The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-22
OPINION IF tie DeTv.rsd on
FEIDhv, September Is.
Two queN;ons ar.fe from the prefep, motion.

Two queh;ons arfe from the prefept motor.
III Is the judge who compoies this court, either
as court or r,agiitrate, authorized 20 commit -
ny perfon for trial in the M,fiilGppi Territory?
2dly Is tie rerdiet which has been rendered in
this court bar profeeution either III the fam.
or different Fate, for d:feren, over, aSts Of III.
1re tr.afpn
N,On the fire. pon. II obferve as preliminary 70
confederation Of the ati of congres which is fuppoie
to give the power coutsnded for, that have been in
clined to ,hink the territorial conrts were erected
not under the 81. of tile contribution which de-
fines the judicial power of the u States, ba. under
the 4th article which enables Congrefs to make all
neediul rules and regulations for the government o!
their territories One reaion for this opinion is that
the territorial have coguiz5roc of cafes over
which Cnngrel under the Sd. article incapable oil
giving juriid on to the circuit os the U. States
do not mean to fay that the c/ouit IS tem may not
be extended to the territories. only mean to FAY
that the c1ng territorial courts are not created in
virtue ct tina, article whoh creates and defines the
Judicial power Of the u. S.
he act which is denonnated the judicial ata pal-
led immediately after the formation of the contribution
and appears to have had exoluively for its obc the
organization Of iyitem undGr the 3d. article of that
iniirument.
Its title ;s' An at eRabf IL. judicial courts of
the u States; and it contains no reference TO ter
rtorial court.
fhe iecond feGfion divides the u. S;a,es into d;r-
oets' no one oil which includes any portion of terri
tory not then included in on,e Aate. In this fe fion
then the term u. States" defgnates the hstes COM
polling the Union in excIuGon of that territory which
was governed by the u. States The word dinriet"
IN rhe fame fection o5vipuily means judicial d:tria
ereated by the a9. The term is plainly ufrd in the
lame enie in the Sd fe6fon and in every ether part
OF the sc where it is employed. So the circuit
court is never employed but with plain reference to
the courts created by the ACT and under this con-
isrucfion the uprcme has refued to take cogn
zance OF an appeal from territorial court.
The SD fiction authorizes any juace or Judge of
the u. States to arreR and commit for any offence a.
CAN'T the u. States; and becaul- an offence agan(l
the United States may unqueitonab!y be committed i'm
territory, it is argued that thcie words authorize
judge here to arrelt and commit for trial there.
il thete words food unconne6ted and uncontrolled
by others hould not confder the fentence as ablo-
lu,ely free from doubt, although perhaps sht give
1t the contribution required by the council for the
u States. Some doubt would be induced by the fub-
Ied matter on which the words employed. An
arref and conn,itment Of offender is necearly for
the purpoie of bringing him trial, and act csea-
ting particular courts of criminal urfd6ion in order
to give effect an important article of the conRtu,ion
and authorizing the judges thoie to arrel and
commit offenders for trial generally, might be
hrued without departing far from acknowledged rule,
to authorize commitment for trial liz ;hofe courts
only 70 which the contribution snd the law related
But all doubt'npon this fubiea is removed by the
particular words Of the aGt.
Every perlon admits that Legislative acl like any
other nRrument, is TO be taken altogether and that
general phraies may be explained, and refraned or
enlarged by o,her words which demonnrate the fenfe
in which thole general phraies were uied Now the
ientence authorizing an ar-ef and commitment for
trial proceeds FAY before what luch trial nuR
be had. 1t n1uit be before the which by that
act has cognzance OF the offence. How then can
the authority extend to commitment, fer trial. before
court which by that aG has no cognzauce Of the of
fence Which derives its jurifdiaion from differ
ent aG and is dinin in its character and in its pow
erS The words uch court of the United States as
by this act has cognzance Of the offence" are not
ienieiefs. They operative words which form an
important part of the defeription Of the power given
How then can they be rejected The words which
authorize the dGri6 Judge to remove the perlon COM
mitted into that dnri6 in which he is to be tried mon
obviouny mean that judicial di(tri9 and refer as
plainly reference be made to that di0rGf in
which the commitment exprenss that the offender is
to be tried Ga this the committing judge decides
IL has been commended, that becauie the court for
the MiiifIippi Territory has, by fublequent aa of
Congress jurifdi6ton over all offences committed
within the territory, that the grant of urild6ton to
that court cnlarges the power OF the committing
gihrates Of other courts.
The correttnsls Of this deduction can not be admit
ted cannot comprehend tina, train of reaioning by
which the grant of power 10 one court can be conf
dered as charging the powers of magiRrates BELONG
irg TO another court, having relation to the
ly created court, and who not in any manner
temPIated by the a6t creating that court.
Gut il this point ccud have been involved in doubt
that doubt is, think, removed by the circumstances
exiting at the paE ye O! the il iical act. terror-
al court was then in being, exerciiing its urildetion
over offences which were committed within the ter
ritory. The court for the wefern country as per-
ceive, from TIE journals of the old Congres, was for
med foou after toe palage for the ordinance for its
government IF Immediately after the palage of
the Judicial act, judge had been required to commit
al offender for trial before that territorial court what
muG have been his anfVer : He nun have fad Con-
grefs has empowered me TO commit for trial only be-
fore created by the judicial act. On the po-
Icy of their motives for this reGr6tiOn, I am
not decide lueh is their will and am bound to o.
hey il.
II luch nun have been the contribution Of the law
with refPea to the territorial COURT exiting at the
time, fueh mutt be It's contribution with refpect to O.
Their territorial created finee on the fame mo-
del.
am on thefs reafons perfectly clear that have
so power commit for trial in the court for the Milf
Gppi territory and of confequenee it would be alto
yether improper in to 90 into enquiry on fub-
ea which cannot act.
The feeond quenion is much more doubtful. It is
constitutional qusaion of great i'm portance, and one
neeesry, while Jingle doubt refps6ting it exits on
have been urged on both ides aud doubts upon il do