Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-11-06
RICHMOND. NOVEMBER q IgsI
Mn. LITHGOW'S CASE.
(caargsd .ei.h e..ss..ling t,a.d. sfr. Hm.l.l

"""o" TOT "A cfanSe OF the Venue. He ANALYSED the
three afiidavits which had been submitted, and CON
cuded that they did not shew " good cause" for the
| moiion. lie thought there was no sufficient reason
10 believe that in 80 large county as this an n,par
ial jury might not be found to try the accused 4
All events, he was for trying IN he first Instance TO
exhaust the venue, 'I then sending tales into the
country.-Sucli an experiment had been made in
other cases and il might be made in the present
one.
on motion the prisoners counsel, the trial was
then adjourned over till Thursday, on acconn, of the
absence of MIR. S. Taylor one of his counselIn The
mean time, Mr.. L. remains in Jail
COMMONWEALTH An application before
u.s. Judge Brockenbrough to
The Jailorof Hen discharge seamen upon
rico county. writ of Habeas Corpus.
| lhis case came before Judge Brockenbrourh on
Friday by virtue of wit of Ha6eas Corpus which he
had issued on "Wednesday. William Pool and two
other seamen had been committed to Jail by MIR. Jo-
sephs Mayo, a magistrate for Hen,ico. ON COM
plant of the captain sthc vessel, which they had en-
tered in the port of Boston, and had now deserted,
They were brought up before The JUDGE Their
counsel produced testimony TO prove that these were
american Citlzens from which, they commended
that these did not within the descrin,;on of Goa,
men whom magistrate might commit for desertion
according to the laws orVirgina. (See 2nd Revised
Code p. Isl, which is confined to seamen not citizens
oil tins Commonwealth, or of the IT, Statcs)
Inc capt'in then suggested to the court that these
seamcn were committed under an act of Congress-
messrs. robert C. Scott and James ID. Ridoye
ior the applicants, stated, that these sean,cn
are citizens ofthe United States, and therefore
are NOT within the operation of the law of Vir
sinia see Rev. Code, p. 13I. They belong
TO the brig Washington, Capt. bolivar of Bos
ION, ana are committed, as it is alleged, under
the act OF Congress-Ingersol's Digest, D. IA
rms commitment is signed by Joseph Mayo.
magistrate Tor the county of Hcnrico upon
| tended
| 1. That the magistrate acted iudicially in
committing;
:. mat acting judicially, the magistrate of
a state has no right to execute this law of
the United States:
8. Whether acting judically or ministcrialIy.
the laws of Virginia have declared the
incapacity of the magistrate to perform
| any function or duty appcrtaining to any
Once, place or appointment under the a,i-
thorlty OF the United States. See Rev.
Code, p. II.
| 10 sustain the first proposition it was urged,
|
The Judgment and discretion that TO Justify
the magistrate in committing, he must con.
| sder, Judge, try, decide he must hear evil
dence against the accused and decide upon
Its suiliciency and if the accused require il.
ne must near any exculpatory evidence thai
may be iutroduccd--and in this particular the
powers OF the magistrate are far greater and
different than those of grand Jury. and by If
are mainly distinguishablc. 1t was, however.
sane; thlswas not "a question open & undecided
for IN the case in Sd Dallas, D. Dc, of an appli-
cation IN the supreme court of the u. S. for
mandamus TO Judge Lawrence to issue his
warrant OF apprehension, the court decided
mat the refusal of this Judge TO issue his war
rant was judicial act, and refused the manda-
mus on that ground. This case was much re-
lIed on, and from thence it was argued that if
IL be Il Judicial act TO issue a warrant for ap-
lprehendlng person charged with an offence
Is much more so, after having such person
before him, for the magistrate to hear the evil
dence for and against the accused, and TO de-
eide upon his guilt by directing his commit
ment. The opinions of Judges Bland & Han
son IN Almeida's case, 1ath vol. of Niles's Re-
gister, pages l Ia 81 231 was relied on as recog-
nlzlng and approving the decision in Sd Dallas.
Wmie these cases seemed to decide all the
counsel desired, they admitted there was one
authority, OF deservedly high character, OPP
posed to them, viz. the opinion delivered by
Judge Cheves in Rhodes's case, 18th vol. of
Niles's Register, p. =. 1t was commended that
inns decision was not law, being not only op-
posed to that OF the supreme court In Judge
Lawrencc's case, and to Judges BANDS and
| Hanson's III Almeida's, but also upon one
question discussed and decided by If, to the
very respectable and able opinion of Judge r.
f.. Parker of Virginia, in the case of the crew
OF the General ROndcau at Norfolk.
Upon every view, therefore, there seems to
have been ajudicial act ON thepa of Mr. MAYO.
But this is much stronger case than eitherof
those relied on or cited. In Judge Lawrence's
case, In Almelda's case, and in the case of
lthodes,i was themcipient and ancary mea-
sure to bring the accused before anotherand a
higher judicial tribunal and that speedily too !;
here, however, according to the act of !, ongress
the magistrate acts finally and conclusiyeIy ::
there are no Interior measures to be adopted |;
no other examination no further opportunity
Tor defence the magistrate hears, decides and
commits he inteTprets the contract between
the parties 4; he decides upon their obligations ::
nc prOnouDces whether they have been yiolat-
ed; he denOunces forfeiture of liberty on
the part of one Of the contracting parties.
deprlves him of that liberty, and commits
him to Jail. From this important power thus
exercised by single magistrate, Uirtute o6fcii.
there IS no appeal. Aud can it be for one
moment believed, that in this particular case,
where so much unrestrained and uncorectcd
authority IS exercised, the magistrate does
not act judicialIy?
2 Ii II has been shewn that the magistrate
acted judicially in this case, the question
recurs, can magistrate in his judicial cha
racter execute this law of Congress-
It's commended that he cannot--Concress
can alone create judicial tribunal in the man
ner prescribed Ivy the constitution-the ap-
polntments must be made by the President,
! see article end. seclinn end not Inv cnnnrnse