"prescribed by the act, entitled an act, directing the me"thod of proceeding against free persons charged with "certain crimes," &c.

Let us stop here and enquire, whether this section gives to the examining court 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 thingsfirst, it is to consider whether the prisoner may be discharged froin 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 pursuance of the act to which the section now under conside

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 from 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 favour of this discriminating power, rests upon the true import of this authority, to discharge from further prosecution, 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 breaking 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 hearing all the evidence, is satisfied that although the crime was committed, it did not amount to burglary, but to petty larceny only. Or let us suppose that a man is, in like manner, committed for a grand larceny, and the examining court should think him guilty of the fact, but that it amounted to petty larceny only-What would be done

T

with these men? They would be remanded for trial in the county court. Here is an exercise of the discriminating 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 consequence of the power to make such discharge? So far from being so, it is an express order that he shall be further prosecuted, and is derived, as will be shewn hereafter, from a different source. How then does this power to discharge from further prosecution prove that the examining 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 the power to acquit generally, is not the major, but the minor power. It is believed to be a self-evident truth, not to be denied by any man conversant in the law, that the power to ascertain 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 consequences, than the power to decide, whether any offence

whatever has been committed, and that this is more emphatically true, as it respects the crime of felonious homicide, than any other. How then can it be 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 proper 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 ascertaining 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 exercise of a power actually given, they may discriminate for the purpose of interfering with, and controlling the opinion 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

66 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 "the contrary in any wise notwithstanding."

Now upon what principle of construction can this section 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 manifestly 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 discover it is this very power to discharge from further prosecution, out of which the present question has arisen, and which, it is believed, has already been proved not to confer the discriminating power contended for.

But the construction put upon this section is attempted to be further supported, by stating, that any person charg