Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-26

longing to another court, having no relati-
on TO the newly created court, and who
are not in any manner contemplated by the
act creating that new court.
But If this point could have been involved
III doubt, that doubts, think, removed by
the circumstances existing at the passage
o! the judicial act. \ territorial act was
then IN being, exercising It's jurisdiction
over offences which were committed within
the territory. The court for the western
country as Ipercei,e, from the journals of
the old congress, was formed soon after
the passage for he I'd n ice Ct its govern
mept. If Immediately after the passage Of
tic Judicial act, Judge had been requir-
ed to commit an offender for Trial before
that territorial court, what must have
been his answer? He must have said con-
gross has empowered me to commit for tyi-
! al only before a court created by Ihc iu-
dicial act. On the policy OF their motives
for this restriction, I am not TO decide /:
such is their will and / am bound to obey
lie.
! If such must have been the construction
OF the law with respec. to the territorial
/ court, existing at the time, such must be
IT'S construction with respectto otlrcc terri
! torial courts created since on the same
model.
am on these reasons perfectly clear
ithat have no power 10 commit for trial in
the court for the Mississippi territory, and
| o! consequence it would be altogether inn
proper III me to so into an-enquiry on
subject on which cannot act.
The second question is much mere doubt
fu,. 1t is a constitutional question of great
Importance, and one which ought not to
decide, unless it becomes absolutely neccs-
sary, while q single ttoiat respecting it ex-
ist' on my mind. have attended to tire
arguments which have been urged OH both
sides and doub's upon it do yet exist.
/ Iacknowledse Tie force o. The argument
so repeatedly urged, that levying war is
one continual criIae and the diherSRt o.
vert acts Cf ths same war, are as nuch
parts ofths same treason, as different stabs
or different doses Of poison gwen. 20 the
same individual arc parts Of tire same MUIR
der. The difference between levy ing war
and feloDY may be in some measure this.
ii For felony as robbery or burglary, a
man be Indicted in the wrong county, he
IS charged in jurisdiction in which no
part Of the offence has been committed /;
''nt if ne be indicted iorievyinS war with
IN a district through which the force has
passed, he is indicted within a district in
which part of the offeuce has been COM
| =
OH this distinction have great weight with
me. They deserve TO be more matureiy
considered So far as respects overt acts
w:5hin the same jurisdiction they are per-
haps conclusive.
My doubt consists in this. The overt act
: now charged could not have been laid in
the indictment on which Col. Burr has been
= tried. There is therefore considerable
Force in the argument that his acquittal
= dos not prev IA diStinc n,.ictmcm, f.,
r the war in Kentucky. My judgment j,
, not decidedly formed upnn this point
shall therefore hear the testimony relative
to the conduct of the accused within the
. United States, and shall III the mean time
reject further ON this subject. in the
course OF this reflection it is impOssblo-n'f
}: allow Huch weigh, to he az, unepts =
4 liycred 70 day, especially to that which
= shows the difference between murder ant
II treason in this, that proving murder L
Il be committed in another county dGes alb
= soutely dhproye the Indictment
: IN tite course OF this argument an Incl
= dental altercation at the bar has produce
i some commentaries on the construction q
{ vcR by this court to the opinion CT the ST.
q preme court, in tie case Of Ballman ant
SwlTtwout, which l 10 not think myself a
= liberty to pass over altogether without 10
tice.
& Reports may very possibly be in circula
: ton that Ibis court instead of obeying ha
S absolutely reversed decision Of tie su
= preme court. While such reports woui
{ be entirely incorrect in point of fact, the
$ wou,d cast an imputation on this court
3 which, J A,tter nyseif, will never be me
y rited. But such reports may circulat
u with great facility, and the labor of rea
n ding the opinion to which they refer, an
e which would certainly refute them, will b
{ taken only by few. If then a dcclarati
a on made front the bar - myself, EVIDENT
* purpOrting that my opinion instead of N
> strung reverses that os the supreme cour
Il should be heard uunotiCed, | certain
Ie might be understood 10 acquicscc in the re
Us mari. and to countCn1nCe any reports Whic
), might be circulated to the same effect.
re thi rclore feel M self bound % declare tia
ic / have given what ] believe to be Ga
% sound and true legal construction Of tire G
IN pinion Of the supreme courtl and e,
&c myself farther b.uud 20 state 90 5entlcmc
IN the particular parts Of that opinion q
at which there has been difference dctwce
q the Cons,ruc lion mIdc ny the court an
IA shat made by the counsel Tor the prescott
Ir Oh.
I- The points inferred from that opinic
by the counsel t,r the u. Syatcs were.
be- 1st. That war might be levied withou
BY the application 81 actual violence to d
ni o' Gets to which II was intended to be appl
= I'd