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with Notes of Reference (1803)
St. George Tucker
Summary View of The Courts Possessing Criminal Jurisdiction, Within The Commonwealth of Virginia
COURTS of criminal jurisdiction in Virginia, are of different kinds: 1. Those which are established under the constitution and laws of the state: 2. Those which are established under the federal constitution, and laws of the United Slates. 1. Courts of criminal jurisdiction established under the authority of the state constitution and laws, are,
1st. The court of appeals, whose jurisdiction in criminal cases is, by the constitution, expressly extended only to a single case; the trial of an impeachment against a judge of the general court. Whether this court possesses any jurisdiction, by writ of error, or otherwise, in any other criminal case, has been doubted. C. V. Art. 17.
2. The GENERAL COURT of this commonwealth, is likewise a court of impeachment for the trial of all persons impeached, except the members of their own body; the trial, in case any of these be impeached, being expressly vested in the court of appeals, as before mentioned. C. V. Art. 16, 17.
By the act for establishing a general court, Oct. 1777, c. 17, it is declared, that for establishing a court of common law of general jurisdiction, there shall be held one principal court of judicature for this commonwealth, which shall be styled the general court of Virginia, and whose jurisdiction shall be general, over all persons, and in all causes, matters, and things, at common law, whether brought before them by original process, by appeal from any inferior court, habeas corpus, certiorari, writ of error, supersedeas, mandamus, or by any other legal ways or means. And, moreover, shall have full power to hear and determine all treasons, murders, felonies, and other crimes and misdemeanours which shall be brought before them.
In the years 1787 and 1788, the constitution of this court was altered by the establishment of district courts; which, as they are composed of the judges of the general court, who sit there, by virtue of their commissions, as judges of that court, and by no other authority must be considered as branches of the GENERAL COURT, and not as distinct and independent jurisdictions. The acts by which they have been established, declare that they shall have full power to hear and determine all treasons, murders, felonies, and other crimes and misdemeanours committed within their district, and which shall be brought before them. This has been supposed to oust the general court of original jurisdiction in any criminal case committed within the body of any district, except in the cases which are expressly reserved to it, either by the constitution, or by some statute. It still has cognizance of prosecutions against the clerks of courts for breach of good behavior, under the 15th article of the constitution. And all high treasons, misprisions, and contempts of high treason, and other offenses against the commonwealth, (except piracies and felonies on the high seas) committed by any citizen of this commonwealth, in any place out of the jurisdiction of the courts of common law in this commonwealth; and all felonies committed by any citizen against a citizen in any such place other than the high seas, shall be inquired into, heard, determined, and adjudged in the GENERAL COURT, in like manner as offenses committed within the body of any county, are to be tried in any district court. L. V. 1794, c. 136. §. 7, and c. 66. §3.
Any question of law arising in any criminal case, may be adjourned by the district court to the general court, with the consent of the criminal; and may be there argued and decided, although such criminal be not present. Ibid. c. 66. Sec. 16.
The general court has power, to issue writs of mandamus to the district courts; in this respect it is considered as a superior jurisdiction to them, whether it has power under the very general words in which it’s jurisdiction is still defined, to giant a writ of error, in a criminal case, is n question which has not yet been agitated, that I know of. That such a power should exist, somewhere, seems reasonable; whether it does in fact exist, any where, it would be presumption to decide, until the inquiry be made in its proper place.
3. The district courts of this commonwealth, are superior courts, of criminal, as well as civil, jurisdiction; and, have power to hear and determine all treasons, murders, felonies, and other crimes and misdemeanours, committed within their districts, respectively. And this limited territorial cognizance has been so strictly construed, that it has been decided, that it is absolutely necessary to allege in the indictment that the offense was committed within the jurisdiction of the court, or judgment shall be arrested. Preeson Richard’s case in general court, 1789 or 1790.
The jurisdiction of the district courts, in all cases where the judgment by the common law, or by any statute, (made before the penitentiary law was declared in force) extended to life or member, seems to be exclusive of the county-court-jurisdiction. Yet it has been held,1 that a discharge by an examining court is an ACQUITTAL, and may be pleaded as such in bar of any future prosecution; and this opinion is founded upon this passage. They, (i. e. the justices convened to hold a court for the examination of a person charged with felony before a justice of the peace) shall consider, whether, as the case may appear to them, the prisoner may be discharged from further prosecution; may be tried in the county, or corporation; or must be tried in the district court.” L. V. 1794, c. 66. Sec. 16, c. 74. Sec. 1.
Whether this point, (which, I believe, has never been judicially decided) be correctly understood, will be examined elsewhere.
4. The county and corporation courts of this commonwealth, are courts of criminal jurisdiction; possessing the power of life and death, in all cases where a slave, may be accused of any crime whatsoever; and that without the intervention of a jury; but in every such case the court must consist of five judges, at least, and no slave can be convicted of any crime but by the unanimous opinion of his judges. L. V. 1794, c. 103. Sec. 30.
The justices of every county, and corporation court or any four of them have jurisdiction to hear and determine all causes whatsoever at common law, within their respective counties and corporations, and all such other matters as by any particular statute, is, or shall be made cognizable therein, except such criminal causes, where the judgment upon conviction shall be for the loss of life or member. L. V. 1794, c. 67. Sec. 5.
And by an act passed in the Sessions of 1796, c. 2, §28, no change is made in respect to the jurisdiction of the district and county courts, notwithstanding the act of 1796, c. 2, for amending the penal laws of this commonwealth; but the jurisdiction of those courts, respectively, remains as before the passing of that act.
When any person not being a slave, is charged before a justice of the peace with any criminal offense, which in his opinion, ought to be examined into by the county, or corporation court, he shall immediately issue his warrant to the sheriff or sergeant, requiring him to summon the justices thereof, to hold a court for the examination of the fact; which court shall consider, whether, as the case may appear to them, the prisoner may be discharged from further prosecution; may be tried in the county or corporation; or must be tried in the district court. If they shall be of opinion, that the fact may be tried in the county or corporation, the prisoner shall be bound over to the next grand-jury to be held for the county, then to be tried. If they shall be of opinion, that he ought to be tried in the district court, they shall remand him thither for trial. L. V. 1794, c. 74, §1.
By the act concerning juries, it is enacted, that the grand juries of the several counties and corporations, shall be sworn to inquire into the breach of penal laws, and make presentment of the offenders; but shall present such offenses and breaches, only, as have been committed within twelve months. L. V. 1764, c. 73, §2.
The grand-juries in the district court, are sworn to inquire into, and present all treasons, murders, felonies, or other misdemeanours whatsoever, committed within the district; except such breaches of penal laws where a specific penalty under five dollars, or two hundred pounds of tobacco is inflicted by law. So that the district courts have concurrent jurisdiction with the county courts, in lesser offenses and misdemeanours at common law; and superior jurisdiction, or jurisdiction in the last resort, in the case of treason, murder or other felony. Ibid. c. 74, §1, 9.
II. Courts of criminal jurisdiction under the authority of the federal constitution, and laws of the union.
1. The SENATE of the United States constitutes a court of IMPEACHMENTS, in which the President, Vice-President and all the civil officers of the United States, may be impeached by the House of Representatives of the U. S. and there tried, for treason, bribery, or other high crimes and misdemeanours.
On the trial of William Blount, formerly a senator of the United States, for high crimes and misdemeanours, who was expelled from the senate after the impeachment was made known to the Senate: but before the articles of impeachment were exhibited, he pleaded by his counsel, that although true it was that he was a senator of the United States at the several periods in the articles of impeachment referred to, yet, that he was not then a senator; nor was he at the several periods so as aforesaid referred to, a CIVIL OFFICER of the United States; and that he was not, in and by the said articles charged with having committed any crime or misdemeanour in the execution of any civil office, held under the United States, nor with any mal-conduct IN a civil office, or abuse of any public trust in the execution thereof: which plea was sustained by the Senate, and the impeachment was thereupon dismissed January 14, 1799. Whether the plea was sustained upon all these points, does not appear by the printed account of the trial published in Philadelphia soon after.
The question was taken, and negatived upon two points, 1. Whether a senator of the United States is a civil officer? 2. Whether a senator be impeachable for high crimes and misdemeanours, committed by him while he is a senator? On both questions there was a majority of 14 to 11.
The senators of the United States when sitting as a court of impeachments shall be on oath, or affirmation. When the president of the United States is tried, the chief justice shall preside: and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further, than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States, but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law. C. U. S. Art. 1. §3. Art. 2. §4.
2. The supreme court of the United States has, exclusively, all such jurisdiction of SUITS or PROCEEDINGS, against ambassadors, or other public ministers, or their domestics, or domestic servants as a court of law can have or exercise consistently with the law of nations.” Although the person of ambassadors be sacred even in case of murder, according to some authorities, there seems but little reason to regard their domestics, or domestic servants, in so scrupulous, a light, as to make their offenses cognizable only before the supreme court of the United States. See L. U. S. 1 Cong. c. 20. §13.
3. The circuit courts of the United States have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where the same act otherwise provides, or the laws of the United States shall otherwise direct; and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein. Ib. §11.
4. The district courts of the United States have, exclusively of the courts of the several states, cognizance of all crimes and offenses cognizable under the authority of the United States committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted. L. U. S. 1 Cong. 1 Sess. c. 20. §9.
And by the amendments to the federal constitution, in all criminal prosecutions, the trial shall be had by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. Amendments to C. U. S. Art. 8.
The power of pardoning is taken from the president of the United States, and from the governor of the commonwealth, in cases of impeachment. C. U. S. Art. 2. §2. C. V. Art. 9.
By the act of 7 Cong. c. 13. §14 and 15, it is provided, that if any Indian belonging to any tribe in amity with the United States, shall cross over the boundary-line, and steal or destroy any property belonging to any inhabitant of the United States, or commit any murder, violence, or outrage upon any such inhabitant, the superior courts in each of the territorial districts of the United States, and the circuit courts and other courts of the United States of similar jurisdiction in criminal causes in each district of the United States in which such offender shall be apprehended, or agreeably to the provisions of that act, be brought to trial, shall have full power and authority to hear and determine all crimes, offenses, and misdemeanours against that act; such courts proceeding therein in the same manner as if such offenses had been committed within their respective districts.
And the governors of the territorial districts of the United States into which such offenders may be brought, and the president of the United States, where the offender is apprehended, or brought within any of the United States, except Kentucky or Tennessee, may issue special commissions of oyer and terminer to the superior judges of such territorial district, or to any one or more judges of the supreme court of the United States, and the judge of the district in which the offender may be apprehended or brought to trial, who shall have the same jurisdiction in capital cases as the superior court of the territorial district, or the circuit court of the United States, and shall proceed in the same manner. And the district courts of Kentucky, Tennessee, and Maine, shall have the like jurisdiction. And, in cases not capital, the county courts of quarter sessions within the territorial districts, and the district courts of the United States, have the like jurisdiction. L. U. S. 7 Cong. c. 13.
1. In the case of one Thomas Sorrel, tried in the general court, April 1786. This doctrine was advanced by the attorney general, arguemto, and by three judges out of five, admitted; but the question turned entirely upon another point…. so that this point was not judicially decided, not being before the court.