"To Mess. Purdie and Dixon"
Article text, 1 August 1766
To Mess. Purdie and Dixon
AN opinion in a point of law on a late unhappy occasion having exposed the authors of it to censure, and the grounds of that opinion being required of us, I shall lay before the publick what governed me, and I suppose the Gentlemen with whom I concurred, in that affair; not that the question will probably be terminated by this method of discussing it, but lest a total silence may be thought to betray something we dare not openly avow, and add credit to calumnies which innocence alone is not a sufficient security against. Your readers cannot but know the bailment of Col. Chiswell to be the case alluded to.
The Court of King's Bench in England have power to admit all offenders whatsoever to bail, even those accused of high treason and murder. The origin of this power, which cannot be traced at this day, must be referred to the common law. Several statutes were ordained to restrain the power of bailing, but they were confined to Sheriffs, Justices of Peace, and the Marshal of the King's Bench; for that officer had taken upon him to admit persons indicted or appealed to bail, and extended not to superiour courts. Since those statutes, the rule is, them so far as any persons are judges of any crime, so far they have power of bailing a person indicted before them of such crime; and this power remaining in the Court of King's Bench, appears to have been exerted by single Justices of that Court, in several instances, ancient and modern. Thus much, if I mistake not, may be proved and justified from authority and precedent. The General Court are, equally with the King's Bench, judges of all high offences; and in criminal cases their sentences are as decisive and uncontroulable, for appeals and writes of errour lie not from them, neither can bills of exception to their judgments be admitted. In short, it hath been agreed, and was never contested, as far as I have heard, that the powers of those Courts are the same within their respective jurisdictions; and the example of that hath been always deemed warrant sufficient for any proceeding of this. If the parallel be just, and will hold universally, the inference is obvious, and applies itself to the case under consideration.
Our opinion thus founded was delivered without presuming to say whether it was proper to exercise the power in that particular instance, wherein it was not our province, and it would have been impertinently officious, to interpose with our advice. I was indeed present at the bailment, and own it gave me pleasure to hear such a relation of the facts, which I knew no cause to discredit or suspect of partiality, as might comfort a family more distressed than perhaps their enemies wished them to be; a pleasure humane breasts cannot be strangers to the source of.
My design is not to draw on a controversy, how far the opinion is defensible, for if that should be the effect, I may not perhaps trouble you again on the subject, but to declare to the world that I believed it was right; and after that asseveration, in which I am persuaded those who know me will not dispute my veracity, I think I cannot incur the displeasure of my countrymen, whose approbation it always hath been, and ever will be, my study to deserve, I am, Gentlemen,
Your very humble servant,
- Virginia Gazette (Purdie and Dixon), "To Mess. Purdie and Dixon," August 1, 1766, 3.