judges, not even the judge who agreed with him, rely upon it, or mention it in their arguments: such a vague account from mere memory, at a distant day, cannot be considered as authority, especially as it was not so considered by the court to whom it was mentioned.

Sorrell's case, then, was, so far as the court can know, the first that has occurred upon this point, and that case settled the law as now contended for by the attorney general. This was the opinion of the general court, and 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 consideration. The question was moved upon the fourth day of the court when the indictment was sent up to the grand jury. It was again discussed and decided on the sixth day of the court when the prisoner had his trial.

This construction has, as we are told, been sustained by the District Courts in Bailey'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,

the legislature left this law, thus explained and thus executed, untouched. If it had deemed this construction incompatible with the public good, would it have 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 construction? The legislature knew that this power had been denied to the examining courts for eighteen years, why then did it not put the question beyond doubt? For the best of all possible reasons; it did not intend to disturb it.

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

Another argument was pressed upon the court in a late stage of the cause, drawn from the 12th 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 legislature speak of a person's being charged with a crime, a charge made by a grand jury or examining court is necessarily meant. The word charge is often used to designate a charge made upon oath before a justice of the peace, and it is so used in both of the acts of assembly respecting examining courts. The real intention of the legislature seems to have been, that when a man was sent forward for homicide, and the attorney to whom the law directs the depositions to be sent, should perceive that the evidence charged him with involuntary manslaughter only, he should be at liberty to proceed in the manner pointed out by that section.

Upon the whole the court is unanimously of opinion, that a court of examination hath not power to acquit a prisoner charged before it with murder, of the murder with which he stands so charged, and to remand the said prisoner to be tried in the superior court for manslaugh

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 homicide 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 undertaken 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 remand the said prisoner to be tried in the superior court for manslaughter on 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 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 questions 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