with the legislature, but the general court seemed to dislike them, and by various decisions the judges had undermined 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. Sorrell's 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 prisoner; 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 Sorrell's 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 position 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 Shannon's case, in which Judge Parker said that an acquittal by an examining court was not worth a rush, and in Blakeley's 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←

tion of the act of 1804 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 proceedings 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 itself, 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 unnecessary to report his argument so far as it coincided with those of his associates. He examined Sorrell's 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 murder 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, 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

ing court sent Sorrell on for manslaughter, and not being discharged from further prosecution for the murder, the general court put him on his trial for murder. But Sorrell'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 Bailey's and Shannon's cases, and perhaps that given by the general court in Blakeley's oase, were contrary 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 considered as a grade of any species of offence, but as a distinct species: it is placed per se. The third section declares "that if any person charged with any crime, or

offence against the commonwealth shall be acquitted, "or discharged, &c. &c." The terms "crime or offence" in this section evidently have reference to the enumeration in the first section. Let us then transfer the words of the first section to the third, and it will read thus: "that

"if any person charged with any treason, murder, felony, "or other crime or offence against the commonwealth "shall be acquitted, or discharged, &c. &c." 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. Sorrell's case is clearly a strong case for the commonwealth; a majority of the court certainly decided that the examining courts had no power to discriminate. 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 offences 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 impression 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 Sorrell's case, why did not the legislature give to the examining courts the power to

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 contrasted 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 called on to point out any exceptions to their general acquitting power. He admitted that if a court having competent jurisdiction gives an erroneous judgment, that judgment 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 therefore may be noticed on general demurrer.

Tazewell urged that by the 12th section of the penitentiary law of 1796, when a person is charged with in-`