit of a witness con- 
 " cerning a duel, then about to take place between Wil- 
 " liam Irvine, and James W. Murdaugh, called upon 
 " Benjamin B. Jones, and demanded his affidavit as ad- 
 " ditional testimony, on which to ground a warrant 
 "against those concerned. The said Benjamin B. Jones 
 " wished to consult counsel, and after consulting them, 
 " refused to give me any information on the subject. I 
 " informed him that according to the opinion of some, I 
 " had a right to commit him, but as I had doubts on the 
 " subject I should not do that, but should either proceed 
 "against him at the then next session of the circuit 
 "court of James' City county, or refer the -case to the 
 " general court." The circuit court then ordered the cer- 
 tificate and the following questions to be adjourned to
 
 General Court of Virginia. 271 
 
 the general court. " First, whether a judge out of court 
 " hath a right, when he hath reason to suspect a duel is 
 "^about to take place, to punish a witness who may re- 
 " fuse out of court to give testimony, if the party accused 
 ** be not before the judge, and if so, in what manner: 
 " Secondly, hath he such right, when the party accused 
 u is before the judge." 
 
 The general court, June 17, 1812, certified it to be their 
 opinion, u that a judge out of court hath a right, when 
 " he hath reason to suspect a duel is about to take place, 
 " to commit a witness who may refuse out of court to 
 " give testimony by affidavit, when the party accused is 
 "not before the judge, until he shall give testimony, and 
 " that a fortiori, such power exists when the party ac- 
 " cused is before the judge." 
 
 The Commonwealth against John M'Caul. 
 
 r ■ "'HE prisoner was indicted in the Superior Court of 
 law for Henrico county, in April 1812, for the feloni- 
 ous stealing, taking and carrying away from the treasury 
 of the commonwealth, and from the custody of John Pres-
 
 272 Cases decided in the 
 
 ton the treasurer, a large sum of money, to wit, seventeen 
 thousand dollars in bank notes, and seventeen silver 
 crowns of the value of eighteen dollars seventy cents, 
 of the current coin of this commonwealth. He was con- 
 victed by the jury, and on the last day of the term, the 
 following order was made by the superior court. 
 
 *' At a superior court of law held for Henrico county 
 at the Capitol in the city of Richmond, on Saturday, April 
 25 th, 1812. 
 
 " John M'Caul, late of the parish of Henrico, in the 
 county of Henrico, yeoman, who stands convicted of 
 grand larceny, being again led to the bar in custody of the 
 jailor of this court, by his counsel moved the court to set 
 aside the verdict found against him by the jury, and to 
 award him a new trial, on the ground of misbehaviour of 
 one of his jurors as set forth in the affidavits of James 
 Bailey, Benjamin Sheppard, and John Morris, officers of 
 the court, and of Frederick Clarke and John .Lee jury- 
 men, and of Peter Moseley tavern-keeper, all of which 
 affidavits are ordered to be filed among the records of this 
 court: whereupon the court doth certify that the trial of 
 the said M'Caul continued from Tuesday the eighth day 
 of the court to Friday night the eleventh day of the court, 
 and that this court by consent of the prisoner, his counsel 
 and the attorney for the commonwealth, on the second,
 
 General Court of Virginia. 273 
 
 third and fourth days of the trial made a temporary ad- 
 journment of short duration about the hour of two in 
 the afternoon,* and that a general order was given by 
 the court to the jury and the officers on the first evening 
 of the trial, that the jury should on their being adjourned, 
 be kept together, and not separated; and the court with the 
 consent of the prisoner doth adjourn to the general court, 
 as a question of novelty and difficulty, this point: "Whe- 
 " ther such a separation as is proved by the aforesaid 
 "affidavits, copies of which are hereby directed to be 
 " transmitted to the said general court, be sufficient cause 
 " for vitiating and setting aside the verdict aforesaid.'' 
 
 The following are true copies of the affidavits referred 
 to in th'e foregoing order. 
 
 James Bailey made oaih in open court, that on the se- 
 cond day of the impannelling the jury in the case of the 
 commonwealth against M'Caul, he as sheriff was attending 
 the jury from the room in which the court sat to one of 
 the jury rooms, for the purpose of receiving some refresh- 
 ments, ordered by the court during the temporary ad- 
 
 * This order was made althe request of the counsel, to enable the 
 court to proceed with the cause to a late hour in the night, it being 
 seen that the crowd of witnesses, and the length of the examination 
 would spin it out to the length of three or four days 
 
 2 INT
 
 274 Cases decided in the 
 
 journment of the court; that before they got to the jury- 
 room, one of the jury, to wit, Frederick Clarke, said that 
 he would go home, and get his dinner; he was admonish- 
 ed not to separate himself from the jury; he insisted on 
 going, and advanced towards the steps which led down 
 from the portico of the Capitol to the square; at the head 
 of the steps this affiant took hold of his arm, and told him 
 he must not go; he said he would. The affiant returning 
 to the jury whom he had left in the midst of the crowd, 
 and finding Clarke not to obey the order, returned to the 
 door to see where he was, looked down towards the main 
 street when he saw said Clarke going down the Capitol 
 hill, and he had then gotten about half way to Bosher's 
 shop. In about fifteen or twenty minutes he returned. 
 Whither he went this affiant knows not. 
 
 Benjamin Sheppard being sworn, said that he was not 
 in the Capitol at the time of Mr. Clarke's separation from 
 the jury on Wednesday, he having gone to the Virginia 
 inn to order some refreshments for the jury. When he 
 returned, Mr. Bailey informed him that Mr. Clarke had 
 absented himself. Question: What sheriffs were attend- 
 ing the court on that day at the time of the adjournment? 
 Answer: Mr. Bailey and myself only, ^iiestion: When 
 you went to the jury room, did you find Mr. Clarke 
 among the jury? Answer: I did not. Mr. Clarke returned
 
 General Court of Virginia. 275 
 
 to the jury room when the rest of the jury were nearly 
 done taking their refreshments. 
 
 John M. Morris being sworn, said that he knew of no 
 separation of the jury sworn on the trial of M'Caul other 
 than those stated in the affidavit of Fred' rick Clarke, ex- 
 cept that Nathaniel Charter (another juryman) went at- 
 tended by the deponent to visit his family on Thursday 
 morning, stating that one of his children was very sick; 
 that he was absent from the jury room about twenty mi- 
 nutes. That said Charter was not in his presence during 
 all the said twenty minutes, he having gone up stairs to 
 see his family, while the affiant remained below. Question: 
 Do you know who were in the room up stairs to which 
 Charter went? Ansxvcr: I do not. Question: How long 
 was he out of your presence? Ansxver: About five minutes. 
 The deponent knows nothing of the separation of Mr. 
 Clarke from the rest of the jury on Wednesday, the de- 
 ponent not being in the Capitol at the time of adjourn- 
 ment on Wednesday. 
 
 Frederick Clarke being sworn, said that he was absent 
 from the other members of the jury sworn for the trial 
 of John M'Caul about twenty minutes on Wednesday 
 last, and that it was during the adjournment of the court 
 for the said space of twenty minutes. That during the 
 said absence he was asked by several persons whether the
 
 276 Cases decided in iiie 
 
 case of M'Caul was determined, to which he answered 
 no, and avoided any further conversation on the subject. 
 That he had no conversation with any officer engaged in 
 conducting the prosecution, or with any witness sworn 
 thereon, or with any other person whatever except that 
 before stated; nor did he eat or drink at the expense of 
 any person or persons but himself. That on Tuesday 
 night the jury were charged by the court not to separate, 
 but on Wednesday the deponent believes that no such 
 charge was given. And the deponent returned to the jury 
 as soon as he had taken some refreshment, understanding 
 the design of the Court to be that the jury should have an 
 opportunity of getting some refreshment. That he thinks 
 it probable that previous to his separation from the jury 
 some one member of the jury observed that he ought not 
 to separate himself from the other members. That the 
 sheriff opposed his separation from the jury, but the wit- 
 ness stated to him that he had been unexpectedly sworn 
 on the jury, and having left some important business in 
 such a state of derangement as required his presence, he 
 "„old the sheriff that if any officer could go with him, he 
 he deponent would prefer it, otherwise he must go alone. 
 Question: Did Mr. Bailey the sheriff observe to you that 
 there was no officer at that time attending that could go 
 with you? Answer: I do not positively remember, but 
 believe not. ^riestion: Did Mr. Bailey take hold of your 
 ^rm at the top of the step to prevent your going? Answer:
 
 General Court of Virginia. 
 
 He did. ^jtestion: Did you go down for refreshment 
 alone? or partly to attend to business of your own? Art' 
 swer: Not for refreshment alone, but partly tt> attend to 
 my own business. {Question: While you were at dinner 
 was the trial of M'Caul mentioned? Answer: It was as I 
 have before stated, and no other way. ^iiestion: Were you 
 separated from the jury at any other time? Answer: Not 
 without an officer. On Thursday night Mr. Taylor, Mr. 
 Bryan, and the deponent, went with an officer to Doctor 
 Wardlaw's shop (for some medicine which was necessary 
 for one of us) leaving the other jurors with another 
 officer. 
 
 John Lee being sworn, said that when Mr. Clarke was 
 about to separate himself from the jury, the deponent 
 took him by the arm, and said to him that it was very 
 improper for him to do so, the court having directed that 
 they should remain together. Mr. Clarke replied that his 
 goods at that time for ought he knew were exposed in the 
 street to the negroes, and he must go. 
 
 Peter Moseley made oath in open court, that on Wed- 
 nesday or Thursday last about two o'clock, two or three 
 minutes before two, Frederick Clarke the juror came to 
 his house, the Columbian Hotel in Cary street, where the 
 said Clarke boards, not attended by any officer, or am 
 other member of the jury, and asked if dinner was ready.
 
 278 Cases decided in the 
 
 The affiant answered he believed it was, and he had the 
 bell rung, and dinner brought on the table. The boarders 
 assembled at the ringing of the bell, and Mr. Clarke, who 
 the affiant believes had gone to his own room, came 
 down, and dined in their company. About twenty-three 
 minutes afterwards, the said Clarke left the room, the 
 affiant stating to him at the time that he believed he had 
 overstaid his twenty minutes. The affiant does not know 
 that the said Clarke conversed with any person on the 
 subject of M'Caul's case, and believes that said Clarke, 
 except when he was dining, remained in his own room; 
 but affiant was not in the dining room during dinner, and 
 therefore does not know what the subjects of conversa- 
 tion were. 
 
 The affidavits ended here. 
 
 At the same time the following order was directed to 
 be entered on the order book of the superior court of law, 
 but by mistake it was not entered: the clerk however 
 transmitted a copy of the order to the general court, and 
 the question was there argued and decided, though the 
 decision on this point was not entered on the records of 
 the general court. 
 
 " Be it remembered that on the seventh day of the su- 
 { ' perior court of law held for Henrico county, the counsel
 
 General Court of Virginia. 279 
 
 " for John M'Caul, a prisoner against whom two bills of 
 " indictment for larceny had been found at the same term 
 " by the grand jury, before the said prisoner was arraign- 
 " ed, moved the said court to quash the said indictments 
 " on the ground that it did not appear by the record of 
 u the Hustings court held for the examination of the said 
 " John M'Caul that he was remanded to this court for 
 ; ' the crime of larceny, but only for felony generally. The 
 v< record of the said Hustings court is as follows: 
 
 " At a court of Hustings called and held for the city 
 " of Richmond at the court-house, on Saturday the 2d 
 " day of November, 1811, for the examination of John 
 " M'Caul who stands accused of felony. The prisoner 
 " was led to the bar in custody of the serjeant of this city, 
 " and thereupon sundry witnesses being sworn, and ex- 
 " amined, the attorney for the commonwealth, and the 
 " prisoner by his attorney fully heard, the court is of opi- 
 " nion that the said John M'Caul is guilty of the offence 
 " aforesaid. Therefore it is considered that he undergo 
 " a trial therefor before the next superior court of law for 
 " Henrico county directed to be holden at the Capitol in 
 " this city, and he is thereupon remanded to jail." 
 
 James Gray a witness for the commonwealth being duly 
 sworn, deposeth and saith, that on the morning of Sunday, 
 the day after the prisoner's commitment to jail, this de-
 
 280 Cases decided in the 
 
 ponent received a message from the prisoner to see bin; 
 at the prison, in consequence of which the deponent went 
 to the prison, and saw the prisoner, who when in the act 
 of shaking hands with the deponent put into his hand a 
 small note and a pair of sleeve-buttons— the purport of 
 which note was as follows: " Call on Maria Overton— 
 " shew her my sleeve-buttons, get the contents of a small 
 " trunk, go to the woods but not up the canal, burn the 
 " trunk and destroy the lock." The deponent went to the 
 house of Maria Overton and was informed by her that: 
 the prisoner had left with her a package which she had 
 put out of her possession, but that she would procure it 
 and bring it to the deponent, which she accordingly 
 did — and on Friday evening, at the request of Francis 
 Taylor, the deponent returned the package to the said 
 Maria Overton. 
 
 Preston Smith, Carlton Radford, Hezekiah Henley, 
 John A. Richardson, Bartlett Still, George Hawkes, 
 James Vaughn, Peyton Drew, James Gray, Francis Tay- 
 lor, and Robert Elam, recognized to appear at the supe- 
 rior court as witnesses for the commonwealth against 
 the prisoner. 
 
 Teste, Th. C. Howard, Clerk. 
 
 The warrant of commitment under the hands and seal 
 of Thomas Wilson, recorder, and of David Bulloch, is in 
 the following words:
 
 General Court of Virginia. 281 
 
 " City of Richmond, to xvit, 
 
 " To the keeper of the jail of the said city. We here- 
 " with send you the body of John M'Caul taken and 
 " brought before us, charged with having feloniously bro- 
 " ken into an apartment of the treasury office of this cora- 
 " monwealth and stealing and carrying away from thence 
 " in bank notes and specie a sum of money to the amount 
 " of about seventeen thousand dollars, the property of the 
 " commonwealth, or of their treasurer. These are there- 
 " fore in the name of the commonwealth to require you 
 " to receive into your jail and custody the body of the 
 " said John M 4 Caul, and him safely keep until he be 
 " thence discharged by due course of law. Given under 
 " our hands and seals this 26th October, 1811. 
 
 " Thomas Wilson, Recorder. (Seal.} 
 " David Bulloch. (Seal.y 
 
 It appeared to the said court that on the examination 
 of the said prisoner a variety of witnesses were examin- 
 ed and sworn and recognized to appear at this court, but 
 the attorney general who attended the said examination, 
 dispensed with the taking the depositions of the said 
 witnesses. 
 
 The court overruled the said motion to quash the in- 
 dictment, whereupon the counsel for the prisoner prayed 
 that his motion, and the judgment of the court over- 
 
 1 N
 
 282 Cases decided in the 
 
 ruling the same, be spread on the record. And on this 
 twelfth day of the court, after the said prisoner had been 
 convicted by the jury, on the motion of the said prisoner, 
 the court doth adjourn this question of law to the gene- 
 ral court, for novelty and difficulty. 
 
 1st. Ought the order of an examining court, remand- 
 ing a prisoner for trial to the superior court of law, ex- 
 pressly shew for what species of felony the prisoner is 
 so remanded? 
 
 2d. If the said order of the examining court remands 
 a prisoner for trial, for felony generally, and the grand 
 jury find a bill of indictment for larceny, ought the court 
 on motion to quash the said indictment, if it appear by 
 the warrant of commitment, the warrant of summons, 
 or other evidence dehors the said order, that the priso- 
 ner was in fact examined and remanded for the offence 
 of larceny. 
 
 This cause was argued at June term, 1812, by Wirt, 
 Hiort and Bacchus for the prisoner, and by Nicholas, 
 attorney general, on behalf of the commonwealth. 
 
 Mr. Wirt said that he should contend, that the examin- 
 ing courts of this commonwealth were courts of record; 
 and that the superior courts ought not to proceed with 
 an indictment against an individual charged with any
 
 General Court of Virginia. :283 
 
 felonious offence, unless it appears certainly from the 
 record that he has been previously examined and re- 
 manded for the same offence. It is the established 
 maxim in England, that whenever a jurisdiction is 
 erected with power to fine and imprison, that is a court 
 of record. 1 Salkeld, 200. The court of the county consti- 
 tutes the examining court, and there can be no doubt 
 that the county court is as a court of record, it having 
 the power to fine and imprison. The examining court, it 
 is true, is convened for a special purpose, but it is 
 attended by the regular officers of the county court, the 
 sheriff and the clerk, and the latter is directed to make a 
 record of their proceedings. It is still the county court, 
 though convened for a particular occasion. A still 
 stronger argument may be derived from the act of as- 
 sembly, passed January 24th, 1804, (2 J Vol. Rev. Code, 
 p. 38.) By that act, the examining court has the final 
 power of acquittal, and it is clear that the plea of autre- 
 foits acquit must be supported by record. 2d Hale, P. C. 
 241,2, 3. Hawkins, Book Id. Ch. 35. Sect. 2. Leach's 
 edit. If such plea can only be supported by record, and 
 the examining court has the power to acquit, it necessa- 
 rily follows that it must make a record of the acquittal, 
 and is consequently a court of record. 
 
 The fifth section of the last mentioned act declares 
 that no person shall be tried in the district court for trea-
 
 284 Cases decided in the 
 
 son or felony, until he shall have been previously exa- 
 mined by the court of the county or corporation. This 
 court is now required to give a construction to this 
 clause, and in doing so they will give it such an one as 
 will best answer the intention which the legislature had 
 in view, and will collect that intention from the cause 
 or necessity which produced the clause in question. 6 
 Bacon, 384. It is certain that this fifth section was enact- 
 ed in consequence of a previous decision of the general 
 court, that no examining court was necessary previous 
 to an indictment for felony. The legislature considered 
 this as an evil, and they have here provided the remedy; 
 their intention is to prevent any trial for treason or felony 
 without a previous examination. How shall this intention 
 of the legislature be carried into effect? If the record now 
 produced from the examining court be sufficient to 
 justify the circuit court in proceeding against this priso- 
 ner for larceny, the intention of the legislature will be 
 frustrated. It will proceed to a trial for larceny, although 
 it is not proved that the prisoner has been previously 
 examined for larceny. The intention of the legislature 
 cannot be carried into effect, unless it appears for what 
 offence the party has been examined, or with what crimi- 
 nal facts he was charged in the court below, and remand- 
 ed to the superior court. On this record there is not a 
 single fact spread, nor does it appear whether he was 
 examined for murder, burglary, larceny, or any particu-
 
 General Court of Virginia. 285 
 
 lar species of felony. If M'Caul had been indicted for 
 murder in the circuit court, that court would have had 
 the same reason to believe that he had been examined 
 for that offence as for larceny, for any thing that ap- 
 pears on this record. But it may be said that other 
 evidence may be produced to prove that he was exa- 
 mined for the same larceny with which he is charged in 
 the indictment. The ready answer is, that the proceed- 
 ings of a court of record can only be proved by the 
 record, and there can be no averment against the truth 
 of a record. 
 
 The examining courts are vested with the powers of 
 acquitting, and remanding. If the court acquits, it is 
 certainly essential that the offence of which the party is 
 acquitted be stated on the record, or that the facts which 
 constitute the offence should be specially alleged; if 
 this is not done, in vain will the unfortunate prisoner 
 plead that he has been heretofore acquitted, and pro- 
 duce the record to prove it. The attorney would say to 
 him, the record does not support your plea, and you 
 cannot resort to other evidence to prove it. This princi- 
 ple is carried so far in England, that where a man is 
 acquitted on an indictment which is bad in substance, 
 such an acquittal is no bar to a subsequent indictment. 
 Hawk. B. 2. Ch. 35. Sect. 8. Suppose an indictment found 
 for felony, and the prisoner acquitted thereof, it is clear
 
 286 Cases decided in the 
 
 that such an acquittal is no bar to another indictment 
 for larceny. On the same principle, if an examining 
 court acquits a person charged with felony, such acquit- 
 tal is no bar to another examination of the same person 
 for the crime of larceny. If then in the exercise of the 
 acquitting power which is vested in these courts, it be 
 necessary that the record should specify the offence, 
 surely it is equally necessary, that in the exercise of 
 their remanding power, that specification should appear 
 on the record. The same measure of justice meted out 
 to the commonwealth in the one case should be extended 
 to the prisoner in the other. 
 
 It will be alleged, that the uncertainty of the re- 
 cord may be supplied by averment. This position is 
 not supported by the authorities. Averments are only 
 allowed to support the record in matters of inferior im- 
 portance, and not in those matters of fact which form 
 the gist of the offence. Thus, if in the first record the 
 party be called yeoman, and in the second gentleman, he 
 may make good the variance, by averring that he only 
 was meant under each addition. So in the case of an ac- 
 quittal of a murder of a person unknown, and the party 
 be afterwards indicted for the murder of a person 
 described by his proper name, he may plead the acquittal 
 in bar, averring that both indictments are for the same 
 murder. Hawk. 2d Book, Ch. 35. Sect. 3.
 
 General Court of Virginia. 287 
 
 This fifth section of the act of 1804, is a provision 
 which concerns the public good, and in favour of the 
 prisoner; the court ought so to construe it, as that it may 
 as far as possible attain the end; proposed. 6 Bacon, 388. 
 The good intended was, that no man should be put on 
 his trial for life or liberty, until he has been examined by 
 the court below. The better mode of effecting this end is 
 to describe the fact, or offence charged with particularity 
 and certainty in the record; for if it is described by some 
 generic term, it becomes impossible to ascertain whether 
 he was examined for the same offence for which he is 
 indicted. 
 
 The record of the examining court is not helped by 
 the warrant of commitment. That warrant is the pro- 
 perty of the jailor, and forms his justification for detain- 
 ing the prisoner. It does not shew what offence the party 
 is charged with before the court, but only on what ac- 
 count he was committed. When the examining court sat, 
 they had no right to call for that warrant; although they 
 had a right to call for the warrant which convened them. 
 If the superior court refers to the warrant of commit- 
 ment, it may happen that the party may be committed 
 for one offence, (as burglary,) and remanded for trial for 
 another, as larceny, and thus the superior court might 
 entertain jurisdiction of an offence, for which he was not 
 examined.
 
 288 Cases decided in the 
 
 The law directs the depositions of the witnesses to be 
 taken by the examining coun: if this had been done, 
 Mr. Wirt said, it was probable this point would never 
 have been made, because all that he contends for is that 
 the certainty of the offence ought to appear on the re- 
 cord. But in this case there was only a fragment of a 
 deposition taken, which does not prove any felony what- 
 ever. 
 
 As to the question, whether this matter ought to have 
 been pleaded by the prisoner, or whether the indictment 
 ought to have been quashed on motion, he had only to 
 say, that it would be hard to require a prisoner, who is 
 not acquainted with the forms of special pleading, to file 
 a plea in abatement. It is the duty of the court to see 
 that the prisoner has been regularly examined, and this 
 duty ought to be performed, whether it is brought before 
 the court by a plea, or by motion, or without any plea, 
 or motion whatever. 
 
 Another important question adjourned to this court 
 is, whether the prisoner ought not to have a new trial on 
 account of the separation of his jury. It is a clear princi- 
 ple, that in a case touching life, or member, a jury can 
 never be discharged until they render a verdict. 4 Black. 
 Com. 360. Coke Lit. 227. b. This general rule is never de- 
 parted from, except in a case of extreme necessity: where
 
 General Court of Virginia, 289 
 
 it is impossible to conclude the trial from its great length 
 on one day, the jury may be adjourned over to the next 
 morning, but even then, they cannot be separated. 1st 
 Hardy's trial, (by Gurney) p. 252 — 8. The reason why 
 an adjournment of the jury never was allowed, according 
 to the old practice, was, that there might be no improper 
 influence exercised on their minds, and they were not 
 allowed to go out of court, lest they might be accessible. 
 According to modern practice, an adjournment is allow- 
 ed, when there is a physical necessity for it, but still the 
 substance of the rule is preserved, by keeping them 
 together and rendering them inaccessible. Trial of Jofm 
 Home Tooke, 1st Vol. p. 167 — 171, (by Gurney). Mr. 
 Wirt defied the attorney general to produce a single case 
 of life and death, in which a verdict was allowed to stand 
 after a separation. The case in Hale was one of trespass. 
 He said that the case had never been decided by the 
 general court, but that in the case of Randall in the 
 district court of Henrico, judges Nelson and Stuart had 
 set aside a verdict under similar circumstances. In this 
 case the juror Clarke did separate himself from the jury 
 contrary to the directions of the officer. It is true, that he 
 endeavours to exculpate himself, but this ought to have 
 no weight, for his affidavit in such case ought not to 
 have been taken. 
 
 Nicholas, attorney general, said that these examining 
 20
 
 290 Cases decided in the 
 
 court6 were exclusively created by our statute law, and 
 are unknown to the English laws — to the acts of assem- 
 bly we must then resort to ascertain their nature and 
 powers. Formerly, all trials for life and death in Vir- 
 ginia, were had in the general court — it was considered 
 by the legislature, that it was too great a power to lodge 
 in the hands of a single justice of the peace, residing 
 perhaps, in a remote county, to authorize him to commit 
 an individual charged with a crinae to the jail in Wil- 
 liamsburg. Such a power vested in a single justice of the 
 peace, who might be really ignorant of the law, was liable 
 to great abuse, and might have been a source of great 
 injustice and oppression. To avoid this evil, the single 
 magistrate was empowered to commit to the county jail 
 only, and to summon a court, consisting of at least five 
 justices, who would probably not be capable of remand- 
 ing a prisoner for trial, on light and frivolous grounds, 
 and who might therefore be entrusted with the power of 
 committing him to the jail of the general court for trial. 
 This court then was intended as a mere substitute for the 
 committing magistrate in England: there is a considerable 
 analogy between these courts and the magistrates whose 
 powers are defined by the statute of 2d and 3d Philip 
 and Mary; 4 Black. Com. 296; and Tucker's Note: their 
 powers are of the same kind. The acts to be done by 
 by them were such as might have been done in pais by 
 the single magistrate in England. They were to take the
 
 General Court of Virginia. 291 
 
 depositions of witnesses, and recognize them to appear 
 at the general court, and remand the prisoner for trial 
 there. These powers do not make them courts of record; 
 they do not inflict punishment; they hav: no power to 
 fine, and none to imprison; they only commit. If it shall 
 be said, that they have power to imprison for contempt, 
 the ready answer is, that a single magistrate in the coun- 
 ty has the same power. It is true, that in the progress 
 of time, they have been vested with the power of final 
 acquittal, but does this make them courts of record? He 
 thought not. If the single magistrate in England should 
 be vested with the power of acquittal, his proceedings 
 being matters in pais, evidence may be given of them. 
 So with the examining courts, the substitute for the com- 
 mitting magistrate. If this opinion be correct, it follows 
 that if the order of the examining court remanding the 
 prisoner, states that he was examined, any evidence, even 
 parol evidence, may be adduced to prove for what par- 
 ticular offence he was examined. 
 
 Mr. N. quoted Haxvkins B. 2. C/i. 35, to shew that 
 on the plea of autrefoits acquit, you may resort to 
 parol evidence, to help the record in certain cases; and 
 inferred that as it could be done in such cases, it might 
 be helped by averment in this case. 
 
 Mr. Nicholas said, that if the court should be of opi-
 
 292 Cases decided in the 
 
 nion that he was wrong in the view he had taken of the 
 structure and powers of these courts, yet he should con- 
 tend, that there was sufficient certainty in this record, to 
 have enabled the circuit court to proceed on the indict- 
 ment against M'Caul for larceny. In Myers's case it was 
 decided that the species of the offence need not be de- 
 fined; all that can be necessary is that the facts which 
 constituted the offence should appear in the record. In 
 this case the criminal fact does appear in the warrant of 
 commitment, and that warrant is a part of the record. It 
 is conceded by Mr. Wirt, that the warrant summoning 
 magistrates, is a part of the record; but he contends that 
 the warrant of commitment is the exclusive property of 
 the jailor; that it is held by him as a justification of the 
 detention of the prisoner. This is not a correct position. 
 By the express direction of the law, the clerk of the 
 examining court is bound to transmit to the attorney 
 prosecuting for the commonwealth, a copy of the war- 
 rant of commitment. (See 1st Vol. Rev. Code, p. 105. 
 sect. 20th.) How can the clerk transmit the copy of that 
 warrant if it is held by, and in possession of the jailor? 
 This clause proves that it is an official document of the 
 court, and as such is as much a part of the record of that 
 court as a declaration, and the pleadings in a civil suit, or 
 as an indictment in a criminal case. Is the clerk to borrow 
 that warrant from the jailor, and after he has copied 
 it, return it to him again? Certainly not. It is rendered
 
 General Court of Virginia. 293 
 
 the official duty of the clerk to copy it, and it certainly 
 cannot be his duty to copy any paper which is the pro- 
 perty of any individual. If it is the property of the jailor, 
 he may withhold it and thus prevent the clerk from car- 
 rying the provisions of the law into effect. The clerk is 
 to certify it to be a true copy, and that certificate gives 
 it authenticity. The certificate of the clerk would not 
 give authenticity to any private paper. It is moreover 
 safer for the jailor, that he should return it to the clerk 
 when the court is opened, than to retain it in his own 
 possession. When it is so returned, it is filed away 
 amongst the other records of the court, and he can 
 always defend himself against an action by summoning 
 the clerk to attend with the original paper, or perhaps by 
 producing an office copy of it. 
 
 He contended that the circuit court ought not to quash 
 the indictment. This was an exception to the jurisdiction 
 of the court, and was therefore proper matter for a plea. 
 4 Black. Com. 333. The court is not bound ex debito jus- 
 Mice, to quash an indictment, and generally require the 
 party to plead or demur, wherever the offence charged is 
 of an enormous, or public nature. Hawk. B. 2. C/i. 25. 
 sect. 126. 3 Bacon 573. also 2 Strange 1268, and 4 Bur- 
 row 2116. 
 
 With respect to the new trial, on account of the sepa
 
 294 Cases decided in the 
 
 ration of the jury, Mr. Nicholas said that the old rule 
 was so strict, that it had been of necessity very much 
 relaxed. 7 Bacon 11. Mr. Wirt cannot shew a single ad- 
 judged case in the English books, in which the separation 
 of one juryman from his fellows was considered as suffi- 
 cient to set aside a verdict. There are many instances in 
 which the jurors may be subject to punishment for mis- 
 behaviour, and yet the verdict will stand. See 2 Hale 306, 
 8. 21st Finer 448. Buller N. P 308,and 7 Bacon 11, 12. 
 The court ought to see that the spirit of the rule is ob- 
 served: if there has been no improper influence exercised, 
 the purity of the verdict is not affected. There is a case 
 stated by Lord Hale in his Pleas of the Crown, which 
 decides the question now before the court. A juror reti- 
 red from his companions to drink; on his return he denied 
 on oath that he had spoken with the defendant, and the 
 verdict was received, though the juror was fined. 2 Hale 
 296. It is true that this was a case of trespass; but Lord 
 Hale writing on criminal law, and shewing how jurors 
 ought to conduct themselves in criminal cases, cites this 
 case with approbation. The authority of Lord Hale, whose 
 humanity and wisdom are well known, will not be disre- 
 garded. 
 
 Hiort y for the prisoner, to prove that the examining 
 court is one of record, referred to the county court law. 
 1st Rev. Code, Ch. 67: the examining court emanates from
 
 General Court of Virginia. 295 
 
 the county court, and is of the same nature with the 
 stock from which it springs. The plea of autrefoits acquit 
 can only be proved by record; it would be a cruel dispen- 
 sation to a prisoner to allow any parol evidence, or any 
 thing less than a record to prove his acquittal; for the 
 magistrates who acquit him, and the witnesses who are 
 present will die, but the record never can die: it operates 
 as a perpetual proof of his innocence. He contended that 
 according to the act of congress, any court of law which 
 has a seal is a court of record. To shew that the indict- 
 ment might be quashed on motion he referred to 2 
 Strange 1268, Rex v. Trevillian. He referred to Trials per 
 Pais, p. 203 to 213, to prove that the verdict ought to be 
 set aside, and in/;. 207 he said there was a case in which 
 chief justice Rolle decided that the affidavit of a juror 
 ought not to be received to make good his own verdict. 
 
 Bacchus, for the prisoner. He did not expect to hear a 
 doubt that the examining court was one of record. In 
 Myers's case, Mr. attorney general contended that the 
 examining courts were courts of record, and that the plea 
 of autrefoits acquit was not good unless the prisoner had 
 the record in hand to support it. 3 Black. Com. 24, shews 
 that a court of record is one in which the acts and j udicial 
 proceedings are enrolled for a perpetual testimony, and 
 memorial; which rolls or records cannot be questioned 
 The proceedings of the examining courts are enrolled,
 
 296 Cases decided in the 
 
 and their truth cannot be questioned. They are therefore 
 courts of record. 
 
 No one doubts that the regular county court is a court 
 of record. But by the act of 1800 {Rev. Code> p. 402) if the 
 examining court fails to meet on the day appointed, all 
 the recognizances entered into before the single magis- 
 trate shall stand obligatory to the next court, and the exa- 
 mination shall be had at such next court. The next court 
 here meant is the regular county court. Is it not mon- 
 strous then to say, that one of these courts is a court of 
 record, and the other is not, and thus to give two several 
 rules on the same subject. One man is examined before 
 the called court, and it is not necessary to shew by the 
 record for what offence he is remanded, but another is 
 examined before the ordinary county court, and it is ne- 
 cessary to shew on the record for what he was remanded! 
 The general rule is that county courts are of record, and 
 whoever alleges that examining courts are not, must 
 shew by what law the exception to the general rule is 
 made. 
 
 There is no analogy between the statute of Philip and 
 Mary, and our acts. Under that statute the magistrates 
 must send on the original depositions, but the examining 
 courts send on copies, retaining the originals.
 
 General Court of Virginia. 297 
 
 3 Black. 25, shews that courts not of record are courts 
 of private persons; the examining courts are composed of 
 regularly commissioned justices, and their duties are 
 altogether of a public nature. 
 
 These courts are sometimes convened for the purpose 
 of trying slaves; they are then courts of oyer and termi- 
 ner, and may not only finally acquit, but finally condemn. 
 As such they are certainly courts of record, and this 
 proves that the circumstance of convening them for a 
 particular purpose does not take away that quality. 
 
 The record of the examining court ought to shew 
 enough to enable the prisoner to plead it in bar of any 
 future prosecution for the same offence. The depositions 
 (he thought) were no part of the record: the depositions 
 may vary from each other; one may prove a felony of one 
 kind, and another of a different kind, and so it will be 
 impossible for the superior court to ascertain for which 
 felony he is remanded for trial, unless the examining 
 court express on the record for what offence he is remand- 
 ed. The judgment of the examining court ought to be 
 so clear as to disdain the support of depositions. But here 
 the deposition proves nothing. 
 
 Mr. Bacchus contended that there being a plain defect 
 2P
 
 :298 Cases decided in the 
 
 of jurisdiction, the indictment ought to have been quash- 
 ed. 2 Strange 1088. 1 Burrow 389. 3 Bacon 573. 
 
 As to the new trial, the case was clear. It ought not to 
 be put on the prisoner to prove that the conduct of the 
 juror during his separation was improper. If he separates 
 at all, he will converse, and if so, hints may be dropped 
 which may have an improper influence. 
 
 Wirt, in reply to the attorney general, said that it is 
 certainly proper that the warrant of commitment should 
 be retained by the jailor for two purposes; first, that it 
 may appear to the judges, on a habeas corpus, that the 
 prisoner is detained for a legal cause, and for this pur- 
 pose it is necessary that the warrant be special, 2 Hale 
 122; and, secondly, that the jailor may be able to defend 
 himself on a prosecution for false imprisonment, and for 
 this it is not necessary that the warrant should be special. 
 1 Hale 584; Burn's Justice, Commitment, sect. 3. The 
 warrant of commitment, is not the basis of the authority 
 of the examining court; but the warrant summoning the 
 magistrates is, and therefore the latter is part of the re- 
 cord, though not the former. The warrant of commit- 
 ment spoken of in the 20th section of the act, referred to 
 by INI r. Nicholas, is the remanding order of the examin- 
 ing court itself. 
 
 If a vague remanding order can be helped, by the war-
 
 General Court of Virginia. 299 
 
 rant of commitment, so may a vague entry of acquittal. 
 The consequence is, that the muniment of his defence, 
 against an action of false imprisonment, may be drawn 
 from the jailor, by his adversary. Again, if this warrant 
 is part of the record, great injury may be done to the pri- 
 soner, for he may be committed for one cffence, and re- 
 manded for another; thus, the prisoner may be committed 
 for burglary; the examining court are of opinion, in point 
 of fact, that he is not guilty of burglary, but of larceny, 
 and remand him for felony; here if you resort to the war- 
 rant, for certainty, he will be indicted for a different 
 crime from that for which he was remanded. So of a 
 commitment for highway robbery and murder, the court 
 being of opinion that he is guilty of the robbery only, 
 yet send him on for felony, and because he was com- 
 mitted for murder, he may be indicted, tried, and hung 
 for murder. Thus the warrant will not produce that 
 certainty which ought to be found in all records, and 
 the object of creating examining courts will be entirely 
 frustrated. 
 
 Mr. Wirt said he was at first inclined to think that the 
 depositions might be considered as a part of the record, 
 but on reflection he thought they could not. Nothing can 
 be considered as a part of the record but the warrant 
 convening the court, and the entry of the proceedings, 
 and judgment of the court itself.
 
 300 Cases decided in the 
 
 With respect to the case in 2 Hale 296, quoted by 
 Mr. Nicholas, to prove that there ought not to be a new 
 trial, Mr. Wirt said it was a solitary case, not found in 
 the year books, and moreover was a civil case. The case 
 quoted in 7 Bacon 12, was a civil case from the common 
 pleas. In opposition to these cases, he referred to the 
 opinion of the judges, in a case of life and death, in which 
 it was clearly laid down that it was illegal to discharge 
 a jury in a capital case, lest there may be corruption, and 
 tampering with the jury. (See 4 State Trials 231. Lord 
 Delamere's case.) 
 
 This case was decided by the general court, at the 
 same term at which it was argued; present, Judges Nel- 
 son, White, Stuart, Holmes, Brockenbrough, Semple, 
 Johnston, Smith and Randolph. On the question respect- 
 ing the propriety of quashing the indictment, the follow- 
 ing was delivered by the presiding judge, as the judg- 
 ment of the court, although it was not entered on the 
 order book of the court, for the reason before mentioned. 
 
 " 1st. That it ought to appear in the record of the pro- 
 " ceedings of the examining court, for what fact the pri- 
 " soner has been remanded, and that a superior court of 
 " law hath a right to look into the warrant, summoning the 
 " magistrates, which is a part of the record, but not into
 
 Gen eral Court of Virgitiia. 301 
 
 "the warrant of commitment, that being no part of the 
 " record." 
 
 • " 2d. That (although in general whether the court on 
 " motion of the prisoner, will quash an indictment, rests 
 " in the sound discretion of the court,) in this case, the 
 " court ought to have quashed the indictment, if the fact 
 " could not be ascertained, without looking into testimony 
 " dehors j which is not allowable; that in those cases in 
 " which ihe quashing rests in the discretion of the court, 
 " and the court may quash, or put the party to plead, if 
 " the court thinks the fact when pleaded would avail the 
 " prisoner, the court ought to advise him to plead the 
 " same." 
 
 On the question respecting the propriety of granting 
 the prisoner a new trial, the following opinion and judg- 
 ment, were delivered by Judge Nelson, the presiding 
 judge. 
 
 This is a case of very great importance, and the abi- 
 lity of the argument on each side, is commensurate with 
 its importance; although decisions upon a similar point 
 have been made, one in the district court by two judges, 
 and another in a circuit court, by one judge, it is not 
 known to have been before decided by the general court, 
 which is the court of the last resort in criminal cases.
 
 302 Cases decided in the 
 
 On the one side, the punishment of one who may have 
 committed a crime, and on the other the legal safeguards 
 to the accused, the preservation of the palladium of life 
 and liberty immaculate, and the purity of the stream of 
 justice, are involved in it. 
 
 That the person accused is to be convicted or acquit- 
 ted by the evidence given in his presence; that the 
 minds of those who are to decide are before the trial 
 to be free from prejudgment; that in the course of 
 the trial no impression ought to operate on their minds, 
 except what is derived from the testimony given in court; 
 that the jury shall continue impartial and unbiassed; that 
 to ensure this, they should not be allowed by the court 
 to separate, are points acknowledged by all. 
 
 The object is impartiality; and keeping the jury toge- 
 ther until they agree without communication with others, . 
 is the means by which this all important object is to be 
 attained. 
 
 The keeping them together, has been dispensed with 
 in cases of great necessity; but impartiality never. It is 
 contended in the argument on one hand, that they are to 
 be kept entirely inaccessible, so that communication with 
 them should be absolutely impossible; and on the other, 
 that a mere separation, unless it be proved that there has
 
 General Court of Virginia. 303 
 
 been some conversation, or tampering with a member of 
 the jury, shall not vitiate the verdict, and that there must 
 be proof of this to work such effect. By the point ad- 
 journed in this case, the court is not called on to decide 
 whether the verdict shall be set aside, unless access be 
 impossible. They are called on to decide only whether 
 such a separation as is proved by the affidavits, in this 
 case, is a sufficient cause for vitiating it. One of the 
 jurymen in this case during a temporary adjournment 
 of the court, went to the house at which he boarded, with- 
 out the officer of the court, notwithstanding the admoni- 
 tion and personal attempt of the officer to prevent it, 
 and according to the affidavit of the officer, was absent 15 
 or 20 minutes. This officer did not attend this juryman, 
 but returned to the other jurymen. By the affidavit of a 
 person who stated to the juryman, above alluded to, the 
 impropriety of his separating from the rest of the jury, 
 (the court having directed that they should remain to- 
 gether) it appears that the juryman stated that his goods 
 (for ought he knew) were exposed in the street to thf 
 negroes. 
 
 The person with whom this juryman boarded, states that 
 the j ury man was in his room when he was called to dinner. 
 He appears by this affidavit to have been at the boarding- 
 house about twenty six minutes. The affiant believed 
 that the juryman, except whilst dining, remained in his
 
 304 Cases decided in the 
 
 own room, and states that the affiant was not in the 
 dining room, and does not know what were the subjects 
 of conversation during dinner. 
 
 The juryman separated himself whilst the sheriff was 
 going with the jury towards the jury room. The officer 
 returned from the steps of the portico of the Capitol, (as 
 understood by the court) to the rest of the jury, whom 
 he had left in the midst of the croud, and then returned 
 to the door, and saw the juryman going down the Capitol 
 Hill. 
 
 Another juryman, in the morning of another day of the 
 trial, attended by the officer, went to visit a sick child. 
 They were absent about twenty minutes, and the officer 
 remained below, whilst the juryman went up stairs to see 
 his family, and was absent from the officer about five 
 minutes. Is the separation proved by this testimony then 
 sufficient cause for setting aside the verdict? 
 
 The majority of the court is of opinion, that proof of 
 actual tampering, or conversation on the subject with a 
 juryman, is not necessary to set aside the verdict; and 
 the propriety of this opinion they think results from the 
 nature of things, and the rules of evidence. 
 
 From the mode in which collusion and tampering is 
 s;enera11v carried on, such circumstance is generally known
 
 General Court of Virginia. 305 
 
 to no person, except the one tampering, and the person 
 tampered with, or the persons between whom a conversa- 
 tion may be held, which might influence the verdict. If you 
 question either of these persons on the subject, he must 
 criminate, or declare himself innocent, and you lay before 
 him an inducement not to give correct testimony. The 
 old rule was that the jury on no occasion should separate. 
 I mentioned (though it was with difficulty that the rule 
 has been at all relaxed) that it is relaxed only in cases of 
 imperious, or perhaps of unavoidable necessity. But by 
 allowing that a jury may separate without necessity, and 
 that their verdict shall stand, unless the party accused, 
 who in these cases is in the custody of law, can shew 
 that the jury not only have separated, but that they or a 
 member of it has also been tampered with, or held com- 
 munication on the subject; this great barrier against op- 
 pression may gradually be sapped and undermined, and 
 the bulwark cannot long remain. Such a precedent would 
 be productive of evils incalculable, and too great, for the 
 court by its decision to allow a door to be opened for 
 them. Every danger, and particularly in such a case as 
 this, should be watched, and opposed in the beginning. 
 The court will preserve, "with fear and jealousy," and 
 will not expose the trial by jury in criminal cases, to such 
 risque of contamination, as arises from the affidavits in 
 this case. If the court had without necessity suffered a 
 juryman to go home without an officer, (which it would 
 2Q
 
 306 Cases decided in the 
 
 never do) it would vitiate the verdict. There is as much 
 danger from a juryman's separating, without the act of 
 the court, as if it had been done by such act. 
 
 Although there might be and probably was no tamper- 
 ing with any juryman in this case, yet in a free country, 
 in deciding a particular cause, the decision is to be accord- 
 ing to general principles as applied to that case; and more 
 good will arise from preserving the sacred principle in- 
 volved in this case, than evil from granting a new trial, 
 although in this individual instance, a verdict has probably 
 been given by twelve men in fact unbiassed by the sepa- 
 ration. 
 
 The opinion of the court is, " that such a separation 
 " of the jury as is proved by the affidavits is sufficient cause 
 " for vitiating and setting aside the verdict aforesaid;" 
 which is ordered to be certified to the superior court of 
 law, for Henrico county.
 
 General Court of Virginia, 307 
 
 The Commonwealth against John Thomas. 
 
 'T^'HIS prisoner was indicted in the Superior Court of 
 lawof Henrico county, in April, 1 812, for the crime of 
 buggery. The jury found the following verdict: " We of 
 " the jury find that the prisoner at the bar, John Thomas, 
 " did, contrary to the order of nature, penetrate the body 
 " of a mare of Joshua Doing; but it is impossible for us 
 " to say whether he did, or did not emit his seed into the 
 "body of the said mare, or elsewhere; and if the court 
 " shall be of opinion that the said fact of penetration, 
 " without the fact of emission, constitutes the crime of 
 " buggery, then we find the prisoner guilty, and ascertain 
 " the term of his imprisonment five years in the peniten- 
 " tiary house; otherwise we find him not guilty." 
 
 The court adjourned to the general court, by consent 
 of the prisoner, as a question of novelty , and of some 
 difficulty, the point arising from the verdict. 
 
 The general court, on the 16th day of June, 1812, con- 
 sisting of judges Nelson, White, Stuart, Holmes, Brock- 
 enbrough, Johnson, Smith, and Randolph, delivered it as 
 the unanimous opinion of the court, " that the penetra-
 
 308 Cases decided in the 
 
 tion of a beast, by a man, against the order of nature with- 
 out emission constitutes the crime of buggery." 
 
 Note. This has been vexata qucestio amongst the law- 
 yers, and judges in England, and decisions have fre- 
 quently been made both ways, particularly in the crime 
 of rape. The general court thought that the opinion of 
 Coke as expressed in his 3d Institutes 59, 60, and of lord 
 Hale (1 H. H. 628) together with those modern deci- 
 sions in favour of the fact of penetration alone constitut- 
 ing the crime of rape as well as sodomy, were more ra- 
 tional than the contrary opinions and decision which re- 
 quire both facts to be proved, and on this ground decided 
 as mentioned above. See 1st East's Crown Law, p. 436 
 — 440. 
 
 The Commonwealth against Moses Mann. 
 
 'T^HE defendant, who was a magistrate of the county 
 of Bath, was presented by the grand jury, and then 
 prosecuted by information in the superior court of law, 
 for misbehaviour in office. The charge against him was, 
 that at a court of quarter sessions duly held for the county
 
 General Court of Virginia. 309 
 
 of Bath, Sec, the defendant who then was, and still is, a 
 justice of the peace in and for the said county, duly com- 
 missioned and sworn as such, did take his seat on the 
 bench of the said court, and act in the capacity of a 
 justice of the peace aforesaid, and member of said 
 court, while and when he was in a state of intoxication, 
 and inebriation, from the drinking of spirituous liquors, 
 insomuch that he at the time &c, and during all the time 
 of his sitting and acting, as aforesaid, was incompetent to 
 discharge the duties of his office with propriety, decorum, 
 and discretion; and disqualified from the free exercise of 
 his understanding in the matters and things, at the time 
 and place, &c. legally and judicially brought before him. 
 
 He was found guilty by the jury, and the superior court 
 adjourned to the general court, the question arising from 
 the verdict, whether judgment of amotion from his office 
 of justice of the peace, should be rendered against him. 
 
 November 11th, 1812, present judges White, Carring- 
 ton, Brockenbrough, Semple, and Allen, it was declared to 
 be the unanimous opinion of the court, " that judgment 
 " of amotion from the office of justice of the peace ought 
 " to be rendered against the said Moses Mann."
 
 310 Cases decided in the 
 
 The Commonwealth against Benjamin Miller. 
 
 r I i HE prisoner was indicted in the Superior Court of 
 law of Norfolk county for the murder of Jonathan 
 Godfrey. The indictment was in the usual form. On his 
 trial, the prisoner was found guilty of murder in the first 
 degree. He thereupon moved the court to arrest the judg- 
 ment for the following reasons: " that it is essential in all 
 " cases civil or criminal brought before a court of limited 
 "jurisdiction, that the facts to shew the jurisdiction 
 "should appear on the record; that before any person 
 " charged with treason or felony can be tried before asu- 
 " perior court of any county, the law passed the 24th 
 " day of January, 180+, requires that he shall be exatnin- 
 " ed in the manner prescribed by law by the court of the 
 "county, or corporation where the offence is committed, 
 " and that it is not charged in the indictment, and does 
 " not appear by the records of this court, that he the said 
 " Benjamin Miller has been examined in the mode pre- 
 " scribed by law before the court of the county, or cor- 
 " poration where the offence charged in the indict- 
 " ment is alleged to have been committed; and that the 
 " indictment is defective in noi charging specially such 
 Ci facts as shew the offence to have been murder in the
 
 General Court of Virginia, 311 
 
 " first degree." The question arising on this motion in 
 arrest of judgment was adjourned. 
 
 November 17th, 1812, present judges White, Carring- 
 ton, Brockenbrough, Semple, Allen and Randolph, the 
 following opinion was given. " This court doth unani- 
 " mously decide that it was not, and is not necessary that 
 " it should be charged in the said indictment, nor that 
 " it should appear by the record of the said superior court 
 " of Norfolk county, that the said Benjamin Miller had 
 " been examined in the mode prescribed by the act of 
 " assembly, in the said adjourned case meutioned before 
 " the court of that county or corporation in which the 
 " offence charged in the said indictment is alleged to 
 " have been committed. And this court doth further una- 
 " nimously decide that the said indictment is not defec- 
 " tive in not charging specially such facts as would shew 
 " the offence aforesaid to have been murder in the first 
 1 degree; and that the matters alleged in the said plea 
 " are not sufficient to arrest the judgment in the said 
 " indictment." 
 
 A similar judgment (as to the first point made in the 
 above mentioned errors in arrest of judgment) was at 
 the same term rendered in the case of Bond, charged and 
 convicted of passing counterfeit money; in the case of
 
 3 12 Cases decided in the 
 
 Pastures convicted of felonious stabbing; and in the cases 
 of Maurice and of Betty convicted of larceny. All of 
 these cases came from the same court. 
 
 The Commonwealth against Richard M. B. Chi- 
 chester. 
 
 TN the Superior Court for Loudon county, at the April 
 term 1813, this case came on, upon a rule against the 
 defendant to shew cause why an information should not 
 be filed against him for an assault. — The offence was 
 charged to have been committed by the defendant more 
 than one year before the granting of this rule, and an in- 
 dictment had been found by a grand jury in the said su- 
 perior court against him for it. But when the case was 
 called for trial, there appeared to be an important blank 
 in that indictment, which in the opinion of the court ren- 
 dered it quite insufficient to support the prosecution. It 
 was therefore quashed, and the defendant laid under this 
 rule. 
 
 At the term aforesaid of the superior court, the de- 
 fendant appeared in obedience to the said rule and for
 
 General Court of Virginia. 313 
 
 cause why the said information should not be filed against 
 him, shewed the second section of the act, intituled " an 
 " act further to amend the penal laws of this common- 
 " wealth," and insisted that by that section, he was pro- 
 tected from any further prosecution for the said supposed 
 offence. The superior court being of opinion that the 
 construction of that section ought to be established by the 
 supreme tribunal of this commonwealth in criminal cases, 
 adjourned, with the assent of the defendant, to the gene- 
 ral court the following question, ** does the said section of 
 the said act protect the defendant in this case from fur- 
 ther prosecution?" 
 
 The general court, June 1 1th, 1812, consisting of judges 
 Holmes, Brockenbrough, Semple, and Randolph, decided 
 " that the second section of the act entitled an act further 
 " to amend the penal laws of this commonwealth, passed 
 " the 29th January, 1805, does protect the defendant in 
 " this case from further prosecution." 
 
 See the second volume, Revised Code, p. 80. 
 
 2R
 
 314 Cases decided in the 
 
 John G. Jackson against the Justices of Harrison 
 County. 
 
 r THHE plaintiff obtained from a Justice of the Peace 
 for Harrison county, on the 2d October, 1812, an 
 attachment returnable to the following October court, 
 against the effects of one Alexander Morrison, alias 
 Porter, an absconding debtor, who was declared by 'die 
 said Jackson to be indebted to him in the sum of four 
 hundred dollars. The sheriff of Harrison county to whom 
 the attachment was directed, made a return on the at- 
 tachment to this effect: that he found one horse in Hamp- 
 shire county, which was the property of the defendant, at 
 Solomon Parks, who refused to deliver the horse to him, 
 and said he had bought the horse of the defendant, and 
 put the same under lock, so that he could not take him 
 away: he therefore summoned Parks as garnishee to ap- 
 pear in Harrison county on the first day of October court, 
 on behalf of the plaintiff, to declare what property of de- 
 fendant's was in his hands. He also returned that he had 
 attached one sorrel mare in the fields of John G. Jackson, 
 and had her to dispose of as the court might direct. 
 
 At the December court 1812, held for the county of
 
 General Court of Virginia. 315 
 
 Harrison, it was stated on the record that the plaintiff 
 came by his attorney, and it appearing to the satisfaction 
 of the court that the attachment was returned to October 
 court last, and ordered to be entered and continued; 
 therefore, now it is ordered that the same be entered, 
 and the return on the said attachment, which was accord- 
 ly done; and it was thereupon considered by the court 
 that a summons issue returnable on the first day of the 
 ensuing term directed to the sheriffof Hampshire county, 
 to summon Solomon Parks as a garnishee of the defend- 
 ant. The summons did issue, and was returned executed. 
 At the next court in January 1813, the said Parks not 
 appearing, on the motion of the plaintiff an attachment 
 against the body of the said Parks, for his contempt, iwas 
 awarded, returnable the first day of the ensuing term. 
 The attachment was returned unexecuted for want of 
 time, and thereupon an alias attachment was awarded 
 against the body of the said Parks. On the attachment 
 issued in consequence of this order, the sheriff returned 
 as follows: " By virtue of the within attachment I took 
 " the body of the within named Solomon Parks agreeably 
 " to the command of the within writ: the said Solomon 
 " Parks obtained a writ of habeas corpus from the Hon. 
 " R. White a judge of the general court, by virtue where- 
 " of he was brought before said judge, who after a full 
 *' hearing and examination of all matters relating to said 
 " case, discharged said Parks from my custody."
 
 316 Cases decided in the 
 
 At the succeeding court of Harrison county the plain 
 tiff by his attorney moved the court to award a pluries 
 attachment in this cause, which motion was overruled 
 because of the return on the alias attachment, to which 
 opinion of the court the plainiiff objected. 
 
 At the superior court of law for Harrison county held 
 in May 1813, the plaintiff moved the court to award a 
 rule for a mandamus to the justices of the said county, 
 commanding them to issue further process to compel the 
 appearance of Solomon Parks a garnishee in the said at- 
 tachment, which motion for novelty and difficulty was 
 adjourned to the general court for its advice on the fol- 
 lowing points: 1st. Whether the county court hath legal 
 authority to issue process to another county, to compel 
 the appearance of a person summoned as a garnishee on 
 attachment. 2d. Whether the county court ought to be 
 compelled to award such process in this case. 
 
 The general court, consisting of judges Holmes, Sem- 
 ple, and Randolph, on the 12th of June, 1813, declined 
 giving an opinion on the first question because it was 
 u stated so generally, as not particularly to refer to the 
 ** record." As to the second question they ordered it to 
 be certified to the superior court " that the county court 
 " ought not to be compelled to award the pluries attach- 
 " ment against the garnishee."
 
 General Court of Virginia. 317 
 
 The Commonwealth against Jacob Israel. 
 
 r I ''HE following entry was made on the records of the 
 Superior Court of law for Harrison county, on the 
 7th May, 1813. "It appearing to the court, from the 
 " affidavit of William Davis, that Jacob Israel, of the 
 " county of Harrison, gentleman, one of the common- 
 " wealth's justices of the peace within and for the said 
 " county of Harrison, has been and is employed in the 
 " transportation of the mail of the United States, from 
 " the Green Glades to Marietta, by virtue of a contract 
 " made with the post master general of he United States 
 " for that purpose, and that the said Jacob Israel, while 
 " so employed in the transportation of the said mail, has 
 " continued, and still continues to act as one of the com- 
 " monwealth's justices of the peace, within and for the 
 11 said county of Harrison. 
 
 "The attorney for the commonwealth, therefore moves 
 " the court to make a rule upon the said Jacob Israel, to 
 " shew cause, on the first day of the next term, if any he 
 " hath, or can shew, why an information shall not be filed 
 " against him for exercising the said office of a justice 
 " of the peace, while employed as aforesaid in the tran-
 
 318 Cases decided in the 
 
 " portation of the mail aforesaid, and which motion is 
 " adjourned to the general court, on account of novelty 
 " and difficulty, upon the following points, viz. whether 
 " the said Jacob Israel, by making the contract aforesaid, 
 " and being employed in performance thereof, in trans- 
 " porting the mail aforesaid, is disqualified from holding 
 " and exercising the office of a justice of the peace afore- 
 " said." 
 
 June 12th, 1813. The general court, consisting of 
 judges Holmes, Semple, and Randolph, decided, " That 
 " the defendant by making the contract stated in the re- 
 " cord, and being employed in the performance thereof, 
 " in transporting the mail, is disqualified from holding 
 " and exercising the office of a justice of the peace." 
 
 See 1st Vol. Rev. Code, p. 392.
 
 General Court of Virginia. 319 
 
 The Commonwealth against John Edloe 
 Thompson. 
 
 \ T the Superior Court of law held for Surry county, on 
 the 29th September, 1812, an indictment was found 
 against the prisoner, in which he was charged with the 
 malicious stabbing of Joseph Warren. He was arraigned, 
 and pleaded, and put on his trial, and the jury after 
 hearing the evidence and the arguments, retired to con- 
 sult on their verdict. On the 6th of October, during the 
 same term, the jury not having agreed on their verdict, 
 the prisoner was, on his motion, admitted to give bail for 
 his appearance on the first day of the next court. 
 
 At the next term of the said court, viz. on the 29th 
 April, 1813, the prisoner appeared in court in discharge 
 of his recognizance, and moved the court that he should 
 be discharged from the prosecution, alleging that he 
 had been arraigned at the last superior court of law, held 
 for the county of Surry, for the same offence, and that a 
 jury had been impannelled to pass between the said pri- 
 soner and the commonwealth, and had been charged with 
 his case; that the jury had retired to consult of their 
 verdict, and not agreeing were confined during the full
 
 320 Cases decided in the 
 
 legal term of said court; that the said jury did not render 
 any verdict in the case, but separated on the adjournment 
 of the court at the end of the term. Whereupon the court 
 adjourned the decision of the question arising on the 
 motion, with the consent of the prisoner, to the general 
 court. 
 
 This case was decided November 11th, 1813, by the 
 general court, present judges White, Stuart, Brocken- 
 brough, Allen, Dabney, Daniel, Randolph, and Dade, 
 and the following judgment was given. " It no*, appearing 
 " from the record of the proceedings in this case, that the 
 " said superior court made any order discharging the jury 
 " of the said John Edloe Thompson's case, after it had 
 " been charged with it; but on the contrary, it appearing 
 " from the said record, that upon the adjournment of the 
 " said superior court, at the end of the term, the members 
 " of the said jury were necessarily separated, and its capa- 
 " cities and legal existence destroyed by operation of 
 " law. It is therefore unanimously decided by this court 
 " that the said John Edloe Thompson ought not to be 
 " discharged from further prosecution on the indictment 
 " in the said adjourned case mentioned, notwithstanding 
 " at a superior court of law held at a former term, he had 
 " been arraigned upon the said indictment, and notwith- 
 " standing at the same court a jury was imp mnelled to 
 " pass between him and the commonwealth, and charged
 
 General Court of Virginia. 321 
 
 u with his case and retired to consult of their verdict, and 
 ' not agreeing were confined the full legal term of the 
 u said court, and did not render any verdict in the said 
 " case, but separated on the adjournment of the court at 
 " the end of the term." 
 
 The Commonwealth against John Feely. 
 
 r "P , HE prisoner was indicted at the Superior Court of 
 law for Wythe county, in October, 1813. The indict- 
 ment charged that the prisoner " with force and arms 
 " feloniously did steal, take, and carry away out of the 
 " mail of the United States, three packages containing 
 " articles of value, one directed to Philadelphia, one to 
 " Pennsylvania, and one Northward, which packages had 
 " been delivered to Gardner I. Grant, (who was mail 
 " carrier) to carry them from Wythe court-house to 
 ** Montgomery court-house, contrary to the form of the 
 " act of the congress of the United States, in such case 
 " made and provided, and against the peace and dignity 
 " of the commonweath." The prisoner was tried on this 
 indictment, and found guilty by the jury. He moved to 
 
 2S
 
 322 Cases decided in the 
 
 arrest the judgment for the following reasons: *,* ist* 
 " Because he says that the offence in the indictment being 
 " created by an act of congress, this court being a state 
 " court, has not jurisdiction thereof. 2d. That no judg- 
 ** ment can be rendered, the offence being laid as a felony 
 " in the indictment, and a misdemesnor only by law. 3d. 
 " That the indictment is insufficient, as it does not state 
 " what the articles of value were, which the packets con- 
 " tained." 
 
 The superior court adjourned the case to the general 
 court, on the following points. 
 
 " 1st. Whether as the offence described in the indict- 
 " ment is created by an act of congress, this court being 
 " a state court, has jurisdiction thereof. 2d. Whether the 
 " offence created by the act of congress is a felony, or 
 u misdemesnor only. 3d. If the offence created by the act 
 " of congress be only a misdemesnor, can the court give 
 " a judgment on the indictment in this case, which charges 
 " the offence to have been feloniously committed. 4th. Is 
 " the indictment sufficient in this case to authorize the 
 " court to give a judgment thereon, as the particular 
 " articles of value contained in the packages mentioned 
 " in the indictment are not set out and described. 5th. 
 a Is it necessary to be stated in the indictment that the 
 " packages contained articles of value, or is the offence
 
 General Court of Virginia. 
 
 o^o 
 
 " complete without it. 6th. If judgment is given against 
 " the prisoner, where is he to be confined; in the prison 
 " of the county where the offence was committed, or in 
 u the public jail and penitentiary house of this common- 
 " wealth." 
 
 The general court, November 11th, 1813, consisting 
 of judges White, Stuart, Brockenbrough, Semple, Allen, 
 Randolph, Dabney and Daniel, entered the following 
 judgment on their records. " The court doth unanimously 
 " decide, that as the offence described in the indictment 
 " in this case, is created by an act of congress, the said 
 " superior court, being a state court, hath not jurisdiction 
 " thereof; and that as a state court hath not jurisdiction 
 " of the said offence, it would be improper for this court 
 " to decide the other questions submitted to them in the 
 " said adjourned case."
 
 J24 Cases decided in the 
 
 The Commonwealth against William Waller 
 Hening. 
 
 nnHE superior court of Chancery, holden at the Capitol 
 in the city of Richmond, the 29th June, 1 814, made 
 the following entry on its records. " The court doubting 
 " whether the clerk thereof, whose commission bears date 
 " the first day of August, 1810, holds his office by the 
 " tenure of good behaviour, or at the pleasure of the court, 
 " doth respectfully submit the decision of the law there- 
 " upon, to the honourable the general court." 
 
 At a general court, held November 12th, 1814, pre- 
 sent judges White, Carrington, Holmes, Brockenbrough, 
 Semple, Smith, Allen, Randolph and Dade, the following 
 entry was made. " It is the unanimous opinion of this 
 " court, that the matter of doubt submitted by the said 
 " superior court of chancery to the decision of this court, 
 4< does not come within the intent and meaning of that 
 " section of the ' act reducing into one the several acts 
 " concerning the high court of chancery,' which autho- 
 " rizes that court to send any matter of law * to the gene- 
 " ral court, for their opinion to be certified thereon,'
 
 General Court of Virginia. 325 
 
 u and that therefore this court ought not to express any 
 44 opinion on the subject." 
 
 See 1st Rev. Code, p. 64, sect. 11th. 
 
 The Commonwealth against William Waller 
 Hening. 
 
 \ T the Superior Court of law held for the county of 
 Henrico, on the 16th April, 1814, on the motion of 
 the attorney general, and for reasons appearing to that 
 court founded on the affidavits of sundry witnesses*, it 
 was ordered that the defendant, clerk of the superior 
 court of chancery for the Richmond district, be summoned 
 to appear at the said superior court of law on the Wed- 
 nesday following, to shew cause if any he could, why an 
 information should not be filed against him as clerk afore- 
 said, for a breach of his good behaviour, and for a breach 
 of his good behaviour in his said office, in withdrawing 
 from the bank of Virginia, and appropriating to his own 
 use, several large sums of money, deposited in the said 
 bank under orders of the said court of chancery, he the 
 said William Waller Hening having no authority from
 
 326 Cases decided in the 
 
 the said court, for so withdrawing or appropriating the 
 aforesaid sums of money. 
 
 At a subsequent day of the said court, the defendant 
 having appeared, and the parties being fully heard, the 
 court made the rule absolute, and directed an informa- 
 tion to be filed against the defendant. The information 
 was thereupon filed by the attorney general, and a capias 
 was awarded against the defendant returnable to the next 
 court to answer the said information* 
 
 The said superior court at the same time adjourned to 
 the general court, the following question arising from the 
 rule and the information in this case, as one of novelty 
 and difficulty, to wit: " whether an information can be 
 " filed against a clerk of a district court of chancery, for 
 " a breach of his good behaviour, or for a breach of his 
 " good behaviour in his office, on the ground stated in the 
 " said rule and information." 
 
 The first count of the information charged that the de- 
 fendant was duly appointed clerk of the superior court of 
 chancery on the 1st August, 1810, that he qualified and 
 entered on the duties oi" his office, and that on the 11th of 
 September, 1810, the said court duly appointed the clerk 
 of the said superior court of chancery the receiver thereof, 
 and ordered that the said clerk be allowed a commission
 
 General Cmirt of Virginia. 327 
 
 of one and a half per centum on all monies brought into 
 court, or deposited in the bank to his credit, in virtue of 
 orders of the said court, by virtue of which appointment 
 and by reason of his being clerk, the defendant became 
 the receiver, &c. and it became his duty as receiver under 
 the order of the court to draw checks in favour of any 
 person, in whose favour he should be directed by the 
 court to draw them, and not to draw checks in favour of 
 himself or others, nor to appropriate to his own use, nor 
 pay away any part of the money deposited in the bank, 
 without the authority or direction of the court: it then 
 avers that the defendant did, at divers days and times 
 between the 1st of July, 1812, and the 1st January, 1814, 
 by colour of his said office of clerk, and entitled and 
 bound as such under the order and appointment of the 
 court to act as receiver of said court, unlawfully, &c. 
 and without the authority of the said court, draw divers 
 checks on the cashier of the said bank, which were paid; 
 by means whereof he did get into his possession large 
 sums of money, amounting in the whole to ten thousand 
 dollars, and unlawfully, &c. appropriated the same to his 
 own use, in contempt of the authority of the said court, 
 in violation of his duty as clerk, &c. whereby he was guiltv 
 of misbehaviour in his said office of clerk, against th< 
 form of the acts, &c. wherefore the said attorney general 
 prayed the judgment of the court, and that the said de- 
 fendant be removed from his said office. [There were
 
 328 Cases decided in the 
 
 three other counts in the information, but it is deemed 
 unnecessary to give an abstract of them, particularly as 
 the general court declined answering the question pro- 
 pounded by the superior court.] The superior court also, 
 for the purpose of explaining the question adjourned, 
 transmitted to the general court a copy of the order of the 
 chancery court of 11th September, 1810, appointing the 
 clerk of the court the receiver thereof, and allowing him 
 a commission on all monies brought into court or deposi- 
 ted in the bank to his credit, in virtue of orders of this 
 court, and also transmitted copies of the checks under 
 which it was charged that he had unlawfully drawn mo- 
 nies from the bank. 
 
 November 12th, 1814. Th« general court declared it 
 to be their opinion " that in the present state of the plead- 
 " ings in this case, the question adjourned to this court 
 " does not grow thereout; nor does it appear upon the 
 ** record of the proceedings in the said case to be brought 
 " before the court in such legal form and manner, as to 
 " enable this court to decide the same." The case was 
 therefore remanded to the superior court for further 
 proceedings. 
 
 Note: This opinion was given under a conviction that 
 the act of assembly, allowing questions of law in criminal 
 cases to be adjourned to the general court, intended only
 
 General Court of Virginia. 329 
 
 such questions as might be decided by the general court, 
 and the decisions whereof must be entered as the judg- 
 ments of the superior courts, and not such as had already 
 been decided by the superior courts. Thus, if on the rule 
 to shew cause why an information should not be filed, the 
 superior court had not directed the rule to be made abso- 
 lute, but had, at that stage of the proceedings, adjourned 
 the question arising from the rule, and the evidence in 
 support of it, the general court would have been authori- 
 zed by the act to decide whether the information should, 
 or should not be filed. The adjournment of a question is 
 very different from a question coming up to a superior 
 court on an appeal, writ of error, or supersedeas. See 
 1st Rev. Code, p. 76. This construction of the act was 
 however overlooked in the case of M'Caul, in which the 
 question, whether the indictments ought to be quashed, 
 or not, was first decided by the superior court, then ad- 
 journed to the general court, and in that court argued at 
 great length, and an opinion given thereon. 
 
 2T
 
 330 Cases decided in the 
 
 John Stokelcy against the Commonwealth. 
 
 TOHN STOKELEY, one of the Justices of Wood 
 county, at a court held for the said county, on the 6th 
 July, 1812, offered to the court two protests, which were 
 ordered to be filed. The said court considered the said 
 protests as a contempt, and entered judgment against 
 him for a fine of fifty dollars. The protests were in the 
 following words. " John Stokeley protests against the ap- 
 " propriation now about to be made for to pay for the 
 " completing the jail, and clerk's office, as he verily be- 
 " lieves that the said buildings, according to contract ex- 
 " pressly set forth in the bond of the undertaker, was not 
 " completed neither as to time, or workmanship, and 
 " therefore protests against the levying any more money 
 " of the people until the work is completed. And further, 
 " the said protestant believes that the order for said 
 " buildings was first made prematurely, especially as to 
 " the jail." 
 
 Again. " July 6th, 1812. Taking into view the conduct 
 u of a few of the justices, at the several different courts 
 " lately held in the county, concerning the erection of a 
 " new court-house in the town of Parkersburg, to wit, at
 
 General Court of Virginia. 331 
 
 >w November, December, and January courts last past, 
 " and again at April, May, and June courts last past, on 
 lt a mature consideration, we do think that some of the 
 " said justices hath not only veered from the spirit and in- 
 " tention of the law, but have acted contrary to the lite- 
 " ral meaning of the statute laws of Virginia, as well as 
 " contrary to the will and wishes of a large majority of 
 " the good citizens of this country. It appearing to us the 
 " subscribers that our country is assailed by tyranny abroad 
 " and are now forced into a war, and that this country is 
 " like to be oppressed by a mistaken act of some of our 
 " said justices, who, according to the opinion of the subscri- 
 " bers,have t anscended the authorit given them by our 
 " laws, if not by rescinding the order (last April) which 
 " was made at last December court, and again by nulli- 
 ** fying a contract that had been made by certain citizens 
 " for the erection of said court-house. They have most cer- 
 " tainly transcended the law, by hurrying on the last order 
 " for erecting said buildings, and have infringed the inter- 
 " est of the people, by amercing this weak and new county 
 " into a debt of upwards of eight hundred dollars extra- 
 " traordinary, viz. more than the first contract: which we 
 " view as not only illegal on account of the order for 
 " summoning the justices being made on the 7th April, 
 " and the order for erecting said court-house being on 
 " the 4th May then next ensuing, which is only twenty 
 " six days instead of one month at least (according to the
 
 332 Cases decided in the 
 
 " expression of the law,) but at this crisis we do think 
 u that act of said justices oppressive, and do therefore 
 " protest against the collection of the money intended to 
 " be applied to pay for said court-house, as we do repeat 
 " that we view that levy as unwarranted by law, and op- 
 " pressive to the people. Given under our hands the day 
 " and year aforesaid. 
 
 "JOHNSTOKELEY." 
 
 On the application of the said Stokeley, the superior 
 court of law of that county awarded a writ of error to 
 the judgment of the county court imposing the fine on 
 him. And at the April term 1813, the superior court 
 adjourned the case for novelty and difficulty to the gene- 
 ral court, for their decision on the following points. 
 
 " 1st. Whether this court hath jurisdiction of the case. 
 ** 2d. Whether from the facts stated in the record, John 
 " Stokeley was guilty of a contempt to the county court 
 " of Wood." 
 
 November 12th, 1814, the general court unanimously 
 decided, " that the superior court hath jurisdiction of this 
 " case, the fine being imposed by an inferior court; and 
 M that from the facts stated in the record of the said case, 
 " the said John Stokeley was not quilty of a contempt to 
 " the county court of Wood county."
 
 General Court of Virginia. 333 
 
 •Isaac Morris against George Creel and others. 
 
 r I ''HE plaintiff instituted an action on the case against 
 the defendants on a libel, in the Superior Court of 
 law for Wood county. In the progress of the cause he ob- 
 tained from the court an order for a subpoena duces tecum, 
 against the clerk of the executive council of the common- 
 wealth, commanding him to attend the said court as a 
 witness for the plaintiff, and to bring with him from the 
 files of his office, a certain memorial addressed to the 
 executive, by John Stokeley and others, touching the con- 
 duct of the plaintiff as escheator, he. 
 
 The subpoena was executed on the clerk of the council, 
 who did not attend as a witness at the court, according 
 to the directions of the process. The plaintiff then moved 
 the court, that an attachment be awarded against him, 
 for his said contempt, returnable to the next term of the 
 said court. And the court not being fully advised what 
 order to make on the said motion, but considering the 
 question of law arising thereon to be new, and difficult, 
 adjourned the same to the general court for their opinion.
 
 334 Cases decided in the 
 
 November 12th, 1814. The general court unanimously 
 decided, " that an attachment ought not to issue in this 
 " case, until a rule is served upon the said witness to shew 
 " cause, why it should not." 
 
 The Commonwealth against Thomas Lewis. 
 
 T I \HE defendant was presented before the Superior 
 Court of law for Loudon county, for unlawful ga- 
 ming. The summons awarded against him being returned 
 executed, the defendant was solemnly called but came 
 not, nor did he make his personal appearance in court, 
 but W. C, gentleman, attorney at law, offered to appear 
 and plead for him, to which the attorney for the common- 
 wealth objected, alleging that the defendant ought to 
 appear personally in court, and that he was precluded 
 from pleading by attorney, without such personal appear- 
 ance, by the 3d section of the act entitled, " an act to 
 " amend the several acts heretofore made, to prevent un- 
 " lawful gaming." The superior court adjourned the case 
 to the general court, and the following question arising 
 therefrom. " Ought the defendant in this case to be per-
 
 General Court of Virginia. 335 
 
 " mitted to appear and plead by his attorney without ma- 
 " king his personal appearance in court?" 
 
 November 12th, 1814. The general court decided, 
 " that the said defendant may in this case appear, and 
 " plead by his attorney, without making his personal ap- 
 " pearance in court." 
 
 The Commonwealth against William Horton. 
 
 'THHE defendant was presented before the Superior 
 Court of law for Prince William county, at the May 
 term 1814, for unlawful gaming. The process being re- 
 turned executed, the defendant appeared and pleaded, 
 and issue was joined. The court proceeded without a 
 jury to try the issue, and gave judgment against him for 
 twenty dollars, the penalty prescribed by law. 
 
 On a subsequent day of the term however, on the de- 
 fendant's motion, the judgment was set aside, he insist- 
 ing that he had a right to a trial by a jury, and that ques-
 
 336 Cases decided in the 
 
 tion was adjourned to the general court, for their de- 
 cision. 
 
 November 12th, 1814. The general court decided 
 unanimously, " that the defendant in this case is entitled 
 " to a trial by jury." 
 
 FINIS, 
 
 -V
 
 V 
 
 LAW FJEfcARY %> , 
 
 DIVERSITY OF CALIFORN T
 
 UC SOUTHERN REGIONAL LIBRARY FACILITY 
 
 AA 000 757 640
 
 i W Mil; h U 
 
 ill