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supreme court of appeals, but also as to the circuit courts where their judgment is final, and even as to single magistrates whose judgment is under ten dollars. The examining 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 prosecution. 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 reversible, then the circuit court must say that the proceedings are either right or wrong, or partly right or partly wrong. If the decision of the examining court for Norfolk 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

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 manslaughter. 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 unlawful. "Criminal offence" is used in the same section, which certainly involves the idea of law as well as fact, for "offence" means an act contrary to law. So the word

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 charged with the fact of homicide. Positive proof is produced that he hung a man. If the examining court can only enquire into the fact of the homicide, he must be sent on for trial, although he has in his hand, a record of a competent 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 acquittal 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 acquitting 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

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 ignoramus as to murder, and "a true bill" as to manslaughter. 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

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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 supposing 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

to the superior court. The examining court must here discriminate, because otherwise they cannot decide where the prisoner is to be tried. The court must also decide whether he shall be bailed or not. If he is guilty of robbery, 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 Mercer said that in the case of the King v. Davis it was decided 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.

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Tazewell for the prisoner. He contended that the circuit 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 respect to criminal cases, and more especially those which are capital, he strenuously urged that double pleading is,

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