X a^' iV * J *mrif^-M ^' ^ DUKE UNIVERSITY LIBRARY Treasure T(oom # Hi H LAT MISCELLiNIES : CONTAINING .tij\r jj\rTjRoi)UCTioj\r to the study of the law, NOTES ON BLACKSTONE'S COMMENTARIES, SHEWIXG THE VARIATIONS OF THE LAW OF PENNSYLVANIA FROM THE LAW OF ENGLAND^ AND WHAT ACTS OF ASSEMBLY MIGHT REC^IRE TO BE REPEALED OR MODIFIED; OBSERVATIONS Qji Smith's edition of the Laws of Pennstlvania; STRICTURES Oh decisions of the supsejue court of the United States. AT/ra ON CERTAIN ACTS OF CONGRESS, WITH SOME LAW CASES, A VARIETY OF OTHER MATTERS, CHIEFLY ORIGIjYAL. BY HUGH HENRY BRACKENRIDGE, V Judge of the Supreme Court of the State of Pennsylvania* PHILADELPHIA. •UJJLISIIED BY P. BYRNE,- 1814. District of Peniisylvahia, to Wit :■ ,«»#«*««* BE IT REMEMBERED, That on tlie tourtecnth day of Ceceni- * sEAt * ^^'"' ^^ ^'^^ thirty-eighth year of the Independence of the United ; ' ■ * States of America, A. D. 1813, Hugh Henry Brackenridge, of ********* the said district, hath deposited in this office, the title of a book, the right whereof he claims as author, in the words following, to wit : "Law Miscellanies: Containing an Introduction to tlie Study of tlje Law; S^otcs on Blackstone's Commentaries, shewing the variations of the Law of Pennsylvania from the Law of Englaitd, and what Acts of Assembly might require to be repealed or modified ; Observations on Smith's edition of the Laws of Pennsylvania ; Strictures on decisions of the Supreme Court of the United States, and on certain Acts of Congress, with some Law Cases, and ii variety of other matters, chiefly original. By Hugh Henry Brackenridge, a Judge of the Supreme Court of the State of Pennsylvania." In conformity to the act of the Congress of the United States, intituled, " An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of sucli copies during the times therein mentioned." — And also to the act, entitled, "An act supplemen- tary to an act, entitled, " An act f6r the encouragement of learning, by secu- ring the copies of maps, charts, and books, to the authors and proprietors oV such copies during the times therein mentioned," and extending the benefits thereof to the arts of designing, engraving, and etching historical and otlier prints." D. CALDWELL, ' Clerk of the District of Pennsylvani*. Alexander (J PhiiJipSy Printers, Carlisle. H-5 2 4 3 5 CONTENTS. Page. Pbefatory Observations, . - - J Particulur Introduction, - - - _ 4 Introduction to what might be called the Pennsylvania Blackstonc, "^ ■Some view of the endeavours to improve the law by the legiblature, 27 Note introductory to the repoi-t of the judges on the Bri- tish statutes in force, Sec. S9 On the stare decisis, . - - 54 On the amendment or alteration of laws, - - 70 NOTES ON BLACKST.ONE's COM MENT AR IE S, B OOK 1. And it (law) is that rule of action whifth is prescribed by some superior, and which the inferior is bound to obey. I Bl. Com. 38, 76 Every law may be said to consist of several parts ; one declaratory. Sec. another directory. Sec. 1 Bl. Com. 53, 78 Ex post facto. I Bl. Com. 46, - - 81 Municipal law, a rule prescribed by the supreme power in a state. 1 Bl. Com. 46, ' 83 Repoits. IBI. Com. 71, - ... 86 Roads. 1 Bl. Com. 141. - - - - 95 Representative not bound to consult with, or take the advice of his constituents. 1 Bl. Com. 161, 96 As to the qualifications of the electors. I Bl. Com. 172, 99 The kmg's prerogative. 1 Bl. Com. 246, - - 115 JvOtes on blackstone's commentaries, book 2. Iji the beginning of the world, wc are informeil by holy writ, the all-bountiful creator, gave to man "dominion over alltl>e caith," Sec. This is the only true and so- lid foundation of man's dominion over external things, kc. 2 Bl. Com.2, ' 121 Tenant in dower. 2 Bl. Com. 129, ^ - - 128 IloAV dower may be barred or prevented. 2 Bl. Com. 135, 130 Concerning the division and calculation of time, by the English law. 2 Bl. Com. 140, 135 riie nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down A series of rules, or canons of inheritance, according to which estates arc transmitted from the ancestor to the heir, Sec. 2 Bl. Com. 207, 138 i'hr, fourth species of assurance by matter of record is a fummon recoverv. 2 Bl. Com. 357, 1 IS. CONTENTS. Gdneral rules and maxims which have been laid down by courts of justic^ for the construction and exposition of tiie several species of common assurances, &c, • I Bl. Com. 379, 15§ Upon the two principles of inconvenience and hazard, compared toijether, different nations have at different times established different rates of interest. 2 Bl. Com. 462, l6o NOTES ON BLACKSTONE's COMMENTARIES, BOOK 3. Abatement; or removal of nuisances. 3 Bl. Com. 5, - 157 Rfedress of injuries by suit in courts. 3 Bl. Com. 22, - 161 The high court of chancery, kc. 3 Bl. Com. 47, - 167 Ecclesiastical courts ; equity courts. 3B1. Com. 98, - 169 Some agreements indeed, though never so expressly made, are deemed of so important a nature, that they ought not to rest in verbal promise only, which cannot be proved but by the memory (which will sometimes in- duce the perjury) of witnesses. 3 Bl.Com. 159, 17o A v/rit then of ejcctione firmae, or action of trespass in ejectment, lieth Avhcre lands or tenements are let for a term of years : and afterwards the lessor, rever- sioner, remainder man, or any stranger doth eject or oust the lessee of his term. 3 Bl. Com. 199, 17S For every man's land is, in the eye of the law, enclosed and set apart from iiis neighbour's. 3 Bl. Com. 209, 176 Writ of mandamus. 3 Bl. Com. 264, - - - 178 Set-off. 3B1. Com. 304, 182 Limitation to six years after caufee of action commenced, by Stat. 21 Jac. 1. c. 16. 3 Bl. Com. 307, 189 Changing the venue. 3 Bl.Com. 352, - - 191 Special verdict. 3 Bl. Com. 377, - - - 193 Thus much for judgments ; to which costs are a neces- sary appendage. 3 Bl.Com. 399, 194 Writ of error. 3 Bl. Com. 406, - - - 197 Ti\e next species of execution is against the goods and cl-attels of the defendant ; and is called a writ of fieri fa^as. 3 Bl. Com. 417, 20» The fourth species of execution is by writ of elegit. 3 Bl. Com. 418, ■ 207 Ereehold lands which he had at the time of the judgment given. 3 Bl. Com. 418, 210 Wager. 3 Bl. Com. 452, - - - - 211 Extract of a letter from Joseph Reed, recorder of the city of Philadelphia, 214 NOTES ON BLACKSTONE's COMMENTARIES, BOOK 4, Jjut by "jtat. 22 Car. 2. c. 7, no person is allowed to work on the Lord's day. 4 Bl. Com. 63, 217 Conspiracy. 4 Bl.Com. 136, .... 220 Qf a nature very similar to challenges are lilfcl^. 4 Bl. Com. 150, ^ 230 CONTENTS. J^age. We are next to consider the crime of wilful and delibe- rate murder ; a crime at which human nature starts ; and which is, I believe, punished almost universally throughout the world with death. 4 Bl. Com. 194, 236 The contempts, that are thus punished, are either direct^ &c. or else are conseqicential. 4 Bl. Com. 283, 245 • NOTES ox smith's EDITION OF THE LAWS OF PENN- SYLVANIA. Whether a sale of defendant's lands, under a youngey judgment, affects the lien of an older one, remains undecided. 1 Smith, referring to a dictum of judge . Yeates, 2 Bin. 218, 258 2 Smith's Laws, 127, - - - - 262 2 Smith's Laws, 105, - - ' ^n ' - 264 /■ / / >^ The juror's oath altered by act of 21st March, 1806, 279 An enquiry into the causes of that obloquy, under which the supreme court of this state laboured from the year 1800, down, durmg a period of several years, 282 On the naturalization laws of congress, and the principle involved in the right of expatriation, 290 On certain acts of congress, and the construction put upon those acts by the courts of the United States, 296 On the extent of the judicial power of the courts of the United States, 305 Of errors, as it would seem to me, in decisions of the su- preme court of the United States, 307 M'llvaine V. Coxc's lessee. 2 Cranch, 280, - - 318 Simms and Wise V. Slacum. 3 Cranch, 300, - - 321 The United States v. Fisher et al. assignees of Blight, 326 Rhinelander v. Insurance company of Pemisylvania. 4 Cranch, 29, 336 Ex parte Bollman, and ex parte Swartwout. 4 Cranch, 75, 338 Craudson and others v. Leonard. 4 Cranch, 434, - 342 The United States v. Judge Peters. 5 Cranch, 115, - 361 Pierce v. Turner. 5 Cranch, 154, - - - 375 Hepburn and Dundas v. Aukl. 5 Cranch, 262, - - 377 United States V. Evans. 5 Cranch, 280, - - - 37S O'Neal V. Thomton. 6 Cranch, 53, - - - 38d Chesapeake Insurance Company v. Stark. 6 Cranch, 268, 385 Notes relative to judge Tucker's commentary on the constitution of the United States, 387 On the construction of art. 4, sec. 4, of the constitution oi tlie United States, ,, ^ n i /i -^90 /^/^> ^ CONTENTS. Pagj^, tvo-iES ON BLACKSTONK's COMMENTARIES, StC. SKCOND SEKIKS. The customs of London arc confirmed by an act of par- liament. 1 Bl. Com. 75, 3ftS Penal statutes must be construed strictly. 1 BI. Com. 87, 396 Sheriff—. IBI. Com. 339, - - - .401 lor it is a principle of universal law, that the natural born subject to one prince, cannot, by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former, kc. &c. 1 Bl.'Com. 369, 404 riic case of Clark, sentenced as a spy, remarked upon, 409 Extract of two notes of Mr. Duponceau, under the head of allegiance, 415 These are the principal distinctions between aliens, deni- zens, and natives ; distinctions which it hath been fre- t[uently endeavoured, since the commencement of this century, to lay almost totally aside by one general na- turalization act, for all foreign protestants. 1 Bl. Com. 374., 418 'i'his venerable body of men, being separate and set apart from the rest of the people, in order to attend more closely to the service of Almighty God, have there- upon large privileges allowed them by our numicipal laws. 1 Bl. Com. 376, 42Q There are two kinds of divorce, the one total, the other partial. IBI. Com.440, 421 The constitution of feuds had its origin from the military policy of the Northern or Celtic nations. It was brought by them from their own countries. Sec. 2 Bl. Com. 44, 422 Kscheat. 2 Bl. Com. 72, . . . . 424 Ijjither might have been referred the advantages which used to arise to the king from the profits of his milii tary tenures, to which most lands in the kingdom were subject, until the statute 12 Car. 2. c. 24, Avhich, in a great measure, abolished them all. 2 Bl. Com. 286, ^ 426 As to the power of charging lands with the debts of the owner. 2 Bl. Com. 289, 427 Justices of the peace. 1 Bl. Com. 349, r - 429 An estate tail may be barred, or destroyed by a tine, by a common recovery, Sec. 2 Bl. Com. 116, 435 By the statutes 31 Hen. 8. c. 1. and 32 Hen. 8. c. 32. joint tenants, Sec. are compellable by writ of partition to divide the lands. 2 Bl. Com. 185, 435 Where there is tb.^ least probable cause to found such prosecution upon. 3 Bl. Com. 126, 43? \\\ itissi^e of iiuisancc. 3 Bl. Coin. 220, - -. 438 vVhcrcby ho is endamaged to such a value. 3 Bl. Com. 295, 457 I'iie whole of tliis prGf:e3S} is deiiominatcd the plej^ding. 7 Rl. Coin. 710/ " 4ji9 CONTENTS. Page, A common juty is one returned by the sheriff according to the direction of the statute As the jurors appear when called, they shall be sworn, unless challenged by either party. 3 Bl. Com. 358, - 46o Thus much for costs to which judgments are a neces- sary appendage. 3 Bl. Com. 339, 46^ The king (and any person suing to his use) shall neither pay nor receive costs. 3 Bl. Com. 400, 466 To this real sullennessj but affected timidity of the judges, such a narrowness of thinking was added, that every slip (even of a syllable or letter) was now held to be fatal to the pleader, and overturned his client's cause. 3B1. Com. 4lO 467 Habere facias seisinam, or writ of seizon of a freehold. 3 Bl. Com. 4 12, 469 And thus lastly, for the sake of a more beneficial and com- ' plete relief, by decreeing a sale of lands. 3 Bl. Com. 439, 471 An answer is the most usual defence that is made to a plaintiff's bill. It is given upon oath— — In almost every case, the plaintiff may demand the oath of his adversary. 3 Bl. Com. 446, 473 By the ancient common laAV, there was a gi*eat latitude left in the breast of the judges, to determme what was treason, or not so : whereby the creatures of tyranni- cal princes had opportunity to create abundance of constructive treason. 4 Bl. Com. 75, ^T-i In civil cases we have seen that every defendant is bail- able ; but in criminal 7natt era it is otherwise. 4 Bl. Com. 296, 502 All presumptive evidence of felony should be admitted cautiously.. 4 Bl. Com. o5B, 503 OBSERVATIONS ON ACTS OF ASSEMBLY THAT MAY BE REPEALED OR MODIFIED. Act of 3d December, 1782, . - _ . 510 An att to regulate arbitrations and proceedings in courts of justice, 513 Actofassemby 21st March, 1806, § 13, - - - 515 Actof assembly March 19th, 1810, - - - 522 On the judiciaiy system of the state, - . . . 526 Hints towards a general law on the subject of writs of error, 509 Opinion on a curious question of practice - - 53J Opinion in the case of Lessee of Ziebach v. Morgan, 538 Respub V. M'Lean, - - - - .^ 54.; On the granting new trials, . - - . . 549 Observations to the student on the practice of the lawi 560 Conclusion, - - - - - =ir' PREFATORY OBSERVATIONS. IT struck me some time ago that it would be a worl: of Utility for the Student of the Pennsylvania law ; and also aa exercise, or disquisition not without benefit to the judge him- self, to examine in what particulars, the common and statute law of this state was different from that of the common, or Statute law of England. This, it seemed to me might be best done by taking up the commentaries of Blackstone, and by notes to the text, marking these variations. Pursuing this thought, it occurred to me that an edition might be given un- der the title of the J'ennsylvania Blackstone, Accordingly I had begun, and proceeded some length ; writing out an intro- duction to such proposed edition; and some chapters tending to throw light on the connection between the law as it is in England, and with us ; moreover going on with notes to par- ticular passages in the pages of the commentaries as they came in order. But, on reflection it occurred to me that a printer would not be likely to find his account in publishing such an edition. For though like an almanac calculated for a particular latitude, it might without sensible variation ia Some parts, serve others, yet the bulk of the notes^ or observa- tiotiSy having a respect to the law of Pennsylvania only, it must be confined in a great degree to the students of this state; and these, though daily growing in number, could not be supposed, for a great length of time to be sufficient to take off such an edition, even supposing it to supersede with them, any other. It was more than I could expect, even though a part of the notes of judge Tucker to his Virginia edition could be added, but which from the copy right under Con- gress, a publisher would not be at liberty to do. It seemed to me also, that a principal advantage of the re- marks which I found myself led to make, were present and tempo rartf ; so far at least as respected the succensive a- mendments of the law by the legislature of this state, or the A ii Prefatory Observations. particulars, in which, speak'vig with deference^ they appeared to have intermingled some things in their endeavours to im- prove the law, not altogether coinciding with my ideas of good policy, or general convenience. If so, it might not be la- bour lost to suggest to the legislature for the time being ; or to the people from amongst whom they must, from time to time be chosen, what might seem advisable to be a subject of their consideration, as they might be led to consider the law generally, or particular acts which had already passed, or Were meditated to be passed in future. These were my reasons for dropping the idea which I had at first entertained ; and confinmg myself to a narrow- er compass ; but more especially as I found that I would not hare leisure from my ojjxcial duties to bestow much time upon this collateral object ; and in that case, it was not likely that I could live to finish it. " Vitae summa brevis spem nos vetat inchoare longam." Perhaps also I might add without an affectation of mo- desty, that upon experiment I was not quite sure, that it was not an undertaking beyond my strength ; or at least that it would be thought so. Or even if not always thought, yet abundantly saidi I will not say, sung, amongst the profes- sion. For what is extrajudicial cannot expect the same quar- ter from the learned of the law, as that which the judge is bound to express, let it be right or wrong. He is consider- ed as a volunteer, in what is said off the bench ; and his opinion, or notions as they will perhaps be termed, are can- vassed with less deference. Hence perhaps the propriety of a judge leaving to a posthumous publication, such lucubra- tions as may have employed his time. But the secret of my resignation on this occasion, is the not considering myselt as having attained such a height of reputation, that if I did not add to it, I must descend from it. Not that I will affect not to have deserved reputation ; for I hate af- fectation in any shape ; but not possessing any great cele- brity on this head, it has not been fashionable to overrate the small talents which I may possess. And to this I have been most cordially reconciled ; because, in troublous ttmes^ Prefatory Observations. i^ it is safest to court the shade. And I have long since seen, the vanity of human ambition. If so, it will be said, why do I write at all ? Does it not argue some wish to please ? For profit cannot be an object in such a performance. When I analyze my own feelings, I find it to be at bottom in a great degree the same principle which induced me, when a child to build houses of chips ; or when a boy more grown to make a dam across a small stream, and to place a water wheel of thin boards to receive the fall. And this kind of pleasure in seeing the work of one's hands, " that it is good,'^ would seem to be an emanation of the divine mind implant- ed in man, prompting him to improvements, in his small sphere, and according to the limited capacity of his inven- tion. But it is this principle whicli- distinguishes him from the brutal world, and is the foundation of his happiness; as well as an evidence of his superior nature. At the same time, I do not doubt, though I cannot so well recollect, that there was a secret consideration mixed with the amusement, that some one would see what I had done. So that man or boy, in literary or baby edifice, there is something of the '■' ■ - ■ qua me quoque passim Tollere humo^- At the bottom of every undertaking* Scire tuum nihil est nisi te scire hoc^ sciat aher* On a desert island without hope of society, one would read' or write little. But it is not the motive that will be called in question, or ought to be, but the execution;^ though a good motive may form some excuse with the indulgent, and blunt the edge of censure ; or at least it is with this view that it is urged, though, perhaps with not much effect. It is probably not much more than to say in convefsation ; you will excuse my detaining you, or I beg pardon for the trouble I have given. Bat even this is con- ciliatory, and is a compliment which decency exacts for the; attention with which v^'e have been heard=. PARTICULAR tNTROI>UC TION TO THESE MISCELLANIES. THE following notes and observations might seem to imply some presumption of thinking to instruct the learned in the laxv^ were I flot to disclaim this pretension, and pro- fess myself to mean nothing more, than to instruct the StU' dent, and less learned in the legal science. In fact, the occa- sion of most of these things was to assist one studying under my direction. It is unnecessary to say whether it was a son or another person. But being dictated to him or noted, and copied by him, it appeared to me that they might be also of some use to others. I will acknowledge that I had also another view in giving them publicity. It seemed to me that there were some of the observations which might be brought before the eye of the Legislature of this state, tvith a view to supply, abrogate, or amend acts of assembly. This was unquestionably a primary motive with me in the publishing j and I cannot but flatter myself, if they will deign to attend a little to the collection, they will be able to pick out something that may be useful. At the same time there are many things which I cannot but think may be useful in other states of the Union ; though chiefly calculated for that of Pennsylvania, looking to its laws and jurisprudence. I had once entertained as has been said, the idea, of preparing for the press, and publishing what might be called the Pennsylvania Blackstone. That was in fact, an edi- tion ©f Blackstone's Commentaries, with notes in the manner of Tucker, referring to thevariationsin the law as it is in the state of Pennsylvania from that of England : the variations in the introduction to the common law, and in the statute law as it ha&been changed, or superseded, by our acts of assembly. But this appiiared, upon more deliberation, and experience of the task, to be a work foir which my official duties did not leave sufficient leisure. I have therefore thought proper to con- tract the design, and leave it to some one more learned in the law, or having more leisure that may come after. Some Particular Introduction. -vt outline of the law of Pennsylvania in the manner of Black- stone, would seem to me a desideratum for the student, and would be of use to the legislature. There was also another objection to such undertaking, witliout legislative aid. For, being more peculiarly intended for the use of an individual state, a sale could not be expected to be so general, as would secure a certainty^ or even a probability of defraying the expenses of a Avhole edition. These miscellanies are, in fact, therefore, nothing more than some materials out of which ^ such a work might be composed, or notes of some of which, such an edition of the Commentaries might consist. It had been my plan, with the one studying under my direction, at the third reading of the Commentaries to note, in loco, the variation of our common law from that of England, as not having been introduced, originally here j or as having been altered by our owh statutes ; referring for this purpose, to acts of Assembly, and to the reports of judicial decisions. Before this, at the second readings I had referred him to the decisions of the English courts^ chiefly such as are cited in the margin of the Commentaries ; so that, in reading these, the bulk of the reporters in England were consulted ; and referring to the acts of Assembly, and the reports of deci- sions in this state, these were also read ; which, whether more or less pleasant, is, certainly, the oxAy proji table way of read- ing. A particular point of law, or practice, is fixed upon the memory, by thus dwelling on it and referring to several books. The reason of the principle also, as a part of the science, is better understood. Be this as it may, it will account for my labour ; which might otherwise, appear somewhat extra to my judicial oc- cupation ; and will, at all events relieve me, in some degree, from the imputation of considering myself as having such pre-eminence in legal knowledge, that I could undertake to write notes on a legal code ; and, not rather leave it to those, some of whom, at the bar, I could point out, as, if not having more leisure, have unquestionably more ability. It is not from affectation that I premise this ; but, on the ground of self'preservatiQn* For there is nothing that produces person- vi Particular Introduction. al dislike, and very deservedly, so much as the assuming con- sequence. We see it; in society, and feel it every day. It behoves a man that would be safe from remark or injury, to conduct himself with humility ; a lesson which is taught only late in life^ and when one begins to find that the ■ ■ ■«■ fallentia semita vita: Is rather to be chosen than a glare of reputation. It is no doubt pleasing to the mind, to have some reputation above the common level. But it poisons all enjoyment of this, if it is not conceded with the good will of others. But enough of this ; it will, not suffice to make up a book of law with moral reflections. INTRODUCTIOH TO WHAT MIGHT BE CALLED THE PENNSYLVANIA BLACKSTONE. IT must be the result of every man's experience, that hap.- piness consists in the employment of the mind upon some object, the attainment of which, calls forth the energies of thought, or action. So that I consider the poet, as not go- ing the whole length of the foundation of happiness, when he says, " Reason's whole pleasure ; all the joys of sense. Lie in three words, health, peace, and competence."* For though without these, little pleasure can be enjoyed ^ yet, even with these, little can be enjoyed, where there is wanting an occupancy of the mind. Hence it is, that Aris- totlef places happiness in mental energy; an opinion says he, *■'' ancient and universal among philosophers." The same thing is abundantly inculcated in that collection of wise say- ings, which are ascribed to the Jewish King, Solomon, as meditated by himself; or, compiled under his direction. It will be seen from that divine composition, that the employ- ment of the mind in virtuous action^ is the means of happi- ness in this life ; while, on the contrary, idleness is as covxr fortless in itself as it is disreputable, iathe opinion of men, * Pope. t Gillies 254. viii Introduction. The historian Sallust, in his introduction to the Bellum Catilinarium, expresses the same idea : " * truly, he truly^ at length, appears to live, and enjoy life, who intent on some business, seeks the reputation of some excellent achieve- ment, or good art !" This is a sentence which may be called golden ', and would deserve to have been inscribed on a co- lumn ; or, over the gate of a temple by antiquity. For the employment of the mind, on some object of pursuit, is ne- cessary to happiness. This is the nature of man, and the la- bourer who earns his daily subsistence, enjoys a greater por- tion of felicity, than the listless and vacant mind, which has no design to execute, and nothing to do. Give me an em- ployment, or a profession, therefore, is the cry of nature to every one that has the conduct of youth. The profession of the law under a Republican Govern- ment, not only leads to emolument, but qualifies for political eminence ; if that were a thing desirable for one's own sake ; which it is not ; but, for the sake of the public, it is desira- ble. And it may not be in the way of private emolument, or happiness, for one of the profession of the law, to give his services to the public, on a special occasion : but for one's own sake, I have said that political distinction is not in gene- ral desirable. It is to the youthful of the profession, chief- ly, that the glare of eminence in political life, is at all captivat- ing: and, from the fire and passion of that age, they are the least fit for it. I count therefore him who confines himself to his profession, till he has arrived at the calm of years, as most likely to consult his own happiness, and at the same time, the interests of the public. For it cannot well be, that before this time, he has acquired an independence of estate ; and much less, that he possesses that self-denial, and humi- lity of spirit, which, experience in life, gives ; so as to ren- der him a useful member of a deliberative body. But eloquence at the bar, gives great distinction. The name of the orator is not heard so much abroad ; but, in pro- * « Vcrum, enimvero, is mihi demum \'ivere, et frui vita vi- detur, qui aliquo negotio intentus, praeclari .facinoris, aut bonae artis, famam quserit.'* Introduction. it portion as his fame is concentrated, it burns the more steadily at home. It is, in the respt ct of those alone who are near- est us, and with whom we are conversant, that we find enjoy- ment. A sphere more or less extensive is of little moment. But it is at the bar, that eloquence has the fairest scope ; and, the most powerful effect. In the councils of the state, or of the nation, two formed parties will invariably prevail. The representative who does not range himself with one of these, can be of no account j he is heard by no one ; because it is not what is reason, or good policy, that is considered ; but what has been the previous determination of the party, or their leaders, out of doors. A speaker must know it therefore to be unnecessary to address those on the same side with himself; for they are already persuaded : and with regard to those on the opposite side, it must be the same thing as urging arguments to the v/alls. Hence it is, that, unless an individual can be at the head of a party, and lead it, he has little occasion for judgment ; and none for eloquence. It is but a vain decla- mation on the side that he is, as a champion of their opinions ; but without the least prospect of moving any one. At the bar, on the contrary, a court or jury are to be persuaded. Were not even conscience to secure this for the speaker, in the breasts of Judges, and jurors ; yet, respect for themselves, and their reputation amongst men, would, in general, secure it. For they are considered as deciding or giving a verdict, according to the right or the xvrong of the case ; and the credit of their understandings will d.'pend up- on it. Hence it is that having the human mind to deal with, free and unembarrassed as to the question, there is an en couragement to employ the resources of the orator, in can- vassing the law or fact under consideration. It may be worth while for me, now, to say'a few words on the qualifications of a Lawyer. Integrity is unquestionably, the first qualification; the love of truth and justice. Without a consciousness of virtue, what man can even stand erect and present hi.nself with a proper posture of !)ody? but can he open his countenance^ and shew that he is himself persuaded of what he says? Can he evince that indignation, against in- R X Introduction. justice, which the heart does not feel ? It is impossible to have a confidence in one's self, unless conscious of integrity. Hence it follows, that it is of the highest consequence, that from the earliest years, the mind of one intended for an ad- vocate, should be formed to virtue. Such is the connexion between mind and body, that the feelings of virtue are thought to contribute to health, and longevity ; but, certainly, to strength of intellect, and boldness of elocution. No man can be great in any profession, much less in that of the law, without a soul of benevolence and truth. It is a vulgar error, that parts alone, meaning powers of understanding, can ren- der great, in a moral science. The affections of the heart have so much to do in sustaining right, and opposing wrong, that if these are depraved, nothing great can exist. The in- discriminate defence of right and wrong in the practice of the law, is thought to deprave the mind. This impression which prevails much, arises from a misconception of the du- ty, and the usual conduct of the profession. I have no idea but that a lawyer, for his own sake, in giving counsel, will advise to the best of his abilities ; and in taking the cause of a defendant, will point out to him the weakness of his de- fencL', if tht re is a weakness ; that the client may compromise, and avoid costs. But it is his duty, if a defendant persists, to undertake his cause ; and to present it to the best advan- tage ; and this in order to save him from the recovery of more than ought to be recovered against him ; and from ex- cess of damages. For it being presumed, that a plaintiff having had his choice of advocates, has chosen the ablest, a defendant might be oppressed by the talents against him ; and it is im- possible for a Court and Jury to reach the whole truth, and hit exact justice, unless the law, or facts of a case are well discussed on Loth sides. The pleading and counter plead- ing of advocates, is a great help to the comprehending what is equal in the meum and luum of actions. In the case of a plaintiff client, it is always, in the power of a Lawyer, to decline the cause ; if, on the plaintiff's own shewing, it is not maintainable : and it is his duty to decline it. Nor can I suppose, that he will not decline it, for his own Introduction. xi sake ; since the failing in a suit, brings some disreputation upon a counsel; and is at least unpleasant. But it dous not follow that because a plaintiff has failed in his suit, he had not reason to think, and so presented it to his counsel, as having a good cause of action. For evidence mnj'^ have failed him which he expected to procure; or that may be brought against him of which he had not a knowledge. It is not safe for counsel; or, justifiable in them, to decline, in a matter of meum and tuum, and to undertake to say what is the justice of the claim ; for he may err in his judgment of the law ; and it is his business to serve his client, in bringing forward his case, before the proper judges ; and presenting it to the best advantage, that it mav receive a determination. I have no idea, that so doing, the counsel identifies himself with the cause ; or makes the morality of it his own ; nor does he feel that he does ; though it is impossible, but that in a matter of dubious controversy, he may have a leaning in favour of that side which he espouses ; and it is necessary that he should, in order to sustain the balance of a like leaning on the other side. But, if, in forming a verdict, juries will hang ; or, in deciding, judges will differ, does it not prove that the right and wrong of the case, is not, always, so clear that counsel could pronounce upon it, undertaking it, that it was a clear matter. So far from it, that, such is the imperfection of human investigation, and even judgment, that the truth or justice of the case is not always reached. But, this I will say, that, if at all attainable, it will be owing in a great de- gree, to the advantage of an able discussion by counsel on both sides, presenting their respective cases, in the best point of view, for their several clients. It is not to be understood that I would countenance so- phistry, or quibbling, in attempting to persuade a court or jury ; for no wise counsel will attempt this, as he must know that it cannot prosper. He may sail close upon the wind, in pressing a point ; but not in the xvbicPs eye ; for if he does, to make use of a nautical phrase, his sails are instantly aback, and he will make no progress. Much less, in the conduct of a suit, do I take into view, what I reprobate, the catches \n Introduction. of those whom I disclaim as lawyers, w ho avail themselves of ihe slips of counsel ; and would take advantage of a mis- take. Ihese may be said to carry on the legal war, not according to the laws of civilized practice, but resembling savages, who make their attacks unseen, which is a species of assassination. This, at the same time, is, in general, as useless as it is vexatious ; for, in most cases, it can give but the trouble of an application to the court to set right, on the payment of costs, and at the expense of the counsel who had not been duly vigilant. But these things are not known, but amongst the illiberal, who are at the foot of the profession. A nice and delicate sense of honour, and a contempt of undue advantage, that affects not the merits, is the characteristic of the noble minded of the profession ; and these are always the ablest as they are the fairest in practice. In order to qualify for the profession of the law, a libe- ral educaticn is necessary. For, though there are instances of strong minds, that are but little indebted to a liberal edu- cation, making tolerable orators, and even lawyers ; yet, it would have been of great advantage to them, to have possess- ed this. For something like a universal knowledge of lite- rary subjects, would be desirable ; because, in proportion as we have a knowledge of subjects, the mind is enlarged. For there is scarcely a subject of human knowledge, but that when the mind is brought to bear upon a point of at least moral discussion^ it may not draw something from it to illus- trate an argument or fortify a position. Not that I would have an orator to be able to support a thesis, in omni scibilt et, de quolibet ente; but I would require some general infor- mation, on almost all subjects of science j especially that sphere of study which is fashionable, and I think useful, in our system of education. It is a question lately agitated whether the acquisition of what are called the learned lan- guages, is useful. The perfect command of one's own ver-^ nacular tongue, in which the advocate is to speak or write, is certainly necessary ; not the command of words merely, but the delicate selection of words, and choice of terms. In order Introduction. xiik to this, it is necessary to understand the precise meaning of words ; and this is not to be collected from dictionaries ; so well, at least, as from the roots of the words, which are found in those languagf s, from which our own is derived ; and of which it is in a great measure made up, and composed. These are, of the ancient languages, the Latin and the Greek ; of the modem, the French and the German. The farthest way about, is said to be, oftentimes, the nearest way home ; and in order to be master of the English language, I would think it the shortest course to endeavour to obtain a knowledge of these ; .and more especially of the Latin and the Greek. But by studying the structure of these languages we learn the structure of our own ; in other words, the gram- mar of it; and nothing can contribute more to the richness and abundance of expression, in our own tongue, than a knowledge of these that are related to it. But the transla- tion of an idea from one language to another, to which, in learning a language, we are accustomed, gives a facility in conveying an idea that is our own. And hence translation from another language, orally, or in writing, is an easy, and successful introduction to the speaking and writing our own. But a great use in studying the analysis of language, is the habit of investigation ; it being of all things the most difficult to fix the attention of the youthful and wandering mind. The tracing etymologies and examining the concords of speech, and the structure of sentences, is a good exercise for the judgment and suited to the understanding of early years. But can any thing contribute more to form a taste for st}de than the study of these models of language, where there is every ornament and grace of expression : strength, at the same time, which will depend in a great degree upon concise- ness and brevity : perspicuity also, without which there is neither strength nor grace. For were I to lay down a rule of style, it would be to endeavour to obtain a precise and clear idea of what is to be said ; and, to express it rvif/i the Utmost brevity^ and in the most perspicuous phrase possible. iiv Introduction. Where one is master of chis, but >vhich requires much pre- vious discipline of the nriind, a diction niay be uidulged with the embellishments of figure^ iind xhcjiotutrs oj imaginO' tion. But until this rib and bone of clear thought is obtaina- ble, all garniture but wearies. All this excellence of bre- vity, perspicuity, and grace, is distinguishable in the classi- cal writings. Hence it is that the diction of a good classi- cal scholar is distinguishable from that of one who has not had the advantage of this education, by a certain flavour, and, if I may so express it, raciness of diction that savours of the ancients. This, though not discernable in its cause in the hearer, is felt abundantly. There is a charm in such eloquence that is not equalled by him whose taste has not been so cultivated. But it is not the etymon of radical words, merely, that we acquire by the study of the learned languages ; or even the helps to form our taste for style ; or other advantage that has been hinted at; but in the course of acquiring these, we get impressed upon our minds many fine sentences, and ex- cellent maxims of good sense and morality with which the classic writers abound ; and these, from the very difficulty of translating, become better fixed in the memory, than wliat is obtained with more ease and facility. But when we take into view the ancient mythology to which in our writings there is yet a great reference ; and the knowledge of an- cient history, and ancient geography, with which these are connected; and which can, and ought to be studied at the same time ; and also the lessons of rhetoric and criticism, which from these as a text the preceptor will explain, I do not know any more useful system, or course of study that can be taken. I would think it an up-hill work to undertake to make a lawyer without such a previous course of study, and such acquisitions. I say the more on this subject be- cause it is a prevailing idea, ^'\nc\\ favours the indolent^ that the study of the dead languages is unnecessary. It is true, that from the slovenly and imperfect manner in which these languages are taught, with oftentimes bad pronunciation, and false quantity ; and also from the neglect of them after the Introduction. XV academy is left, a slur is brought upon that part of the sys- tem of education. But it behoves that the acquaintance which has been formed with the classics should be kept up ; " Noctuma versate manu, versate diuma.'* For, the reading the divine poets in these languages, and in short of the poets in general, wonderfully feeds the ima- gination, and furnishes the orator with images and diction. This brings me back a little to observe that the whole cir- cle of the belles lettres, or what is called polite literature, is necessarv to eloquence. There is amongst all the fine arts, in the language of Cicero, the commune vinculum ; and, looking at them it may be said, in the language of Ovid ; *' Nee una facies omnibus, sed qualem decet esse sororum." Hence these are called the sister arts. Runnington in his life of Sir Mathew Hale, states of him, that when weari- ed with studving law, he would recreate himself with Phi- losophy or Mathematics ; alleging " that no man could be master of any profession without having some skill in all the sciences." For, it will not be understood that I mean to undervalue tJtathematical learnbig ; which is so universally admitted to be necessary to assist the reasoning- facultij^ as well as to enlarge the sphere of knowledge. But I say the less upon this, because it is not questioned ; though I do not think it a study proper to begin with; or approve of the system of Pestallozi, who makes it precede that of L:mguages. It is the main study to fit the mind for mecha- nical pursuits ; and very properly constitutes the chief stu- dy in the military academies ; and though, doubtless, a public speaker must be lame without a general knowledge of all the parts that come under the idea of mathematical learning, yet the invention and imagination^ which constitute the ora- tor, is not so much fed from this source ; and with regard to moral truth, which is the soul of law, it has nothing to do. The only practical branch of mathematics, of which every lawyer ought to have a competent knowledge, is that of the application of trigonometry to surveying ; and this for the purpose of understanding the designation of proper- xvi Introduction. ty, under the law of legal tenures, of real estate ; and thia cannot be without a knowledge of geometry, and the doctrine of angles. Having incidentally made these observations I go on to observe, that the citadel of the law must be taken, if I may so express myself, by regular approaches ; the difficulties of it must be encountered at long shot. Or, to lay aside a figure, the acquisition of this science must be rendered easy in the first advances to it, by a gradual introduction. His- tory, ethics, and the constitution of government, or politics, is a natural and easy introduction to a science which is built upon these. And applying more immediately to what is called jurisprudence itself; and, especially our own muni- cipal law, much will depend in gaining the attention, and fa- cilitating the progress of the student, from the course of reading that is pointed out j under which I would recom- mend,, the taking these commentaries* as a last task ; and to read, and re-read with a reference to the authorities cited ; and to others which may be noted ; or to which he may be directed; essays and tracts, or particular adjudi- cations. But the taking up abridgments and reports, and reading them flush through, is a waste of time ; there is lit- tle left impressed upon the memory. By such introduction and course of study as I have hinted at, rising like an inclined plane, the ascent to the summit is facilitated, which, when once gained, the hill top is pleasant, and it becomes delightful to look down upon the difficulties passed. It is under this image that the progress to a habit of virtuous action, is represented by the poet according to the translation of some one : " Vices in throngs we may take in with ease, Short is the journey and full nigh they dwell : But in the road of virtue toil and sweat, Th' immortal Gods have laid ; long is the path Thereto and uphill straight : and at the first 'Tis rugged all : but when the top you gain, Thence smooth it lies."f * Blackstone's. f Hcsiod, Introductioi*. xvli But this I would not apply in such strong terms to the study of the science of the law, provided that the introduc- tion to it has been, by taking advantage of the hill, as those who make roads ; and, by ascending obliquely^ attain emi- nence. In proportion as a proficiency is made in any sci- ence, or art, a taste is acquired for it ; and it becomes not only easy, but pleasant ; nor if skilfully managed, as has been hinted, are the first steps to the attainment of this science, so painful and laborious as they were wont to be, before this fine outline has been given in these commentaries of Blackstone ; and when the student was under the neces- sity of encountering, in the first instance, the black letter of abridgments ; or in the Norman French, the precedents of pleadings, and reports of the law. Even the black let- ter of Coke upon Littleton, at a more modern period, was discouraging to the tyro ; and it was no wonder that marv were drawn off from the task, and failed in attaining tlis profession. I am aware that there is danger of too much indulgence in polite literature, so as to draw away from the necessary application to what is technical in the law ; and yet with- out which the conduct of a sait^ and an accurate knowledge of practice, as well as principles of common law, or statute, is not attainable. But the medium of an application to one and the- other of these, must be aimed at. I have known a person who was so strongly attached to general learning and the belles lettres, that it become almost impossible to attach himself to the profound research of legal questions, and the deep study of science, so that he was under the necessity of retiring, for a time, from all opportunity of libraries, in order to become a lawyer ; or to be in the way of becoming one. When a competent legal knowledge shall have been ob- tained, so as to be admitted to the bar, it is a vulgar error to suppose that any acquirement, or even natural advantage, is substantially to be depended upon, but the being master of the scieiu;e. IVIere genius goes but a little way in making a lawyer; there must be aj^lodding; and hence it is that the plo'.ldiPi,' st'.'.dt-nt will oftentimes reach the goal, when more C xviii Introductiok. I lively talents will not. It must be kept in mind, that general and liberal learning, is but an introduction, and a great em- bellishment and help ; but Avithout something like correct information, and knowledge of the science, the professional man may be said to be infelix summa operis ; and a court would rather hear him who has some depth of judgment, but without volubility, or grace of diction, than all, that voci- feration, with the best manner can do, where there is but the vox et prseterea nihil; and to a jury even, closeness and clearness, in the illustration of matter of fact, or law is all prevailing. With the client himself, it is felt as hitting the nail upon the head ,* though, with a bystander, who is not bound by oath to give attention, or led by interest to con- sider the effect upon the understanding, declamation may be more pleasing ; and flourishes, and gesticulations, and the sounding brass, and tinkling cymbal of the voice. Of good speaking, the great secret is good sense, and a knowledge of the subject. Of good writing, it is said by the poet, Scribendi recte sapere est, et pricipium, et fons. So also it maybe said of speaking well; and no man will speak ill, unless through some want of habit, or impedi- ment of tongue, provided that he understands his subject. Cui lecta potenter erit res, Nee facundia de eret hunc nee lucidus ordo. Thought is the body, and good expression the dress of thought. What is dress or ornament without a body I Hence the maxim, think trvice before you speok once. The not thinking, sufficiently, induces surplusage and re- petition; for a consciousness that a thing has not been well said, leads to an attempt to say it better. Thinking before hand supersedes the necessity of this ; and it is delightful to hear one speak who comes well prepared ; whose words are, in the language of the scripture, " As goads, and as nails fastened by the masters of assemblies." Every word tells, so to speak; and to use another phrase of the same scripture, there is no " vain babbling." There is nothing that has contributed so much to depreciate the character of ^ the advocate at the bar, as loose, tedious harangues, which ^ Introduction. xix proceed from a defect of classical education ; or a want of due meditation on the matter to be argued. It is a vulga? error, that forwardness and impudence is a qualification at the bar ; on the contrary, modesty is cha- racteristic of the i77^enuous fnind, and bespeaks talents ; -svhich is more likely to gain the attention of the court, as Avtll as the public approbation, than assurance xv'ithout good s-nse^ and Ic^al kno^vledge to support it. And, though noise and de- clamation, like a song, may please the uninformed suitors ; yet when a manhimself comes to be interested, and enquires for an able lawyer to defend his cause, he will look out for such as have a more solid eloquence. Whether owing to the abuse of speaking at the bar, or to other causes, certain it is, that there would seem to be some prejudgment against the profession of the law in Penn- sylvania. That there are other causes, I must admit. The denomination of people called Quakers, amongst themselves called Friends^ do not admit a practitioner of the law to be in full communion. It is a regulation of discipline^ not to go to law, but to decide all matters of meum and tuum by reference to members of the religious body : this is deduced somewhat from the example of the primitive christians, as appears from the censure of a contrary conduct in some in- stances, by the apostle : " Brother goeth to law with bro- ther, and that before unbelievers."* With that body of people also who entertain the puritan doctrines, and who are the most numerous, presbyterians, &c. the name of law- yer is obnoxious ; and, somewhat, from a text of scripture fa- miliar to them : " Woe unto you also, ye lawyers ; for ye load men with burthens grievous to be borne ; and ye yourselves touch not the burthen with one of your fingers. "| But it is not considered that those of whom these words were spoken were Jewish lawyers ; and, of the Jews, it has been pro- verbial, at all times, that they are griping and usurious. And even of the Jewish doctors, before this time, and rab- bies, the prophets had denounced the cupidity and the ex- action : " The heads thereof (speaking of the house of * I Cor. vi. 6. t Luke xi. 46. XX Introduction. Jacob) judge for reward, and the priests thereof teach for hire, and the prophets thereof divine for money."* But I will not conceal that even the lawyers of our own times, in this christian state, are not altogether free from the reproach of taking higher fees than may comport with humanity, in many instances. The Stat. 32 Hen. viii. c. 9, respecting champerty and maintenance has not been introduced ; and the equality of condition, has doubtless been a reason of it ; and, oftentimes, parties not monied, preferring to stipulate for something out of what was recoverable, or, the giving of something unconditional, has introduced the practice, with the profession, of taking what are called contingent fees. This, nevertheless, cannot but be unavoidably accompanied with an over tenacity in pursuing a claim by litigation in court, after it shall have appeared in the view of indifferent per- sons, to be without foundation. Appeals, Writs of error, and motions for new trials, are the fruits of this. In Eng- land it would not seem allowable in counsel to bargain for a proportion of the damages ;f " and even at common law there was a maintenance.":}: But, in the case of an attorney, I have not known the common law, in this particular, intro- duced here. For, perhaps, owing to the scarcity of a cir- culating medium, at an early period, it was tolerated, and has become common. But I take it, the bulk of the profes- sion, at least the more eminent, would not be unwilling to have it understood to be unlawful; for such bargains are often pressed upon them, and seldom where the client thinks his cause good. It seldom happens but that in case of a proposition of this nature, the suitor will keep back some- thing very material in the statement that he gives, and on which the cause may turn. Nevertheless, notwithstanding, owing to these or other causes, there may be some drawback on the popularity of the profession ; yet, in the nature of things, it cannot but * Mic. iii. 11. t The law severely contrabands, Our taking business off men's hands Hud. ^ l.?th Vin. 151. Introduction. xxl ^ respectable. It is a proof of this, that it is perhaps too much coveted; persons applying themselves to the profession who cannot succeed in it : invita Minerva, and against nature. This results, in most instances, from parents designing their sons for a literary profession, whose particular genius they have not been able to ascertain. And it cannot be, in all cases, from a prospect of attaining great wealth, that the pro- fession of the law is obtruded upon young persons. For though, with reasonable industry, a competent independence may be gained by the practice of the law, yet it seldom leads to great emolument. But the idea of knowledge gives power ; and there is naturally associated with the idea of one skilled in thejlaws, that of power, in a government of laws. It cannot but occur to an individual, that he may have occa- sion for the assistance of an advocate, in defending his estate, or his reputation. For no man can be placed beyond the reach of being assailed, in both these respects. But, in- dependent of any use to ourselves, the idea of superior in- formation, and intellectual endowments, has a charm to the mind of man, from the love of excellence as we admire beauty in other matters. In proportion to the superiority of mind above body, the powers of intellect are valued. This is evident from the less estimation of a fine art in propor- tion as it is coupled with manual labour. Who would not rather be a Demosthenes than a Phidias ? A degree of libe- ral knowledge is indispensable to the profession of the law, and the practitioner cannot but be supposed to possess more, in general, than the husbaiidman^ the mechanic^ or the mer- chant ; though I must acknowledge that there are exceptions at the bar, as well as on the bench ; mere clerks and note- takers, or whose minds are confined, in a great degree, to the narrow limits of technical learning, and, in their conver- sation, can talk of nothing but of John O'Nokes, or William Stiles, or John Doe, and Richard Roe. I can have no difficulty in saying which is the greatest effort of the mind ; the conducting an army or the manage- ment of a cause in court. Sallust,* who was himself a mili,- * Inprimis arduura vidctur res gesta scribere. xxii Introduction. tary man, has made it a question, which of these requires the greatest talent, the task of the general, or that of the his- torian. Although I will allow that this may be made a question; yet I consider the framing a narrative, with all the philosophy that may be interspersed, which is the task of the historian, as far behind that of the orator. And I can have no conception of any thing approaching nearer the power of an angel, than the management of an argument with the human mind; requiring an intuitive knowledge of the heart to distinguish what can persuade : those resources of argument, which can lead the understanding; that pre- sence of mind which gives a command of diction, and which, from sober reasoning, can ascend to the regions of imagi- nation, and turn and wind the fiery Pegasus of fancy, de- scending or re-mounting as the subject may require ; the orator in his lofty flights, like the eagle, " Sailing with supreme dominion Through the azure deeps of air."* Great generalship requires great judgment ; but not more than a game of chess. An equal judgment, and presence of mind is required in the orator ; the surprise of sudden emergencies calls for the talents of a commander; but not less are displayed, though apparently of less magnitude, where, in the course of a trial, the evidence takes a sudden turn, and the front of your defence must be changed. It is the image of a field of battle. But to presence of mind and judgment, the faculty of eloquence must be superadded ; that wonderful arrangement of ideas which must appear al- most miraculous. An able lawyer could not but make a great general; but it does not follow that an able general would make a great lawyer; for the province is more ex- tensive, and the task greater. A campaign or two will form a general; but the able lawyer is the work of years; viginti annorum lucubrationes. It behoves to begin early and to discipline the mind much. The dictum may be ap- plied in this case ; " he who is industrious to reach the * Grav. Introduction. xxiii wished for goal has done and endured much in his eai'ly years."* It is difficult to make up for the -want of application in early years ; under which want of application, the American youth chiefly labour. Owing to the indulgence of parents, and family education, there is a want of tone in the mental system, which it is not easy to restore in the academies, or produce. And even here, there is oftentimes a Avant of a discipline sufficiently rigid : on the contrary not only too loose a rein, but a superficial course of study. And after leaving the academies, sufficient preparation is not en- joined, or allowed for the gaining a knowledge of a profes- sion; and this from an impatience to get forward, and to fly unfledged from the nest. Boys are 7nen too soon^ and therefore, always boys. We see the skilful husbandman re- pressing the luxuriance of his grass, by cutting ; or lopping- his tree, to give it base, and make it spread. The American genius is vigorous abundantly ; but there is an impatience to appear, in the capacity of men, and to undertake a profession ; which cannot but be in the way o( attaining- a great eminence. A lofty structure requires a deep and broad foundation. " Nor would Italy, says the poet, be raised higher by valour and feats of arms, than by its language, did not the fatigue and tediousness of using the file disgust every one."! The not having the means of support in going through a regular course of education, and waiting a reasonable time for an admittance to the bar, is a reason v/ith many for this haste ; but impatience is the cause with more. With those that v/ant means, there is usually, industry and perseverance, to make up for this ; but it requires industry and perseve- rance. A medium between easy and narrow cicumstances is desirable, but not the possession or prospect of an estate, * Qui Studct optatam cursu conlingcre mctam Multa tulit, fecilque puer. t Nee virtute foret clarisve potentius armis, Quam lingua Latium ; si non ofTendcrct iinum Qucmque poetarum llrAse labor c'c mora * Horace. xxlv Introduction. independent of the practice. For when there is such a pros- pect, or possession, the necessary exertions cannot be ex- cited that will make a lawyer. It may be said to be as easy, in the language of the scripture, with a view to another ob- ject, for a camel, or cable as some suppose it ought to be trans- lated, to go through the eye of a needle, as for the son of a rich man to become a lawyer ; or in fact almost any thing else that requires labour. Such must remain amongst those, the fruges consumere nati. The Novi homines, the res au- gustae domi men can alone surmount the drudgery of acqui- ring a knowledge of the law ; or sustain the practice. Were I to depict the making a man a lawyer, I would change a little the image of that moral painting in the tabla- ture of Cebes, where the virtuous man is represented as climbing a rock, two female figures (sisters) self-government and perseverance^ standing above, and extending their hands to encourage him. I would represent one clambering up a precipice, and poverty, like an old and ugly witch, with a flail, urging from below. — — — " Duris in rebus urgens egestas." It is one advantage of the law of primogeniture in Eng- land, though working seeming hardship to younger sons ; that they are put upon their own exertions j and with but little means are under the necessity of tasking all their facul- ties for their subsistence ; and for enabling them to rise in the world. The church affords a living for some ; and there is a prospect of becoming dignitaries. But the army, the navy, or the law, affords more generally a prospect of advancement. These require great exertions in order to be competent to the task; and necessity prompts, and calls forth all the pow- ers of mind and body. Distinction is the consequence; and hence it is, that the history of the peerage of Great Brit- tain, contains an illustrious catalogue of those who have so risen. Elder brothers, who enjoy the estates at home, are little heard of but for their hospitality; their fox hunting; or as giving, what may be called a dumb vote, in parliament. Wealth is the bane of genius, whSX^ povertij is the preceptresji. Ingenii largitor venter«. Wealth with its concomitant luxu- Introduction. 3ixv ry, is the destroyer of virtue ; whether with an individual or a nation. The sentence that was pronounced upon Adam was not more a punishment than a preservative ; a suffering than a medicine ; " by the sweat of thy brow," &c. Labour and in- dustry are the means necessary to res. rain, and keep in sub- jection the passions. Adversity shews the necessity of the assistance of others, and must produce philanthropy in an ingenuous mind ; and no greai:er secret can exist in getting forward in the practice of the law : civility and humility are popular qualities. It is the semblance o. these that men af- fect when they court popularity for the sake of office, or ad- vancement in the public councils. But the esse quam videri, is more easy, and at the same time, more natural. An honest and faithful defence of a client in a good cause, is perfectly consistent with that indignation which may be expressed against the claim of an adversary, and may call for it, with respect at the same time for his general charac- ter. What hinders the distinguishing the claim from the man; save so far as it is an evidence of his injustice in the particular case. But I speak of general benevolence to so- ciety, and respect shewn to high and low. This is bet- ter than clinging to a particular denomination of the re- ligious, from worldly motives ; or affecting fanaticism ; or espousing a party in politics. For this must detract from a consciousness of sincerity in one's self; and lessen the respect of the discerning, who may question the motive. But what is the object of practice, but the acquisition of some estate ; which, if wealth is an evil, ought to be avoided* The possession of wealth is neither good nor evil in itself; but immoderate wealth is the cause of self-indulgence^ and the occasion of evil. This consideration ought to be a check onthe cupidity of riches. I have seldom known a lawyer, or any man else who has left a great estate, that had a son, of much reputation, to succeed him. The pleasure of a gain- ful accumulation, is all that he has ever got for himself; and pride and sloth the sum of what he has acquired for his descendants. The want of motive to action is but ano- D xxvi Introduction. ther name for the legacy that is left ; and this want of mo- tive entails listlessness, and lounging, and recourse to clubs followed by intemperance. Such are to be pitied when un- der the necessity of amusing themselves by invitations to convivial entertainments ; and compliments for the compa- ny of those whom they respect or not as it happens. The gout and the dropsy is in their viands, and their cups. They must be indebted to the theatre in the winter, or to tvatermg places in the summer ; where, if infirmities do not lead them, the having nothing to do, will. It may now be proper to suggest what it is that had put me upon writing this introduction, with a view to an edition of Blackstone's Commentaries. For though, considering my station, it may not appear presumptuous, yet it might be deem- ed unnecessary". Tucker has given an edition, in which he has taken a view of the outline of the constitution and go- vernment of the United States which has taken place of that of Eijgland ; and at the same time of the constitution of Vir- ginia, and the laws under it. Might not the same thing be ne- cessary as to the constitution and laws of each state in the tinion; shewing what principles of the common law hav^e been introduced as applicable to our situation ; what statutes, or construction of statutes j or, in what particulars, the common law has been changed by our acts of Assembly ; or by the de- cisions of our courts ? It must be of an advantage to the student whose reference to these, under the respective heads of the law, may be made, at the same time, with the reading these commentaries' It will save a great deal of time to have presented to his view these relations, oppositions, variations and congruencies, under the particular head that is treated of in this outline of the law of England. Not that I could expect to have it in my power to go through with it, owing to the little time I have to spare from official duties ; and from the date of life drawing to a close at no distant day. Neverthe- less it may lead the way for some other person of more ta~ lents ;i^d leisure, and, beginning earlier in life, to complete the object. For it is clear to me that something of this kind ought to be done, as well for the use of the practising law- \'er as for the service of the student. LAW MISCELLANIES SOME VIEW OF THE ENDEAVOURS TO iMPROVr-r THE LAW BY THE LEGISLATURE. IN the year 1787', going into the office of Wilson^ (James) of Pennsylvania ; great as a lawyer^ but greater as an orator ; I observed a folio bound up with blank leaves, intervening ; and in v.hich he had begun to add notes, un- der the respective heads of law ; perhaps only as Christian, has since done ; or perhaps with a reference at the same time to the principles of our common law^ under the re- spective heads, as it stood upon our introduction of the com- mon law ; cr, as it has been varied since, bj^ acts of assem- bly or otherwise, in tlie manner of Tucker, as to the laws of Virginia ; for as to the constitution of the United States it had not been then formed ; for in fact it was a delegation to the convention that formed this constitution ; and after- wards, to the state convention which adopted it, and the sub- sequent judiciary appointment to the bench of the supreme court of the United States, that interfered with the going ©n with his design. It was a loss ; because the mind of that man was great and comprehensive. He has left three volumes of his writings, chiefly lectures delivered as pro- fessor of law in the university of Pennsylvania, at the same time that he filled his judicial station. From the continu- ance of these lectures, his attention was drawn, says the editor of a posthumous publication of them (his son Bird Wilson) " by an object of more importance in which he was engaged." In March 1791, the house of representatives in the general assembly of Pennsylvania appointed him "• to re- vise and digest the laws of the commonwealth ; and to as- certain and determine how far anu British statutes extended 28 Law Miscellanies. to ity and to prepare bills containing such alterations, addi- tions and improvements, as the code, laws, and the princi- ples and form of the constitution then lately adopted, might require." In a letter on the subject to the speaker of the house of representatives of the 24th Aug. 1791, he reports some outlines of his system, and the progress he had made. But, as stated by his editor, owing to the want of a provi- sion by the legislature sufficiently ample for the pecuniary expenses necessary to the purchase of books, papers, &c. and the assistants, the design of framing a digest under the authority of the legislature was relinquished. It was considered a great loss by intelligent men that the design should be abandoned ; and, it continued to be thought of as what ought to be accomplished. By an act of the 17th April, 1807, " the judges of the su- preme court were required to examine and report to the next legislature, which of the English statutes are in force in this commonwealth, and which of those statutes in their opinion ought to be incorporated into the statute laws of this commonwealth." December 4th, 1808, that report was made. It cannot be understood that this report had the force of a decision by the court ; much less that it could be considered, as to any statute so reported, to be conclusive ; for it must remain the right of any person to contest it, in a judicial investigation, as to the being in force or otherwise ; nor could even an act of the legislature make it conclusive a parte ante, as to property holden under the existence of any statute that had been introduced. For, in that case, it would have a retrospective operation, which, by the consti- tution, cannot be. The report of the judges, and any sanc- tion the legislature could give it, must be still considered subject to the right which any one must have, to show, by themselves or counsel, in a judicial trial before a court and jury, that such statute had been introduced, though the le- gislature might from that time provide that it should not be in force. Nevertheless it was a wise and necessary policy to have such a step taken towards ascertaining what were in force. It was an advance to the obtaining some inior- Law Miscellanies. 29 mation on the subject. It had been indeed questioned whe- ther an obligation could be imposed upon the judges to make 6uch a report, it being extra-judicial wholly ; but approv- ing the object, the judges cheerfully undertook it; but con- sidering such report as nothing more in law, than if made by any other four of the community, whatever weight it might have as being made by persons who were supposed competent. It was regretted by them only, that, consistent with their official duties, there was not sufficient leisure to make such enquiries and researches as were necessary to satisfy themselves. For as to what statutes had been intro- duced, it could be collected only from the memory of the practising lawyer, or notes of cases, in which any particular statute had been considered as extending. Notes were few, and printed reports none, from the settlement of the colony until after the revolution, and the state became independent. Those of Dallas were the first ; and these from notes of but some cases furnished chiefly by the judges, or rather an in- dividual judge, the Chief Justice. But these reports, even though imperiect as respects the whole state, have been of great utility ; and much credit is due to the reporter for his undertaking as well as for the execution. It was chiefly from the memory of the profession ; or the recollection of admis- sions or decisions in the course of their practice at the bar, or since they came upon the bench, that the judges could supply the defect of written evidence, as to what statutes had been introduced, and were considered as in force. There was not leisure or opportunity to consult the profes- sion in these particulars, even those of them that were with- in a narrow compass, and had resided in the city; and, as- to those in the country, it was out of the question. There was little or no opportunity of consulting these from their scattered residence. And yet the enquiry v/as, in part, a matter of tradition, and depended upon the usage. Un- written common law evidence was, in many cases, all that could be got. No wonder then, that under this haste, the profession should be unwilling that this report of the judges should be considered ^^Jinal or conclusive. It could not be fO Law Miscellanies. so considered even with every advantage of enquiry; for that could only be where the point came in question in the course of a trial, and on a judicial investigation j in which case evidence could be called for, oral or written, to assist the information which the judges might have of their own Icnowledge. With these helps, and the argument of learned counsel, able and better informed than themselves, as is often or most usually the case, they might be enabled the better to form a judgment. The task was more extensive which was delegated to Wilson (judge.) It was not only to say what statutes had been introduced ; and in fact to say what ought to be adopt- ed, as applicable to the principles and forms of our constitu* tion ; but to prepare bills containing such alterations, addi- tions and improvements as the code of laws and this consti- tution, and these forms might require. It was to do more ; to revise and digest the laws of the commonwealth. By an act of March 10th, 1812, legislative encouragement was gi- ven for the printing the English statutes which are in force in Pennsylvania as reported by the judges of the supreme court, together with their report on that subject. This was another step towards accomplishing what had been delegat- ed to judge Wilson. But it was but a very small step. It is nothing more than a printer could have done, and was about doing ; and well deserving this encouragement. But it would be a great object, and require an able lawyer, or law- yers perhaps ; for in a multitude of counsellors there is safety ; it would require lawyers, I say, to go further, and to point out what construction has been put upon these sta- tutes by the English courts ; and zohat construction has been adopted here ; what practice deduced under these^ in England, or here. This would be a most useful work. For even to the bulk of practising lawyers, or judges, it is not familiar. The language of these statutes also is in some degree obso- lete, and by the people unintelligible. A translation, as it might be called, into modem and popular expression, would be necessary : for it can be but of little use to the legislature, iu examining these statutes, to have them presented to them Law Miscellanies. 31 a» they are, without explanation, or comment. It would be a task of ability to do this ; and would require high talents to draw bills embracing the same thing in a modem style of enactment. But to frame such bills adapted to our constitu- tion, and the forms of it, would be a matter of still greater difficulty. But the task delegated to judge Wilson embrac- ed more ; it was, to revise and digest the laws of the common' rvealth ; and this was perhaps a still more important object ; and greatly conducing to the convenience of all the officers of the commonwealth ; to the legislature j and must be greatly satisfactory to the people themselves. It would be desirable to have a single law on every particular subject, embracing the provisions of the several laws on that head, and contain- -cd in other acts and supplements. This would reduce the acts of assembly to a much lesser compass ; and if done by a person or persons equal to the trust, might be drawn up with such simplicity and perspicuity of expression as would preclude much litigation. It is the result of much habit of composition to make use of words unequivocal and unambigu- ous^ as well as to arrange properly. It requires clear thought, as well as a perspicuous diction, to frame a law. It is the arrangement alone, in our language, that secures perspicuity. In the ancient languages, or what are called the learned, there is concord or agreement; the relations of gender, num- ber, case, person, &c. enabling to refer one word to another, and to couple, so as to assist the construction, or to ascer- tain the meaning. But in our language, unless with the most careful attention to the arrangement of words in a sen- tence, there can be but little more than a guess at the meaning of an act of assembly oftentimes, where words and sentences irreconcilable with each other, will occur. It is but a conjecture, in many cases, what the construction ought to be. By an act of March 3d, 1812, the governor was "re- quired to request the attorney general to draught and pre- pare a bill, consolidating the whole of the penal laws of this commonwealth, and suggesting what additions, alterations, and changes should take place in the system, for the pur- 3S Law Miscellanies. pose of laying before the next legislature." This is pre* cisely what was delegated to judge Wilson, with regard to the laws in general, civil as well as penal ; and though the injunction and request to the attorney general, is, under this , act confined to the penal laws, yet, from what has been done, and the spirit evinced to improve the legal code, there can be no doubt but that the farther prosecution of the subject will be resumed, and delegated to some person or persons competent to accomplish what had been projected, and dele- gated to judge Wilson, and which the attorney general has been called upon to do in the case of the penal laws. It will occur to any one to ask, and it has been often ask- ed, why not compile a system of what is called the common or unwritten law; that the legislature having it under their view, may restrain or abolish as they think proper ? It has been already done in the outline ot these commentaries j* but embracing an outline of both common and statute law. But it is but an outline that in any reasonable compass could be given. But the common law, which is called our birthright^ became ours in our colonial state, and was car- ried with us only so far as was applicable to our situation ; and hence it would be a more practicable object to ascertain and select what parts or principles of the common law ive did not bring with us^ not being applicable to our situation. This, cut out of the mass, it would be more easy to show, than to say what had been left behind. In the notes to the outline given in these commentaries, it may be pointed out to the student, what of the common law has been left behind j referring to the contrary usages by which the common law has been changed ; and to such parts and principles as are not applicable ; at the same time referring to acts of the colo- nial legislature, or since the revolution, by which they have been abrogated. A more compendious outline of the common or statute law might be given, omitting all that is unknown to our code ; but to the law-student, it would still be requi- site to take a general view of the whole system of the Eng- lish law ; and this from the interlacing of the branches of the * Blackstone's. Law Miscellanies. 33 Same stock* A knowledge of the ecclesiastical law, having no church establishment in this state, is, perhaps of all, the least necessary; yet, some general knowledge of it, cannot well be dispensed with. Nevertheless a compend or abridg- • ment of the common law as retained by us, and of the sta- tute law, British statutes introduced, or our own statutes, might be compiled for the use of such as are not of the pro- fession. This, in the hands of the people, would be desirable ; for, in that case there would be no great danger that every man would commence his own lawyer ; but rather that knowing something of the law, he might use his knowledge to avoid litigation. Where the attainment of office is open to every man, some acquaintance with the common and statute law ought to be possessed if possible by every one. The sci- ence of law, says judge Wilson,* " should in some mea- * sure be the study of every free citizen, and of every free * man. Every free citizen, and every free man has duties * to perform and rights to claim. Unless, in some measure, ' and in some degree, he knows those duties, and those * rights, he can never act a just and independent part. In a * free country, every citizen forms a part of the sovereign * power : he possesses a vote, or takes a still more active * part in the business of the commonwealth. The right and * the duty of giving that vote, the right and the duty of tak- * ing that share, are necessarily attended with the duty of * making that business the object of his study and enquiry. 'JntheU. States, every citizen is frequently called upon to ' act in this great public character. He elects the legislature, ' and he takes a personal share in the executive and judi- * cial business of the nation. On the public mind one great * truth can never be too deeply impressed, that the weight of * the government of the United States, and of each state * composing the union, rests on the shoulders of the peo- * pie.' Some years ago, in this state, a current set strongly against the common law of England ; and it v/as within a point of being abolished by the legislature. This was owing * Lectures on Law, part 1. chap. 1.9. E 34 Law Miscellanies. to a total ignorance of what it was. Editors of papers, whd had been prosecuted for libels, raised this hue and cry, as it may be called, against the common law. It may contri- bute therefore, as the prejudice has not altogether subsided, nor the misunderstanding been removed, to give some idea of ihat law j and this I shall do by a quotation from the preface to Rolles' abridgment, said to have been written by Sir Mathew Hale. There is contained also in this preface some idea of those parts of the law which, even in England, have become antiquated ; but much more so here. * The common laws of England are not the products of the wisdom of some one man, or society of men in any one age ; but of the wisdom, counsel, experience, and obser- vation of many ages of wise and observing men : where the subject of any law is single, the prudence of one age may go far ai one essay to provide a fit law ; and yet, even in the wisest provisions of that kind, experience shews us that new and unthought of emergencies often happen, that ne- cessarily require new supplements, abatements, or expla- nations ; but the body of laws, that concern the common justice applicable to a great kingdom, or commonwealth, is vast and comprehensive ; consists of infinite particulars ; and must meet with various emergencies ; and, therefore, requires much time, and much experience, as well as much wisdom, and prudence, successively, to discover defects and inconveniencies, and to apply apt supplements, and re- m;.dies for them j and such are the common laws of Eng- land, namely the productions of much wisdom, time and experience. * The common laws of England are settled and known ; ' every entire new model of laws labours under two great * difficulties, and inconveniencies, viz. 1. That though they * seem specious in the theory, yet when they come to be put * in practice, they are found to be extremely defective ; ei- * ther too straight or too loose, or too narrow, or too wide ; ' and new occurrences, that neither were, or well could be, * at first, in prospect, discover themselves, that either dis- ' joint, or disorder tlie fabric ; and therefore such new mo- Law Miscellanies. 35 dels, continually, stand in need of many supplies, and a- batements, and alterations, to accommodate them to com- mon use and convenience, whereby, in a little time, the original is either wholly laid aside or in a great measure lost in Its amendments, and become the least part of ihe law. Again, were such new entire models of laws never so good, yet it is a long time before they come to be well known, or understood, even to those whose business it must be to advise or judge according to them ; so that even a more imperfect body of laws well known, at least to those that are to advise or judge, is more of use and convenience to the good of society, than a more perfect and complete body of laws newly settled, and therefore to be newly learn- ed. ' The common laws of England are more particular than other laws ; and this though it render them the more nume- rous,less methodical and takes up longer time for their study, yet it recompences with greater advantages ; namely, it prevents arbitrariness in the judge, and makes the law more certain, and better applicable to the business that comes to be judged by it. General laws are indeed very comprehensive, soon learned, and easily digested into me- thod ; but when they come to particular application, they are of little service, and leave a great latitude to partiality, interest, and variety of apprehensions to misapply them; not unlike the common notions in the moralist, which when both the contesting Grecian captains most perfectly agreed, yet from them, each deduced conclusions in the particular case in controversy, suitable to their several desires and ends, though extremely contradictory to each other. It has therefore always been the wisdom and happiness of this law, not to rest in generals, but fitted almost to all particular occasions. But usage and disusage hath antiquated much of the law, and statute also hath taken off or abridged many titles ; and the various excesses, and alterations in point of commerce, and dealing, hath rendered some proceedings, that were anciently in use, to be no more useful ; and some that were anciently, useful to be now less useful r 36 Law Miscfllanifs. * hence several great titles in tht- lavvr are at this day in a great * measure antiquated, and some abridged, and reduced into * a very narrow compass and use." The learned prefacer goes on to enumerate a number of those titles, so antiquated in their application ; or so abro- gated by statute. Nevertheless it will be of use to the stu- dent to acquire some general knowledge of these titles, and the law under them, in order the better to understand the reason of those statutes which have come in their place; or usages which have superseded. For which reason, some learning on these heads, cannot well be dispensed with, as throwing light on the law which now exists If titles are abrogated, or obsolete in England; and usage is changed ; how much more so in our colonization from the mother country, and under our own statutes, and adjudications. For, as has been seen, it is only so much of the statute law as has been introduced ; or so much of the common law as applied to our situation, that is in force. For this see note infra to page 39. During that period in Pennsylvania, that the current set so strong against the common law as what ought to be abo- lished, some sensible publications appeared in the newspa- pers, and excellent treatises by way of pamphlet from the press. Of these, that by counsellor Hopkinson of Philadelphia, is perhaps the best ; but without his signature. It deserves to be preserved ; but having dwelt so long on this subject, I cannot give even an extract. A very useful sfiep was taken by the legislature towards giving the public some idea of our law : by an act of 28th Feb. 1810, provision was made for publishing a new edition of our acts of Assembly, '•• noting under each act the deci- sions of the courts of Pennsylvania, or of the United States, which have been given upon the construction thereof; the v/ork to be examined and approved by the judges of the su- preme court ; and the governor authorised to appoint some fit person to superintend the said publication." It has been my understanding of the duty, in this case, that the exami- nation and approbation must respect what of the work to be Law Miscellanies. SJT examined and approved, was of such a nature, as to come within the province, more peculiarly, of the judges } and this must respect the not^s of judicial decisions. Nor do I \x\\- dcrstand it that the approbation can be considered as going farther than to say, that, tht-re had been reasonable industry used in collecting such notes. It could not be understood as undertaking to say that such decisions had taken place ia the extent ; much less to vouch for the correctness of the principles laid down* It could not be the intendment of the Legislature to give a father effect to the approbation of the judges ; for that would be makmg th. se notes a part of the text, and the decisions equivalent to the acts themselves. My idea of the object of the legislature was to obtain infor- mation of decisions which had taken place under acts of As- sembly with a view to supplement or alteration : some gene- ral knowledge of the construction which had been given by the judiciary branch, in order to such amendments by the le- gislature as such construction would seem to require. In sub- servience to the spirit with which this attempt hath been made to improve our jurisprudence, it may be suggested that a farther step might be taken. By the act of the 28th Jan. 1777, " The common law and such of the statute laws as had been in force, are declared binding." With regard to the common law, it is a well known principle that so much of it only, could have been carried by the emigrants to this state, as was applicable to their situation and there- fore so much of it only in force. What of it was applicable must be determined by the courts ; or, from time to time, by the legislature. In cases where the change of situation might not seem to warrant the courts to declare the common law not applicable, the legislature alone could interfere. As, for instance, in the case of a jus acrescendi, or survivorship in joint-tenancy, which by an act of the legislature has been lately taken away. There might be other principles pointed out, which would seem to have got a footing, and cannot be changed but by the legislature ; such of them as would seem to have become rules of property^ and above the power of the courts to alter. Thus, a principle of the common law has 58 Law Miscellanies. been altered in regard of the succession to real estate, in the case of an intestate ; not only, as to the proportion to be taken by the representative ; but as to the offspring of the re- presentatives taking the share of the parent in equal portions among themselves. See act of Assembly 13 Ap. 1791, and of 19th Apr. 1794. But in the case of a devise to one dying before distribution, and leaving children, it has been decided that an intention could not be inferred of giving to the chil- dren the devise to the parent, and therefore the children could not take at all, 1st Bin. 546. This would seem to require a provision that the children of a devisee shall take amongst them what the devisee himself would have taken, had he been alive at the time the estate came to be divided. I suggest a farther step, that, under the act of April 1807, the judges of the supreme court were confined in their report, to English statutes before the revolution ; but, as the common law remained the great mass of jurisprudence in both countries ; and even after the revolutionary period, the legislation of both frequently respected the same subject, the alteration of the common, or statute law, as it was before that time, might deserve to be looked into, and in some in- stances followed by statutes similar to those passed in that country since. To give an instance of what I mean; in the case of a writ of mandamus as it was at common law, this writ has been rendered more effectual, and better guarded by the statute 9th Anne, c. 20. But which statute the judges could not report as introduced here ; because it did not appear that it had been introduced ; though they might well consider it as containing provisions, which, in whole or in part, were necessary to the like effect, in this commonwealth ; and which has been done in Virginia by an act of the legis- lature of 1798. A revision also of the law in the case of writs of error would seem to be called for, to some extent; and the privilege of a freeholder in the case of process also ; and in some other cases which it would require time and at- tention to specify. Law Miscellanies. 39 NOTE Il^TRODUCTORY TO THE REPORT OF THE JUDGES ON THE British statutes in force, Sec. By an act of Assembly of April 7, 1807 : the judges of the supreme court were required to examine and report which of the English statutes were in force in this common- wealth, Sec. The following is my note to the chief justice (Tilghman) accompanying the whole of such acts as made out, on my investig-ation, and according to my judgm.ent. " Which of the English statutes are in force in this com- monwealth (Pennsylvania) is the first part of the point which is to be examined. In order to ascertain this, it would be ne- cessary to retrace our judicial history, and to see how it is that any of these statutes can be in force. For this purpose I take up our own statute book and examine whether there is any law which goes to this, posterior to our present consti- tution. No law was necessary; for by the schedule to the constitution which makes a part of it, it is provided "that all laws of this commonwealth in force at thetimeof makin{>; the said alterations and amendments in the said constitution, and not inconsistent therewith ; and all rights, &c. shall continue as if the said alterations and amendments had not been made." I am struck with nothing in this constitution that is inconsistent with the English statutes that were itr force before the odopting it. The question then is open to enquire which of the English statutes were in force before the adopting this constitution. In tracing this I find nothing until I go back to an act of the legislature under the constitution altered and amend- ed by the present constitution, which act is of the 28th Jan. 1777; and entitled "an act to revise and put in force such and so much of the state laws of the province of Pennsylva- nia, as is judged necessary to be in farce in this common- wealth." In this act it is provided that " the common law, the principle which it contained might be adopted in usage. 40 Law Miscellanies. and such of the statute laws of England as have been hereto- fore in force m the said province, (Pennsylvania) shall be in force, except as in hereafter excepted." These exceptions it will behove to note when we come to examine which of the statute laws of England had been heretofore in force in the said province ; now state of Pennsylvania. Theie is no law of the late province extending English statutes generally ; though there are acts adopting the provi- sions of certain particular statutes. But were not the Eng- lish statutes in force in the late province independent of any legislative act of the province ; I speak of those acts that had passed after the settlement of the province ? " English acts of parliament made in England, without naming the foreign plantations will not bind them" 2 Peere Will 75. " i hey are subject however to the controul of parliament, though not bound by any acts of parliament, unless particu- larly namedy 1 Black. Com. 104. It would seem from hence that the English jurists did not consider such statutes in force here as did not particularly name the plantations^ and, by force of that term, comprehend the late province. Several English statutes were enacted naming the plantations ; that is, extending the statute to the plantations. But the force of a statute here, under that predicament never came to be examined until the 6th of Geo. III. c. 12. which ex- pressly declares " that all his majesties colonies and planta- tions in America, have been, are, and of right ought to be subordinate to and dependent upon the imperial crown and parliament of G. Britain, who have full power and authority to make laws and statutes of sufficient validity to bind the co- lonies and people of America subjects of the crown of G. Britain in all cases whatsoever." The attempt to carry this power and authority into effect, gave rise to the revolution, and solved the question that no English statute was in force, in a colony, plantation, or province even by particularbj 7ia7n- ing it. It will not be alleged that the judicial power of the province had authority to extend an English.statute passed after the settlement of the province and put in force here ; or that it could be in force rn any way as an English statute, though Law Miscellanies, 41 But in that case it could not be said that an English statute was in force, but a principle derived from it. This may be said to amount to the same thing with the statute being in force, and to be equally recognized by the act of January 28th, 1 m^ which provides " that such of the statute laws of England as have been heretofore in force, shall be in force except as herein excepted." But I do not see that it can be admitted that an English statute could be said to be in force by its own enacting, even though the colonies are particularly named in it ; notwith- standing as late as 1782, an expression is attributed to the court in the case of the lessee of Morris vs. Vanderen, which would seem to imply that the idea was then enter- tained that it would be in force. " It is the opinion of the court that the cotnmon law of England has always been in force in Pennsylvania ; that all statutes made in Great Britain before the settlement of Pennsylvania, have no force here unless they are convenient and adapted to the circum- stances of the couitr)' ; and that all statutes made since the settlement of Pennsylvania, have no force here unless the colonies are particularly named^ But if it be admitted that an English statute would be in force by particularly naming the colonies, so as to estab- lish a rule of property, or a principle of municipal regula- tion, I do not see how we can justify the opposition to an English statute imposing a direct tax j much less to a statute which went indirectly to collect a revenue by duties on in- ternal or external commerce. Nor am I al>le to conceive that by an adjudication of the courts any principle could be legally derived from a statute passed subsequent to the settlement of the province, unless within that sphere where the judiciary have a power to adopt rules, independent of the legislature, and which must be confined to the rules of pleading and the forms of justice* Unless it be that the idea may at first have been entertain- ed in the province, which prevailed in England, that a statute was in force in the plantations, where they were particularly named ; and that from thence there was an acquiescence in F 42 Law Miscellanies. the application of them by judicial determinations ; until the statute of 6 Geo. III. c. 12. and onward, presented this prin- ciple in so full a view, as to put an end to all acquiescence, in the most distant exertions of it. How far the principle, or provisions of a statute may have been adopted, and may have got a footing in our jurisprudence in this way, and how sanctioned by the 28th of January, ITTT, becomes a matter of no easy ascertainment, if the duty assigned can be thought at all to embrace it. Virginia has expressed herself, as to statutes before, and since the settlement of the colony, with precision on this point. '•'• The same convention which established the constitution judged it expedient to pass an ordinance, declaring that all statutes or bills made in aid of the common law, prior to the 4th year of James the 1st, and which are of a general nature not local to that kingdom, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force, until the same be altered by the legislative power of the co- lony." Tuck. Black. Appendix 444. I take it that our legislature in the act of Jan. 28, 1777y could not have meant more ; it is observable that the legis- lature of the province in many acts from time to time, have adopted the English statutes in the same w:xrds or to the same effect; which would seem to shew their sense to be, that without a legislative sanction no English statute, passed sub- sequent to the settlement of the province could be in force. This I think is the point of view in which it ought to be consi- dered, and that we cannot undertake to say ;hat any English statute is in force which passed subsequent to the settlement of the province. But if a statute should occur to oar examination, which though since the settlement of the province has been passed by the English legislature, and adopted hy the adjudi- cations of the courts, it may come under the head of " such statutes as ought to be incorporated into the statute laws of this commonwealth ;" and may be reported as such. With respect to such of the English statute laws as were in force, at the settlement of the province, a great part have Law Miscellanies. 43 been suspended by acts of the legislature of the late pro- vince ; or by our constitutions since the revolution ; or, by acts of the legislature of the state. The question therefore will be narrowed, in the first instance, to what English sta- tutes were in force at the settlement of the province. By the charter of the province to William Penn, sec. 6, it is stipulated, " that the laws for regulating and governing of property within the said province, as well for the de- scent and enjoyment of lands, as likewise for the enjoyment and succession of goods and chattels, and likewise as to fe- lonies, shall be and continue the same as they shall be for the time being, by the general course of the law in our king- dom of England, until tlie said laws shall be altered by the said William Penn, his heirs or assigns, and by the freemen of the said province, their delegates, or deputies, or the greater part of them." But this general extension of the laws of England cannot be taken without exception ; and that exception must be taken from the general law, to which every stipulation must be subject, and which law is founded in the nature of colonization, which cannot carry with it all the regulations of the parent country, but such only as have subjects to attach upon and are not excluded by the change of situation. " If there be a new and uninhabited country found out by English subjects, as the law is the birthright cf every subject, so wherever they go they carry their laws with them, and therefore such new found country is to be governed by the laws of England." Peere Will. 75. Salk. 411, 666. " But this must bc^ under- stood with very many and very great restrictions. Such co- lonies carry with them only so much of the English law as is applicable to their own situation, and the condition of an in- fant colony." Black. Com. 107, and Tuck. ap. 443, " our forefathers migrating to this new country, brought with them all the laws of the parent state which were applicable to their own condition, and circumstances, and this extended not only to the common and unwritten law, but also to the writ- ten laws of the kingdom from whence they emigrated. But this principle extends only to the existing laws of the parent 44 Law Miscellanies. state, at the time of the colony being settled, aad not to such as should be thereafter made." In the case of the commonwealth vs. Mesca and others, 1 Dal. 74, 75, the chief justice makes a query, whether it was intended by the act, meaning that of 28th Jan. 1 T77 to include only such acts as were in force by an express extension of the legislature or to comprehend likewise such statutes as had been extended by the judgment of the supreme courty or received there in usage, which seemed to him to be in some degree uncertain. 1 Dal. 74. A statute expressly ex- tended by the legislature, became an ac! of the colony, under the proprietary government, and had been comprehended under the preceding part of sec. 2. cf the act of 28th Jan. 1777 ; " each and every one of the laws, or acts of general assembly that were in force and binding on the inhabitants of the said province shall be in force and binding on the inhabitants of this state." Whence it appears to me that the sentence of the section whicb follows, and provides for the statute laws of England can mean only such of the sta- tute laws, as were in force by their own operation as appli- cable to the situation of the cdony under the proprietary government. Here opens the field which is now to be traversed ; which of the statute laws of England were applicable to the infant colony settled under the charterto William Penn ; and, were this left to the exercise of judgment as a question to be determined for th^ first lime, by any one, the mind would be free to draw the conclusions as to what statutes were applicable, to the situatiot, and in force in the new co- lony. But it has been a subject of judicial consideration even since the first establishment of the courts, as a case ar- rived which would come under a statute of the present state, to say whether that statute or any part of it^ was applicable^ and could be adopted here. Hence it becomes a matter of evi- dence what statutes have been in force by the adjudications of the supreme court, and to be collected amongst other means of information, even from oral testimony^ as would appear from the case aforementioned of the commonwealth vs Mes- Law Miscellanies. 45 LA and others, where the chief justice in addition to what was before stated, goes on to observe that " if this was a new case the judgment of the court would be different, on the ground however of the precedent we hold ourselves bound. 1 Dal. 75." This depended on the oral testimony^ given in court, of a trial where the statute in question was held to be in force and the privilege of it extended to the accused. It may be easily conceived that when a statute comes in ques- tion in the first instance, it cannot always be a matter of ea- sy determination whether it comes under the predicament of a statute which applies to the situation and circumstances of the new government. For being a matter of reason and judgment, requiring information, and sound discernment, the mind of a discreet man must deliberate carefully and de- cide cautiously. Hence the researches and argument of counsel learned in the laws, and policy of the respective go- vernments, is useful to assist ; and it is^ oftentimes a discus- sion of much length, to enable a conscientious, and prudent court, to make up an opinion, whether the point has been de- cided, in a particular case. To consider it as subject to a new discussion when the same statute comes again in ques- tion, would be an endless task, and involve continual uncer- tainty. Evidence therefore of a preceding determination, will be received, and bind, where the same principle agaia presents itself. This evidence must be the recollection of those present at the adjudication : or in a remote case, some me- morandum, preserved in the notes of the judge; or the prac- titioners of the law ; or introduced in practice, and communi- cated like the rules of a legislative body, or the laws of a game at school ; the preceding decision being a guide to the next, until it grows into usage, and is known and considered as an established principle. " We know that many English statutes for near a century have been practised under in the late province, which were never adopted by the legislature, and that they might be admitted by usage and so become in force." 1. Dall. 75, This last must be the principal source of our knowledge on this head ; for during the century which elapsed under the judicature of the province, scarcely a ves- 46 Law Miscellanies. tige remains of the adjudications of the courts in any written document ; and yet it must have been during this time that the provisions of the English statutes found their way into our jurisprudence. At this day it is often a matter of solid argument, and resting on the reason of the application or the tradition of practice, whether a statute is in force, or not. And the judges are now called upon to a task which in the opinion of some might be better left to be investigated, as the point arises, and comes to be disposed of on trial in the courts j and this I take it remains the case in most of the states at this day. But the state of Virginia has set the example to this state, by endeavouring to ascertain and reduce to a certainty what of the English statutes were in force at the revolution, and which of them ought to be adopted. What has been done on this head may be seen in Tucker's Black. Com. 443, '4, '5. It was a matter of time in that state, and though taken up Oct. 1776, was not completed until 1792. It was done by commit- tees of succesive legislatures with the assistance of profession- al men who were of the committees, or who contributed their information, and advice as they were consulted. " At the same session (1772) says Tucker, the assembly passed an act repealing under certain restrictions, all statutes or acts of the- parliaments of Great Britain heretofore in force within this commonwealth, with a proviso, that all rights arising under any such statute or act shall remain in the same con- dition, in all respects as if this act had never been made." From the above sketch it may be seen that it is not the labour of an hour which has been enjoined upon the judges of the supreme court of this state by the late act of the legis- lature ; and though there are four judges, yet the labour to every one must be the same, each finding it necessary to ex- amine for himself. But though it may be necessary to evolve many volumes, and investigate much in this research ; yet I cannot think when statutes are referred to, the whole or a part of which may be considered as in force, the section can be of great bulk. For the greater part were of such a nature originally, as could not apply to the situation of the colony, under the Law Miscellanies. 47 charter to William Penn ; or have been superceded by the laws of the province ; or of the since state. " Colonists car- ry with them only so much oi the English law, as is applica- ble to their own situation ; and the condition of the infant colony ; such for instance as the general rules of inheritance and of protection from personal injuries. The artificial re- finements and distinctions incident to the property of a great and commercial people ; the laws of police and revenue (such as are especially enforced by penalties) the mode of main- tainance for the established clergy, the jurisdiction of spiri- tual courts, and a multitude of other provisions are neither necessary, or convenient for them, and therefore are not in force." 1 Black. Com. 102,103. But when reduced by this criterion, the English statutes must be still more abridged, by the original charter of in- corporation, of the settlement ; or in addition to this by the conditions on the part of the proprietary with the first set- tlers ; concessions, or charter of privileges granted them ; but still more by the acts of the legislature under the pro- vince. For though an English statute which might otherwise extend, be not expressly repealed, yet it may by implication ; and is so considered, where it is on the same subject; not- withstanding it may adopt, but a part of the provisions of the English statute in lieu of which it would seem to be in- troduced. Nevertheless, though the statutes will be found to be few in number, that can be said to be in force ; yet in the appli- cation of them, they will embrace a wide extent; not only from the immediate subject ; but also from what has been considered in England ; and adopted by us, as v/ithin the equity of them. As fur instance, the statute of 1 Rich. II. c. 12. under which an action of debt is given against the rvar- den of the fieet^ for au escape ; this statute is extended by equity to all sailors and officers ; and here as in other instan- ces, whether depending on the express words of the statute, ©r considered as within the equitable construction of it. A duty is assigned of much delicacy, and requiring great de- liberation. For thougl: it may be presumed that the exi- 48 Law Miscellanies. gency of the occasion, taught the necessity, or policy of ap- plying any one at first; and experience being the best test of the expediency of any rule, it may be considered as the same thing to say what has been the adjudication, or the usage, as to say what ought to be ; yet there will be found exceptions when the principle is taken up on original ground, and the mind is left at liberty to think for itself, with a view not to judicial decision, but legislative reform. As in the instance adduced of the state of 1 Rich. II. which gives the writ of debt on an escape, and subjects the officer to the whole de- mand, instead of the writ on the case at common law, under which might be taken into view the solvency of the debtor ; and the probable damages sustained by the creditor. It is true, that this last part of the duty assigned, the saying which of the statutes in force, ought to be incorpora- ted, goes but to matter of opinion as to the policy or general convenience of any rule ; yet it must be viewed as a trust of high confidence, and demanding the best attention that can be paid to it. And though the research and inquiry, under the first head, ascertaining what statutes are in force, em- bracing matter of fact in a great measure, maybe of more la- bour, yet the last, the determining what ought to be incorporat- ed, will require equal thought, and reflection. Hence it will be comprehended how much time the duty assigned must neces- sarily call for, and where that time can be taken but by in- tervals, to what length the completing the task must be pro- tracted. And though numbers may at first sight, seem to promise a quicker dispatch, yet in fact it must be a cause of delay. For though it may answer the end in view, and doubtless will answer it, of greater wisdom, or judgment in the execution, yet where the same ground is to be gone over by every one, each being responsible, and under the necessity of examining the deductions of the others, so as to be able to concur, or if obliged to dissent, to fix the reasons, with precision in his mind; and to draw them out with satisfac- tion to himself; it will be understood why it is that a com- pliance more prompt has not been made with the fulfilment of what has been enjoined. I say fulfilment, because the mo- Law Miscellanies. 49 ment the notification was made of the act of assembly urtder which the duty arises, the utmost attention was paid to it, and the minds of each turned to the object as much as the discharge of usual, and indispensable official duties, rendered possible.'* So far my note to the chief justice. The report made to the legislature was directed by them to be printed; but no law his yet taken place incorporating, but these acts stand on the same foundations as formerly ; nor can the courts be considered as absolutely bound by this report, but tlie ques- tion still open to further investigation when any particular statute comes in question. Some may be found to have beeti overlooked in the research which has been made, which, either from the nature of the provision, or from introduction, had been in force. But though the above was the object to which the atten- tion of the legislature was directed at this time ; yet the effect or binding authority of British decisions, whether on the constructions of statutes, or on principles of the common law, was a question in the minds of the public. For by an act of assembly of the 19th March, 1810, " it shall not be law- ful to read or quote any British precedent or adjudication, which may have been given or made subsequent t43 the 4th July, 1776; provided that nothing therein shall be construed to prohibit the reading of any precedent of maritime law, or of the law of nations." This Wpnld seem to have proceeded under the idea of these precedents or adjudications having been received by the courts as authority theretofore which was not the case. The following had been my ideas on the subject, a note of which I had made in order to hand it to some member of the legislature while the law which after- wards passed, was in agitation. " A distinction- is taken between a' decision of the Eng- lish courts prjor" to our entire separation from that govern- ment, by the declaration of independence on the 4ih July, 17"f6, and a decision of those courts since that separation. I am not able to say that there is not a distinction. But it is in contemplation of law only ; and, in fact, amounts to no- thing-. Forall admit that though the decision posterior to G 5(5 Law Miscellanies. our independence will not govern as precedent, it will guide as reason. Why is it that the anterior to our declaration of independence shall govern as precedent ? This depends on the 5th chapter of the charter to Wm. Penn, which, granting power to establish courts of justice, reserves to the " King, his heirs and successors, the receiving, hearing and deter- mining of the appeal touching any judgment to be there made or given." The acquiescence of a decision of the provin- cial courts is supposed to carr}' with it a tacit acknowledg- ment of correctness ; yet, in fact, we know that the distance of the tribunal of appeal, and across a perilous ocean, and the expense of prosecuting an appeal constituted in most cases a bar to the making it. So that it cannot be inferred actually that where there was no appeal, there was no dissatisfaction with the prmciple of the decision. But did not the provincial courts during the connection with the English government possess a concurrent right with the English courts to examine antecedent decisions ; and to canvass the reason ; or correctness of them, as much as the English courts themselves ? The English courts do enquire into the reason and correcttiess of decisions ; and to this is owing much improvement of the law. Did we dare to fol- low them in these decisions, reviewing and departing from decisions ? We did follow them ; for there was not a judge upon the bench who would not say, such tvas the law, but the late decisions are otherzvise. For, from the acquiescence there, and the prosecuting no writ of error, to the court in the last fesort, the presumption was that it was the law; and that sho\dd a contrary decision be made here, and an appeal pro- secuted under our charter provision, it would be reversed. Hence so far as the common law or statute law of England remained common to both countries, decisions on the same law remained equally guides to both. But the decision of the mother country only could be supposed to have weight to guide. Why should they not be supposed to have weight still i All the difference is that in the one case we could not use our own reason without knowing that it might be pro- nounced erroneous in the court of the last resort there; Law Miscellanies. SI and that now we may use It, without looking to such conse- quence. But shall we regard the reason and sense- of tli-iU less because they cannot say we shall regard it ? Voluntniy submission is a legitimate authority. Decisions of the Eng- lish courts since our separation have made great improve- ments on that portion of the law which is common to us both. Where our reason tells us that it is an improvement in giving light in the administration of justice, shall we not follow it for its own sake, as much as if there was a princi- ple which says we shall do it ? All the difference, is, that be- fore our separation we might be bound to follow error, and now only truth. With respect to English decisions there- fore, since our separation I am willing to take all advantage of them as much as if they were forced upon me ; so that it is but in idea that I distinguish them as authorities. For I do not think that the act of our legislature immediately on our separation, and which is of the 28th Jan. 1777, by which it is provided that the common law and such of the statute lazvs of England as had heretofore been in force should be binding here, can be construed as fixing upon us the decisions of the English courts, either in matters of common laxv or statute construction ; so that the exercise of judicial investigation should be restrained, and all question precluded. On the contrary, I would entertain the idea that we have at least an equal power with the English courts though we might ex- ercise it with less confidence, in the examination and appli- cation of decisions. And in the course of that examination and application, what hinders to look at the recognition or rejection of principle on the same subject; or at the com- ments of the expounders of the same text; and if we look at them and find them reasonable, take them for our guides. In fact we do take them just as much now as we would have taken them before the revolution; and we might just as well say we do, as that we do not. The great lights that may be thrown on many parts of the law, and may be yet thrown upon it, are not to be neglected. The science is im- proving there, and shall we refuse ourselves the advantage of any help ? I admit that respect for English authorities, S2 Law Miscellanies. may beconfe servility; but, that is as likely to be the case, Gv more likel}', with regard to those before our separation, than those since. A judge of the court in the last resort here may claim the privilege of a judge of the court of last resort in England in reviewing English decisions ; which are only evidence of law ; and supposes a law of which they are the evidence ; and to which, if erroneous they ought to -be brought back. But what shall be the test of that error? I know nothing but the mind that is to judge. The principle is to be got at ; and that is to guide. I have nothing to do in these observations, with that part of the law that is mere- ly arbitrary and is not founded in reason, but where the ita esty is the only thing that can be said about it. There is such a thing as freedom of mind in a judge; and narrow- ness of judges is spoken of in the commentaries of law ; and an adstriction to decisions is a fault. But it is in the application of principle to case that the error consists ; for I have no idea that a judge has a power to make a principle, any more than to enact a statute ; but in application of prin- ciple to case error springs ; for such case is said to prove such a principle, whereas it only proves that such a principle was applied in such a case. It is true that as a great part of the law is unwritten, it can only be from decisions, or chiefly, that we can ascertain the principle ; and in matters where reason has nothing to do these ought to be conclusive. But where reason can have a place, it is a maxim that xvhat is against reason cannot be laxv. Here the advantage of the exercise of reason in deducing the principles of legal sci- ence, and the first lesson to a student of the law ought to be, to distrust authority. A mere automaton of decision, is lit- tle better than the machine that plays chess by springs. But I have wandered from the point I had set out upon, the weight attributive to English decisions since our separa- tion from that government. I shall only add a word or two upon the abuse of citing them. For I call it abuse to take tip time in reading at great length from those decisions ; and to which I take to be owing, in a great degree, the popular prejudice against tliem; and which has been near excluding Law Miscellanies. 53 them altogether^* which I should consider to be a loss ; for there is much excellent sense to be found in them ; and which may be a great help in the administration of justice. And it is with a view to contribute to prevent this total ex- clusion, that I have been willing to give these thoughts pub- licity. The public opinion is that the courts are governed by decisions as if thvse made the law ; and that, from the force of education, and profes-^ional reading we are adscript! glebis, and as much serfs in mind, as those were in body that used to g-o with the clod. It ought not to be so ; and with some exceptions is not so ; and it is a great matter that it should be understood by the people, that unreasonable prejudices may not be excited, or exist. My idea of de- cisions posterior to the revolution is this ; that they are the comments of men upon the same subject with that which we have to consider. It is as if men who had set out from the same place and having travelled together a certain distance, had parted; but having occasion to refer to the point at which they had set out, and the part of the ground travel- led together, they should compare notes and correct their journals, as well as to notice the improvements that might be made, or to co-operate in making them. It it is true that this drew upon us the purchasing and reading in courts, the new books and late reports in England ; but it saved, in a great degree, as it does in England, the consulting old Looks : for even there the year books, and Dyer, and many others are little seen. Many of them are out of print, and not to be got at with us at all. For these reasons I cannot say that I would be unwilling to see our act of assembly repealed, which goes to preclude the reading or citing in court the later authorities. * Since excluded. S4< Law Miscellanies. ON THE STARE DECISIS. IT occurs to me to express a Tew thoughts on the respect due to prior decisions. Certain it is that the stare decis.s, is a salutary maxim, but it has appeared to me, that ii has been carried sufficiently lar in this country : in Englund there is such a thing as a departure from decided cast s ; and where there is not, we see nevertheless, in many instan- ces, great dissatisfaction expressed with decisions. In the very first case, 2 East, 280, where lord Eilenborough takes his seat upon the bench, he uses tlicse expressions : '' 11 this question had come now to be decided for the first time, I should have been prepared to decide it upon the plain words of the statute which have been broken in upon by many cast.s, laying down rules of construction much less plain than the words of the statute itself." And again, 301, " As the case now before us, is in terms the same as that decided, I think it is better to abide by that determination than to introduce uncertainty into this branch of the law, it being often of more importance to have the rule settled, than to dettrmine what it shall be. I am not however convinced, by the reaaon- htg- of that case, and if the point were new Ishoidd think other- wise.''^ And again, 3 East, 230, " If the case were res integra I should have done no more than apply my understand- ing." And 7 East, 60, " If this were a case in which we were called upon to decide for the first time upon a recent statute, there would be strong ground for the argument ; but the uniform decision has been otherwise, and that opinion has always prevailed in practice, though perhaps the opinion obtained at first without duly weighing the words. But af- ter so great a length of time, and such a mass of property conveyed in this manner, it would be too much now to say, that all which has been done is erroneous^'' We may see from these words of lord Eilenborough that a series of decisions is not always, with him, conclusive evi- dence of what is right, and the revising the decision resolves itself into a question of expediency ; and that will depend upon Law Miscellanies. ^S two considerations, the " quod sit nota" of the rule j and that of property having been changed under it. Lord Kenyon, the pr^iceding chief justice, came upon the bench under the great weight of a name just before him, and having for associates men whom he found there, and who had participated in the decisions, which he would have had to encounter, had he undertaken to unsettle any of what had been considered as established during that period. Nevertheless he discovers a freedom of mind, occasionally, with regard to decisions before their time, as 3d T. R. 155, where he uses this expression, " The question must be ad- mitted on all hands to be inter apices juris, if the objection could prevail, it would not be because it is built on grounds of reason^ but because ita lex scripta est ; and then, however unreasonable we might think it, we would not be warranted hi trampling on a series of decided cases to overturn it. But it does seem to militate against every idea of reason and justice. In a case of necessity I might be compelled to say, thctt what was supposed to be the old law was founded on mis- take, and that the lazu of the country has in modern times been bett-r adopted to general convenience,'''' Here one may observe that this adaptation must have had a beginning, and this could only be in the breaking off from precedent. In 4 T. R. 151, he gave a little vent to his impression, that too much respect might be paid to the opinion of a great judge ; he observes that '^ it is not now necessary to consider whether lord Holt were right ; in so pertinaciously adhering to his opinion before the statute of Ann, that no action could be maintained on promissary notes as instru- ments, but that they were only to be considered as evidence of the debt ; that question exercised the judgments of the ablest men of that time ; but the authority which his opinion had in Westminster Hall made others yield to him, and it was thought necessary to resort to the legislature to apply a remedy." It gives me pleasure here to take notice that this question has been most ably examined in the appendix to 1 Cranch; and the error of Holt, and his pertinacity abundantly ex- 56 Law Miscelia»ieb. posed by an American writer, which to me appears valuable, in that it is doing something towards our emancipation from the too great authority of what a lord may have said. In 4 T. R. 512, lord Kenyon states, " That it is incum- bent on a party who wishes to establish a point contrary to nil justice and equity^ to produce some direct authority shew- ing that there is an inflexible rule of law established in oppo- sition to justice." This by implication admits that rules of law may be established by decisions contrary to all justice and equity. On another occasion, he uses words which throw a light on the subject of decisions. " If this question," says he, '■'■ zvere at rest, either by reason of decided cases, or by the general opinion of Wc stminster Hall, I should not be inclined to disturb it now. But I perfectly well remem- ber that when the Taunton case was argued, so far from the profession acquiescing in what was thrown out by the three judges immediately after the argument, great doubts were entertained about it." And 5 T. R. 556, " The cases cited from Ventris, ought not to be treated lightly, or overturned without great consi- deration, because it has the sanction of lord Hale's name. But as at present advised, I confess it appears to me that the reasons given in support of that judgment are strong t» shew that the decisions ought to have been the other xvay" In 5 T. R. 682, he says, " I do not think that the courts ought to change the case, so as to adapt it to the fashion of the times ; if an alteration in the law be necessary, recourse must be had to the legislature for it."" But in contrast with this dictum of lord Kenyon, I give the bold sentiments of the canonist Gomery, which I find quoted and approved by some chancery writers ; " Non est inconveniens judicium esse uno tempore justum, et postea ejus eontrarius justius. Opiniones secundum varietatem temporum senescant et in- termoriantur, alioque diverse renascuntur et deinde pubes- cant." This I take to be found in the nature of things ; and though the principles of justice are always the same, yet the application of general rules, even in the like case, may from extrinsic circumstances become unequal and unjust. Law Miscellanies* 57 And this is one great advantage of a jury trial, where the heart can feel the right which the head is at a loss to ascer- tain J and hence a consideration which ought to have a pow- erful effect in governing the discretion of a court in grant- ing new trials, certain it is that even where a judge lays down the law, speaking of decisions, it ought to be sparing- ly said, we are bound bi/ it* For though even a series of de- cisions may amount to a moral certainty of truth and reason, it is not conclusive ; and in contemplation of law, any judge is supposed to examine a principle when he sanctions it, and if the decision is contrary to his own reason, he has a right to depart from it, and it can only be considerations of expediency that can hinder it. For in the language of lord Chancellor Finch, in the case of the Duke of Norfolk, " I must be saved by my own faith, and not another's ; and must not decree against my own conscience and reason." Every man is supposed to use his own reason when he judges ; and to be assisted only by that of others^ who have gone before him. The respect shewn to the sentiments of the jury by Lord Kenyon, appears from 1 T. R. 153, " I confess, says he, that the impression I received at the trial, was unfavourable to the defendant; but the jury thought differently^ and I see no reason upon mature deliberation to differ from the conclusion they have drazvn.^^ Lord Mansfield, 1 Bur. 419, observes, " When solemn determinations acquiesced under had settled precise cases, and became a rule of property, they ought for the sake of pro- perty to be observed, as if they had originally made a part of the text of the statute." Yet in tracing his decisions it is impossible not to observe, that he is but little embarrassed with the old cases where they come in contact Av^ith his own reason. He has a felicity in getting over them and that is in most cases not by directly overruling, but by neglecting them though pressed in the arguments of counsel, and taking notice only of those that make for the opinion he has him- self formed on principles of reason ; or if he does take no- tice of them it is to give them the go^by with a "this is dis- H SS Law Miscellanies. tinguishable." In some instances indeed he does not hesi- tate to speak with contempt of a case, as 3 Bur. 1281, " the case in the exchequer cannot be rightly represented to us j for, as it is represented, one of the two resolutions, viz. that upon the statute of limitations, is wrong to the last degree, and obviously so to every body.*' In developing principles, the mind of this judge, often pours a stream of light which puts out cases, or renders them necessary as on the ejectment trial, 3 Bur. 1291, or in 14:.' 3, on a point of pleading ; or respecting the will of a joint tenant ; 1498, or in that of Curret v. Vaugh, as to the bear- er of a bill of exchange maintaining an action against the drawer where he grants a new trial contrary to his own direc- tion at nisi prius, misled as he alleges by cases ; and though strongly struck at the time, that upon general principles the bearing of them was against law and justice. He did not always take up water at the stream's mouth, but went to the source j the " antiquos exquirere fontes," would be a good motto for a sergeant's ring, though I have not seen it men- tioned as used. Another occurs to me from the poet Horace, which would be a good motto, and expresses a principle which governs too little, ■■ ' ■ Sensus, moresque repugnant, Atqui ipsa utilitas, juste, prope mater et aequi. It would be too much to say of the judiciary. ■ raro sensus communis in illis ; and yet mother wit seems to me to shew itself less than might be expected in a science which contains the rules of right and wrong in the transactions of men. In 1 Bos. & P. N. S. 69, Sir James Mansfield says, " I do not know how to distinguish this from the case before decided in this court." It is of greater consequence that the law should be as uniform as possible than that the equitable claims of aji individual should be attended to. The idea that the equity of a particular case must be lost, for the sake of a general rule, is not always satisfactory, or that a general rule ought not to be changed though it is found to Law Misckllanies. 59 work iniquity; notwithstanding there is the same power in the court to change it, that there was originally to make it. For it is said 1 Bos. and Pul. 207, N. S. by the same judge, that " certainly of late years the courts have been in- clined to relax the strictness of the old rules respecting proofs which were thought to be attended with great ex- pense and difficulty." In the case of Wright v. Child, this chief justice disco- vers an independence of mind which might seem to militate with the doctrine of technical construction of devises in op- position to the popular meaning of the words j and though he concedes to the weight of authority against him, yet ac- knowledges it to be, at least in that case, against his own judgment. " This case says he, has been long depending, not so much on account of any doubts entertained by my brothers, as by myself; the rest of the court being of opi- nion, that the defendant is entitled to judgment. And there- fore I now defer to the opinion of my brothers and of the Judges of the court of king's bench, yet, I must declare that if it had fallen to my lot only, to decide the case, I should have decided it in favour of the lessor of the plaintiff. / am hound to say that this is still my opinion. In all the ca- ses where questions of this sort have arisen, it has been next to impossible, out of a court of justice to doubt of the testa* tor's intention'^"* In 3 Bos. and Pull. 124, the ease of Atkin v. Berwick is relied upon in the argument, and of which lord Alvanly observes ; " It is singular that this case should have been often cited with disapprobation, and never overturned ; but that different judges should have supposed it proceeded up- on different grounds." Brook justice, speaks of it as '* at dif- ferent times confirmed," and Chambre says '' perhaps if a case precisely similar to that were now to arise, it would not receive the same decision. It might be difficult now to support the case, as it was then decided, and it is remark- able that where this case has been mentioned upon v:trious occasions, it has been constantly found fault with, and yet the judges have never particularly stated the parts with which 60 Law Miscellanies. they quarreled, but have always confirmed the case upon the whole, and held on the decision to have been right." It may be seen from th'is^ the disposition of men^s minds^to be eii' slaved to rvhat is gone before: In the gross, to feel a thing wrong; but to think it a trespass upon the sacredness of precedent, to undertake the examination, and to declare it so. 3 Bos. and Pul. 245, Justice Heath observes that " with respect to the case cited from Barnes, (Read, v. Garnet,) that has been overruled by subsequent authorities and practice ; indeed many of the cases reported in that book are not law;'' and Brooke justice, "the reason upon which the decision in Read v. Garnet is founded, proves it to be a case of no authority," and in an excellent note by the reporter in the case of Wennal v. Adney, the words are that the opinion of justice Buller in the last case (Hawkes v. Saunders) was to the same effect, and the same law was again laid down by Lord Mansfield in Freeman v. Trenton. Of the two for- mer cases, it may be observed that the particular point de- cided in them has been overruled by the subsequent case of Deeks v. Strut, 5 T. R. 690. This shews that the judges will test a decision by the reason of it, and overrule what has been ruled before. Referring to cases, 3 Bos. and Pul. Chambre, J, says ; " the language of those cases does not appear to me very correct," and again, " before we get rid of these authorities, we must be furnished with some principle of law, upon which we may decide contrary to them." This implies the exercise of his own reason in this judge, and the right to develope principle, independent of what are called authori- ties. That a decision not founded in reason but contrary to justice, Vt^ill take place, we have an instance in the case of goods coming into the hands of a bankrupt after his bank- ruptcy. The assigns shall take them and yet the creditor shall not be allowed to prove the debt under the commis- sion. The judges of the court of common pleas meeting with this principle, 3 Bos. and Pul. in the decision express themselves tlius ; the chief J. (Alvanly) " in looking into the [ Law Miscellanies. 61 cases I find the question to be completely closed in West- minister Hall J and that we therefore are bound to hold that though a bankrupt has altogether ceased to be a trader ; yet that his warehouse continues open for the purpose of re- ceiving goods ; and that the assigns have a right to take possession of every thing that comes into their hands with- out paying a single farthing even though the consigns of the goods are not entitled to come in under the commission." And Heath, J. " It is much to be lamented that the goods consigned to a bankrupt which arrive after the act of bank- ruptcy as in this case, should even be considered as part of the bankrupt's effects. The hardships to which this rule of law had given rise, was the occasion of introducing the doc- trine of stoppage in transitu." Brooks, J. *' I exceedingly regret that such a rule of law should have been adopted ; for it appears to me to be pro- ductive of very great hardships. But the cases are too de- cisive upon the subject for the court now to adopt a contrary doctrine." Chambre, J. " I am entirely of the same opi- nion." What would have hindered them in a conference among themselves, say the twelve judges, to come to an un- derstanding on the subject, and determine that as to all ca- ses subsequently arising ; a contrary doctrine should pre- vail ? This is not a case where it stands indifferent how the rule shall be ; and the desideratum only can be, that it be settled. A rent in the wall cannot more mar the beauty of an edifice, than what is unreasonable, the consistency of a moral science. For the law is not altogether a system of arbitrary rules, like those of a game at cards, or of chess. It depends upon the subject of the rules whether they may be arbitrarily fixed ; or exist antecedently in the nature of relations. All rules of practice, or which respect the modus ct forma of pursuing, or defending rights, are of an arbi- trary nature, as, " if goods be bought to be paid for by a bill at two months, and after the goods are delivered the bill is refused to be given, shall the vender sue for the bills, or the price of the goods ?" In Mussen v. Price, 4 East, 147, the chief J. of the king's bench; and in Dutton v. Solomonson, 4iSi Law Miscellanies. 3 Bos. and P. 584, the chief J. of the common pleas thought that he might sue for either; but the law being once settled no material inconvenience could result. In Andrew v. Hutton, the chief J. of the common pleas, speaking of the case of Jeffreson v. Morton, says, " I cannot help thinking, with deference to the very learned judges by whom the case was decided, that if the matter had been more fully discussed it would have been differently deterwiited. They would seem to have taken up the case in a wrong point of view, and I feel myself compelled to deny the authority of that case." 3 Bos. and Pul. 652. Nor is it only a rule of practice^ but a principle oj" law that decisions will change. In a note to 3 Bos. and Pul. 654, we have a note of the words of lord Mansfield in a case before the court. " On the introduction of the statute of uses, there arose great dread of letting in perpetuities, by means of the extensive op< ration of that statute, and in the time of Eliz. and James, many ca- ses were decided with a view to prevent that effect ; with this view it was allowed to bar contingent remainders j be- fore the person who was to take came into esse ; others were held to be too remote in their creation. The cases proceeded in that view too far, and estates were too much loosened, and it became necessary to restrain them again ; and in the time of the troubles, eminent lawyers, who were then chamber counsel, devised methods, which on their re- turn to Westminster Hall, they put in practice ; such as in- terposing trustees to preserve contingent remainders. It is not of long date that the rules now in use have been establish" ed. I remember the introduction of the rule which pre- scribes the time in which executory devises must take effect, to be life or lives in being, and 21 years afterwards." A principle oftentimes comes to be varied from what it originally was, by application of it, and acquires an extent beyond its first dimensions. As said by lord Elden, 2 Bos. and Pul. 24, " With respect to the cases which have been cited, it is to be observed, that when a general principle for the construction of an instrument is once laid down, the CQurt wiU not be restrained from making their own applica- Law Miscellanies. 63 tion of that principle, because there are cases in xuhich it may have been appliedin a different manner. The principle being once acknowledged, the only difficulty consists in making the most accurate application of it." Why is a decision cited but because the case decided is the same with that to be de- cided? But unless the case is precisely the same, the analo- gy is imperfect, and the application erroneous. Hence the exercise of judgment is as necessary as the recollection of precedent. " The rule of stare decisis, Is as justly applicable to pri- vate parties, as it is to general principles, where the decision ean be reasonably ascertained and supported^'* 2 Bos. and P* 191, and 298. The case is clear says justice Chambre, both on reason and authorities. This marks the distinction and implies a difference, and that authority is not always reason. And in 403, the same judge in another case, says, " I stand single in my opinion here, and opposed by a determination of the court of exchequer ; and that strengthened by a deter- mination of lord Loughborough, at nisi prius, confirmed in this court. I am sensible of the weight of these autho- rities, but I feel myself under the .necessity of enquiring in- to the foundation of those decisions. I feel the weight of authority against the opinion I am delivering, and I am fully aware of the propriety of adhering to former decisions, and the mischief of lightly departing from them ; but, as cer- tainty is the chief reason for submitting to authority, such determinations as are not perfectly satisfactory in respect of the arguments on which they were founded, cannot contri- bute to certainty, which will be better attained by going back to reason than by following the determinations." In 2 H. Blackstone, 450, BuUer J. refers to it as a thing frequently said in courts, " the nonsense of one man cannot be a guide for another," which would seem to imply a right in all men that judge, to examine what is said, and deter- mine whether nonsense or not, before they follow it. I take it to be the privilege, and what is more, the duty of every judge to examine for himself; and to steer between the cha- rybdis of unreasonable decision on the one hand, and th6 64 Law Miscellanies. scylla of uncertainty on the other, as in his discretion shall seem practicable, in the administration of justice. These observations can have no relation to matters not founded on the construction of a statute ; or on moral reason, but on abstract practice, and arbitrary rule, for which there is no reason but what is artificial, and the sic jubeo of de- cisions, where it is the regulation; or the adjudication of the courts that makes the rule, and is not the mere evi- dence of it, and supposes the prior existence of principle. Nor do I mean to insinuate that there are those who ex- clude wholly the canvassing the reason of a precedent ; but that I would allow myself the questioning the reason of a precedent, as well as the application. Where one is shock- ed by a decision, there is some presumption against it, and if traced it may be found to be an error, and the time ruhen, and the place ascertained where it bred. With respect to our own courts in this country to whick I bring my observations it would seem to me that we have been in the habit of paying more deference to English de- cisions than the most technical of the English judges them- selves. They do sometimes by overhauling and distinguish- ing, make out to get clear of a case that seems to sanction what is unreasonable ; but I do not know where that has been done in ©ur courts. Be that as it may, I am not prepared to subscribe to our own decisions in all cases as conclusive authority. When we review the judicial history of this state, we shall find the constitution of the courts to have been such that for a length of time a decision could be con- sidered as little more than the opinion of a single mind. Before the revolution, until the time of chief J. Chew, there was no great legal character on the bench of the supreme court ; and after the revolution for a long time there was but one that had been bred a lawyer. W^hen abler associates came upon the bench of this court, consisting still but of four judges, and two of them holding the nisi prius courts, the opinions given at nisi prius could be given but by two, and what use in bringing the matter before another two in bank, who being but of equal number could not be supposed Law Miscellanies. ^ to listen readily to reverse what had been sanctioned. Be- sides the julges sitting in bank at an extremity of the state, rendered it impracticable in most cases^ for suitors to sustain the expense of an appeal; and for this and other reasons, we all know that the court of errors and appeals sitting at the same place, was to the midland and more especially to the western country but a name. I do not think, there- fore, that so much weight ought to be attached to deci- sions in this state ; or that the not appealing should be con- sidered as an acquiescence in the reason of them. On a principle of tenure of real property where an original, and not a derivative title comes in question, it must be with great repugnance I can submit to a decision to which my judgment was opposed when at the bar, and which I can- not consider as having received the investigation ot such a number of minds legally informed, so as to give satisfaction. I mast acknowledge that I do not consider the principles of construction so far settled as to preclude examination. This I say as not undervaluing the juJg'nent of others, but as accounting for that freedom of chinking which I may indulge in some cases, and which is not founded as may be sup- posed in the vain ambition of being singular, or of being thought pre-eminent; bat in the love of liberty, and repug- nance to submission to what does not appear to me to be founded on reason, general convenience, or justice to indi- viduals. I will admit that much has been done towards buildmg a system of jurisprudence in the state, but I am unwilling to apply the maxim of stare decisis to all that has been done. Uider the head of Judicial opinion or determination, 15 Vin. 1. it is said the decisions of courts are the conser- vatives and evidences of laws. Or they are such as by way of deduction and dilation upon laws, are formed or deduced; or they are such as seem to have no other guide but the com- mon reason of the thing, unless the same point has jseen for- merly decided, as in the exposition of the intention of clauses in deeds, wills, covenants, &c. where the very sense of the v/ord, and their positions and relations give a ra- ,1 ^6 I.Aw Miscellanies. tional account of th*.- meaning of the parties, and in suck cases a judge does much better herein, than what a bare grave grammarian and logician, or other prudent men could do ; for in many cases, there have been former resolutions either in point, or agreeing in reason or analogy with the ease in question ; or perhaps also, the clause to be expound- ed' is mingled with some terms or. clauses that require a knowledge of the law to help out with the construction or exposition ; both which do often happen in the same case and cherelore it requires a knowledge of the law to render and expound such clauses and sentences; and doubtless a good common lawyer is the best expositor of such clauses. 1 recur to observe a little on the act of assembly of the IQch March, 1810 : " It shall not be lawful to reader quote any British precedent or adjudication, ' &c. This injunction or prohibition has been complied with by the courts, though I can have no doubt that it was under a misconception of the legislature, as to the authority of British precedents, or adjudications, that they judged it expedient to enact such a law ; and as to that obligation under which the courts were supposed to consider themselves bound to respect such precedents or decisions. Hence it is that the courts have been forced to do that indirectly which they could not do directly j and to suffer such adjudications to be read and quoted through the medium of the reports of other states, which, of necessity, must increase the lawyer's library ; so that in respect of time taken up in reading authorities, there is nothing gained ; and this, I take it, was one object in pre- cluding such reading and quotation. But I have viewed this matter in the light of a more extensive conseqiience. It is interfering with judicial rights. Shall not a judge have the privilege of informing himself from all sources of know- ledge ? It may be said there is nothing in this act to hinder him from informing himself in his chamber and by private reading. But it is in the way of the privilege of a party to urge that information upon his mind, when, in the opinion of the party or his counsel, an advantage may be thought to be de- rived from it. The legislature would start at the idea of Law Miscellanies. 6f precluding the reading the holy scriptures, the principles and reasons of which, may, in many cases, be applicablt as grounds of natural justice. For the lavv of God is a ground of the com.non law. Taey would equally revolt at the idea of precluding the sentiments of moral writers on any subject, even though these were British. The truth is they have no right to interfere with the mind of the judge, as to what he shall read, or suffer to be read to him. But more especial- ly hire, where the very substratum of his judgment in many- cases, must be the comments that are made on the commoti lav ; and what can the distinction be, whether these com- ments are made by men who have lived, or by men now liv- ing, if thev appear to carry reason and truth ? " Knowledge at one entrance quite shut out." Can this be considered in any other light, than that of trenching on the right of judgment j and narrov/ing the pro- vince of investigation .' I feel the more for it, because it is an imputation upon the good sense of the state, and a re- proach with the jurisconsults, and men of science of other nations. " Prove all things and hold fast that which is best," is an injunction of the scripture ; and why not hear all things, which is the means of attaining just ideas on a subject dis- cussed. The judiciary is a co-ordinate branch of the govv-rn- ment ; and which, if) it is trusted with saying what the law is, may it not be left to its discretion to hear all reasoning on the ground of law, let it come from whatever quarter they may be willing to admit it ? A good deal has been said on the power of courts to judge on the constitutionality of a law. It would seem !iy the rea- soning of some to be thought a self evident proposition ; while others considered it extremely difficult even in theory to decide upon the question. But certain it is that if re- duced to practice it must be a plain and broad case that will justify the interference, or render it safe to make the experiment. An omnipotent legislature will not readily yield to any thing but that which will carry the sense of the community with it ; and this must be a transgression of the constitution extremely obvious indeed. A transgression may 68 Law Miscellanies. be plain and obvious from the nature and the magnitude of it. . The British statute declaring the power to bind "• the colonies in all cases whatsoever," was of a nature that jus- tified resistance in the very first exertion of that power, from the principle which it contained. The very first at- tempt to exercise such a power, was resisted and gave rise to the war of the revolution. The power which the same government assumes in taking from American vessels, seamen naturalized in these states, and compelling them to serve as British subjects, because they have been once such, has been a cause of the present war ; one cause at least j and seems to be the principal ground on which it is at this time continued. This claim is of such a nature that the principiis obsta, must apply, if it is at all to be resisted. For it is not the number of American seamen impressed, but the right of such impressment, or takings that is to be determined. To give an example on the other hand, of acts which, not from the principle^ but from the excess and magmtudey become questionable, we may refer to the state laws increas- ing the jurisdiction of the justices of the peace j or abridg- ing the province of jury trial by extending that of arbitra- tors ; or taking away appeals from these, unless above a cer- tain sum. No one will say, but that if all jurisdiction were given to the justices, or all to arbitrators, without appeal, and by this means the trial by jury indirectly abolished, it would be an invasion of the constitution ; but, inasmuch as it cannot be considered an infringement of the constitution to give the justices some jurisdiction, for they had it under former constitutions, and it has not been taken away by the present, it will be impossible to say, at what point, the le- gislature ought to stop ,- and if undertaken to be said by the courts, it must be at some point of great excess that such a stand can be made. Will not the act of our legislature taking from the courts the right of hearing any reading or quotation, involve the principle, that this may interfere to any extent; and is it not in the principle itself so obvious as to forbid a submis* Law Miscellanies. 69 ston ? I know of no case which has yet occurred, in the jurisprudence of the country, that is equally alarming : and I have no doubt that if the courts would refuse to submit, the good sense of the country would be on their side, and bring about a repeal of the law. 1 have no doubt but that even the legislature which enacted the law would repeal it. For it was owing to a misunderstanding of the fact that British precedents or adjudications, since the 4th of July '76 were read as authorities ; or carry any more weight in th- n than their intrinsic reason and good sense warranted. There was a reflection upon the courts to suppose it possi- ble that the reading or quotation of these could carry more. Bat the truth is, what led to it in some degree, was an ap- pearance of this, and an overweening attachment which some judges seemed to discover to British decisions even of an ul- terior date. But it was an evil that would wear off in due time ; but the remedy was worse than the mischief; the un- dertaking to restrain or abridge that information from all sources ; and without which they can be neither liberal nor informed. The only means to prevent narrowness and to give liberality, is to let all be heard. I have said that another cause of the act of the legisla- ture, or what led to it, was what had been seen and felt by the country, in taking up the time of the court with so much reading and quotation ; and it was thought that if the pro- vince of reading was abridged, there would be less. But if the later and more modern determinations are not read, their place will be filled up from the old, which are with- out the corrections that time nuist be supposed to give in the growing wisdom of one age above another ; and the adaptation to the increase of liberty and commerce; and even if there were fewer books to be read and quoted, it will not hinder to speak as much. For as long a sermon may be made upon a single verse as upon a whole chapter. I had been disposed to construe quoting in the act to respect only the reading a quota of the case ; or what ap- plied to the point; or, to narrow this still mor'^, bv taking it to mean a referring to the case merely ; and this is what, 70 Law Miscellakies. had I my will, I would allow counsel only to do, as to any ?idjudication, unless called for by the court. But I dislike a quibble; and therefore lake it according to common par- lance, and suppose it to mean a prohibition of making a rtf- ference to any British precedent or adjudication ; and this I consider clearly as interfering with the right of judgment in a judge; because it abridges his means of information. But drawing out the consequence, it is interfering with the right of suitors, and with the province of juries and arbitra- tors, who have a right to hear reason, let it be of British or civil law, or other origin. Good sense and reason is of no country; it has itsdomicil in all regions, and deserves to be hospitably received, let it come from whence it will. ON THE AMENDMENT OR ALTERATION OF LAWS. I shall begin with an abstract of chief justice Hale^s observations, " touching the amendment or alteration of laws." " The business of amendment or alteration of laws is a choice and tender business, neither wholly to be omitted^ when the necessity requires, and yet very caut'iously and tvarily to be undertaken, though the necessity may, or at least, may seem to require it. " Here we see there are two extremes, the over-hastily mutation of laws under pretence of reformation ; and an over-strict adherence, in every particular to the continuance of the laws in the state we find them, though the reforma- tion of them be never so necessary, safe, and easy. " Every law that is old hath this advantage over any new law, in that it is better knov/n already to the people who are concerned in it, than any new law possibly can be, without some length of time ; by means whereof it must needs come to pass, that though a nev/ law be possibly as good, and it may be, in some degree better than the old, yet many great Law Miscellanies^ 71 inconveniences happen in that interval which will occur be- tween the promulgation of the new law and the full and perfect knowledge thereof, in those who are concerned in that law. And if there were no other advantage of the continuance of old laws above the introducing of new, but this, yet it should make people very shy and careful in changes, and most perfectly to demonstrate, that the advan- tages of the change would be ^so great that it would prepon- derate this very single consideration, viz, the notoriety of the old, and the novelty of the new. " It is most certain, that time and long experience is much more ingenious^ subtile and judicious^ than all the wisest and acutest wits in the world co-existing can be. It discovers such a variety of emergencies, and cases, that no man would other- wise have imagined ; such inconveniences also. And on the other side, in every thing that is new, or, at least in most things relating to laws, there are thousands of new oc- currences, and entanglements, and coincidences, and com- plications that could not possibly be at first foreseen. And the reason is apparent, because laws concern such multi- tudes, and those of various dispositions, passions, wits, in- terests and concerns, that it is not possible for any human foresight to discover at once, or to provide expedients against, in the Jirst constitution of a laxv. Now a law that hath abidden the test of time, hath met with most of these varieties and complications, and experience hath in all that process of time discovered these complications and emergen- cies, and so has applied suitable remedies, and cures. So that in tru'.h, ancient laws especially, that have a common concern, are not the issues of the prudence of this, or that councilor senate, but, they are the productions of the various expe- riences and applications of the ivisest thing in the inferior rvorld, viz. tiyne ; which, as it discovers day after day new inconveniences, so it doth successively, apply new reme- dies ; and indeed it is a kind of aggregation of the discove- ries, results and applications of ages and events ; so that it is a very great adventure to go about to alter it, without very 72 Law Miscellanies. great necessity, under the greatest demonstration of safety, and convenience imaginable. " Bm another extreme is, an opposition to all amendments^ as if what has been once settled for law must stand everlast- ingly without any alteration. By long use and custom, men. esp 'cially that ire ag-^d, and have been long educated in the profession, and practice of the law, contract a kind of su- perstitious veneration of it beyond what is just and reason- able. Laws were not made for their own sakes, but for the sake of those that were to be guided by them ; and if they be or are become unuseful for their end, they must be amended, if it may be, or new laws substituted, and the eld repealed. How laws become, or are unuseful to thi ir end upon two accounts : 1. When in their very constitution they are unjust, and impossible to be borne without remarka- ble and uncommon inconvenience — or 2. When a law, though never so good in its first institution, yet by reason of some accidental emergencies that do most usually hap- pen in tract of time either becomes obsolete and out of use or weak, and unprofitable to its end or inconsistent with some superinduction that time and a variety of our oc- casions have introduced. " So that it seems apparent, that as, on the one side some- thing may seem fit to be done in relation to the amendment of the laws, yet, on the other side it is necessary, that exceeding caution be used, as well toitching the matter as the manner hoxv^ and t\it personshy whom^ and the seasons wherein such an amendment may be made. For the matter: 1. That no- thingtend to the alteration of the government in any measure ; for that w^ere to introduce ruin and confusion : 2. That no- thing be altered that is a foundation, or principal integral of the law ; for these are very sound, and ought not to be touched lest the whole fabric be endangered. We must do herein as a wise builder doth with ten house that hath some inconveniences, or is under some decays. Possibly, here or there, a door or window may be altered, or a partition made ; but, as long as the foundations, or principals of th^ house, be sound, they must not be tampered with. The inconveniences Law Miscellanies. T3 in the law, are of such a nature, as may be easily remedied without unsettling the frame itself; and such amendments, ahhough they seem small and inconsiderable, will render » the whole fabrick much more safe and useful.'* " Touching the manner and persons, these things are to be observed, 1. That it be done deliberately and leisurely. An attentive consideration will every day ripen the judgment of those that shall be employed in such a service farther than they can at first imagine. 2. Let every point be fully debat- ed and impartially examined before it fix into a resolution. 3. What can be done by the power and authority of the court end judges without troubling a legislature for such things* And truly this would go a great way in the reformation of things amiss in the law. For it sometimes falls out that an unnecessary application to the legislature, in things that are otherwise curable, breeds unexpected inconveniences. What the poet says of miracles I may say in this case, ** Nee deus, intersit, nisi dignus vindice nodus, " Inciderit " *' 4. In these remedies that are given by the legislature, let it be particular and as little left arbitrio judicis as may be. Upon such a remission, forward men will do too much, but wise and cautious men will do too little* Wise and honest men desire to understand their rule ; though some things are of such a nature, as must, in the particular application, be left to the judges and officers of courts, as the forming, and modeling of wills, process, pleadings, and other proceed- ings ill conformity, and subserviency of what is to be settled by the legislature in this behalf. J. I^et no laws of this na- ture have, a retrospect, but let the time that they shall be put in execution, have such a prospect, that men may not be surprized by the change of things, but may be fitted for, and conusant of it." The above is an abstract of chief justice Hale, to which I may add some obser^'ations of my own. It will be found extremely difficult, if not altogether impossible, to get a court to budge in a matter cti-feform^ either in the construction of K 74 Law Miscellanies. the law, or in the practice at the bar. The causes are two. 1. Attachment to decisions ; and 2. Timidity of mind in ef- fecting a reform. Hence it is, that whatever improvement has been made, or will be made, 7mtst come from the legisla- ture. I speak of that province or sphere within which the courts have full power to alter or reform principle^ or prac- tice. For beyond this, they can but suggest as other individuals, such amendments to the law, as it may have come in their way to see to be requisite. But within the sphere of construction^ and rules of practice, they cannot but have power equi potens with the legislature. For the practice of the court is the lozu of the court; and no judge can be so constrained by a construction of statutes, as to be absolutely bound, to follow, what was originally unreasonable or absurd; or what may have become so, by a change of situation, and circum- stances of a people. The stare decisis will be a considera- tion, but not a talismmic charm or spell, to bind the facul- ties of a judge and keep him from thinking a little for him- self. So far as I have had experience, the error has been, the too tenacious adhe.rence to decisions, both in matters of law and practice. But it may be said, it is the least dan- gerous extreme. Grant it, but still it is an extreme. There are cases of construction where a change cannot be made without the interposition of the legislature ; as where such construction has become a rule of property, or contract; and so in fact a lazv so far as respects what has passed un- der it ; and it may require the publicity of a legal repeal of a construction which may be considered as having become a part of the statute ; or of the applicatiori of a rule of the com- mon law. But in the nature of the case it cannot only be a court in the last resort, that can be competent to such a trust, or to undertake such a task. And, hence it is usual, and perhaps can only be from some chief justice of a court, or chancellor, that such improvement can arise. There have been great minds in such a situation who, have given philosophy, and liberality, to the science of the law ; Law Miscellanies. 5*5 '' Enlarged the former narrow bounds, With nature's mother wit." A Mansfield, a Hardwicke, have had this praise. The bulk trudge on through the slough as Hodge did even af- ter the bridge was built ; so far are they from attempting to build a bridge. Such may have the praise of being what are sound lawyers; but must be contented with this, and cannot be called great judges. I will admit, that it is only one who has traversed all space of the legal science ; or in the pithy language of the great Baron, have obtained the v^antage ground of science, that can venture such a leap, or in fact ought to venture it. They will break their necks if without such Just confidence \n themselves founded upon the actual fact of reading and reflection and great original judg- ment, they attempt it. But where such a mind happens to be at the head of the highest court, little interposition of the legislature, or atleast much less, will be required in mat- ters that respect a reform of the law. Will an)^ man say that the legislature of England, could, in many years, have given such a spring to the dictates of common sense and such reason as some judges have^ given in the course of a short sitting on the bench. The legislature can act only by de- tail, and in particulars, whereas the able judge can remove at once, or alter, what was originally faulty or has become disproportioned in the building. But no one but a skilful architect^ and who can have the whole edifice in his mind, with its proportions ought to be suffered to attempt this. The legislature therefore, but in special cases, ought to be called upon for a reform in the construction, or practice of the law. But where a court who has power, will not reform a construction that is no longer applicable to the circufn- stances of a government, or the circumstances of a people ; or a practice that has become absurd or unintelligible, what can the legislature do, but interfere ? Where a struggle for a reform is founded in such pressure, it will have its vent even though it should blow up a valuable principle, or the whole constitution together, / NOTES ON BLACKSTONE'S COMiMENTARIES, POINTING OUT VARIATIONS IN THE LAW OF PENNSYLVANIA FROM THE COMMON AND STATUTE LAW OF ENGLANS*' WITH OTHER MATTERS OF A GENERAL NATURE. *' And it (law) is that rule of action, which is prescribed by « some superior, and which tlie inferior is bound to obey." 1 Bl. Com. 38. Judge Wilson, attacks this definition in his lectures on law ;* and considers it of great moment to show that it is incorrect, as being anti-republican. " A superior ! let us *' make a solemn pause ; can there be no law without a su- *' perior ? Is it essential to law that inferiority should be in- *' volved in the obligation to obey it ? Are these distinc- *' tions at the root, of all obligation ? There are laws that are ** human J does it follow that in these a character of supe- *' riority is inseparably attached to him who makes them ? ** And that a character of inferiority, is in the same man- " ner, inseparably attached to him for whom they are made ? " What is this superiority ; who is this superior ? by whom " is he constituted j whence is his superiority deduced? " Does it flow from a source that is human ; or does it flow *' from a source that is divine ? From a human source it " cannot flow ; for no stream issuing thence, can rise higher *' than the fountain.'' Judge Wilson tells us that he hesi- tates himself to give a definition of law, but takes a view of * Lectures, part 1. chap. II. 61. Law Miscellanies. 77 a number of those which have been given from Aristotle down ; finds fault with most ; but considers this of Black- stone as the most exceptionable, as leading to the most per- nicious principles of arbitrary government. On the contrary, I am not able to find any fault with it, or to see any germ of despotism in it ; and I answer his question, by saying that the community is the superior who prescribes the law, and the individual the inferior to whom it is prescribed. The whole is greater than a part. Judge Wilson lays it down as a position which he conceives overthrows the definition, that, " consent alone in a free government can make a law bind- ing ;" but is not this consent given by every individual at the framing of the constitution, that the laws made under it shall be obeyed ? The whole body of the people is superior to a single one. " It is better that one man should die than the whole people perish." The salus reipublicae, which was the Roman phrase ; or the salus pbpuli, which is that of our law, evinces the source and the obligation of our laws. We the people, the superior, frame the law ; and you the indi- vidual, the inferior, must be governed by it. In the same manner as an individual member of the natural body is of less consideration ; in other words of an inferior consider- ation to the whole ; so is an individual member of the body politic, to the members collectively. It would seem to be but an affectation of republicanism, to carp at a definition so ex- pressed, while the part is considered relatively to the whole as in subjection. Jus, justitia, juro, juramentum, injustitia, injuria, are all of the root Jubeo, which signifies to command. Lex est ratio summa insita in natura quae ea quje facienda sunt, jubet, prohibetque contraria. Cic. " In the same manner our English word just is the past participle of the verb jubere. Right is no other than rectum, the past par- ticiple of the latin verb regere. Thus when a man demands his right, he asks for that which he is ordered to have. A just man is such as he is commanded to be ; qui leges juraque servat. Every thing that is ordered or commanded is right andjust."^ The etymology of every word in the language * Diver, of Purley, 7B Law Miscellanies. that respects law, is from a root that implies the 'act ot a superior; and it seems to me impossible to have any idea of a law but of that which is imposed. To reject these terms therefore, or a definition which retains them, would seem t© me to savour of the French reform, when terms were. reject- ed because the things were obnoxious. The carrying a law into effect, in other words, the exe- cution of the law shows a superior. A man does not ipso facto consent to be hanged. He may be said to consent con- structively from having given, in contemplation of law, a previous consent to the law and the effect of it. But eo in- stante ; in the act of inflicting the penalty, to suppose an assent would be absurd. It is enforced by a superior. None ever felt the halter drz^w With good opinion of the law.* The correct idea is that quoad the law, or with relation to the making, the legislature is a superior power ; but with relation to the constitution, which is the act of the conven- tion which framed the society, it is not superior. It is diverse intuito, that superiority or inferiority is affirmed. But if any principle was to be deduced from these terms, such as the divine right of the magistrate, it would be of impor- tiance. " — — Every law may be said to consist of several parts ; one « declaratory, 8cc. another directory, &c." 1 Bl. Com. 53. By an act of assembly for the gradual abolition of sla- very, March 1, 1780, §5. "The owner of any negro or mu- latto slave, or servant for life, or years, now within this state, shall deliver in writing to the court of record of the county or city, in which he shall inhabit, the name and surname, and occupation of such owner, and the name of the county and township wherein he resideth ; and also the name or names of any such slave, &c. with the age and sex, i?i order * Hudibras. Law Miscellanies. 79 to ascertain and distinguish^- he. which particulars shall be entered iri books, Sec. and that no negro or mulatto now within this state, shall, from and after, &c. be deemed a slave or servant for life^ or for years, unless his or her 7iame shall be entered as aforesaid on such record," This law has been hol- den directory as to all. particulars, except the na)ne ; and this by reason of the negative in the latter clause of the,sentence ; and even parol proof has been admitted to establish the identity where the slave or servant was recorded by a wrong name or colour ; the object of the act being declared to be, to ascertain and distinguish ; and this on the ground that this act was in derogation of the right of property in the master, taken from him, without an adequate compensation, and ta be construed favourably for his claim of service. This also on the ground of general inconvenience, as from the ignorance of owners, or error of clerks, every requisite of the law had been, in few instances complied with. It is a maxim of law, that an affirmative statute does not take away the common law. And if a statute, without any negative words, declare that deeds shall have in evidence a certzin i^ffect, provided particular requisites are complied xvith, this does not prevent their being used as evidenc-e, though the requisites are not complied with, in the same man- ner as they might have been before the statute passed. Though, it is in the general true, that if an affirmative sta- tute which is introductive of a new law direct a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner. The power of construing a statute is in the judges ; who have authority over all laws, and more especially over statutes to mould them according to reason and convenience, to the best and truest use. 6 Wil. Bac. 378. By an act of 8th Ap. 1785, Sec. 9. it is provided "that every survey upon any warrant, shall be made by actual going upon and measuring off the land, and marking the lines to be returned upon such warrant, after the warrant authorising- such survey shall come to the hands of the deputy surveyor, to whom the same shall he directed ; and every survey made 80 Law Miscellanies. theretofore shall be accounted clandestine, and shall be void and of no effect whatever. The first part of this sentence has been held directory to the officer, and the survey being void^ to refer only to the making it before the warrant comes to hand. This, because there could be no authority, to make the survey without the warrant; but the going on the ground^ &c. refers to the mode and manner of making it. This construction as to what was considered directory^ was also applied, nobis dissentientibus, to surveys made un- der the act of April 3d, 1/92. I dissented, because a main object of the survey being the designation of boundary^ that settlers might know what was left out by the warrant hold- ers in order to enter to settle, it was a substantial requisite under this act, to have the lines marked. It may be said that it is hard, that, from the neglect of the surveyor, a party should suffer ; but it may be considered his own act, where he had the superintendance of seeing the survey executed. It may be seen from these examples, that, in what is call- ed the directory part of a statute, a distinction may be taken as to what is merely directory ; and the not complying strictly with which, will not avoid the act done under it. The act pursuing the statute strictly as to such requisites, must be construed subject to the consideration of these not being matter of substance and contravening the whole policy of the act; but as having a reference to the mode or manner of doing a thing. For it is not in human vigilance, or the prac- tical power of officers or party to observe all formalities. By an act of 24th February, 1770, establishing the mode by which husband and wife shall convey the estate of the wife, a judge or justice is authorised to take the acknow- ledgment of such conveyance, in doing which he shall ex- amine the -wife separate and apart from her husband^ and shall read or otherwise make known the fill contents of such deed and conveijance to the said wife; ajid if upon such sepa- rate examination^ she shall declare that she did voluntarily^ and of her oxvn free will and accord^ seal, and as her act and deed deliver, the said deed or conveyance, xvithont any coer- cion or compulsion of her said husband, every such deed of Law Miscellanies. 81 ionveyance shall be good and valid in law. This, from an early period, would seem to have been considered directory to the officer J and however these requisites might have been observed in taking the acknowledgment, yet in the certifi- cate of the officer endorsed upon the deed, they were not al- ways set forth as having been complied with. The ques- tion was whether in such certificate it must be set forth that the requisites had been complied with. It is the presump- tion of law that an officer will do what he \Kas directed to do. Omnia recte et solemniter acta presumuntur. 1 had so rul- ed it in a case on the circuit ; chief J. Tilghman had ruled it otherwise, on his circuit, about the same time. The point came before the court in bank ; and it was ruled that so far as respected the substantial requisites^ the examining a part &c. it must appear on the certificate, that these had been complied with ; a substantial adherence to the manner of ac- knowledgment prescribed by law, was indispensable ; and that it must appear upon the certificate. 2 Binn. 480. A distinction was taken by the judges who ruled it, (Yates and Smith) between a conveyance by the femme of land in her own right, and of lands in which she might have a right of dower ; but this distinction was overruled by the chief justice and myself, in Kirk v. Dean. 2 Binn. 341. — — Ex post facto. 1 Bl. Com. 46. No ex post facto law, not* any law impairing contracts, shall be made. C. S. P. art. 9. sec. 7. No ex post facto law shall be passed. C. U. S. art. 1. sec. 10. Ex post facto ; ex jure post facto ; or ex post facto law. This embraces criminal as well as civil law. The impairing contracts is but a species of the ex jure post facto. Retro- spective acts are not always ex jure post facto ; nor does the tei-m mean this, though it may be so applied. L 8j5. Law Misceilanxes. EVERY individual of the community, is in contemplation 6f law, supposed to be present at the making of the law ; and in fact it was the case in the ancient republics. When re- presentation came to take place it ceased to be the case ; and yet the idea is still retained in some measure. For though llieans are used to promulgate a law to those represented, who are supposed to be at a distance, yet the maxim still holds that they are supposed to know the existence of a law from the date. It is thus that in all affairs of men when a change takes place, all things are not immediately accommo- dated to that change. In England there is nothing to relieve an individual from the penalty of the law even where death is the penalty ; and where there was even a moral or natural impossibility that he could be informed of it, but the inter- position of the executive pardon. The same thing here. Why not have provided by the constitution that no law should take effect but in a certain time after the enactment. Or, as it is, why not always provide in the law itself, as is done in some cases, that not until after a certain time, and that sufficient to enable the citizens at the greatest dis- tance to hear of it, should it take effect. The means pro- vided of publication in the gazettes, forv/arding to protho- notaries, sending copies to officers, &c. leaves still a space during which there is no moral, or perhaps, natural possi- bility of hearing of it. By the act of 3 Cong. C. 115, the secretary of state is required to furnish the executives of the several states and of the territories north, west, and south of the river Ohio, with 4500 copies of the edition of the laws of the United States, by that act directed to be printed, and the like num- ber of the acts passed at each succeeding session, to be divid- ed among them according to the rule for apportioning repre- sentatives, and distributed as the executive shall deem most conducive to the general information of the people ; and by the act of 5 Cong. C. 136,5000 copies are directed to be printed and distributed in like -manner. The act further Law Miscellanies. iBt$ directs, that every order, resolution, or law passed by con- gress, shall be published by the secretary of state in at least one, and not more than three, of the newspapers in each state. We may see from hence' that it is still considered the prin- ciple that these laws take effect from the date. " But farther ; municipal law is a rule of civil conduct prescrl- ♦^ bed by the sujircme poKver in a state" 1 Bl. Com. 46. Judge Tucker takes exception to this definition ; he pre- fers that of Justinian ; jus civile est quod quisque sibi popu- lu3 constituitj which he considers as comprehending the whole body of national institutions, from whatever source or authority derived ; whether the immediate act of the people, or that of the ordinary legislature or founded on long and immemorial usage ; whereas the former definition presup- poses an act of the legislature in every case whatsoever .; which he presumes was not the fact ; or that all unwritten rules of law, are founded upon some positive statute, the memory of which has been lost. But cannot the law mak- ing power, actor enact without committing to writing? The word '•'• prescribe*' doubtless, signifies to write out. But it is used in common parlance to mean no more than to direct or order ; and no more here. If we consult Tacitus on the manners of the Germans, which is the earliest monument of our Saxon ancestors ; for these were Germans ; we shall find that the manner of passing laws, or deliberating on any sub- ject, was without writing; at least there is no mention made of it. He depicts minutely ; but we hear of no clerk ; nor does it appear that they had the use of letters. For Caesar contrasts them with the Gauls, who had letters. Publicis privatisque rationibus litteris utuntur. Germani multum ab hac consuetudine differunt. Nam neque Druides ha- bent.* It appears that their learning was from Britain ; disciplini in Brittania reputa, atque inde in Galliam trans- lata esse existimatur. There can be no doubt, therefore, but that the early Britcfcis had the use of letters before thp * Caes. Com. lib. 6. 84 Law Miscellanies. Romans came amongst them ; and the Romans had the use of letters from the earliest period; and might have introdu- ced writing amongst the Britons had it not been known be- fore. But it is not very probable that the Saxons coming in after the Romans, could be svich apt scholars as in a short time to acquire the use of letters and to be in the habit of recording their public transactions. There remains no mo- nument of a parliamentary record of the Saxon times ; nor until a considerable time after the Norman conquest. " We possess acts of parliament," says Reeves, " from Magna Chart. 9, Hen. III. to the time of Ed. 111. and from thence in a regular series to the present time. The statutes, except some very few enacted by the legislature before that period, are lost."* When we talk of a custom v/e must remount to some con- vention ; or gathering of the people to origmate the rule. Even supposing but two persons in a community, there must be such assent, and so of more; so that I can see nothing in a distinction to be taken between the origin of an unwrit- ten custom and a written law. They are both equally the act of a legislature. The term Constitution is familiar to the English lawyer and civilian. This is chiefly common or unwritten law. It consists of the lex and consuetudines. It respects the sys- tem of government in all its parts, from the right of suffrage in the lowest frank-tenant, to the hereditary right of the monarch ; embracing all the interipediate officers and offices, legislative, judicial, or executive. The sphere of each is known and the duties assigned; no encroachment to be made by one upon the other; the orbit of every power defined ; moving in its proper groove. There is a multitude of in- stances where an interference is resisted ; in the case of the king for instance in an attempt to give a proclamation the force of a law. It would be called unconstitutional for the lords or commons to vote themselves permanent, taking away the power of the king to prorogue or dissolve. We hear a great deal on the subject of preserving the consti- * Reeves b, 1. c. 1. Law Miscellanies. 85 tution ; bringing it back to its original principles, Sec. The saying, therefore, that in England there is no constitution, means onlv that there has not been a convention of the peo- ple within our memory, framing a constitution, unoictu, and making a record in writing of the provisions therein con- tained ; but it has grown up, and has been formed by time, until it has become, in some degree, fixed and understood. But in these states we have the frame of government redu- ced to writing with the provisions ; and in all or most of them certain things stated which the legislative body shall not have the power of doing. In England the power of parliament is said to be omnipotent. It extends to every thing that does not contain an actual impossibility ; and yet Coke (Sir Edward) has said somewhere, my recollection does not serve me, that a larv against reason is void. If void the judges Avould be justifiable in declaring it a nullity. It is in my recollection that Cambdcn some where says that the judges have in contemplation of law, the power to de- clare an act of the legislature void ; but they could not be expected to do it while those remained in power at whose instance the law had been obtained. Whether he respects an impeachment, or the power of the king to remove, may be a question. Under the constitution of the United States, there have been instances of the supreme court declaring a law void; but no instance that I know of in Pennsylva- nia under the present constitution though many arguments to the court on the subject of the constitutionality of laws, which would seem to imply the idea that the judiciary had the pow- er to determine, which will probably com.e to a point at no distant day, and receive a decision. But it may be said of it at present, to be questio vexata, et adhuc sub judlce lis est. I have said, under the present constitution. For there are said to have been cases under that of '7'6 when there was but one branch in the legislature, and the Governor had no negative. But under the present constitution, there is less reason for the exercise of such a power, when there is a check of one upon another branch ; and the veto of the Gover- nor upon both. But it is stated, in the argument in Bonhams case, 8 Coke, 118, that, in many cases, the common law wil! 86 Law Miscellanies. controul acts of parliament, and some times adjudge them to be actually void. Many instances are there reduced in which such a power may be exercised. And in Hardres 140, " the law and choice of nature is said to be superior to all positive laws, and is called lex eterna or the moral law." 7 Rep. 12 b. Calv. case; " It is the law that was infused into the heart of man at his first creation ; and whatever po- sirive laws are contrary to this law of nature and reason, they are void of themselves." And, in Hobart 87, an act of parliament made against natural equity as to make a man a judge in his own cause, is void in itself; for jura naturse sunt immutabilia, and they are leges legum. " The decisions therefore of courts are held in the highest re- " gard, and are not only preserved as authentic records in the trea- " suriesofthc several courts, but arc handed out to public view in " the numerous volumes of re/2or;s which furnish the laAvyer's li- "brary." 1 Bl. Com. 71. Prior to the year books ; there are said to be reports of cases adjudged during the reign of Edward I. in manuscript in certain public libraries. The year books are so called be- cause they were published annually from the notes of certain persons, who were paid a stipend by the crown for this em- ployment. The establishment of reporters, is said to have been first made by this king, (Edw. II) ; or more probably at the latter end of the former reign. However, as we have no fruits of such an appointment till the beginning of this reign, we may suppose, it did not take place till then. The year books were continued down to the 27th Hen. VIII. and embrace some part of that year ; though during that reign, there are Dyers reports, with some scattered cases in Keilway, Jenkins, Moore, and Benloe ; and towards the end of the reign, in Leonard, 4 Reeves, 414. Pennsylvanifwhas the credit of having given the Jirst in point of date, and not the last, in point of excellence, in the re- ports of A. J. Dallas; the first volume of which, he palish- Law Miscellanies. 87 ed tlie 1st. May 1790 j but, which embraces cases as far back as 1754 : these collected with much research from that peri- od downwards. But until the chief justiceship of M'Kean, the cases are few; and, except as to their antiquity, of mi- nor importance. Chief justice M'Kean was a great man ; his merit in the profession of the law, and as a judge has ne- ver yet been sufficiently appreciated. It is only since I have been upon the bench, that I have been able to conceive a just idea of the greatness of his merit. His legal learning was profound, and accurate ; but, in the words of the poet, Materiem superabat opus — — The lucidity of his explication ; and the perspicuity of his language ; which is the first excellence in the communi- cation of ideas, was perfect ; but I never saw equalled his dignity of manner in delivering a charge to the jury, or on a law argument, to the bar. But, what is still more, his com- prehension of mind in taking notes, so as to embrace the substance^ and yet omit nothing material^ has appeared to me inimitable. This, I say, thinking of him as a man out of the world, as from the course of years, he niust be supposed soon to be. The decisions also which these reports contain, and ob- servations on points of law, of chief justice Shippen, render them valuable ; not only on account of their intrinsic worth ; but also as preserving some remains of the legal knowledge of a great judge, and also of the most amiable of men; whose integrity and mannerSy attracted the respect and at- tachment of all persons. -Qualem candidiorem- These reports of Mr. Dallas are the only monuments of the rudiments of our Pennsylvania law, and the early deci- sions ; and, being given in a concise, and perspicuous stile, will last as long as the jurisprudence of the country ; being in- terwoven with it. Even the two first volumes which contain fewer of the cases in the supreme court of the United States, and district court, have not failed to attract the attention of 68 Law Miscellanies. the practitioners of the law, in other states ; and have been cited in the courts, as containing many principles of common law, and practice, which render them instructive. With regard to the reports of Mr. Binney which have succeeded to those of Mr. Dallas, I shall say nothing ; be- cause, to these, I may apply to some small extent, the quorum pars — This however I cannot help thinking; and I may take the liberty of expressing so much, that these reports have given me a chance to be remembered, longer than I would other- wise have been. Mr. Peter A. Brown a young gentleman of talents, and industry has commenced a series of reports of cases in the inferior courts, with such others as he may be able to procure from the higher : This, that he might not interfere with Mr. Binney, who had published first, and occupied this sphere ; and, reports of cases in the courts of common pleas, orphans courts, and courts of quarter sessions, were v^anted in addi- tion to complete the history of Juridical proceedings. But though the sphere, in contemplation of law, may be the more humble, yet the ability may not be less j and the labour more. Equal discernment and accuracy is required, and though the circulation, and emolument cannot be equal, yet the praise may be equal ; In tenui labor, at tenuis non gloria. The report of a decision of any court ; or of the opinion of any judge, must be, from the nature of it, examinable. The statement of the case, so far as may depend upon the record, may be given with exactness ; and the result of the decision ; for that can be taken from the record. But the sentiments delivered are supposed to be, and frequently are, the notes of the counsel, the judge, or of the reporter him- self who catches in court, the argument or the opinion. This, with all the attention and quickness that is possible, cannot be done ; for the pen of the most ready writer, will not be able to keep pace, currente calamo with the oral expression ; and therefore the substance can only be obtained ; and even v/ith regard to this, misconception, or omissions, are unavoi- Lavt Miscellanies. J89 dabie. It follows therefore that the report of a case like a record cannot import absolute verity. But even after all, supposing the decisions of the court, with the reasons of them, to be given perfectly, these are but the evidence of law, and are examinable. The judges themselves who make a de- cision have a right to examine, and reverse their own judg- ment, in a subsequent case. This, subject to their legal dis- cretion, under certain considerations must govern. For even though a decision may be contrary to legal principles, or the just construction of a statute, yet in cases where a principle is merely arbitrary, and from the artificial reasons of law, when it has become a rule of property, or practice, the advantage of certainty in the lav/ will justify the sanction of it. This in all matters that are not contrary to ymturat- justice or public convenience. The non ita refert quae sit lexquam quod sit nota applies. It is not uncommon, there- fore, for a court or judge to say, ivere it a new case we might think otherwise. In case of an artificial rule of law, therefore, there can be no difficulty in the mind of a judge, in supporting former decisions, though contrary to his own judgment, as to v.hat might appear to him, ought to have been decided.. But subject to this consideration of expediency, he cannot be supposed not to have the right to reverse the former judg- ments of others, as well as of that which he himself hath given. But supposing the case new^ and that for the first time he delivers his opinion upon the point of law that is made in the argument, or arises from the case, hov/ is it as to his right to continue his dissent from the majority of the court, as he now will discover it to be. His continuing to dissent v/hen the question again arises, must be subject to the like consideration, as to the advantage of certainty in the law and judicial proceedings. It is a principle that in all collective bodies in a republican government the majoritif shall ifovern ; and where a decision is not clearly contrary to natural reason and public policy, much more where it stands indifferent, it will be his duty to concede, even where M 90 Law MiscELtANtES. it depends upon the construction of a statute, the ptesUtnp* tion to himself being that he has erred; and he will rest until the legislature shall, by a declaratory law, explain their own meaning. But I take it he has a right, in law atid con- science, subjt*ct to the considerations aforesaid, to stick ttf his opinion, in all cases; because by anew judge coming on the bench, the judgment may be in favour of his decision. By maintaining his dissent also, the attention of the legisla- ture may be atiracted to settle the principle, Avhether of law or of construction. This the legislature have, in many cases, done, though it will be at all times a matter of the most de- licate interference. But as this is the ultimate appeal, where judges in the court of the last resort, are divided, it ma)' seem necessary. Hence it may be seen that it will be- hoove the legislature of a free people to read the judicial re- ports, and to make themselves acquainted with the construc- tion put upon these acts by the judiciary, with a view either" to declare the law as they intended it, or to repeal, or to sup- ply. How is it that the members do not direct themselves to be furnished with the state reports that may be published, during the year, at every commencement of their session ? and this at the expence of the public, whom, by this means, they may be the better able to serve. This would be an en- couragement to reporters, by an increase of the emolu- ment arising from the sale. The same officers that are directed to b? furnished with the acts of assembly, might be directed to be furnished with these also. For judi- cial comments on the acts of assembly by the several, courts, are necessary to be known, in order to disco- ver what is defective in them, or needs amendment. Such encouragement to reporters would be unexceptionable. For it is a question whether an appointment by a fixed salary would be advisable. An experiment of this kind was made at an early period, in what were called the year books, or booJ^s of tertns and years. These are said to be so called, because thty were published annvally from the notes of certain per- sons v/ho were paid a certain stipend by the crown for the Law Mis:^ellanies. 91 eraployment. This from the beginning of the reiyn of Ed. II ; and was continued until in the reign of Hen. VIII. When, says Reeves, 414, " The opinion of this establishment was al- tered, and it was thought more advisable to trust to the ge- neral inclination discovered in private persons to take notes, who, probably, from a competition, would do more towards rendering this department perfect, and useful, than any temp- tation from a fixed salary'''' But Blackstone on this subject, expresses himself in the following manner, 1 Com. 71. " It is much to be wished that this beneficial custom (re- porters with fixed salaries) had under proper regulations been continued to this day. For though King James the 1st at the iastmce of lord Bacon, appointed two reporters, with a han'lsome stipend for the purpose ; yet, that wise institution was soon neglected ; and from the I'eign of Hen. VUI. to the present time, this task has been executed by many private and contemporary hands, who, sometimes, through haste jind inaccuracy ; sometimes through mistake and want of skill, have published very crude (perhaps contradictory) ac- counts of one and the same determination." The decision of a court is but evidence of what the law is ; and a report^ is, but evidence of the decision^ with the reasons^ if any are given. The xueig'ht of the" evidence will depend upon the supposed ability of the reporter. It is of great moment therefore, that this evidence, be the best in the nature of the case that can be got ; though, in the n uure .of things, it can be but imperfect, not only from the reporter misconceiving what is delivered ; but also from the not not- ing as quickly as the words are delivered by tlie judge, which is impossible, and therefore a great deal inust beoiiitted in point of ?^^/z?ica/ expression at least; and by that moans the scase may be lost, or impaired. It is not practicable to fol- low closely what is delivered, unless by profession il sienogra- pliers, or short- hand writers. By an act of 24th Feb. 1806, it is provided, that, " In all cases in which the judge or judg-s holdi ig the supr; me COiirt ; courts of nisi prius circuit court, or court of common 93 Law Misckllanies. pleas, shall deliver the opinion of the court, if either partij^ by himself or counsel requires it, it shall be the duty of the said judges respectively to reduce the opinion so given, with their reasons therefor to writing, and file the same of re- cord in the cause." It will follow from this that a judge must be able to xvrite. By the common law this was not ne- cessary. The prothonotarif was the officer of the court who alone was expected to write j or clerks of the several courts. In the case of a i/ill of exceptions given by the statute 13 Ed. 1. c, 31. the judge could only be called upon, to put to his seal, not to write his name. But the arresting the trial tintil an opinion can be written out, is inconsistent with the despatch of business. And a bare opinion with the reasons of it, without a statement of the facts on which it is founded, and on which the law arises, can be of little moment. It is the business of a reporter to give these facts j for the calling on a judge to do this, would still more encrease his clerk du' ties^ and engross his time. The duty enjoined by this act is inconsistent with the facidty of thinking to advantage, and the powers of judging. For it is impossible for one to be a scrivener, and at the same time, to have his mmdi free to think only. The manual occupation will interfere with the exer- cise of intellect. It is a great innovation upon the province of the judge ; and I do not set it down under the head of an improvement in judicial trials. Were it not that it is a right under the act, which is but sparingly used by the party or counsel, it would be impossible to get through a trial in any reasonable space of time. In fact it is seldom used un- less when a point is decided against the counsel, and they take revenge by giving the judge trouble. If the act is not repealed, I would suggest a small amend- ment to it by way of supplement ; " That it shall be the du- ty of the prothonotaiy to take down the opinion of the judge as delivered, with the reasons." This would delay business j but it would relieve the judge from the drudgery of the chi- rograpber, and give the chance of a fairer handwriting to be filed. For a prothonotary has his name and his office fronri the idea of being a scribe, It might be enjoined also Law Miscellanies. 93 on the party or the counsel in the cause to be the amanuensis to prepare what was to be recorded, by way of assisting the prothonotary, or clerk if he should require it; or the judge should direct. This would be some check on the calling for opinions, and the reasons of them. It may be said the judge is not expected to take time for this clerkship in the hurry of the trial, but in his chambers at the inn, or private lodgings, when on the circuit. But it must be done on the spur of the occasion; for the jury cannot go out till they hear it ; and, it is on a charge to them, that the opinions and the reasons are most usually required. If it is on a demur- rer, or in arrest of judgment, the objection in part^ remains as to time ; but as to the incongruity of clerkship with the office of a judge, it exists altogether. Even in term it is a heavy labour to be bovmd to make out opinions and reasons in all cases. The greatest dunce of a judge has the best chance ; for such generally like to write ; for the faculty oi thinking is not familiar to them. By an act of the 5th March, 1812, " where more than one exception is taken or point made in any court of common pleas, or other court of inferior jurisdiction, and the same has been duly removed to the supreme court for their deci- sion, the judges of the supreme court are enjoined, and re- quired to give their opinion on every point, and exception ta- ken and signed in the inferior court, which opinion so deli- vered, if required by either plaintiif or defendant, or any third person interested in the event of the cause^ shall be filed in waiting by the said judges, with the prothonotary of the proper district." I approve of this act so far as it calls for an opinion on every point and exception taken in the court be- low. But so far as enjoins X^vq filing in xvriting^ it is liable to the objection, and would seem to require the amendment, already stated ; more especially as the right of calling for the opinion to be filed is extended to third pcrsori.'?^ not par- ties to the action, but who may conceive themselves some- xvay interested in it. "f4 Law Miscellanie«. " Statutes also are either declaratonj of the common law, or " remedial of some defects therein." 1 Bl. Com. 86. By an act of assembly of the 21st March, 1806, it is pro- vided " that in all cases where a remedy is provided or duty enjoined ; or any thing directed to be done by any act or acts of assembly of this commonwealth, the direction of such acts shall be strictly pursued, and no penalty shall be inflict- ed, or any thing done agreeably to the provisions of the com^ •mon law, in such cases, further than shall be necessary for carrying such act or acts into effect." It could not be the meaning of the legislature that remedial statutes should have a strict construction contrary to the principle of law in constru- ing statutes; which is, that rem.edial statutes must be libe^ rally construed, in advancement of the remedy ; but the ne- gative words, in this act of assembly, must be restrained to an''exclusionof what it negatives, a prosecution at common law, and a penalty derived from thence ; and this, whether the provision of the act shall be to provide a remedy or en- Joi?i q duty. It is a rule of construction that an affirmative statute does not take away the common law ; and a party may make his election to proceed upon the statute, or at the common law. £. Wil. Bac. 377. It was with a view to meet this rule that the act of assembly in this case has given a negative to such construction. It had been done in particular cases, where it was not the will of the legislature that the party should have an election to proceed at common law or on the statute ; but this was intended as a general sweeping w^-^afrve in all cases, in order to supercede the necessity of particular provisions. r take it therefore that a great change of the law has been made in this respect in Pennsylvania, but that it has no refer- ence to the rule of construing remedial statutes hberalhj in contradistinction from the rule of a *ing to find it added XaW MiSCFLLANIES. Ill that they themselves were buried, or their children educated at the public expence. The love of science ; and the love of the public is at variance with attention to private emolument. Shall it then be disreputable in a republic to be poor .' Shall it operate as a crime and disqualify from the noblest func- tion in society, the enacting laws ? But it is not so much, in the extension of the right of suffrage, as in a delicate and just use of it, that the demo- cratic character consists. Will you see an upright citizen practise unfairness in an election ; go upon the ground to canvass for himself, unless in the case of a ministerial of- fice ? and even in this, with great caution and forbearance. Will you see him substitute or change a ticket? much less introduce and obtain a vote for an unqualified individual ? no upright man was ever capable of this. It is with the ari- stocracy or ambitious men that these arts are practised. They count it robbery to be stinted at an equal vote; and think it no injustice to make themselves whole by tak- ing a plurality by whatever means in their power. This is all a usurpation of the sovereign authority ; and in some republics has been punished with death. In countries where the goverrDuent in a fraud upon the people^ and the right of suffrage where it even partially exists, is but a narne ; it may be thought innocent to deceive, raid to slur our votes. For it is a buying and selling throughout. The can- didate buys the vote, and has in the mean time sold him- self. He is oftentimes purchased, and paid in iidvance, and bribes with a part of the money that he gets. Not so in this heaven of liberty, where other stars glitter, uhere other suns and moons arise ; this beautiful world of liber- ty, in these states. Perdition on the man that saps its foun- dation with intention j forgiveness, but reformation of er- ror, to him who destroys it by mistake. And yet these last are more to be dreaded than the former. At least as much ; because the error of opinion is equally fatal, though originating from a different principle of the mind, and often- times founded in virtue. Who- ever saw a good citiy.en keep an open house at an 112 Law Miscellanies. election for a place in the legislative body ? He is too poor, says one. He is poor because he is honest. At least be- ing poor, he is honest. I have seen open houses kept in a republic ; and private friendship, or personal safety has some- times stood in the way of my endeavours to bring the per- sons to account. But disapprobation, and a portion of con- tempt has invariably attached itself to the transaction. What man can set the world right ? The greatest self-denial is obliged to yield sometimes to personal considerations. Hence it is, that I have often been silent when I saw fraud, and unfairness before my eyes. Fraud in elections is at the root of all wickedness in the government of a republic. A man of just pride would scorn the meanness of succeeding by a trick ; a man of proper sense would know, that in the nature of things, no good can come of elevation obtained by such means. Success by fraud, will never prosper. All men despise cheating at cards, or other games. He is turn- ed out of company that is found guilty of it. And shall we restrain our indignation ; or can we withhold our contempt when an individual is found cheating, not at a game of chance or skill amongst idle men ; but in the serious business of real life, and the disposition of our lives, characters and fortunes ? I pledge myself no good man is guilty of this ; at least those guilty of it are not good men. They are not true brothers i real masons. They have been made at a false lodge ; and will not be acknowledged. Thus it must be seen, I found republicanism in virtue; that is in truth, honour, justice, in- tegrity, reason, moderation ; civility, but firmness and forti- tude in the support of right : quarter to error of opinion ; and the aberrations of the heart ; but death to ambition, and the vain desire of honour, without just pretension ; and death to all knavery, and meditated hostility to the rights of men. Digressing a little, or rather returning to what I have said on the first point, the right of naturalization, I admit that emigrants come when they will, are likely to be in op- position to the existing government, or rather, administra- tion. This depends upon natural principles. The govern- Law Miscellanies. IIS mentsof Europe are most of them oppressive, and it is oppres- sion that drives, in most instances, the inhabitant from amongst them. The poor or the most enterprising are those that emi- grate. They have been in the habit of thinking of a reform, in the state of things in that country, from which they come ; it is natural for them to think that a little touch of their hand may be still necessar}' here. Did you ever know a new physician called in that would not be disposed to alter the prescription, or to add to it ? What occasion for him, if there was not something to be added, or retrenchment made ? Or how can he shew himself, but in changing the medicines or the regi- men. Extremes beget extremes in opinions, as well as in conduct. The extreme of government, where he has been, leads to licentiousness in his ideas of liberty, now where he is. Besides it is in this revolution of administration, if he is an ambitious man, that he finds his best chance of ascend- ing. He is therefore a demagogue before be becomes a pat- riot. I acquiesce, therefore, in the policy of our constitu- tion, and our laws, which prescribe a kind of mental quaran- tine to the foreigner ; though I incline to the generosity of those who think it unnecessary, and that such a great body of people have nothing to fear from the annual influx of a few characters, that may for some time, carry with them more sail than ballast. We had half Em*ope with us, in our re- volution. We had all Ireland, the officers of government ex- cepted, and even some of these. I therefore, do not like to see an Irishmtii obliged to perform a quarantine of the in- tellect. I thiak it contributes to sour his temper, and to fix a prejudice against the administration, under which the li- mitation has been introduced. However, this may be more splendid in theory than safe in experience, and I submit to the policy that has been adopted vmtil the constituted autho- rities, shall think proper to regulate it otherwise. In the mean time, if this book should be read by any foreigner of high parts, and spirit, I would recommend it to him to sus- pend his judgment upon men and things, until he has exam- ined well, the ground upon which he stands : to repress am- i 14 Law Miscellakies'. bition and the desire of office, until unsought, it comes to him, during which time he may have become quahfied to discharge it; and will have had an opportunity of finding out what he will finally discover, that the best men are the most moderate* Intemperance of mind, or manner in a foreigner, gives colour to the imputation, that all are incendiaries. It be- comes therefore, a matter of discretion, and just prudence, on his part, to be cautious in coming forward to take a lead in politics, until lie has well examined the field of contro- versy. But because foreigners may abuse the privilege, I ^vould not xclude them by a law, did the matter rest on first principles. I should think myself justifiable in exclud- ing from my society, and the government I had formed, the inhabitants of another planet, could they come from thence ; because I do not know the kind of nature they are of j but men of this earth, of similar forms, and of like passions with ourselves, what have I to fear from them ? What right have we to exclude them ? We are not born for ourselves ', nor did we achieve the revolution for ourselves only. We fought the cause of all mankind ; and the good and great o^ all mankind wished well to us in the contest. With what anxiety did we look to Europe, for assistance. We derived assistance even from the good will of nations. It is an ad- vantage to have a popular cause in a war. Have we a right to shut ourselves up in our shell, and call the society we have formed, our own exclusively ? Suppose we had a right to the govcrment exclusively, have we a right to the soil ? That is ours, subject to the right of all 7nankind. Pre-occupancy can give a right, but to a small portion of the soil to any in- dividual. To as much only as is reasonably necessary for his subsistence. All the remainder is a surplus, and liable to be claimed by the emigrant. If he cannot get his right under the great charter of nature, without coming within the sphere of our government, and we hinder him to establish a society for himself within ours, why abridge him even for a mo.nv:nt ; of th* rights, immunities, and privileges of thJli which we have instituted ? Law MiscELLA.viF.i;, ll> >' Of the King's Prerogative." 1 Bl. Com. 246. Is there any thing in the nature of a prerogative under our commonwealth ? Unquestionably there is ; and, 1st. In contemplation of law the peohle cannot be consi- sidered as having done wrong. Id quod sibi populus consti- tuit, jus est. It is laxvful and right whatever the people or- dain. But occasional representatives may do wrong. For they may transgress the constitution. But the only remedy is the not delegating them again ; and sending others who will repeal the act by which they had so transgressed ; but^ 2d. It is provided by the constitution, Art. 9. ^^ 10. that *' no man's property shall be taken, or applied to public use without the consent of his representative, and without just compensation being made." And this implies that the pro- perty of an individtial maybe taken away by law for a pub- lic purpose, the commonwealth making just compensation. This comes under the head of prerogative ; for no individu- ial can do this. The property cannot be taken away directly ; so neither, I apprehend, can it be taken nway indirecthj ; and the claim of a priority in a payment of debts, cannot exist under our constitution. For it is in fact taking away a man's property who has a right to be paid first ; and to give this right of taking to the commonwealth where nothing will be left to discharge the debt due to the individual. In England a priority of payment, in the case of the king had some rea- son to support it, under feudal policy, according to the arti- ficial structure of the system ; but none under our common- wealth, where the people in whom the government is, may tax themselves ad libitum for its support. There is no ne- cessity; and, there can be no right to alleviate the public burthens at the cxpence of a citizen, confiscating his debt, by giving a priority to the commouweath. There can l)e no necessity ; for taxes can be laid and raised commensurate with the public exigencies ; and bonds witli sufficient securi- ty taken from official functionaries to secure duties to bb per- J?6rmed or dues to be collected. There cannot b'^ in the nu« 116- Law Miscellanies. ture of the case a just compensation but the debt itself which will be its own measure, and this would amount to nothing more than the taking with one hand and paying with the other, which would be an absurdity. But ; 3d. It is the nature of a prerogative of the common' wealth, that it cannot be sued; or at least this will not be permitted, but, sub modo, and by special law. The com- monwealth cannot be sued ; which though it may seem an unreasonable thing, yet the carrying a judgment against the state into effect, by compulsory process, constitutes the diffi- culty in the way of permitting a suit to be instituted in the first instance. For in the case of executory process there can be no writ to take a corporate hodij^ and the inexpediency of permitting a levy on the public funds, money in the treasu- ry, or lots on which the public buildings are erected, is such, as in the opinion of the legislature to prohibit it. Hence no general law enabling a creditor of the state to sue j and unless by law specially provided, and given in the particular instance, it has not been done ; and this must be considered, rather with a view to inform the conscience of the legisla- ture who will do right, and not as, ex adverso suing to a judgment. Laws have passed in some instances giving leave to individuals to bring suit ; but this not under the idea that in case of debt or damages found, execution should issue ; but that the state should satisfy; and in a case of real estate, direct possession to he delivered. For it must be understood that there shall be a saving of the principle, that in contem- plation of law, the commonwealth should be supposed to have done no "wrong. It is in order to ascertain what is right, that such legal process is instituted and enquiry made ; But, 4th, The not being bomid by prescription of time is a prerogative which our commonwealth posesses, unless when it is not taken away by particular statutes ; and in no case, for an offence of malum in se, is it taken away. At any length of time the prosecution of the ofl'ender, for felony or misdenieanor, maybe taken up. But, 5ih, Thi^ nonpayment of costs is -eu^ovi prerogative of the com '.n on we alt ^', so that in the case of an acquittal on an m- Law Miscellanies. 117 Sctment or information no costs are allowed to the defendant, whatever may be the expences to which he may have been put ; but, he is left to recover of the prosecutor, where there is one ,* but if not, the matter having been taken up at the instance of the attorney for the commonwealth ; or the court directing it ; or the court binding over to answer for a charge, he has no remedy ; for the commonwealth does not pay costs, I return to say a few words on the head of prescription of time not running against the commonwealth, to shew that it is not unreasonable that it should be so in the case of criminal proceedings. For statutes of limitation are founded in the policy of quieting posessions in a case of real estate, and of preventing suits in the case of personal actions. But still more, in the presumption^ that, in the case of debt, or ac- count, payment has been made, when a creditor, within a reasonable time, hath not made a demand ; and in case of trespass called for satisfaction or brought suit. In the case of real estate the presumption is that a grant has been made ; or that the claimant has relinquished or abandoned. It is for the security of improvident individuals, that there should be a limitation of time, because the evidence of title may be lost or of money paid, or satisfaction made. But in the case of an offence against the public, the presumption is that the evidence has not existed, and the fact come to light as affect- ing the wrong-doer. In the case of priority of payment, I will also add that, following the prerogative of the crown in England a prefe- rence was given at an early period, here, as appears by acts of assembly that are noted as expired, or repealed, or suppli- ed. These are so early as 1705, 1710, and 1764, &c. entitled acts, " for giving priority of payment to the inhabi- tants of the government ; or directing the order of paj^ment of debts of persons deceased, &c. That of 1764 which gave a preference to the commonwealth, after physical and funeral expences, has been supplied by that of 19th Ap. '94, by which debts due to the commonwealth shall be last paid. This is precisely as it ought to be, not because the common- wealth has a broad back ; but because the whole people hare 118 Law Miscellanies. a right to postpone themselves. But the right to prefer them- selves is more questionable ; and as respects debts due be- fore the act, it cannot be done consistent with the constitu- tion. Under a general law, and which bears upon debts to arise, and a parte post, it is equal. In this point of view, the whole may have a right to prefer themselves, because every constituent has in contemplation of law given his assent. But as there never can be any necessity for such a general act, I do not approve of it. In the case of the U. S. there is no such />r^ro^fl?it>e, un- less given by the constitution. It is inferred from it under the head of making all laws necessary. The government of the union is invested with the power, " to pay the debts and provide for the common safety ; to raise and support armies ; to provide and maintain a navy ; and to make all laws which shall be necessary and proper for carrying into execution, these and other powers." The right to give a priority of pay- ment as to debts due to the U. S. is claimed under this clause. It had been taken under sundry acts of the national legislature, in certain cases, from an early period, after the adoption of the constitution. But by an act of the 3d March, '97" this prerogative is carried to an equal extent, or greater than, by the prerogative of England it has been done. See the reasoning of the counsel, and the decision of the court 2d. Cranch, 358. And yet it is a provision of the federal constitution. Art. 7 of amendments, that " private property shall not be taken for a public use without a just compensa- tion" If our reasoning is correct with regard to the power ©f the commonwealth of this state, a fortiori, it must hold in the case of the U. S. nndtr ^ dubious construction oi the clause of necessity. The right of prosecution is ranked as a prerogative of the crown ; and may also be considered as a prerogative of the commonwealth ; so that a felony cannot be co7n pounded; and the right of pardon may also be considered in that light : these and many other powers and privileges also, which can only be vested in the body politic : and exercised hy the legislative or executive authority; but I shall not no- Law Misceilanies. 119 tice tlieae as they would be numerous. In judicial trials it may be ranked as a prerogative of the commonweahh, that by a rulf of the courts it shall have a preference in the order of hearing; but this itjittnds oxAy to criminal cases ; and not to those actions where the state is a party in civil i nor ought it to be. . Jil.^ ,.^Lllr rtJA.'it, NOTES ON BLACKSTONE'S COMMENTARIES, JOINTING OUT VARIATIONS IN THE LAW OF PENNSYLVANIA FROM THE COMMON AND STATUTE LAW OF EKGhAVIff WITH OTHER MATTERS OF A GENERAL NATURE. " In the beginning of the world, we are informed by holy wri^- " the all-bountiful creator, gave to man " dominion over all the" " earth : and overthe fish of the sea, and over the fowl of the air, *' and over every living thing that moveth upon the earth."* This <' is the only true and solid foundation of man's dominion over ex- "temal things, whatever airy metaphysical notions may hav^' "been started by fanciful writers upon this subject." II BL Com. 2. It is an objection to the theory of this commentator that the authority of the legislator of the Jews is not univer- sally acknowledged. With such therefore who do not acknowledge this autho- rity, the dominion of man over the earthy and all that it con- tains, must be established on other evidence. It may be asked then, may it not be established by the li^ht of nature, dis- tinct from revelation ; or in other words, placed on the foundation of the lazvs of nature themselves. However this very great commentator may sneer at the " airy metaphysical notions of fanciful writers on the sub- ject," it will be but a narrow foundation to all the world, to place it on the authority of Moses alone. *Gen. 1. 28. Law Miscellanies. 121 Wliat law of nature can give this dominion ? What can be the evidence of it ? His superiority over all other animals and the having the power to subdue thenu, is all the evidence that can be derived from the light of nature. And this evi- dence is sufficient ; for power gives dominion, and is the ulti- ma ratio of it. As between men and other animals, it may be put upon the ground of mutual benefit ; but except in the case of the dog; the benefit would seem to be all on the side of man. The dog, of every species, seems by his at- tachment to man, and by the mutual interest of both, to be associated with hian ; but it is as subservient, to which con- dition, he seems willing to submit, that their mutual inte- rest can exist. In fact, supposing a mutual benefit to exist on the side of any other animal from his association with man, it can only be under the idea, and on the actual ground of subserviency to this the lord of the creation. But can his right not only to the services of these animals, but to their lives be shewn by the light, or be derived from a law of nature ? the carnivorous teeth of man, may be re- curred to as the same evidence which nature exhibits in the brutal creation. Beast devours beast; and fish and fowl, even those that have not teeth, prey upon the inferior, or in other words the weaker as a law of their nature* But as between men, and those whom he can subdue of his own species what is the law of nature. All respect their peculiar species, but it is confined to animals of the same species. For though dog xvill not eat dog, as the proverb is yet he is hostile to the fox, which is not far removed from his kind ; perhaps not farther than man is in many instances from man. But though it may not be a law of nature that men should devour such as are in the shape of men, yet what hinders to compel their services if they have it in their power ; more especially if at least one side is benefitted by it, which is disputed. For tlie holder of a slave is said by moralists to be equally injured by the holding, with the slave himself. Bat this leads to a disquisition into which I shall not enter. I shall confine myself to consider the sovereignty 122 ' Law Miscellanies. of man over the inanimate creation or th^ earth itself. Of \\\\% right of dominion \htvft is some evidence, above brute animals, in favouB of such as cultivate the earth ; because it is ameliorated or made more productive, by the skill and labour of such. But as to savages who do not cultivate the soil, or sustain themselves to much extent, by that means, they are in the same situation as to this evidence of right, with the beasts. This leads to the question as to the right of men be- tween themselves, with regard to portions of the earth. I have discussed both this and the preceding question elsewhere ; and which discussion I shall save myself trouble by insert- ing here. It is from a miscellany entitled Gazette Publi- cations. It comprehends also some thoughts with regard to the discovery of a soil, as giving some priority of claim. " The right of Grc.\t Britain to the soil of North-Ame- rica, founded o\\ the first discovery of the coast, however just in its natui'c, yet was limited in its extent, by the right of the natives, and the right of other nations. The right of the natives has been generally supposed not to limit but ex- clude all others. For the law of nature vests the soil in the first occupant, and these from the earliest times had possessed the country. But fs\\-A\\. a few tribes thinly scattered over an immense continent retain possession of it, while other parts of the globe are overcharged with inhabitants ? To set this matter in a clear point of view, we shall re- vert to the origin of that right which all men have, in com- mon with each other, to the earth, the water and the air; and this we shall find in the extensive grant to the first pair, and in them equally to all their descendants. This grant is recorded in the first chapter and the first book of the sacred law ; And God blessed them^ and God saidunto them, be fruit- ful and multiply and replenish the earth, and subdue it : aiid have dominion over the psh of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth. The words of this grant convey no righ; of primogeniture, or any other right by which one man may occupy a larger portion of the soil than his neighbour ; for rights of this kind Law Miscellanies. 123 are the establishments of civil policy, and can have no place between individuals in a state of nature ; or between differ- ent nations, who are in a state of nature ; with relation to each other. The unequal distribution of the soil, would disap- point the manifest intention of the grant, which was to peo- ple and improve the earth ; for it is unfavorable to popula- tion that societies or individuals should possess a greater quantity of soil than is necessary for their own subsistence. To apply this to the aborigines or native Indians of Anie- rica : Shall these tribes, inferior in number to perhaps one twentieth of the inhabitants of Europe, possess ten times the territory f It will be said that their manner of life makes a greater quantity of soil necessary. They live by hunting, and though their tribes are thinly scattered over the conti- nent, yet the whole is no more than sufficient for a hunting ground ; nay, with even this extent of country their subsist- ence is precarious, and they frequently experience the seve- rest rage of famine, when the wild animals that make their food are rendered scarce, or have withdrawn to a different forest of the country. But do the laws of revelation or of nature leave every man at liberty to use what manner of life he pleases? This will deserve some consideration. Before the fall, the earth spontaneously brought forth every herb and every tree for the use of man, and we may reasonably presume, that without cultivation it would then support a larger number of inhabitants than it can at present with the utmost labour we are able to bestow upon it. In this state of things it was not necessary to exercise the arts of in- dustry ; but when the curse attendant on the lapse of Adam, " glanced aslope upon the ground," and it became sterile, the cultivation of it was enjoined on man, not only as his punish- ment, but as now the only me^ns by which he could support himself, and comply with the conditions of the grant, " re- plenish the eartii and subdue it. Th - Lord C^cd scut him (the first man) forth from the garden of Eden, to till die ground." I acknowledge in the early times the cultivation of the ^rth was not so immediately enjoined as necessary ; for the 424 Law Miscellanies. few inhabitants might live by pasturage, and for some space- of time posterior to the general deluge, when the flesh of animals was given to the use of man, they might subsist by hunting; but on the closer settlements of families and na- tions, this manner of life became impossible to one, without engrossing more territory than could be spared to another, and as all could not subsist in this manner, no one had a right to claim it as an exclusive privilege. The law of nature, where the law of revelation is not known, sufficiently enjoins on every man that he contract his claim of soil to equal bounds, and pursue that manner of life ^hich is most consistent with the general population of the earth, and the increase of happiness to mankind : and it will easily appear that the mode of life by pasturage or hunt- ing, requires a more extensive territory than by agriculture ; and at the same time from the very circumstance of thin and scattered settlements in that state, the powers of genius are inactive, the arts and sciences remain unknown, and man con- tinues to be an animal differing in nothing but in shape from the beasts of prey that roam upon the mountain. The life of these is therefore not human ; for it is abhorrent from the way of life which God and nature points out as the life of man. " The Lord God sent him forth to till the ground ;'* and common reason has discovered that from the goodness and benevolence apparent in the whole creation, and from that provision made abundantly for every creature, it must be most agreeable to the Creator that the earth be stored with inhabitants ; and that in order to this end, a way of life be chosen in which individuals or particular na*ionSt may subsist with the least extent of territory. The aborigines of this continent can therefore have but small pretence to a soil which they have never cultivated. The most they can with justice claim, is a right to those spots of ground where their wigwams have been planted, and to so much of the soil around them as may be necessary to produce grain to support them, their families, in towns up* on , he coast, or in the inland country, where they have inha- Wted. Perhaps they may have some priority of right to oc- Law Miscellanies. 125 cupv a different country, should it be their choice to change the situation where former circumstances may have placed them. The continent of North- America may therefore on the first discovery of the coast, by any civilized European na- tion, be considered as, the greater part of it, a vacant country and liable to become the property of those who should take the trouble to possess it. Nevertheless I do not mean to justify the waging an unnecessary war against the na- tives, or the extirpation of them altogether ; but vet I would justify encroachment on the terrritory claimed by them, un- til they are reduced to smaller bounds, and undf r the neces- sity of changing their unpolished and ferocious state of life, for fixed habitations and the arts of agriculture. At the same time I think it still adviseable to purchase from them, if it may be done conveniently ; because it is a dictate of humanity to decline insisting on the full extent of anv claim of property, if it may involve the shedding of the blood of those, who though sunk beneath the dignity of human nature, yet bear the name and are seen in the shape of men. From the whole of this reasoning it will be evident, that the right of Great- Britain to the soil of this continent, in consequence of the first discovery of the coast, was limited bv the rights of the aborigines or native Indians found upon it, but it was limited in a small degree, and the greater part of this immense territory was then in strict view of revealed and of natural law, without an owner or inhabitant. The right of Great-Britain to the soil of North- America, limited by the right of the natives, was also limited by^ the right of other nations. The terms of the grant made to Adam, and renewed to Noah, equally embraced the whole of their descendents. The earth lay in common, and the occupancy of a portion of the soil, was that alone v,'hich gave to individuals an exclusive right to hold it. We must restrict the right of occupancy to a mo;l. rate portion of the soil, because it is inconsistent with the original condition and express purpose of the grant, that an individual, or a nation should possess a more extensive tract of country, than is ne« 126 Law IMiscellanies. , cessary for their particular subsistence. I have no douljt but that a nation greatly populous, whose numbers overcharge the soil, have a right to demand territory from a nation in possession of a soil equally fertile, and less abounding with inhabitants. From the position which we have established, that it is the occupancy of a portion of the soil necessary for subsist- ence, that alone gives a right to hold it, it will follow that the circumstance of having first visited a country cannot give a right to any greater portion of the territory than is necessary for subsistence; and not indeed to any portion of it, unless the visitant remains to occupy and dwell upon it. Perhaps it may confer a priority of right to occupy the soil while it shall be unoccupied by any other visitant. We shall be sensible of this if adverting to the early emigrations, wc consider that it would be absurd in Japheth the eldest son of Noah, wandering westwards from the mountains of Armenia, where the ark rested, to have ad- vanced a claim to two or three countries, because in his v/ay of life by pasturage or hunting, he had first passed the mountains, or first visited their boundaries. The right of discovery was unknown in term or idea to the early ages, and it came first into view on the modern improvements in the art of navigation, when several of the sovereigns and states of Europe fitted out vessels to explore. the seas, and to make discoveries. The expence and labour of the enterprize, would seem to give a right to the soil of that continent or island Virhich they had discovered. But it may be said that an exclusive right of this kind would be unfavourable to the settlement of that country, and there- fore could have no place even amongst the sovereigns and states of Europe, who by tacit and implied consent had sub- mitted to it. Much less could it have a place amongst the claims of other nations of the world, who in no way, by di- rect assent or implication, had come to such agreement. In the mean time it will appear from histor)', that the claim of right, founded on the first discovery of the coast, was usurped by several of the sovereigns and states of Europe, rather Law Miscellanies. 127 than acknowledged by the others, who had not been equally adv'eatur:>us or succcessful in expeditions of this nature. The Swedes and Dutch seem to have paid no regard to the clainaof Britain, founded on the first discovery of Sebastian Cabot, who coasted North -Am erica ; for maugi-e his claim, the Ditch took possession of the country of New- York, and the S vedes of Pennsylvania. No state or individual ought to have regarded it ; for no expence, enterprize, or labour of a nation, or of any individual, can give a right which in its operation would defeat the end in view by the Creator, which was, that the earth be fully stocked with inhabitants. To this great end, every claim and institution of a partial nature ought to be subordinate. The claim therefore of the first adventurers could with justice only be to so much of the soil, as they themselves immediately should occupy, and plant, and settle with inhabitants.— These things may be said plausibly ; but it is to be considered that from the heart of Asia where man was first planted, it was an easy thing to emigrate and discover new countries. Hence it is that a pretence of right, from the first discovery of a country, would, in these early ages, have been vain, and we hear no- thing of it. But when the whole eastern continent, and the islands of the coast had been visited and planted, it became an object of the industry of man, and required much saga- city, fortitude, and persevcr?.nce to explore the ocean, and effect discoveries. It was at the same time an affair of no small expence to fit out vessels for the voyage. For these reasons natural justice would seem to give to the adventurers not only a priority of right to occupy a newly discovered country, but also a right to demand from others some consideration in services or monev for admission to it. The only reason to be urged against the claim from dis- covery is, that it is not favourable to the population of the earth that individuals, on any pretence whatsoe\\*r, should hold a greater portion of the soil, than is necessary for their p?rtrcular subs-stence. But it is to be considered, that it is favourable to population, because it is unfavourable to the 128 Law MiscELLANifeg. discovery of unknown regions of the earth, that the indi- vidual who by much labour and expence hath effected the discovery, shall nevertheless enjoy no advantage resulting from his ingenuity and enterprize, but a priority or right to occupy an equal portion of the soil with him who, led by the information of the first navigator, shall come to set- tle on it. The best argument in favour of the right of a first discoverer, will therefore be, that by giving due en- couragement to men who shall search the globe by sea and land, and discover new soil, the whole earth will become peo- pled, and it seems to be the will of the Creator, that the whole earth be stocked with inhabitants. " Tenant, in dower is where the husband of a woman is seizeJ « of an estate of inheritance and dies ; in this case the wife shall " have the third part of all the lands and tenements whereof he " was seized at any time during the coverture, to hold to herself «forthetermof hernatural life." 2 Bl. Com. 129. With respect to dower, the act of Pennsylvrnia, of 179^ adopts the quantum allowed by the common law where there is 'a widow and lawful issue, viz. one third of the real estate for and during her natural life ; but in the case where there is a widow and no lawful issue there is a different provision. Sec. 4. *' If the intestate shall leave a widow, and no lawful issue, the said widow shall have one moiety or half part of the real estate, including the mansion house, during her natu- ral life, except in cases, where, in the judgment of the Or- phan's court the estate cannot with propriety be divided ; and in that case she shall have and receive the rents and pro- fits of one moiety of the real estate during hernatural life.'* And concerning " the manner in which a woman is to be endov/ed," by the same act, Sec. 22, it is provided, that upon petition presented to the justices of the Orphan's court of the county in which the lands lie, by the widow or by any of the Law Miscellanies. li29 childfen of the intestate, or guardian, or next friends, if un- der age, the justices are empowered to appoint seven or more persons, indifferently chosen, on behalf and with consent of the parties, or where the parties cannot agree, to award an inquest to make partition ; according to the purport and true meaning of the act. These persons having made the inquisition are to make a return of it to the justices who are impowered then to give judgment, that the partition thereby made do remain firm and stable for ever. But, where the estate, &c. cannot be divided without prejudice or spoiling the whole, the said seven or more per- sons, or the said inquest as the case may be, shall make a just appraisement thereof to the Orphans Court. After this, but not otherwise, the court may order the whole to the eldest son, or any of the other sons successively if they ne- glect or refuse ; if no son, or all neglect or refuse, to the eld- est daughter, &c. in the same manner^he, she or they, or some friend legally authorised, paying to the other children their equal and proportionable part of the true value of the estate, according to the appraisement. But where the widow is living, and the whole premises are so adjudged, she shall not be entitled to the sum at which her share is valued, but the sum and the interest shall remain charged upon the premises, the child to whom the estate has been so adjudged to pay the interest annually to the mother during her natural life, in lieu and in full satis- faction for her dower at common law. The law of Pennsylvania is different from that of England, as to the way in which a fern me covert may be barred of her dower, bj' levying a fine, or suffering a recovery of the lands during her coverture ; but which with us depends up- on an act of assembly of 24 Feb. 1770, which is by appearing *' before one of the judges of the supreme court, or before any justice of the county court of common pleas, of and for the county wHere the estate conveyed lies, and to acknow- ledge the conveyance, the wife being examined separate and R f36 La^ Miscellanies. apart from her husband," &c. Whether this respects the lands of the femme in her own right before marriage ; or ht r right of dower acquired in the husband's estate by her marriage had been distinguished ; but it has been determin- ed by the supreme court with a reference to both. For this see 1 Bin. 470. " How dower may be barred or prevented." II Bl. Com 136. THE question of a devise given in Hen of doxver and the enjoyment of the devise, and which might be construed an acceptance barring dower was considered by the court in the case of Webb and wife, v. Evans, reported 1 Bin. 565, in which I am represented as concurring. I concurred in holding it under advisement^ but not in giving judgment; but dissented in my mind from the opinion of Yeates and Smith justices, and during the vacation had drawn up my reasons ; to be delivered at the subsequent term ; but judgment in the mean time being entered on the opinion of these judges ; or in some way it happened that I had not an opportunity. It was not material, as my dissent would not have altered the decision of the court. Nor did I dissent so much from the law generally as laid down, but in the application of it to the particular case. But what 1 take to be a very material alteration of the common lawhy our act of assembly of the 4th April, 1797, was not noticed in the opinion as reported of the court; and for that reason I subjoin my note. It is the common laiv " that where a devise is expressed to be given in lieu and satisfaction of dower ; or where that is the clear and manifest intention of the testator, the wife shall not have both, but shall have her choice." Harg. Co. Litt. 366. By our act it shall be taken to be in lieu of dower unless ex- pressed to the contrary. My note on the case, as drawn up ^Yas as follows. i Law Miscellanii.s. 13i " It is impossible for me to entertain any doubt in this case of the testator's intention, which was that the devises under the will should be in lieu of dower. The strongest circumstance against this, is the limiting the use of part of the messuage, and providing her with firewood, and keeping horse and cow, &c. to the time during which she shall re- main a widow; which might lead to the conclusion that should she marrv, she might determine this enjoyment un- der the will and recur to her dower. And I will admit, that I know of nothing on principle to hinder this ; for though the right of dower accrues on the death of the hus- band, it is not necessary that the claim be made on the death ; and certain enjoyments may be given, and used in lieu of a suspension of the claim; but it would not seem to me that this could be the meaning of the testator here. But that he limited these enjoyments during widowhood, in consideration that on marriage even should that happen im- mediately on his decease she would have at least four years and eight months before the eldest son came of age to en- joy the whole, and dispose of the issues ; and seven years more to enjoy the one half, before the youngest son was of age, and after these sons both came of age, if married, she would have a husband to take her with him ; or having had the issues for so long a time, she could pro- vide for herself and him both. It is true she would have had to provide in the mean time for the maintenance and education of the children ; but the eldest son, who would at the death of the testator have been turned of sixteen, could have been no charge, on either of these accounts, but must have been worth wages at work on the plantation. The second son'turned of nine years, could not have been long, a burthen, but on the contrary soon v/orth more than his maintenance and education : such education as the testator*s grade of education himself, must lead us to presmne he, con- templated. The legacies to the three daughters were not payable, but respectively as they should arrive at the age of eighteen years. Thq eldest then of the age of thirteen, and somo 132 Law Miscellanies. months ; so that there would have been the use of her legacy £150 for near three years before she came of age, and also of her own services, which considering the situation in life, of the testator, and the customs of the country, must have exceeded her support. The same could not be said with re- gard to the two youngest who had the like legacies ; but who were of the ages of not more than four and two years. But the inventory of the personal estate, exclusive, as I under- stand it, of what was specially devised to herself, for though she is directed to appraise the personal estate, and to take it at a moderate valuation, and out of it to pay legacies, yet he could not mean that it should be necessary to appraise what was specifically left to herself; I say the inventory exclusive of this, and paying debts, amounted to the sum of ^^1000, and taking out of this the sum of £i50, the legacy to the married daughter Hannah, there would remain £ 850 and the use of this until the three younger daughters came to their ages re- spectively to receive their legacies ; so that there would be considerable pickings out of this property, for a great length of time, especially when we take into view, the issues of the real estate in her possession, in a part of the country of good soil and generally highly cultivated, and not far from mar- ket, being, in the neighbourhood of Lancaster. Adding to all this, the personal estate bequeathed to her, I can enter- tain no doubt of the intention of the testator that he consi- dered himself as making a disposition which should be in lieu of dower ; and I think that in justice, she ought so to consider it. I know the language of the law, that to bar the claim of dower, the quantity of a bequest is not sufficient ; but it cannot but be a circumstance that will weigh, in con- sidering the intention. But this is not the only circum- stance here ; for though I will not say that the dispositions are absolutely inconsistent with the taking dower after the youngest of the two sons coming of age, which would be the time at farthest that she would be likely to claim it, when if married, she must claim it ; for in that case her use of the real estate would determine as to the whole, and the enjoy- ments provided diinngher widowhood, wouW ceaee ,; yet ne- Law Miscellanies. 133 vertheless, on the score of the manifest intention of the tes- tator, and her taking under the will and acting under it, I would hold her bound by it. Dower is favoured in law ; and a good deal, from the early times, on this principle, that the personal estate was usually nothing, and it was on her dower only that the widow, could be supported. Hence the greater care in the provisions of the law for facilitating the recovery of dower, and the liberality in the decisions of courts in favour of it, the application of the strictness of which did not so well comport with a different nature of pro- perty ; and hence an act of the legislature of this state, of the 4th April, 1797, Sec. 10, which provides "that if any testa- tor after the passing of this act shall devise, or bequeath to his wife any portion of his estate, such devise, and bequest shall be deemed and taken to be in lieu and bar of her dower out of the estate of her deceased husband, in like manner sis if the same were so expressed, unless the testator shall by his last will and testament declare otherwise, any law, usage, or custom of this commonwealth to the contrary in anywise notwithstanding." In this, as in many other cases, the legislature has been under the necessity of changing the law, from what it stood on decisions ; aud perhaps it could not trtherwise be done, the courts thinking themselves bound by what had been determined to be law by decisions ; though, by the by, the deci-sions were never more than evidence of princi- ples, which are supposed to exist in the law, before the decision is made according to them. But accordingtothisevidence,that of decisions, the courts of this commonwealth would seem to have thought themselves bound to say, that notwithstanding the evidence of intention, if not express, or necessary, and incontrovertible from circumstances ; or inconsistent with the taking under the will, dower should not be barred ; yet «o far as my knowledge of the understanding of the country went, this idea of the law was contrary to the general under- standing ; and it is evinced by this act of the legislature which I take to be precisely recognizing v/hat was the ge- neral understanding. For surely no man who made a will, and made these arrangements, in the disposition of his pro- perty, did imagine that it could be broken in upon, or that 134 Law Miscellanies. there could be superadded to it, a legal claim of dower. I know that this case does not come under the act of assenbly ; but I think myself at liberty to decide it in the spirit of it, and that latitude which I take it, the courts are warranted to take in the application of decisions to the nature of circum- stances; and it is in this sense that the charter to William Penn, grants the privilege of enacting lav/s, provided nevertheless that the said laws be consonant to reason^ and (as near as may be conveniently) agreeable to the laws, statutes, &c. of Eng- land. And I take it that the courts of justice which by the same charter the legislature of the province had a right to establish, and the judges, in the application of the decisions of the common law must be considered as having a like latitude; and in fact it would seem to be so contemplated by the charter ; for the word " laws" in this section, would seem to refer to the decisions of the courts as well as to the acts of the legislature. It is only the common law^ and such of the statute laws of England, as have heretofore been in force, that after the declaration of our independence, is introduced by the act of assembly of the 28th of Jan. 1777 , And I refer the '"''heretofore in force''* to the v/ords eonimon law, as well as to the statute laws, though in strict gramma- tical construction, it can refer only to the statute laws ; but there is the same reason, for a reference to both ; and I ad- mit that decisions are evidence, and I will not contend but that they may be evidence of the most weight in deciding what of the common law was in force in the province, but they are not the only evidence ; for the reason of him who has to decide on the application of a principle is also evii dence. But without overthrowing English decisions ; but apply- ing without an adstriction to the mere letter, I cannot but be of opinion that there is enough in the circumstances of this case to warrant the inference that they amount to a declaration plain of the testator's intention ; and though the testator could not by his will, deprive the widow of her dower, yet as she has an interest under the will in the devise of personal estate, and a great interest coupled with the trust, Law Miscellanies. 135' and she accepted both, it" would seem that she ought to be considered as accepting in lieu of dower. But supposing the widow to have a right to dower, da- mages being given, and the dying seised having been found by the jury, and not having been laid in the declaration so that it can be considered as found, and the dying seised, or the having been seised, which is the same thing, being ne- cessary to be found, to entitle to damages, I need not consi- der this, being of opinion on the principal point that the ver* diet ought to have been for the defendant. II Black. Com. 140. THE calender which is now generally adopted in the chris- tian world, owes its origin to Romulus. Imagining the sun performed J^is course through all the seasons in 304 days, he divided the year into 10 months, making it to begin in the spring on the first of March. Numa giving the year ^55 days, added two months, and transferred the beginning of the year to January. As this was still making the year too short, intercalary months were to be occasionally added. This producing confusion, Julius Csesar with the assistance of the mathematician Sosigenus, undertook to rectify it. Taking up all the days which had been lost by the former method of reckoning, he formed one long year of 15 months or 445 days. After this had terminated, the julimi year com- menced, January 1st. B. C. 46. As the annual revolution of the sun is completed in 365 days and about G hours he made the year to consist of 365 days, adding a day ia every 4th year, to the 23d of Feb. or the 6th of the Ka- lends of March, which was to be tv/ice reckoned. Hence bissextile, or leap year. The Julian year however, was still imperfect ; for as the sun perforins his annual revolution or rather the earth per- forms its annual revolution round the sun, not exactly in 865 136 Law MtscEiLANiet. days 6 hours, but in 365 days 5 hours, 48 minutes and 4S\ seconds, the solar year was shorter than the civil year by 11 min. 14| sec. which in the space of about 130 years amounted to a whole day. This inconvenience becoming in the course of time too considerable to be unnoticed, Pope Gregory XIII. after unsuccessful attempts by former Popes and councils, abrogated the ancient Calendar and substituted a new one called the Gregorian Calendar or new style. Itwas published in the month of March, A- D. 1582. Ten days which had been gained by the old reckoning were taken from the month of October of that year, and the equi- nox brought back to the 21st of March as it had been set- tled by the council of Nice, A. D. 325. And in order to prevent a recurrence of a similar variation, every succeed- ing hundredth year was not to be counted a leap year, except every four hundredth year which should as usual be consider- ed as a bissextile. Thus by making the years 1700, 1800, and 1900, common years instead of leap y.ars, the error arising from the odd time would be corrected. The neW style was adopted in Spain, Portugal, and part of Italy, oft the same day as at Rome ; but it was not received in France until December, when the 10th was reckoned the 20th day^ according to letters patent of Hen. III. In Great Britain such were the popular prejudices against it, that it was not easily admitted. However, as the inconvenience arising from the two modes of reckoning was much f«lt, an act of parliament in 1752 was obtained for this purpose. As 170 years had elapsed since the Gregorian alteration took place, the old style had consequently gained above a day more upon the course of the sun than it had when Gregory first pro- mulged his alteration. It Avas therefore enacted that instead of cancelling 10 days, 11 should be left out of the month of September. On the 2d day of that month the old style ceas- ed and the next instead of being the 3d was called the 14th. By the same act the beginning of the year was changed from the 25th of March to the first of January. Law Miscellanies* 13/- By an act of the assembly of Pennsylvania, 11th March, I752y the act of parliament entitled " an act for regulating the commencement of the year, and for correcting the calen- dar now in use," was introduced, which provided, " that in and throughout all his majesty's dominions, &c. the suppu- tation, according to which, the year, &c. beginneth on the 25th of March, should not be made use of from and after the last day of December, 1751, and that the first of January next following the said last day of December, should be reckoned, &c. to be the first day of the year 1752, and so on, from time to time, the first day of January' in every year, which would happen in time to come should be reckoned the first day of the year ; and that each new year should accordingly com- mence and begin to be reckoned from the first day of every such month of January next, preceding the 25th day of March on which the year would, according to the supputation aforesaid have begun or commenced ; and that all acts, deeds, &c. &c. &c. which should be made, &c. upon or after, Sec. to bear date according to the new method of supputation, should be judged and taken as valid and effectual in law, as if ac- cording to the former supputation." A provision is made in the same law relative to the call- ing the months^r*^ and second^ &c. for the ease of the inhabi- tants of the then province, who scrupled to call the names of the months as they were commonly called March, Sec. It had excited no small alarm generally among the unin- formed of the people, to talk of changing the date of the year, and many scrupled to reckon by what they call the new style. I have heard it said myself even in Pennsylvania, that they might change the style, but they could not change the sea- sons, for the winter would last just as long as it used to do, let them do what they would. It was even thought presump- tuous to entertain such idea as the changing names of months, &c. Ii was considered to have its origin in some trick of the xnerchants on the continent, the Venitians in particular, for the sake of interest on accounts. I remember to have heard a learned Paisly weaver, as he thought himself, give this solu- tion of the problem. S 138 Law Miscellanies. " The nature and degrees of kindred being thus, in someinea* . '' sure explained, I shall next proceed to lay down a series of *' rules, oi canons of inheritance, according to which estates are " transmitted from the ancestor to the heir," &c. II Bl. Com. 307. Land in Pennsylvania, comes to the heir, or representa- tives under the statute of distribution, subject to the debts' of hhn from xuhom the estate has descended; whereas at com- mon law it was liable only to debt by obligation ; and this where the ancestor had bound himself and his heirs. An obligation is by writing unde» s^ral; and differs from a simple Gontracs debt^ in which case in England the land could not be bound in the hand of the heir. " When a man binds him- self and his heirs^ by obligation to pay a certain sum at a day, and dies, it is at the election of the obligee to sue the heir, or the executors, or administrators of the obligor ; and if so be that the executors have assets in their hands, yet the obligee may sue the heir if he will, because the obligor has bound as well his heir, as himself."* Hence the form of an obliga- tion, I bind myself and my heirs ; or I bind myself, my heirs, executors, and administrators, which is unmeaning in Pt nnsylvania, where a man binding himself, makes his re- presentatives liable, under every denomination, so far as he has left lands or personal property. This is as it ought to be, notwithstanding the wife'^s right must be affected by the principle. Lands in her own right cannot be taken for debt lafter the death of the husband, nor hi his lifetime save so far as affects profits ; nor after her death save so far as affects his right of tenant by the curtesy. But a man incurring debts for the mutual benefit of both, as it must be supposed to be, the law presuming a consideration received, it is rea- sonablf? that the wife's right of dower in lands not in her own right, should be holden liable. Nevertheless it is an inconsistency with this power in the husband to subject for debts, that he cannot alien the whole without the consent of the wife. It must be a voluntary act of her own, to convey * For all the learning on this head, see 2 Plow. 439 ; and S Tuck. lii. 418. • ' Law Miscfllanies. 13S land in her own right or otherwise, so as to affect her own right of dower. The liability of real estate for debts in Pennsylvania, de- pends upon laws agreed upon in England, and sundry acts ol assembly of the colonial provience, directly establishing, or by implication recognizing this principle. By the statutes of distribution in the case of intestates' estates, and particularly by that of the 19th April, 1794, great alterations have been made from the law of England. " Real estate shall be distributed to the lawful children of the intes- tate, such children always to inherit and enjoy as tenants in common in equal parts." This exclusive of the wife's right of dower in one tkird for and during her natural life. In esse the person dying intestate shall leave several persons law- ful issue in the direct line of lineal descent and all of equal degree to the person so dying intestate, the said estate exclu- sive of the right of dower in the widow, shall descend and be distributed to the several persons, as tenants in common in equal parts, however remote from the intestate, the common degree of consanguinity may be, in the same manner as if they were all daughters of the person so dying intestate : and in case the intestate shall leave lawful issue of different degrees of consanguinity to him, or her, the said estate shall descend to the lawful child, or children of the intestate, if either, or any of them shall be then living, and to the lawful issue of such of the children as shall be then dead, leaving lawful issue, as tenants in common, in equal parts, such share only as would have descended to his or their parent, if such parent had been then living ; and each of the lawful chil- dren of the intestate always to inherit, and to receive such share as would have descended, and been distributed tohira, or her, if all the children of the intestate who shall be then dead, leaving lawful issue, had been living, at the death of the intestate : and if there be no child of the intestate living at the death of the intestate, and only a grand-chdd, or grand*- children who shall be then dead leaving lawful issue, then the real estate shall descend to such grand-child, or grand- children of the intestate, and to the lawful issue of such of tho 140 Law Miscellanies- grand children of the intestate as shall be then dead, leaving, issue as tenants in common, such issue always to inherit if one person, solely, and if several persons, as tenants in com- mon, in equal parts, such share only as would have descended to his, h'.r, or their parent, if such parent had been then liv- ing. And each of the grand-children of the person so dy- ing intestate, who shall be living at the t.me of the death of the intestate, always to inherit and receive such share as would have descended, or been distributed to him, or her, if all the grand-children of the intestate who shall be then dead, leaving lawful issue, had been living at the time of the death of the intestate and the same law of inheritance and distribution^ shall be observed in case of the death of the grand-children, and other descendants to the remotest degree." The words distributed and distribution refers to the per- sonal estate which takes the like course. The provisions are interwoven, and are the same, but having in mind only the variations from the law of England in the case of real estate, I have dropped in the act what refers to personal* The 4th Sec. of the act respects the intestate leaving neri(jr jurisdiction to that of the common pleas which remains attached to the court of quarter sessions, or connect- ed with it, in so far as the component members are judges of both courts. This district court may be considered su- perior, as to the sum in demand ; for it takes cognizance of higher demands ; the jurisdiction of the common pleas at- tached to the sessions being limited to the amount of the justice's jurisdiction ; so that appeals from them, or certi- oraries directed to them, make the subject of the jurisdiction ; whereas that of the district court begins here and is without limit. This last court is but of a temporary duration of six years, by the act constituting it ; but such is its evident uti- lity, or, rather necessity, that, doubtless, it xvill be made per- manent. The supreme court still continues to have original \ur\^- dictlon in the city of Philadelphia, in matters exceeding 500 Law MiscELLANiEi. 165 dollars ; and for this purpose, courts of nisi prius are holden ; but it is expected, that at no distant day, these will be taken away ; and, this court, as it ought, will then exist a court of errors and appeals merelif. This is all that is wanted to rend-:;r the system perfect ; so far as respects arrangement, and the distribution of powers and duties. The supreme court has an immense jurisdiction independent of the trial of issues in fact. It has " to examine and correct all and all manner of errors of the justices and magistrates of this pro- vince (now state) in their judgments, process and proceed- ings in the said courts, as well in all pleas of the crown, as in all pleas riral, personal, and mixed ; thereupon to reverse or affirm the said-judgments as the law doth or shall direct: and also to examine, correct and punish contempts, omissions and neglects, favours, corruptions and defaults, of all or any of the justices of the peace, sheriffs, coroners, clerks and other officers ; and also shall award process for levying fines, for- feitures and amerciaments, that shall be estreated into the said court J and generally shall administer justice to all per- sons, and exercise the jurisdiction and powers hereby grant- ed concerning all and singular the premises according to law, as fully and amply, to all intents and purpose whatsoever, as the justices of the court of king\'i bcnch^ common pleas and exchequer^ at Westminster, or any of them may or can do. This system I consider good in the outline, but it wants some filling up, to do the system justice. For as to the quantum of duty; or I might rather saj', drudgery that de- volves upon such of the district presidents, as have more than three counties to attend, it is oppressive ; and, the sala- ry, in proportion to such labour, totally inadequate. It is the more so, as most of the districts comprehend a moun- tainous country, in the interior of the state. This ought to receive a remedy. For the system has not a fair chance of experiment under such disadvantage. As to the supreme court, two judges added, in due time, will be advisable, as the finances of the state increase, and the public mind becomes more enlarged as to the importance 166 Law Miscellanies. of having the law settled, ivith the advantage of more judg- ment ; or at least more to judge. . I object to ybi/r judges ; even three 2ire better than an equal number ; — Imparl numero gaudet deus. In the city of Philadelphia, it has been suggested that a maritime and commercial court, so called, might be constitu- ted, taking cognizance of all transactions of that nature, which in this growing and trading metropolis, might be ne- cessary with writs of error to the supreme court. Courts of arbitration, as they may be called, are ancillary to nil the courts ; and with some lopping and improvement, this part of the system might receive approbation. We have no chancery court in Pennsylvania : nor do we feel any great want of it; for equity is a part of our law; and all our courts exercise equitable jurisdiction^ with the ex- ception of an appeal to the conscience of the party, and the decree of a specific performance, which under the constitu- tion, might be given, in the proper cases to the courts of law. The act establishing a court of chancery in Pennsylvania, was passed the 28th of May, 1715, and repealed by the lords justices in council the 21st July, 1719. It is understood to have been adjudged that the proceedings which took place under the said act before its repeal, were binding. By an act 22d May, 1722, Sec. 25, special courts are grantable to defendants in the common pleas ^hy reason of sud- den departure out of the then province, now state. By an act of 10th April, 1782, the privilege of having a special court was extended to plaintiff's as well as defen- dants J and to cases in the supreme court as well as common pleas ; but was again taken from the plaintiffs by an act of the 27th March, 1789. By an act of 1 3th April, 1 791 , a court of errors and appeals had been constituted, consisting chiefly of the presidents of districts. To these severally writs of error were directed, in the first instance, from the supreme court ; and in the last resort from these conjunctively to the supreme court. So Law Miscellanies. tsV that each could have his revenge for a reversal of his several judgnients, by a voice in the consistory of the -whole in the reversal of the supreme judgment. In this constitution of the judiciary, there was something like a resemblance of Cot- tom Mathew's snake in his report to the philosophical socie- ty, that ran with its /^fo/ foremost one while, and with its tail foremost afterwards. By an act 24th Feb. 1 806, this court was suspended as " to sustaining any new cause," and after holding two terms for unfinished business t« be then abolished znd the poAxrs and duties to be vested in the supreme court. By an act of the 20th March, 1801, what were called circuit courts, were substituted in lieu of courts of nisi prius^ so far as respected the counties exclusive of the city and coun- ty of Philadelphia. This court was found unwieldy and in- convenient, and has been since abolished; and without a revival of the nisi prius courts ; for which, under the consti- tution of the courts by presidents ©f districts there would seem now to be no necessity. " The high court of chancery is the only remaining, and, m. " matters of civil property, by much the most important of any, *» of the king's superior and original courts of justice." Ill Bl. Com. 47. IT will naturally occur to the student, to enquire, what have we to do with chancery lezv in Pennsylvania, since we have no court of chancery? We have to do with it; and the student after a course of reading general lazv, will come to read treatises^ tracts, or reports of equity law. As for in- stance, Fonhlnnqiie^ or the treatise on equity, referring to Aikyn's, Peere William's reports. See. For equity is no- thing more than exceptions from general rules. Thus we say, such is the general rule ; but this case does not come v/ithin it. There are circumstances which distinguish^ so that the general rule canaot apply. The court of chancery in Eng- 16S . Law Miscellanies. land, takes a peculiar cognizance, or exercises a peculiar ju- risdiction over these exceptions^ and therefore the law with respect to these, is to be collected from the chancery reports. And it becomes as necessary to read these in this state where we have no chancery court, as in England, or in other states of the Uiiion, where they have. It is asked by lawyers from other states, or reflecting in- dividuals, how are we able to accomplish the ends of justice in our administration of the law, having no court of chancery in Pennsylvania ? Why not? Cannot the same courts which take notice of the general rule of the law, take notice also of the exception which forms an equity^ or takes a case out of the general rule ? We have an advantage over administra- tion of the law by courts of chancery in England, or in other states, in this particular, that we have the assistance of a jury to whom the Jcicts may be referred upon which constitutes the exception, and upon which the equity arises. This is a great aid to the courts, and more satisfactory to the people. It cannot but be some abridgment of the trial by jury^ that the conclusion of fact from the evidence should be drawn in jmy case, by the courts and not by the jury. By the constitution of Pennsylvania, art. 5, sec. 6, " the supreme court and the several courts of common pleas, be- side the powers heretofore usually exercised by them^ have the power of a court of chancery so far as relates to the perpetu- ating testimony, the obtaining of evidence from places not within the state, and the care of the persons, and estates of those who are not compotes mentis : and the legislature shall vest in the said courts, such other powers to grant re- lief in equity as shall be found necessary ; and may from time to time, enlarge, or diminish those powers, or vest them in such other courts as they shall judge proper, for the due administration of justice." Our courts of law before this constitution, had exercised the powers of a court of chance- T}', as to the equity province of it, and we look into the grounds of decisions there, as much as the lawyers in England themselves do; and as to the farther powers giv- en by this constitution, for perpetuating testimon) , he. we Law Miscellanies. 169 look into the precedents^ and practice of chancery as guides, where we choose to make use of the wisdom of those who have gone before us. There is no book therefore of chancery law, which may not be useful to the student ; and necessanj indeed, in most cases to be consulted, and read. Ill Bl. Com. 98. THERE being no ecclesiastical court, or equity court in Pennsylvania, which have a concurrent jurisdiction in the case of legacies ; acts of assembly became necessary on this subject. That of the 21st March, 1772, entitled an " act fof the more easy recovery of legacies^ is that under which we proceed against executors, or administrators. And this may be by action on the case, debt, detinue, or account rendered, as the case may be, for such legacy after it becomes due ; and in that case shall recover with costs. It may be debt where it is a sum certain, and assets after debts paid, exist, suffici- ent to discharge ; or it may be case for the part of the sum after debts paid ; or case, and not debt, for the whole, as for money had and received to the use, giving special notice of the cause of action. But in the case of a specific chattel, it must be detinue; or on the case for the detention of, and pray- ing damages, not for the detention but for the value. The term devise is appropriate to real estate ; legacy to personal. This distinction also, in the use of the terms, devisee^ and legatee ; devise^ and bequest^ &c. of which let the student take notice who would wish to be cor- rect, as all ought to be, in the use of terms. As for instance, evidence is a general term which applies to xvrit- ten^ and viva voce of witnesses ; but testimony is applicable to that by witnesses ; and it is not correct to say an evidence^ but a witness, I always think it an evidence of want of precision^ and a distinguishing mind, where a lawyer at the bar, does not attend to this ; for it may be said, in this, aa in other matters of lesser moment, Y 170 Law Miscellanies/ Inest sua gratia parvis. It will be seen, that by our act, Sec. 7. where no time is limited, for the payment of a legacy, the executor, or admi- nistrator shall have the space "of one year to discharge the same." An executor is considered as a trustee in England for creditors, legatees, &c. and under this idea it is that the court of equity takes jurisdiction. How far he is a trustee for the next of kin as to the residuum, after all debts and legacies have been discharged, see the chancery decisions on this head. The claim of the executor in this case has been much reduced, and would seem to be in a fair way to come to noth- ing. But it is astonishing that in Pennsylvania, where by act of assembly a compensation had been allowed for his trouble, at the discretion of the orphans court, yet it was not until May, 1811, in the case of Wilson v. Wilson, 3 Binney, 557^ that it was finally settled that he was not entitled to claim for himself, but as to the surplus was to be considered a trustee for the next of kin. " Some agreements indeed, though never so expressly made, " are deemed of so important a nature, that they ought not to rest " in verbal promise only, which cannot be proved but by the me- " mory (which sometimes will induce the perjury) of witnesses." IIIBl. Com. 159. BY the act of 29 Car. 2. (1676,) entitled an act for pre- vention of frauds and perjuries, " all leases, interests of free- hold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or here- ditaments, made or created by livery and seizen only, or by parol, and 7iot put in xvriting^ and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised by writing, shall have the force and ef- fect of leases or estates at will only, and shall not either in law Law Miscellanies. 171 ©r equity be deemed or taken to have any other or greater force or effect," &c. Sec. 2. " Except nevertheless all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two third parts at the least of the full improved value of the thing demised." The act goes on, sec 4. that no action shall be brought whereby to charge any executor or administrator, &c. Our act with the same title and precisely in the same words of the first and second sections which relatt-s to real estate proceeds no farther. It would seem to be copied so far as it goes from the British statute, made near a hundred years before. Real estate would seem to have been left in the meantime, in matters of transfer, to the testimony of wit- nesses ; and having had no court of chancery, except for a short space during this period, persons contracti-ng as pur- chasers of real estate, must have been left to recover in an ejectment for the possession, or by action on the case to reco- ver damages for the non performance of the agreement. Even without writing, an action of damages would lie m England now, or in Pennsylvania before our act passed ; and in England a court of chancery would decree a specific execution of the contract where there was evidence of part execution, such as posession given, or money paid. It is a query whether the receipt for the money must not be in writing. But at all events the terms of the contract must be precisely proved. It is the same law with us on an eject- ment brought, which, in default of a chancery court, is our only remedy for obtaining the possession. We had a law before this relative to a seven years' possession entered upoa under an equitable title, which is still in force, and is a sta- tute of limitation to the claim of him in whom the legal ti- tle remains after an agreement made to convey, and delivery •f possession. IT'S Law Miscellanies. " Entered on upon an equitable righty'* are the words of the Pennsylvania act of assembly of 1705, entitled " the law about seven years' quiet possession." It will be a question with the student, what is to be understood by an equitable right. It is a right short of what is called a /^^a/ right, or a right under the general rule which gives a right to lands. This must be by a writing under seal. A v/riting not under seal; or an agreement without writing will constitute an equitable right ; but not an agreeme7it merely^ proved by witnesseSyWiW suffice. Some performance of the agreement must be proved. Will proof of the payment of the consider- ation, or z principal part of it, be sufficient ? This is a ques- tion in England, to which a query is added. But the inclina- tion of the law seems to be, that it will ; because, in such case, the parol evidence is applied to the act of receivings which is a consequence of and collateral to the act of con- tracting, and consequently affords a further evidence of the bargain, than the parol proof of such bargain only ; namely, an act done in pursuance of it, which furnishes a distinct fact, that appears to be the proper subject of discussion before a jurj% who, in such case, would be competent judges of the credit of the parties, and might, by their verdict, decide, whether the payment of money was in part performance or not. 1 Pow. Con. 306. r— S, and 4 Dall. 152. The giving possession in pursuance of an agreement, is clear evidence of a part performance, and may be proved by witnesses. The being suffered to remain in possession, and the making improvements with the knowledge of the person agreeing to convey, is still stronger evidence of the contract, and will give an equitable right. I do not well know therefore what is the use of this act of assembly. It would seem that at the time there had been a doubt whether evidence of the giving possession, not having a court of chancery in this state, could be admitted ; or if evidence of the giving pos- session could not be had, the suffering to remain in possession, for a length of time should be proof of an agreement to con- vey. This length of time was made seven years as a statute of limitation within which time an ejectment must be brought. Law Miscellanies. ITS In a court of chancery the party agreeing to convey may be called upon to say on oath whether he did not so agree. In thit case if he acknowledges the agreement, there is an end of the matter. Where possession is not given the party claiming such a contract to convey in this state where we have no court of chancery to decree the performance, and the giving a con- veyance, can have only the remedy of an action to recover damages ; but in such case, the jury will, and ought to give such damages as will compel the party to convey, by mak- ing it his interest rather than to retain the land. Note ; that it is to be understood that in all these cases of an agree- ment to convey land, the terms of the contract must be pro- ved ; the consideration ; the quantity, &c. In all these cases there must be a reasonable certainty ; perhaps a precise certainty established; for, the party claiming the benefit of such contract, without writing, ought to be held to strict proof of these particulars. By the common law a parol contract was as good for lands as for chattels. It is the statute of 29th Charles II. which was made to prevent persons from swearing verbal agreements upon others, that has introduced a distinction and the exceptions to this statute are, what is said to consti- tute an equity ; that is to admit evidence by parol. Ill Bl. Com. 199. WHAT was it that introduced the necessity of the fiction in ejectment ? It is here distinctly stated to be, the defect of a remedy on behalf of a tenant for years^ enabling him to re- cover the possession against the lessor, or a stranger, who had put him out; in which case he was obliged to desert the courts of law, and go into chancery to obtain redress ; for at law he could only recover damages, but not the possession. The courts of law, in order to give redress without render- 174 Law Miscellanils. ing it necessary to go into a court of chancery, conlrivid the feigning the lessee for years to be a lessor himself, and to pursue for a wrong to his tenant. And in order to avoid the sta- tute of maintenance, it is a part of the fiction that he had en- tered ^nd ruas in possession. It was a principle of law also that the grantee of the reversion " might at anytime by a com- mon recovery, have destroyed the term of the lessee for years." But what was there to hinder the parliament to have made provision as to all these particulars ? There was noth- ing that I know of but, that the feudal lords might object to this. It was probably an apprehension that such a bill could not be carried in the house of lords, that it was not brought for- ward in the legislature. It was doubtless of necessity that the courts devised this fiction ; for a fiction was never introduced, but where the application of the general principle, will work an inconvenience. Hence the maxim, in fictione juris semper subsistit equitas. This last reason had ceased under our co- lonization. What could hinder then our own legislature to provide for all that was gained by this fiction of proceeding ? This fiction carried with it the advantage, that there might be atrialtoties quoties hy feigiiing a neru lessor and a new les- see; so that a recovery in one case could not be pleaded in bar to another. For it was a principle " that when a man's possession is once established in a possessory action, it can never be disturbed by thg same antagonist." But itwusfowid to work an inconvenience to suflfer the possession to be dis- turbed toties quoties ; and therefore application became ne- cessary to a court of chancery, to set some limit to the fic- tion ; and after two verdicts in favour of the same title, an injunction was decreed. But the management of this fiction, even as moulded and fashioned by the courts for the purposes of justice, and how- ever well understood by the profession, carried with it some inconvenience in the practice. Where the term laid in the declaration had expired, from the continuance of the cause in court, tlic courts would give leave to enlarge the term. But where the time of tlie demise, or leasing alleged, had been laid too far bad;, so that evidence of title anterior to the de- Law Miscellanies. 175 mise laid, could not come in, they Avould not give leave to contract it to a later date. The courts had begun to give this leave in England, to avoid a fine, &c. But it had been re- fused here, and a nonsuit the consequence ; even to avoid the statute of limitations, it had been refused. A confes- sion of lease entry and ouster, where it had been omitted to be called for, and not entered, the courts thought themselves not justifiable in directing the filling up this part of the fiction, and a nonsuit must take place. But the fiction of lease entry and ouster was unintelligi- ble, to the country ; and the form of the declaration, alleging the entry to be with " swords, staves, and knives," where none were used, appeared an absurdity. It is of moment in a republican government, where the people will not be sa- tisfied with what they do not comprehend, that not only the substance of the law shall be understood ; but also that the forms of legal proceedings, should be brought as much as possible on a level with common apprehension. But it is a difficult matter for men who are not acquainted with the principles of a science, and cannot discern the cause of what is ivrong to apply themselves to substitute, or amend. Any one will grant, that a mechanic, or an architect only, is com- petent to diminish, or enlarge, or vary the structure of a machine, or the plan of a building. If an application had been made to the attorney general, as has been done in a late case on the penal law ; or to some other person of legal abilities, to frame a bill to supply the place of this Jictitious proceeding in ejectment, embracing all the advantages of it, and avoiding the inconveniences, it would have been advis- able. But let us see what has been done by the legislature themselves. By an act of the 24th ]March, 1805, the form of a v/rit of ejectment is devised, and proceedings enjoined. It was evi- dent to men of legal science, on the publication of the act, or promulgation, that the law v.'as entirely defective, and most unskilfully drawn; yet it was not considered an injury to our jurisprudence, that some step had been taken towards the getting quit of the necessity of the use of a fiction ; and i7& Law MiscELLANtEs. it was not doubted, but that some improvement might grow out of what had been done. Accordingly by a supplement a year afterward, some of the most material defects in the law were supplied. What yet remains to have it accommo- dated to all purposes of justice, with regard to a claim of pos- session ; or of property ; or of an interest in real estate, will in due time be discovered, and the remedy may be applied. " For every man's land is in the eye of the law inclosed and set " apart from his neighbour's, Sec." Ill Bl. Com. 209. THIS principle of the com'mon law would seem to be re- strained by the act of 1700 of this commonwealth, and other acts pari materia. The principal act is chap. 56, entitled an act for regulating and maintaining of fences j 1st. Smith's laws 18. It was decided in Addison's district; and may have been elsewhere, that this act, or these acts giving a special and summary remedy, did not take away the comm.on law ; but, though decided in my favour, in a case at that bar, I did not approve of the doctrine laid down by the court, in all particulars. It did appear to me, that it was a change of the common law to some extent, in consideration of the set- tlement and state of the country ; where it was contrary to the convenience of the inhabitant, to have it supposed that the owner of cattle could keep them from trespassing upon the uninclosed ground or wood-land of another. It could not be but by running at large that the stock] of the settler could be supported before there were inclosed pastures ; and the obligation of having keepers to hinder them from tres- passing would be inconsistent with the situation of the im- prover in a new country. These acts therefore qualifying the right which the owner of the soil had in his uninclosed grounds, appeared to me necessary ; and that an action of tres- pass v.ould not lie unless the owner of adjoining grounds had done something towards excluding an entry on his posses- sions, such as is prescribed by the act in question. Law Miscellanies. 177 Be this as it may, the proceeding at common law not- withstanding this act, would seem to be restrained by the act 21 March, 1806. 4th Sm. Laws, 332, Sec. 13," that in all cases where a remedy is provided or duty enjoined, or any thing directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strict- ly pursued, and no penalty shall be inflicted agreeably to the provisions of the common law in such cases further than shall be necessarv for carrying such act or acts into effect.'* In the case referred to, the president laid it down, that, " In England, the law is a fence round every man's ground ; and trespass may be maintained for passing over the unin-» closed ground of another against his will. Everyman must take care to keep his cattle from going on the land of another. In this country our circumstances have led us to suppose that every man must take care of his land that the cattle of others go not on it. " The act regulating fences gives anew and summary re- medy for trespasses on lands, enclosed with fences of the de- scription therein mentioned; but takes not away anj' remedy which existed before, and at the time of the passing that act. The person injured whose fences are of that description, may proceed under that act, or at common law. And if the fences are not of that description, the person injured, though he can have no remedy under that act, may have remedy at com- mon law." The decision of the president was correct in the main point of this case ; for the defendant had thrown down the fence^ and turned his cattle in. This took the case out of the act. In other words the act did net apply to it : it ivas a tre.spns.^ at common laiv. Add. Rep. 259. Z if 8 La-w MiSC£LLAKI£S» III Bl. Com. 264. THE writ of mandamus m Pennsylvania, stands as it did at common law. The British statute 9 Anne, c. 20, bein j since the charter to William Penn^ and not being introduced here, could not be reported by the judges as in force in this commonwealth. But the provisions of this statute are salu- tary, and deserve to be introduced by an act of the legislature ; and perhaps could not be d^one in better terras stibstantially than in the words of the British statute. For it is true, as is said, in the marginal note to this statute, Ruffhcad's edi- tion, that it \s clearly and correctly draxvji. It was drawn by Mr. Justice Foxvell, 1 black. 95. So far as respects the mandamusy h is entitled an act for rendering the proceedings more speedy and effectual. The frst provision is as follows; " that where any wri* of mandamus shall issue, such person, or persons who, by the laws, are required to make a return to such writ, shall make his, or their return to the first writ of mandamus. Sec. II. And that as often as any writ of mandamus shall issue, and a return be made thereunto, it shall and may be law- ful to and for the person, or persons suing or prosecuting such writ of mandamus, to plead to, or traverse all or any the ma- terial facts contained within the said return f to which the person or persons makingsuch return, shall reply, take issue,, or demur : and such further proceedings, and in such man- ner shall be had therein for the determination thereof as might have been had if the person, or persons suing such writ had brought his, or their action on the case for a false return, and if any issue shall be joined on such proceedings, the person, or persons suing such writ, shall and may try the cause in such |)lace as an issue joined, in such action on the case, should or might have been tried ; and, in case a verdict shall be found for the person, or persons, suing such writ, or, judg- ment given for him, ©r them upon a demurrer, or by nil di- cit, c for want of a replication, or other pleading, he or they, shall recover his or their damages, and costsyin such manner. Law Miscellanies. 179 as he or they might have done, in such action on the case as aforesaid ; such damages and costs to be levied as in other cases ; and a peremptory writ of mandamus shall be granted without delay, for him or them, for whom judgment shall be given as might have been if such Keturn had been judged in- sufficient; and in case judgment shall be given for the per- son, or persons making such return to such writ, he, or they, shall recover his, or their costs of suit to be levied in man- ner aforesaid. Sec. III. Provided always that if any damages shall be recovered by virtue of this act against any such person, or persons, making such return to such writ, as aforesaid, he, or they shall not be liable to be sued, in any other action or suit, for the making such return, any law, usage or custom to the contrary, thereof in any wise notwithstanding. Sec. IV. That it shall and may be lawful for the courts respectively, to allow to such person, or persons respectively to whom any writ of mandamus shall be directed, or to the person, or persons who shall sue or prosecute the same, such convenient time respectively to make a return, plead, reply, rejoin or demur as to the said courts respectively shall seem just and reasonable. Sec. V. That this act shall be extended to cases of the like nature with those contemplated by the statute of the 9 Anne, c. 20. which British statute would not seem to have been introduced here, but which as referring the trial of facts to a jury, is consonant with the spirit of our constitution, and ought to be adopted. The above is the substance, and in the words of a bill which I would suggest to the legislature. By the same statute 9 Anne, c. 20. It is provided in the case of a proceeding by information in the nature of a writ de quo warranto. " That in case any person or persons shall usui'p or in- trude into, or unlawfully hold and execute any office or fran- chise to which that statute has a reference, it shall and may be lawful to and for the proper officer in each of the respec- tive courts, with the leave of the said conrts respectively, t« 180 Law Miscellanies^ exhibit one or more information or informations in the nature of a quo warranto, at the relation of any person or persons desiring to sue, or prosecute the same, and who shall be mentioned in such information, or informations, to the rela- tor, or relators, against such person, or persons, so usurp- ing, intruding into, or unlawfully holding, and executing any of the said offices, or franchises, and to proceed therein in such manner, as is usual in cases of information in the nature of a quo warranto, and if it shall appear to the said respective courts, that the several rights of divers persons, to the said offices, or franchises, may properly be deter- mined, on one information, it shall, and may be lawful for the said respective courts, to give leave to exhibit one such information against several persons, in order to try theirrespec- tive rights to such offices, or franchises, and such person or persons, against whom such information, or informations, in the nature of a quo warranto, shall be sued, or prosecuted, shall appear and plead as of the same term or sessions, in which the said information, or informations, shall be filed, unless the court, where such information shall be filed, shall give further time to such person, or persons, against whom such information shall be exhibited, to plead; and such per- son, or persons, who shall sue, or prosecute, such informa- tion, or informations, in the nature of a quo warranto, shall proceed thereupon with the most convenient speed that may be, any law or usage to the contrary, in any wise notwith- standing. *' And in case any person, or persons, against whom any information, or informations in the nature of a quo warranto, shall, in any of the said cases, be exhibited in any of the said courts, shall be found, or adjudged guilty of an usur- pation, or intrusion into, or unlawfully holding and execut- ing any of the said offices, or franchises, it shall and may be lawful to and for the said courts respectively, as well to give judgment of ouster against such person, or persons, of and from any of the said offices, or franchises, as to fine such person, or persons respectively, for his or their usurping, in- truding into, cr unlawfully holding and exercising any of Law Miscellanies. 181 the said offices or franchises. And alsd, it shall and may be lawful to and for the said courts respectively to give judg- ment, though the relator, or relators in such information named, shall recover his or their costs of such prosecution j and if judgment shall be given for the defendant, or defen- dants in such information, he or they for whom such judg- ment shall be given, shall recover his or their costs, therein expended against such relator or relators, such costs to be levied in manner aforesaid. ** And it shall and may be lawful to and for the said courts respectively to allow to such person, or persons re- spectively, against whom any information in the nature of a writ of quo warranto, in any case shall be sued or prosecut- ed, or to the person, or persons who shall sue, or prosecute the same, such convenient time respectively to make a re- turn, plead, reply, rejoin, or demur, as to the said courts re- spectively shall seem just and reasonable." It may be seen that by such a bill passed into a law, a trial by jury is given in the case of a contested fact; and here it has happened that this statute of Anne has either not been extended by usage, and adoption of the courts ; or that this being the case, it has not been enacted with the same or similar provisions by the colonial legislature, or by the legis- lature of the state since the adoption of the constitution under the revolutionary establishment, would seem to me to have been owing to an oversight; or that a case did not oc- cur which brought the advantage or necessity of such an en- largement of the remedy into view, and an application of the jury trial Vhere matters of fact came to be the subject of enquiry. But the supreme court^ who alone can issue writs of man- damus^ and receives informations in the nature of a 7vrit de quo warranto ; except in the city and county of Philadelphia, where courts of nisi prius are yetholden, have not the power to summon a jury, and try an issue of fact in the other coun- ties, or any of them; and therefore it will be necessarj' to add a clause enabling the courts at their term to direct issues to be tried in thdr respective counties where the cause ol" 182 Law Miscellanies. complaint arises ; and in case a county is interested, to any other county of the district in which that county lies, and which is nearest, or most convenient to that vicinage. That the supreme court, under the present arrangements, has not the power to summon a jury, and to try an issue was determined in the western district of the supreme court 9th September, 1811. See 4th Binney, 117. In consequence of this decision, a bill was brought for- ward in the legislature in the winter of 1812, in the case of the mandamus, and of the information in the nature of the writ de quo warranto ; and the object was to supply the pro- visions of the statute of 9 Anne, c. 20. and adapt them to our situation. But the bill was exceptionable in this, that in- stead of merely supplying what was deficient in our law on this head, it undertook to comprise and specify all and sin- gular the powers of the court in the case of the mandamus, and the Avrit de quo warranto, which it had already by the common law ; which was unnecessary, and dangerous, be- cause what was not specified, must by implication be lost ; and the specifying so far as it went brought into view, what could not be well comprehended by the legislature, as to all the qualijications of the powers ; for these must be collected from precedents and decisions. The bill therefore, as was to be expected, fell through and did not pass. There re- mains therefore a defect of justice on this head as to some ob- jects, and the want of the benefit of a trial by jury in the case of contested facts, so far as respects the counties of the state out of the city and county of Philadelphia. It will be probably moved again in the next legislature, and these ob« s-ervations may assist in the deliberations on this subjectt III Bl. Com. 304.— -Set off. IN the digest to which the commentator refers in the margin, the term is com pens alio. The etymology of which IS eonipenso^ a compound of con a;id penso, which signifies a Law Miscellanies. VQ5 'weighing together. Pendo is the root which signifies to weigh. Pension the supine of the verb as the grammarians say ; and pensum a thing weighed. Hence pensum a task or thing weighed out for manufacture. All this refers to the weigh- ing out one commodity against another, in an original barter, or in part retribution of a commodity originally weighed out and received. Hence we see from the derivation of the term the history of the thing itself. When barter ceased, and gold and silver became a me- dium of commerce, it passed by weighty and notbvthe 7iomi- na/and arbitrary value of a piece of coin ; and which could only be hy the consent of a nation amongst the people of that nation, or by the courtesy of other nations, to receive it at that value. Weighing therefore, in the nature of the case, must take place and exist stilly where gold and silver, or other scarce metal passes by weight. If a roan owes twenty pounds, and can weigh out only ten, he can compensate^ or set off" ox\\y ten. It may be worth while to extract here for the sake of the classical student, the various dicta of the codes which are here digested^ or collected in the pandects. Definitio. Compensatio est debiti et crediti, inter se, con- tributio. Effectus. Unusquisque creditorem suum, eundemque debitorem, petentem, summovet, si paratus est compensare. Utilitas. Ideo compensatio necessaria est, quia interest, nostra potiusnoa solvere, quam solutum repetere. ^uod na'ura debetur venit in conapensationem. This will suffice out of that chapter which contains a sum- mary of the whole law upon this subject. Stoppage or set off^ is the term in the common law of Eng- land. For, at the common law, the demand of a debt might be stopped by sometliing set off, and going to the whole of the demand, ortoa/?ar;. The question was, what could be set off to stop the demand in law if a suit were brought. Any thing going directly in discharge of the demand, and made and accepted with a view to that discharge, there could be nodoubt, might be setoff. Orany thing done in parsaance of a 184 Law Miscellanies. fulfilment of a contract, or payment of a debt, on the principle of ?iatural justice^ could not but be set oif. But what was not so immediately connected with the contract, as necessarily to be in discharge of it, might be considered as collateral to it, and the necessity of a set oif did not immediately follow. The com- mon law was narrow upon this point. See Montagu on the law of set off, and the authorities there cited, page 1. An ex- tent was given to the law of set off in chancery, or the equity courts in England ; but still not to the extent of giving a re» medy, to the extent which natural justice^ or public conveni- ence would require. Hence the statutes of set off. 2 Geo. II. c. 22. Sec. 13 : and 8 Geo. II. c. 24, Sec. 4 and 5. That of 2 Geo. II. is in these words ; that where ihcre are mutual debts between the plaintiff and defendant, or if ei- ther party sue, or be sued, as executor or administrator, where there are mutual debts between the testator or intes- tate, and either party, one debt may beset against the other* That of 8 Geo. II. c. 24. extends this provision which had been limited by the former statute to continife for the term of five years, and it is in these words ; " And where- as the provision for setting mutual debts one against the other is highly just and reasonable at all times, the said clause in the said first recited act for setting mutual debts one against the other, shall be and remam in full force forever." And by sec. 5. it is enacted, that " by virtue of the said clause in the said recited act contained, hereby made per- petual, mutual debts may be set against each other, either by being pleaded in bar or given in evidence under the general issue, in the manner therein mentioned, notwithstanding that such debts are deemed in law to be of a different nature^ un- less in cases where either of the said debts shall accrue by rea- son of a penalty contained in any bond or specialty ; and in all cases where either the debt, for which the action has been or shall be brought; or the debt intended to be set against the same, hath accrued cr shall accrue by reason of any such penalty, the debt intended to be set off, shall be pleaded in bar, in which shall be shewn hozu much is trtily and justly due on either side; and in case the plaintift*shall recover in any Law Ml8CELLA*riES. 185 Such action or suit, the judgment shall be entered for no more than shall appear to be truly and justly due to the plain- tiff' Ahtr one debt being set against the other." This act of 8 Geo. II. not only gave perpetuity to the for- mer; but also a greater extent than, in the construction of somejudges, had been put upon it. This construction had been that the provision of a mutual set o^did not apply to debts of a different nature. By debts c^ ^ different nature is meant, of a different cla^s of actions referring to the technical boun- daries which had been fixed between actions of debt, actions of trespass on the case^ &c. But even under these words, debts of a different nature, the construction was restrained to what, in its nature, was a debt or demand certain arising on contract. In the case of a specialty or writing under sealy a. set off might be made, but it must be pleaded, it could not be given in evidence with notice. And in the case of a penalty pleaded as a set off, it could not be allowed ; and the debt really due was narrowed to what could be shewn by payments j for under the plea unliquidated damages could not be set off; that is, the jury at the bar, would not be suffered to hear all circumstances, and liquidate the damages a de- fendant had sustained by reason of non-compliance with a contract with the plaintiff. It is also observable, under these statutes, that no pro- vision is made, that if the defendant under his plea, or notice of set off, could shew that he had overpaid, or that his set off was such as brought the balance in his favour, he could not have judgment for it, but must bring his action for the ba- lance ; in which case if even an overhauling of the whole controversy could be avoided, yet, a counter suit must fol- low, and nexo costs be incurred. Before these statutes of 2 Geo. II. and 8 Geo. II. which passed in the year 1 729, we had an act of assembly of Penn- sylvania of 1 705. And it has been with a view to refer the stu- dent to this act as going farther than the English statutes, that I have made this note. For, thou^li, our act was before theirs, yet they did not chuse to follow it to the whole ex- tent, if they had at all heard of it, which is possible; but not A A 186 Law Miscellanies. probable that they had not heard of it, as every act of the colonial legislature was liable to a repeal by the king and coun- cil, and could not but be reported to them, and in that case could not well but come to the knowledge of at least one branch of the legislature, the house of Lords. But whether owing to the embarrassment of a court of chancery upon whose wonted jurisdiction they did not wish to trench ; or to the advantage of having it, as not rendering it necessary, in their opinion, to go so far in some particulars, the whole extent was not given by the words of those acts, which by the provisions of our act of assembly, is established. In order the better to compare the tWQ English statutes with our act of assembly, we shall extract it here. It is entitled, " An act for defalcation." The etymon of this term is from Falx a latin word for a pruning knife* Hence falco to amputate, or prune. Defalco, the compound, to prune from : So that vi termini, it expresses the pruning a demand by shewing that it is less than it purports to be, by reason that it ought to be made less by something shewn against it. Let us now see the act. " If two or more, dealing together be indebted to each other on bonds, bills, bargains, accounts or the like, and com- mence an action in any quarter of this province, if the de- fendant cannot gainsay the deed, bargain or assumption, upon which he issued, it shall be lawful for siich defendant to pi r-ad payment of all or part of the debt, or sum demand- ed, and give any bond, bill, receipt, account, or bargain, in evidence, and if it shall appear that the defendant hath fully satisfied the debt or s.im demanded, the jury shall find for the difendant, and judgment shall be entered, that the plain- tiff shall take nothing by his writ, and to pay the costs. And if it should appear that any part of the sum demanded be paid, then so much as is found to be paid, shall be defalked, and \}c\'i plaintiff shall have judgment for the residue only, with costs of suit. But if it appear to the jury, that the plaintiff is overpaid, then they shall give in their verdict for the defendant and withal certify to the court how much they find the plaintiff to be indebted, or in arrear to the de- Law Miscellanies. 187 fenclant more than will answer the d -10 Law Miscellanies. " rreehold lands which he had at the time of the judgment '' given." Ill BL Com. 4 18. THIS might seem to imply, and has been cited for that purpose, that lands purchased after the judgment^ could not be taken in execution. But the authority to which tl^e com- mentator refers, 2 Institutes, 395. does not restrict to this. The words are, " Such land as the defendant had, at the time of the judgment given, unless it be conveyed away, hy fraud and covin to deceive his creditors.''^ This exception shews v/hat effect of the judgment it is that he is speaking of, (Lord Coke) and that it relates to lands actually owned at the time of the judgment, not having been bona fide conveyed away before the judgment. Nor, has it any reference to the effect of a judgment upon after purchased lands. That an execu- tion may be levied upon after purchased lands, not aliened before execution, there can be no doubt. But whether the judgment attaches on such lands eo instante that they are purchased ; or, whether they are taken by virtue of the exe- cution, as, in the case of goods and chattels, is a question. In England it would seem that the judgment is considered as attaching, and drawing under it the lands purchased after the judgment, so that, though aliened before the execution, it would seem to be the law. In Pennsylvania, it has been other- wise. And indeed in En^ nd, when traced to the origin of the doctrine, would seem to have a very doubtful founda- tion. And so far from extending such a principle here, I cannot say I would have any objection to confine the execu- tion to the licji of the judt,ment, as in the nature of a general mortgage^ so that those lands only should be considered as pledged, or liable to be taken, which the debtor had at the time of the judgment. But that these lands being first ex- hausted, towards payment of the judgment, a scire facias might then issue to the terre-tenants of other lands, and it might be shewn that they Avere not the lands of the debtor at the time of the judgment ; and have since been purchased by' them, the terre-tenants. This would be in the spirit of what the legislature have already done, in restricting as to limita- tion of time, the lien of a judgment. Law Misckllanies. 211 III Bkick. Com. 462. A wager is not considered as a nudum pactum, or con- tract without CGns'ideration in the law of England. The 7«z/- ?t/a//>ro?72?Ae is a consideration. Incase of a certain event taking place, I will pay you ;^'lOon condition that if it does not take place you will pay me ^10. It is a specks of gamb- ling though it does not come under the usual denomination of it. There may be said to be a quid pro quo, risk against risk. But gain to one at the expence of loss to another, is not in the nature of a moral contract, where some certain be- nefit is contemplated on both sides. Alterius incommode suum augere commodum, magis est contra naturam quam mors, quam paupertas, quam dolor. It is strange therefore that it should still remain a con- tract known to the law, and that an action is maintainable in a court of justice, upon a xuagcr. It is still more so, that it should receive so much the countenance of the la\v,as to be the mode of declaring on a feigned issiie^ where the court of chancery directs a matter of fact or law to the common law courts, with a view to an equity case depending, and a de- cree to be made. This mode of declaring has been intro- duced in Pennsylvania ; and is the form of stating the case where a matter of fact or law is sent to the cow2???572 pleas by the orphans court, in like tnanner as from the chancery in England, whez-e the opinion of the common law judges is to be taken on a question of law, or where a matter of fact is to be ascertained by jury. In either case this might be easily avoided, by simply stating the law point to be decided, or the matter of fact to be tried. The reason given in England, for admitting this form of declaring is to avoid the prolixit}' and expence of special pleading. That does not hold here, where there is neither prolixity nor expence arising from the pleadings ,* all being put in brief. This needs no act of as- sembly, but simply that the court in the last resort^ gi^'ing it to be understood that such form of declaring maybe dis- pensed with, and a statement according to the truth of the case admitted. For a court in the last resort, such as we 2ie Law Miscellanies. have in Pennsylvania, the supreme court, has a greater lati- tude, and is less embarassed in altering a matter of practice ; or a rule of law as to form of action, than cither the court of common pleas, king's bench, or exchequer in England. For a writ of error lies from the king's bench to the common pleas, and from the law side of the exchequer, a writ of error lies into the court of exchequer chamber before the lord chancel- lor, lord treasurer, and the judges of the court of king's bench, and common pleas, and from thence it lies to the house of peers. This et sequentia, see 3 Black. 410. It must be a matter of less difficulty therefore here to alter, or change rules, than in that country from the constitution of their courts, and the expence attending appeals. For this reason it ought to appear absurd in our supreme court, to hear the judges de- claring as in the common pleas, 1 Taunton, 542. " The cases have decided," says Mansfield, " Cfor what reason^ I cannot perceive J that a count for goods sold and delivered, is not an action upon a contract." And Chambre, justice, " I am very sorry we are bound to conform to such a rule^hxxt the cases are all so." It is on this principle that so far as my voice could go, I have declared more than once against declaring on a feign- ed issue in such a way, not only because I think that it may be better done or at least more conformably to common un- derstanding, to state the point of law on which an opinion is required, or a matter, the issue in fact of which is to be de- termined by a jury ', but for this reason also that it will avoid the giving countenance to the priiiciple of a wager, by adopt- ing the form in a judicial proceeding. A wager, however, is restrained by the common law to what \s lawful. It must be unlawful for a person to wager that he will transg-ress a penal statute. This comes under the head of malum prohibitum ; but still more it must be unlawful to Avager that he will commit a battery, for this is malum in se, and a breach of the peace, contra bonos mores, or what is against good morals must be unlawful, as the ground of a wager that the v/agerer will strip himself, and shew himself naked from a balcony, or other place. Law Miscellanies. 213 But the common law will still farther restrict the subject of a wager. What must affect the reputation or the feelings of a third person^ is unlawful. What will lead to an indecent investigation, will not be sustained by a court, as with regard to the sex of an individual. On a wager against public poli- cy, also, no action can be maintained. There is a species of wagering which, I take it, the com- mon law would hold unlawful, so that an action could not be maintained ; such as upon a man's own speed or strength, or that of others ; or such uncommon exertions, as must be un- profitable or pernicious. Even in the case of animals, races against time, or carrying or drawing against each other, or against weight, is a species of cruelty, and cannot but be con- sidered wantonness, and an abuse of useful powers ; so that in these cases also, wagering ought to be held unlawful, and no action to recover ought to lie. Wagering has been excluded from the law of insurance by statute in England. " The practice of insuring ideal risks under the names of interest or no interest, nor with- out farther proof of interest than the policy, or without be- nefit of salvage to the underwriters, was increasing to an alarming degree, and by such rapid strides as to threaten the speedy annihilation of that lucrative and most beneficial branch of trade. All these various kinds of insurance just enume- rated, (and many others, which the ingenuity of bad men found no difficulty in devising) having no reference whatever to actual trade or commerce, were very justly considered as mere gaining and wager-policies : and therefore the legisla- ture thought it necessary to give them an effectual check, and, by positive rules, to fix and ascertain what property or interest a merchant should be permitted to insure." Park. 348. All wagering on the event of an election ought to be con- sidered as unlawful in a republican government ; where it is essential to the exercise of the privilege and the choice of re- presentatives, that the voter be confined to considerations of policy in the selection, and be swayed by no motive of pecu- niary profit or advantage. It leads to undue exertions 214 IaAw Miscellanies. also, where a stake is depending further than the public good, and is introductive of unusual heat, and sometimes breaches of the peace. No action ought to lie in these cases. Where there is a deposit in the hand of a stake-holder, it ought not to be recovered of him by the party succeeding. But query, whe- ther it would not be for the public good, that by an act of the legislature all such wagering should be swept away by making it a misdemeanor, and an indictable oifence to bet, and deposit, or take the mutual promise of parties to such contract. The freedom of unbiassed suffrage is of great moment, and great sums at risk by monied men on the event of an election, cannot but do mischief. The wealthy bet because they can afford to lose, and the bulk arc led to place confidence in the stake, as a pledge that in their judgment such a candidate will be successful. It is an art of canvassing that prevails much, and misl«;adsthe weaker judgment. Extract of a letter from Joseph Reed, recorder of the city of PJiiladelphia. PHILADELPHIA, Oct. 5, 1813. " I HAVE been much pleased with the perusal of a few sheets of your intended publication, by Byrne. As a didac- tic work, I tltink it well calculated for the use of the student, and will, I hope, in time, promote a complete revision of the code of Pennsylvania law. On a perusal of the sheets, I am inclined to think there are some few errors in point of fact, which I beg leave candidly and respectfully to suggest to you — In page 1 9 of the introduction, you have observed, that the quakers do not admit a practitioner of the law to be in full communion. — This, I am informed, is not the case, there arc several instances in this city of gentlemen of the profes- sion being in full communion with the friends. Mr. John Hal- lowell, I know is, and values his privilege as a member of the meeting, very highly. — Before the western insurrection, I might have named several others, viz. Messrs. Rawle, Law Miscellanies. 215 Morgan, &c. — Mr. John Tod, the former husband of Mrs. Madison, remained in full communion with the friends, until his death in 1793. — In page 38 of the Law Miscellanies, you have stated that a legislative provision is necessary " to en- " able the children of a devisee to take among themselves " what the devisee himself would have taken." — This was done by the act of the 19th March, 1810, which has probably escaped your notice, or perhaps your observation was made before the passing of the law. " I have thus, sir, taken the liberty of stating what has occurred to me on a perusal of a part of 5'our work ; if I am right, I know you will thank me for the information, and if I am wrong, you will I am sure appreciate my motive, and excuse the liberty I have taken." The title of this publication, a miscellany, will naturally admit, or rather call for a greater liberty of insertion than otherwise could be tolerated ; but, independent of this, there would be a perfect propriety in admitting any thing that would serve to correct what had been said or hinted at. I there- fore did not think I could do better than give the extract from the preceding. I shall be disposed to do the same in any case where I may be honoured with the notice of what has been written. As to the act, 19th March, 1810, I believe v/hat I had written was before it passed ; and I overlooked It in correct- ing the original note. But this act of 19th March, 1810, does not come up to all that I had in view ; and was in my mind in the observation made upon a reference to 1 Bin. 546. That was the case of the representatives of a brother and sis- ter devisees, which is not provided for even yet under that act, as it would not seem to extend to the case of ccUatcral rela- tions^ but is confined to lineal descendants^ and respects the dying before the testator; and does not provide for the case 2^16 Law Miscellakies. of an executory devise at a future period, and after the death of the testator. The feudal principle of taking per capita^ was in the way in the case of the lessee of Smith v. Folwell, 1 Bin. 546. It would seem to me that the legislature are but little in the way of reading our decisions ; otherwise their attention could not have been but drawn to this subject long before this time. NOTES ON BLACKSTONE'S COMMENTARIES. I;0IXTIXG OVT VARIATIONS IN THE LAW OF PENNSYLVANIA, FROM THE C0M:M0N AND STATUTE LAW OF ENGLAND, WITH OTHER MATTERS OF A GENERAL NATURE. " But by Stat. 22 Car. II. c. 7. no person is allojved lo work •n the Lord's day," Sec. IV Bl. Com. 63. " To Tjork^'' is not an expression in the statute ; though it is in the 8th commandment given to Moses; '"'' shah not do any work.'''' Exod. c. 20, sec. 10. The words of the sta- tute Chas. II. c. 7. are that, " no tradesman, artificer, work- man, or labourer, or other person whatsoever, shall do or ex- ercise any xvorldhj labour, business or work of their ordinary calling" on the Lord's day." It has been holden that it is not unlawful, under this statute, to bargain for the sale of a horse, the vendor not being a horse-jockey ; and so, not in the way of his ordinary calling-. 1 Taunt. 1 30. The punishing the offcndor in Connecticut for letting his beer work, was car- rying the matter to the other extreme. Our act of assembly of 1705, copied in part from that of Cha. 2d. c. 7. judiciously omits the words ordinary calling-^ and steers clear of this difficulty, or rather absurdity, in dis- tinguishing work done in the v/ay of a man's ordinary calling-^ from that of work done in any other way ; and in the act of assemlily 22d Ap. 1794-, which is the last act, and supplies all ar.tceedent, as to this particular, the words are, if any per- £ E 218 Law Miscellanies. son do, Src. such persons so ojff ending shall, &c. By these act5 all •wordly labour is prohibited, whether in the way of a man's ordinary calling or otherwise ; and which, doubtless, also was the intent of the statute, Cha. II. c. 7 ; hut^ as penal law» are to be construed strictly^ the judges have thought them- selves warranted in taking the distinction, or bound to take jt. For it is under the statute alone that it could be cogniZ' able not being a misdemeancr at common law; though as to this, there has been some contrariety of opinion. It depends upon the question whether the commandment given to Mo- ses is in force under the christiaji dispensation. It cannot be denied but that the reason of the institution goes some length in extending it to all times, and under all dispensations ; " In six days the Lord made heaven and earth, &c. and rested the seventh j wherefore the Lord blessed the Sabbath day and hallowed it."* But the author of our religion, would seem to have claimed the ^^nxhority oi dispensing yf'ixh the keeping it ; at least, with the Jewish strictness. " The son of man is lord also of the sabbath." Mark, 2. sec. 28. Certain it is that the Jewish Sabbath does not appear to have been kept, or at all attended to under his immediate disciples ; but whatever respect was paid in the observance of any day, it was to tlie Jirst day of the weeky the hebdom of the resurrection, and so called the Lord^s day. On this day the brethren met to "break bread," as appears from Acts 20. sec. 7 ; " upon the first day of the week when the disciples came to break bread," &c. and this day appears to have been regard- ed, and no other day, from that time forward, whether for the purpose of meetings and confirming each other in the faith, making charitable collections for the poor brethren ; or settling matters of order and discipline in the church; or for the purpose of joining in religious devotion. In the case in Taunton, 130, the counsel on one side ar- giic that, " no canon, no opinion is to be found in any writer upon Ecclesiastical law, treating bargains made on a Sunday aS illegal. The Jewish law prohibited them, but several of the councils have expressly declared that christians shall not *Exod. 20. sec. 11. Law Miscellanies. 219 judaise." On the other side it was contended "that a sale on Sunday was illegal at common laxv ; that in Christianity as well as Judaism, the 4th commandment is retained ; and that which is an offence against it, when committed by a Jew^ is equally such when committed by a Christian; that no case had been cited where a contract made on a Sunday has been enforced by law." The court take notice that it is said by Lord Coke, that the Christian Religion is part of the common law ; 2 Inst. 220. Where he cites a law of King Athelstan, die autem domini- co nemo mercaturam facito; id si quis egerlt, et ipsa merce et trigenta praeterea solidis mulctatur ', and note that 7io mer- chandise should be on the Lord's day. But it does not ap- pear, say the court, that the common law ever considered those contracts void which were made on a Sunday. That the contract should not be void, and yet the act a misdemeanor as contra bonos mores would seem to be an inconsistency. But the legislature in England, as well as here having legislated on the subject, it can only be according to the prohibitions that it is a misdemeanor or the act void. The Stat. Cha. 2. c. 7. goes farther than merely prohibiting secular work and employment, and enjoins what is to be done on that day ; " Every person or persons, shall on the Lord's day, apply themselves to the observance of the same, by exercising themselves thereon in the duties of piety and true religion publicly and privateh'." But by our act 22 April, '94, it is left to the conscience of the party, or the censure of the religious society to which they belong, if they belong to any, as to the duties in which they may employ them- selves. It restrains only the doing worldly labour on that day. The compact of our political association embracing jews, or seventh day baptists, or others who do not use that day for the purposes of devotion, must be comprehended, so far as respects the exercise of public employment of a worldly nature. It may be observed that whether of divine or civil institu- tion merely, the observance of one day in seven, is a great political good ; and it cannot interfere with the rights of 220 Law Miscellanies. conscience in jew or others, who are left at liberty to observe other days of their own chusing. If it is even at the expence of being thrown out of a portion of time for their occupa- tions, in addition to that out of which they throw themselves^, private convenience must i^ivervay to general ^ood. IV Bl. Com. 136. THE Commonwealth v. Dennis and others. At the trial of this indictment, the testimony for the commonwealth being closed, it was moved on behalf of one of the defen- dants, that the jury pass upon him (that defendant) in the first instance, nothing having been proved against him. But the court would not say that there was no evidence ; on the contrary, there Avas evidence upon which it was not impos- sible but that the jury might convict. But why not let the jury pass upon him that in case even of conviction ; the of- ience charged, not being of such a nature as to exclude his testimony even on conviction, he m\ght be sworn a witness for the other two defendants. rhey had an interest in his testimony^ and it had deprived them of it in joining them in the same indictment. The inclination of my mind, at first, on general principles of justice, was to let the jury pass upon this defendant, against whom the least was proved, and in whose case some doubt of his acting might be thought to exist. But more advised, I thought proper to refuse the motion, and directed the verdict to be taken against the _ whole. I saw a difficulty in the particular case. For the indict- ment being for a riot, if the first was convicted it would be of a riot; and yet by his testimony, I mean the convicted, the remaining two might be acquitted of the riot, by his tes- timony, an assault and battery pnhj proved, which would in- volve an inconsistency upon the record. ' The same in the case of conspiracy, v/here two being necessary to constitute the offence, the conviction of one and Law Miscfllanies. 221 acquittal of the other, on the testimony of the convicted, would involve the same inconsistency : and the private mis- chief of the loss of testimony to one must give way to the general inconvenience of admitting it in such castas. But in the case of other misdemeanors ; an assault and battery, for instance, this inconvenience would not exist ; and even though some evidence is given against on& q{ several defendants^ yet why not take a verdi(ct in the case of one to let in his testimony for the others ? But it does not seem to be the policy of the law to carry the matter far. And it is only in a case where no evidence is given, that the defendant is considered as having a claim of right to have a verdict taken separately in his case. The plaintiiT cannot hinder letting judgment go by de- fault against one, and then hebecomes a witness for the co-de- fendants, even in a case where there is evidence. But this is his act. But he cannot move to have his name struck out of the declaration, there being no evidence against one, for this would be putting it to the court, to say whether there is evidence. But he can move to let the jury pass upon his case separately. The present Lord EUenborough in a late case which I dj not cite, but which I have looked at to inform myself as to the reason of others ; for I do not understand the late act of Assembly as precluding the looking at English deci- sions either by counsel or by court, but the citing them only. And in a late case on an indictment against several defendants for a misdemeanor in obstructing a proceeding under a penal law ; two pleaded guilty, and the other not guilty, and offer- ed those before him, as witnesses, there being an end of the matter as to them, agreeable to the case in 1 Strange 6S3. But the reason given in a modern case, for rejecting the evidence appears to be fallacious. "There is," says he, "a community of guilt. They are all engaged in an unlawful "proceeding. The offence is the offence of all ; not the act of the individual only." Is not this assuming the fact that the others in whose case this co-defendant was about to give evi- dence, tvere guilty. It might be that his evidence, as it was ti22 Law Miscellanies. the object of offering it, would go to shew that these mea, notwithstanding what had appeared, were innocent. The counsel admit in the argument in this case, that where no evidence is againt the co-defendant, yet the jury must pass upon him and acquit before he can be heard. The court adopts this language that in that case he might be sworn. The being liable for costs is spoken of; and these out of the way, by being acquitted, or by being fined, the compe- tency is admitted. A defendant in an information against whom no evidence given, is admissible for the others. 2 Bar. 582. But, I take it, a verdict must be taken before he can be heard. In misdemeanors, parties indicted separately from the parties on trial, or not indicted, though concerned in the transaction, are competent witnesses; and the same rule holds good in many species of civil actions, when the witness is not made a defendant. As if A. and B. be indicted for assaulting the same per- sons, and tried separately, they are good witnesses for each other. 1 M'Nally, 204. And so where A. B. and C. are tried in three several actions on the statute, for a supposed perjury, in their evi- dence concerning the same thing, they may be good witnesses in such action. 2 Hawk. pi. cr. c. 46. It may seem unreasonable that a plaintiff or prosecutor, «hould have it in his power, by joining in an action or in- dictment to deprive a defendant of testimony that he would otherwise have had. But there being no evidence, in the opinion of the court, will restrain this arbitrary joining, and making a defendant, by giving leave to strike the name out of the declaration, or by directing a verdict to be taken for him. But if in all cases defendants in misdemeanors joined, eould be witnesses for each other, it would tend to defeat every action, and indictment. It would seem to be giving an undue advantage and the policy of the law Vvould not seem to have come so far. Law Miscellanies. 825 Since making the above note with a view to report to the court, notice having been given by the counsel of an intention to move in bank, I have met with something to the point, and supporting some of the ideas I have thrown out. This in 1 3 East, beginning 41 1, in the notes to the case in that page, referring to several cases of the ante-revolutionary period. The King v. Nichols, 17 G. II. 1742. The defendant was indicted for a conspiracy at Hick's Hall. The jury found him guilty of a conspiracy with one Bygrave. They like- wise found that Bygrave died before this indictment found ; and therefore pray the advice of the court whether the de- fendants were guilty as laid in the indictnient? By Lee c. justice. " It is certain that in all conspiracies, there must be two^ at least, or no indictment will lie, and therefore if one be acquitted, the other cannot be guilty." But that case differs ; because one being acquitted, the conviction of his companion on the same record must be directly repugnant and contra- dictory to the other. But here no such contradiction, where the one is dead, any more than where one of the defendants re- fuses to come in plead, yet judgment may be given against the other. Rex v» Kinnersly cited by Eyre, c. j. in Kinnersly's case, indictment for that A. and B. cum multis aliis, illicit©, rio- tore, routose assemblaverunt, &c. A. acquitted ; yet B. con- victed on the score of the cum multis aliis being, which saved the appearance of contradiction on the record. In the case of the Commonwealth t;. M'Clean and another, the jury having first passed upon M'Clean, and he being- acquitted on the plea of insanity set up for him, it occurred as a question, whether the other defendant, it being a coU' spiracy that was charged, must not be discharged from the indictment, it requiring Hvo^ and it being alleged that A. could not be guilty of a conspiracy with B. who had no mind. It seemed to me at the time that he might hav^e conspired in the act, though it could not be said in the will of the other ; but of this I had doubts, and had a conviction taken place would have expected a motion in arrest of judgment ; but the other wa* acquitted. 224 Law Miscellanies. This all bears upon the difficulty I have suggested, and which governed me in the case of the Comniomvealth v. Deuris and others, the impossii ility of admitting the defen- dants to be witnesses for each oiher without involving the inconsistency of one being found guilty of a riot, and the other acquitted, there being no cum multis aliis laid in the indictment. IT is provided by the constitution of Pennsylvania, that " in prosecutions for the publications of papers, investigat- ing the official conduct of officers, or men in a public capa- city, or, where the matter published is proper for public in- formation, the truth thereof may be given in evidence." There is in this sentence, after the diversative conjunction or, what the grammarians call an ellipsis, a greek word which signifies deficiency, or the want of that which must be sup- plied in the mind, to make the sentence complete. In com- pleting this sentence in our minds, we must go back, and take up what part of the sentence preceding the conjunction, is necessary to connect w^hat follows the conjunction. In doing which we shall read the whole thus, " In prosecutions for the publications of papers investigating the official con- duct of officers, or men in a public capacity; or*in prose- cutions for the publication of papers where the matter pub- lished is proper for public information, the truth may be giv- en in evidence." This may seem to carry the provision farther than the investig-atio7i of official cotiduct ; for it may be said, that a matter may be proper for public information^ though not re- lating to official conduct. But on that construction, there would have been no necessity for the specification oi official conduct ; for it would take in ail conduct^ where the matter published was proper for public information; and, therefore in applying the second branch of the sentence, we are warrant- ed in applying it to other than the conduct of officers, or men Law Miscellanies. 225 in a public capacity ; and to consider the words, " the pub- lication of papers, where the matter published may be pro- per for public information," as introducing a provision in the case of those who rre 7iot oficers^ or men in a public ca- pacity. But the restriction to offcial co7iduct in the first branch of the sentence, must, from analogy, restrain the pro- vision, in the second branch, to the official ^ualiJ/cotio7is of of such as are candidates for offices. To extend it farther, would carry it beyond all rule that could be laid down, as to what should be a matter proper for public information. But as to what is matter proper for public information, the officer who prosecutes, must judge, in the first instance ; and it would seem reasonable, and in the spirit of the privi- lege of giving" the truth in evidence^ that the accused should have notice from the indictment itself, that it is such a case, as the prosecutor for the state, considers to be within the privilege to give the truth in evidence. This reason will a fortiore apply, if matter proper for public information is car- ried beyond the official conduct of officers, or the official qualifications of candidates for office- But ever restraining this as we do, there would be great advantage to the accused, in having the information from the indictment itself, that the truth might be given in evidence, and this information would be given from the allegation that the matter of the publica- tion in question, was prosecuted because yc//.se. But can an indictment, in contemplation of law, be prof- fered, which does not charge an offence f The investigation of official conduct, or where the matter published is proper for public information, may be a duty : it is certainly a pri- vilege. There must be an offence charged ; or how can a grand jury be justified in finding a bill ? An indictment for a trespass, M'ithout alleging a breach of the peace^ cannot be supported. And so in the case of every misdemeanor, and of every crime ; the act alleged to have been committed, must of itself, constitute an offence against the public. False' hood on the subject matter of the indictment is here made the essence of it, by admitting the truth to justify. The law of libel is changed in this particular: and the prosecu- F F 226 Law Miscellanies. tion must be modelled according to the change. The neces- sity of alleging the falsehood of the libel in an action for a libel must be the same on an indictment, where the same proof is made to constitute a defence. There is no distin- guishing or getting over it on principle of individual safety or public policy ; or the analogy of precedent. Nor ought we to use astutia or strain a construction to get over it; but rather in the spirit of the constitution, amplify and give a liberal construction to a remedial provision ; and which, the nature of our republican institutions seems to demand, for nothing can be so conservative of a free government as perpetual vigilance, and free discussion of the integrity, or wisdom of the administration of affairs, or of the qualifica- tions for official duty in such as are called upon, or offer themselves for office or delegation. The manner in which this \% d.ontvci?iy he exceptionable ; but the thing is necessary y and without which the spirit of liberty could not be pre- served. I incline therefore, even in a doubtful construction, to lean to that most favorable to the freedom of the press ; and the privilege of citizens to be heard on the official con- duct of officers, or men in a public capacity, or where the matter published is proper for public information. That this is a remedial provision of the constitution, will be known from a consideration of what had been understood to be the rule before the constitution, viz. " that on an indictment for a libel the truth could not be given in evidence^ it being immaterial with respect to the essence of a libel, whether the matter of it were true or false, since the provocation and not the falsity was the thing to be punished criminally ; though the falsehood of it rtiight aggravate its guilt, and en- hance its punishment." 4 Black. 150. For which, so far as respected private persons and matters not proper for public information, there might be reason; but for which, in the cases specified, the public interest, in the opinion of the fra- mers of the constitution, required a different rule. Now if the truth is to be given in evidence in the cases specified, why shall not the falsehood be alleged? Will not the truth amount to a justification ? It could not be the meaning that Law Miscellanies. 22r the truth might be given in evidence in extenuation of the offence ; for that would go to the court, and not to the jury ; for though it might affect the punishment, it would not change the nature of the verdict, there being no such thing as a verdict of less or more guilty, but simply guilty or not guilty. The truth therefore must justify ; and is admissi- ble in evidence with a view to that effect. Shall not the false- hood then be charged in the indictment ? in the case of an information, it is charged ; and no information unless where, in the nature of it, an exception lies, will be allowed to be filed but on affidavit of the falsehood of the libel. Doug. 372. The grand jury can have the oath of the prosecutor who claims the interference of the commonwealth, and in the spe- cified cases, may be sent up by the officer for the common- wealth ; and there is the same reason as in the case of an in- formation, why he should first lay a ground by an averment of his innocence, in regard to the allegations of the libel, be- fore the indictment is sustained, so far as to be found ; and with a view to this, falsehood must be charged. "■ The charge must contain such a description of the crime, that the defen- dant may know what crime he is called upon to answer, that the jury may be warranted in their conclusion of guilty or not guilty upon the premises delivered to them ; and that the court may see such a definite crime^ that they may apply the punishment the law prescribes." Cowp. 682. An affirma- tive verdict couples the probate with the allegata; and we cannot legally apply the verdict to more than the allegata, or charge of the indictment, which of itself containing no of- fence, no culpability can exist ; and the technical finding cul- pabilis or guilty, can refer only to the act alleged, which is not criminal. It will not be seen from an inspection of the record that the court had before them a conviction whereon to ground a judgnent. For it stands indifferent whether the publication is an offence or justifiable. But maliciously pub- lishing, as laid in an indictment, will not that constitute a crime ? Taking it in the popular acceptation of the word it will not. For meaning personal enmity, it can afftct only the political, or moral nature of the act. For even malice 228 Law Misckllanies. expressly proved, in doing what is justifiable, will not make it blameable, though it may take av/ay from the merit of the act so far as respects the doer ; and where what is done is wrong, the best intention cannot justify the act ; for evidence of the quo animo can absolve from guilt only, where it goes to shew that the actor did not mean to do the act, or a criminal act of which it was the consequence. It cannot alter the nature of the act, though it may reduce the degree of the ma- lignity ; and be considered by the judge in aliixing the pun- ishment, where the law gives him a discretion. Evidence of express malice in the case of a malicious prosecution will not support an action, provided there was probable cause for the prosecution. This proves that malice in the popular ac- ceptation of the term, can go but in aggravation of a wrong committed, and is not of the essence of the wrong. The ?nalice which the law hiozvs, is quite a different thing ; it is the bad mind which is inferred from the bad act, and the act must be established before badness of mind can be inferred. Ex malitia, publishing, is the characteristic of the act of false- ly publishing ; and I do not find that in the case of any other offence, the allegation of an ex malitia will supply all the alle- gation of a crime in the act done. It will not in felony ; nor will it supply the defect of force and arms in a trespass, so as to render it indictable. It may not be necessary to constitute a seditious writing that it be false ; for it is not the truth of the words that is in question, but the tendency and object of words to unsettle the government, or obstruct the laws. The truth of speculative opinions cannot be traversable ; or the policy of a law ; and therefore in seditious attempts, by publications, to unsettle the government, and excite opposition to the laws, the falsity of opinions need not be averred ; but in an indictment, though the court on which a verdict has been for the commonwealth, charges the " com- bining and intending by the publication seditiously to dis- turb the peace, tranquillity, and happiness, of the people of the state," yet it is as a consequence of the libel on the per- son of the ofiicer ; and it would seem that it could not be .ConiiidercA anindictruenir for sedition, and out oftheprovi- Law Miscellanies. 22f sion of the constitution for a personal libel ; for an indict- ment might be so framed in every case as to give it the ap- pearance of an indictment for the sedition, and so defeat the provision. But if falsity must be alleged in every bill sent up to a grand jury, in the case of a publication personally libellous, how shall the jury ascertain the falsity where in the nature of the case the prosecutor ci:nnot be sworn to the falsity; as where the defamation consists of general abuse, as depravit)' of heart, disaffection to insiiLutious, intentions hostile to li- berty, &c. I answer that if an indictment can ly at all, in our republican government; for such freedom of opinion with re- gard to public officers, the grand jury who must presume in favour of the officer will be justifiable in making the accu- sation of falsity, and the finding is but an accusation. But if maliciously will supply the term falsity, how will the grand jury be justifiable in finding the maliciously, which is but an implication from the falsity, and yet it will not be said that without the term maliciously, the publication barely set out in the indictment could support an indictment. The truth might have been given in evidence and the w^ords pro- ved false ; but not appearing on the record, it must stand as if judgment had gone on the barely publishing the words. When the truth may reasonably be expected to be given in evidence, in all cases where it exists, the leading the way for it, by charging falsity, may seem to be unnecessary ; but I must feel myself absolved from the rules of strict construc- tion, which the law applies to criminal proceedings, before I could think otherwise. Bad precedents are set in good cases ^ is a principle which will apply in all cases, and which though it may regardyorw, yet will protect substance^ and fortify the provision of the constitution, by shewing from the form of charging the of- fence, what defence may be set up ; and more especially, as a distinction might creep in between admitting the truth in extenuation, and in justification; and it might be, grow into a construction, that though admitted to the jury, it Avas in 'srder to reach the court, and direct their discretion in modi- a30 Law Miscellanies. fying the sentence. On this last consideration which per- haps outweighs all, I think the alleging the publication to be false, ought to be held essential. IV Black. Com. 150. By an act of Assembly, 1809, it was provided " that no person shall be subject to prosecution by indictment for the publication of papers examining the proceedings of the le- gislature, or any branch of government, or for investigating the official conduct of officers, or men in public capacity," And sec. 11. " That, in all actions or criminal prosecutions of a libel, the defendant may plead the truth thereof mjustiji- cation^ or ^ive the same in evidence.'' This act was subject to a limitation of three years, " andjrom thence to the end of the next sesnion of the legislature.''^ I have not seen in the title of acts of the last session, a continuance of this act : It would seem therefore to have expired. It was a great safety to the judiciary to be relieved from the necessit)^ of imposing fines in case of prosecutions under the law as it before stood. For the imposing fines in the case of men in public capacity prosecuting, never failed to draw with it much obloquy from the libellers, and the peo- ple not discriminating the liberty of the press, from the abuses of it, most usually ranged themselves in their sympa- thies on the side of those prosecuted. Hence it was that ^nes were remitted ; or where imprisonment made a part of the sentence, in the case of editors of Gazettes especially, their subscriptions were increased ; and where the authori- ties of the publications were given up, or where they avowed their writing, it was a passport to public favour, and often- times to the suffrages of the community for a public trust. This proved that such prosecutions by indictment in the case of libel were far from being popular. The judiciary found a safety in being relieved from the- necessity of imposing fines, or sentencing to imprisonment; Law Miscellanies. 231 for, though their own flanks were left uncovered, from this protection of the law being withdrawn, so that an indict- ment could not be sustained on their behalf for matters re- lating to official conduct ; yet they could not but find it safer to be exposed to general calumny, than to be under the neces- sity of drawing upon themselves the attacks of the malevolent, or their friends, who were personally irritated ; and, came forward to take a revenge through the medium of the public papers. But, the libellers themselves would not seem to have found their account in this lav/. For prosecutions by action being now the only mode of obtaining satisfaction by the per- sons aggrieved, and the juries assessing damages which they began to do pretty liberally, they could not raise the cry of persecution, not for coiiscience sake^ but for what was equally sacred^ the liberty of the press ; which was alleged ; however unreasonaably, in their case, to be concerned. Owing to these or other causes^ I do not find that during this interregnum of the law, as it might be stiled, libelling had increased ; and yet, the natural consequence would seem to be, that it would have increased. For it would seem to have been a great matter for the libellers, to have it provided for them under sec. 11. that the truth shall in all cases of indictment be given in evidence. So that where a public or private person xvas the subject of the libel^ he must be under the necessity of proving the calumny false; which, even though Jalse and groundless, might not be convenient, or pleasing thing to do. For all libel, usually consists in cari- catureox exaggeration of the picture, and it might not be easy to discriminate and shew to the conviction of the world, what was excess, and what was real. But what is more, there are many things which may be, and often are in the hands of the malicious made the subject of slander, which though in a great degree groundless, yet may have some foundation in collateral circumstances ; so that the refutation must affect those concerned, or others, not to the extent, but in some degree. They might judge it better, thereforeto bear the whole, than to have the matter stirred. What might affect domestic peace, or the reputation of a 232 Law Miscellanies. neighbour^ might also be a reason for not wishing to have the matter brought into public view. How the act might have been for the administration of justice generally salutary, and otherwise, is another question. The power which the courts had by the common law to impose fines, or imprison in the case of defamers, was not a trust for themselves, but for the people. If the people chose to take it away, it was their affair : they were principally interested. The officer for the time being, judicial or otherwise, had not more an interest in the suppression of personal abuse than the rest of the community. It might have been one reason why libelling did not seem to prevail more during the period we speak of, that, before this time it had proceeded to the utmost excess, and the public mind had begun to revolt at the licentiousness of the press ; not only the conduct of individuals, in discharge of public functions, legislative, judicial, or ministerial, was misrepresented ; but matters which did, in no way concern the discharge of their duty werie made the subject of animad- version, and reproach. Nor was this all j but such as had pretensions to office were attacked in order to defeat; and the effect of the defamation in this particular was felt by the community. A certain editor was known to boast that he could ivrite down any man in six weeks. Cobbet and Callen- der, I do not mention resident or living persons, had done good service indirectly, though they did not mean it, in bringing into disrepute the language of what the English call Billingsgate ; and that abuse which knows no restraint of decency, delicacy, or refinement. They had set such an example that all men saw the consequence of approving^ and the more viperous ceased to be encouraged in their burlesque, and malicious, and often false colouring and representation. It was thus that in Massachusetts?, in the time of those fanatics the Mathers, when credulity in witch-craft prevailed, and whole families were put to death on this suspicion, it was in vain that reason and philosophy interposed. Not until the accusation became so general as to alarm th^ bulk, would they for a moment be brought to doubt of the credit of the tes- timony; or to see the absurdity of the belief. Law Misckllanies. 236 The constitution of this commonwealth, by implication Would seem to give the prosecution by indictment. For though the term may apply to the prosecution by a civil suit, yet the provision of giving the truth in evidence, which had been always allowable in civil actions, shews the term to have a reference to a proceeding as for a misdemeanor. It cannot therefore be said, not to be an abridgment of con- stitutional right, for men in a public capacity not to have the privilege of prosecuting by indictment ; and where the mat- ter published, is not proper for public information, to have the trtith given in evidence. In the case of a /7r?t;afe/>fr*0M, the prosecuting by indict- ment is not taken away by this act, but the specification in the constitution of men in a public capacity, and a matter proper for public information, where the truth may be given in evidence, carries with it an itnplication, that in a prosecu- tion by indictment, in the case of n private person, the truth cannot be given in evidence. So far therefore this act was a departure from the spirit of the constitution. But is it not reasonable that the truth in all Cases should be given in evidence ? The reason of the common law, which has grown up from experience, would seem to have not. And if we apply our own reason, it would not be difficult, a priore, to carry the giving the truth in evidence farther than the constitution would seem to have done. This is in the case of men in public capacity, and where the matter published, is proper for public information. It might be said, that all men in public office are fair game, and may be hunted down by bringing into view even their foibles, extra-judicial aberrations, and exaggerating, or caricaturing them. Or more plausibly it might be said, that extra-judicial immorality, or even a deviation from the dig-^ nity of official station ; and the — decens et decorum — might deserve to be stigmatized. But allow this to asatyrist, and where will it end ? Give an inch and he will take an ell. He will not be content with a candid examination of the defect or error, but carry it far beyond the truth, like some of G G 234 Law Miscellanies. those minerals that eat away the fungus, and then corrode the solid flesh. Will it not be sufficient that all matters of this tia* ture may be brought before the legislature^ who have the con- stitutional power of removing from office ; and in which case and that of infirmity and incapacity it is alone perhaps the constitutional proceeding. For in the case of a mis' demeanor i/z offce^ the redress by impeachment is provided. But, in the ca.se of private persons who endeavour to pur- sue, in humble life, The noiseless tenor of their way. Or who court the shade, and have chosen the ■ fallentis semita vitse. Why drag their frailties from their dread abode; why intro- duce, though true, what does not concern the community ? It is unprofitable to the public and increases the miseries of hu' man life to individuals, which are enough, God knows, in all conditions, situations, and relations. That even the truth ought not to be told at all ti?nes, is a proverb as old as the ex- perience of man. Breaches of the peace would be unavoid- able in such licence were permitted for a length of time. For I lay out of the question that breaches of the peace, have not perhaps multiplied within these three years, during which time this act has existed. Fori look to the permanent e^ect, and this must be deduced from the nature of things, and the experience of ages, rather than the experiment of a period. In the nature of things it is impossible, but that where matters are brought into view of no public concern ; whether in the case of public men, or private persons, and where the matter is rather vexatious than infamous, wounding to the feelings, more than injurious to the estate, a breach of the peace should not ensue, and it is upon this experience that the common law is founded, in not suffering such matters to be at all broached or any thing heard about tiie truth of them. For being nothing to the community whether true or false, but of great consequence that the peace be preserved, it is the principle that truth or no truth is no justification of libel- ers in such cases. On the contrary it is the law, that the great- er the appearance of truth given to the libel, it is the more provoking, which maxim misunderstood, has led to that die- Law Miscellanies. 235 turn, that " the greater the truth, the greater the libel.^^ Or perhaps it maybe explained by saying, that the greater the weakness, or aberrations which humanity would keep out of view, it is the more provoking to have it brought before the public, and the more irresistibly impels to outrage ; and for which reason, the law will more guard against such provoca- tion and consider it the greater libel. Be that as it may, the /»o/zcy of the law is the preservation of the peace. And, is it reasonable that the law should extend the prosecution by in- dictment to assaults and batteries, and permit no excuse of words or writing to be setup as justification, or even given in evidence on the plea of not guilty, as matter of excuse ; but to the coui-t only after verdict ; and yet that ^Ae truth of an indictment for words, or writing the truth should be ad- mitted to justify the speaking, or writing, when the proving the words false, or even malicious, would not justify, or on the trial even ^.x-czwe the battery ? Shall the ^rt;^£'//Mm, or whip of calumny have greater privilege than the club of strength? Intending these strictures more for the legislature, than the profession ; for I would not take it amiss if the greater part of lawyers should think themselves above viy instruction, I do not enter into a consideration of the kao of libels. But so far only as to take notice of the observations of Barring- ton on the statutes quoted by Judge Tucker in his edition of the commentaries ; for I have not Barrington by me at the present, to refer to; viz. "That the general rules laid down by the court of Star-chamber in Pickering*s case, 5 Coke 125, from whence the doctrines contained in the text are borrow- ed, are either extra-judicial, or not maintained, one of which Lord Coke himself contradicted on another occasion ; and that the reason of the questionable doctrines contained in that case, arises from every one of those rules being borrowed from the civil law, that, when we consider the source from whence these doctrines have been brought to us, the reason- ableness of them ought to be examined before we yield our full assent to all of them.'''* It is my way of thinking that the reasonableness of all (doctrine ought to be examined^ and this on the ground of pub 2S6 Law MiscellAkies. lie policy, and general convenience; but I will acknowledge that I am not able to discover any thing unreasonable in the doctrines as laid down in the text of Blackstone. Some of the doctrines laid down, 5 Coke, 125, may be derived from the civil law ; but so far as the text of Black- stone goes there xvould seem to be nothing that has not its source in the common law, or sanctioned by it. It may be observed that Blackstone does not adopt every principle laid down in the star-chamber case, particularly that " where a man finds a libel, if it concerns a magistrate or other public person, the jinder ought presently to deliver it to a magistrate to the intent that by examination and industry, the author may be found out and punished." This princi- ple I do not approve. For I think the finder is not under an obligation to take any notice of it in the case of a public person, unless it concern the commtmity, but is at liberty to burn it, as it is admitted he may do, in the case of a libel on a private person. But taking it that it is a writing which affects the safety of the government, and in which case it is, I presume, that it is meant to be enjoined as a duty, I do not say that I find even this exceptionable. But the court of star-chamber got an ill name, and deservedly, from many usurpations, and the proceedings in the case of libel as in other matters, being by information, and withotit a jury, it was justly odious, and even its doctrines, where salutary, were suspected and unpopular ; and hence, to brand a doc- trine with the name of star-chamber, carries with it a de- gree of reprobation. IV Bl. Com. 194. BY an act of March 5d, 1812, the governor was requir- ed " to request the Attorney General, to draft and prepare a bill consolidating the whole of the penal lav.s of this com- monwealth ; and, suggesting what additions, alterations, and changes should take place in the system, for the purpose of Law Miscellanies. Q37 laying before the next legislature." I know not whether the attorney general may think proper to suggest any al- terations, or chafige, with respect to the punishment of death in any case. But, be that as it may, the expression of the will of the legislature to hear what may be suggested, gene- rally, on the ponal code, has emboldened me, though not with- in the legislative request, to suggest what has occurred to me, in my reflections on the subject of capital punishment in the ease of murder in the first degree ; which now remains the only case, in which, the puiyshment is capital. In limine, or, at the threshhold of an examination of what relates to this, we are arrested by the language of Revelation ; " whoso sheddeth man's blood, by man shall his blood be shed." Gen. 9th, 6. The context, as the divines would say, is in these words ; *' and surely your blood of your lives will I require ; at the hand of ever)' beast^ will I require it ; and at the hand of man ; at the hand of every man's brother, will I require the life of man." Were it not for the preceding words, I should have been disposed, to have considered those of the text, as con- taining a denunciation merely^ of what, in the course of things, would most usually, and most naturally happen; viz : that, in revenge of the person slain, some one would be prompted to slay the slayer; so that, in a course of retributive justice; and, in this sense, it might be said, "whoso sheddeth man's blood, by man shall his blood be shed :" but the words of the context do not leave room, in fair and candid construc- tion, for such a meaning, to be put upon them : it must be taken, as enjoining the ave7iging of the blood of tran. But is this injunction to be considered, as respecting men in a state of nature ; or, in a state of society ? Doubtless, not to men in a state of nature onlif ; but also in a state of so- ciety ; because being promulgated to Noah, who was in a state of society ; though his family consisted but of eight persons ; it cannot but be considered as extending to that association ; and, to all others that might spring from them. This must silence the allegation of those Avho undertake to 238 Law Miscellanies. say, that no poxver can exist in the social state^ to put a niaui to death ; / speak of vioral or lawful power. But, taking it up, independent of Revelation ; and, on the principle of reason, why is it that the lawfulness of putting to death in a state of society, shall be questioned ? It is said to be because the individual entering into the social state, can surrender to the community, no power, but that which he himself, in a state of nature had possessed ; and having no power over his own life, he could not surrender that which he had not. But this is a fallacy ; for, it is not a power over his own life which he surrenders ; but the right to preserve it^ at the expense of the life of him who would take it away. It is this right of self-preservation which is surrendered ; and unless in a case, where self-preservation is inconsistent Avith delay, the taking the life of an assailant is not warrant- ed by any municipal law. But this right of self-preserva- tion so surrendered to a community, warrants the interfer- ence of the body politic to protect from the assailant, who attempts homicide ; and, if that cannot be done, to provide against what may be presumed to be likely to be atttempted by the same offender against the life of others. What can this provision be ? The most certain, unquestionably, will be putting an end to the power of action in the offender. This must render it physically certain that this individual who has shown himself to be hostis humani generis ; or, in the light of an enemy of mankind, will not again have it in his power to take away the life of another. But would it not be enough, if it could be rendered morally certaiji^ that he should not have it in his power again, to take away the life of any one ? Does not the highest degree of probability approach so near- . Jy to absolute, as to be scarcely distinguishable from it : to be, in fact, to all practicable purposes, the same thing ? A man so confined as to be to all human probability, out of the way, and not likely to have it in his power to take the life of another, would seem to be much the same thing as a dead man to the social state; and no longer endangering the safe- ty of an individual of the comjnunity. Law Miscellanies. 239 But still he is not dead ; physically dead, says the ob- jector ; and the " whoso sheddeth man's blood," &c. is in the way. I grant it is; but this injunction, cannot be con- sidered more than a general rule ^ and subject to exceptions. What was the occasion of this precept to Noah ? It was the destruction of the whole race of man, by a flood, eight per- sons excepted. What was the object ? The preservation of man in order to replenish the earth. Will it not be inconsis- tent with this object to take away the life of a man, provided the preservation of human life can be equally guarded and attained ? This is the exception; and as the jurists say, makes it a part of the rule ; it must be considered as co-existent with it, and involved in the nature of it. Where the letter of the law is inconsistent to any extent, with the spirit of it, the spirit must prevail. This is a rule of interpretation in all laws human and divine. But the legislator of the Jews who has recorded this precept; for we assume it that he was the author of the five books, or Pentateuch, as the Septuagint calls it, has given us a practical application of the precept ; and has laid it dowa in his law, that, "the murderer shall be put to death."-— Numb. XXV. 6. This goes, in express terms, to sanction the right of a society to inflict death. But what was the state of the Jewish society to whom this law was given ? Were they in a situation to be able to preserve themselves from homicide, without such extermination of an individual who had com- mitted murder ? In a wandering state of society, in a wilder- ness, had they the means of self-preservation by confinement, and keeping to hard labour. This being the case, could the injunction be understood otherwise than as having relation to the condition of the people ? Can it be of binding obliga- tion at all times, and in all cases to put to death ; and not rather subject to the reason of the law given to Noah, the pre- servation of the life of man ? Shall the slayer be slain, who not only can be put in a way to be restrained from a possibility of committing homicide; but may be also rendered useful, in his confinement to hard labour ? It would seem to be sub* *240 Law Miscellanies. , verting the end of all punishment, precavention and reforma- tion* The precept " whoso sheddeth man's blood by man shall his blood be shed," still recurs. What has been the appli- cation of this precept from the earliest existence of christian commitnitits ? Christianity is a ground of the common law^ which is our birthright ; and, yet, this law admits the power of the society to pardon. What is this but to dispense with the injunction given to Noah, that " whoso sheddeth man's blood by man shall his blood be shed ?" By our constitution, the executive magistrate is vested with the power to pardon. A felony of murder is not ex- empted from this power. If the magistrate, who in this par- ticular represents the power of the society, can pardon, he can reprieve. Can there be any thing in his way to hold the criminal in confinement for life under the idea of a reprieved Could this be said to be otherwise than a dispensing with the law of God ; and yet our law, immemorially and our late and present constitution warrants this. If our magistrate has the power of reprieving in this way, it may be said, why not exercise it? There is one thing wanting, which, may be a reason for not exercising it; and this is the not having a power under a reprieve, to employ at hard labour ; and thereby, to relieve, in some degree the community from the burthen of the convict's support. He has the power to continue a reprieve without limit ; but it must be at an expence, which, did the law go to embrace this case, might, in a great measure, be avoided ; or rather the service of a criminal turned to an indemnification to some extent, for the injury to the society. It is remarkable that it makes a part of the text and con- text of the scripture in this place, that, in the case of a beast causing the death of a man, it shall be put to death ; " your lives will I require at the hand of every beast :" and agree- able to this is the injunction of tlis Jewish Legislator. " If an ox gore a man or a woman, that they die, then, the ox shall be surely stoned." Yet in christian countries^ this has never been carried into effect; the putting the beast to death Law Miscellanies. 241 in anyway; and yet this makes a part of the injunction to Noah; and if this is dispensed with under all christian in- stitutions ; for I know of no exception, why not admit of the like softening in the rigor of the precept, under the chris- tian dispensation, in the case of a homicide by man .' Under our common law, in the case of a beast, causing or even oc- casioning the life of man, it is forfeited to the king. 1 B. Com. 300. Why not the like commutation for death in the case of man ; the forfeiture of the labor for life of the culprit to the community. My deduction is that the injunction to No- ah is not of universal application under all circumstances ; and under the christian dispensation is taken away altogether. So that, though 1 hold it lawful to put to death for murder^ yet I resolve it into a question of expediency^ and, subject to the reason of the law^ the security of the peace, and the pre- servation of the life of man. If, consistent with this, the criminal can be spared, it is inexpedient to put to death. If, on experience, the state of society should be found to be such as to permit this, without endangering the community, I, should think capital punishment unnecessary ; and it is only in a case where unavoidable, and necessary, that I should think it justifiable. " Ense reddendum immedicable vtdnus.''* In the state of society in which Noah, and his immediate descendants, must, for»a length of time, he, and, under the circumstances, in which the Jews were : more especially, before their fixed habitations in Judea, and, improved estab- lishments, it might be impossible, and it was certainly mo- rally impossible, that the people could be safe, and a mur- derer be permitted to live ; but a very different degree of proof was required.^ from that under the common law of England^ which, yet, continues to be our law. For, by the Jewish laws, *' whoso killeth any person, the murderer shall be put to death by the mouth oj witnesses ; but one xvitness shall not testify against any person to cause him to die." Numb. XXXV. 30. And again, " at the mouth of two witnesses or three witnesses, shall he that is worthy of death be put to death, but at the mouth of one witness, he shall not be put to -H H 24S Laii; Miscellanies. death," Deut. xvii. 6. Query, ought not the testimony of these witnesses to be direct ; and, to the actual fact of kill- ing ; and not to circumstances only. I would lake it, that the teBtinion)' must have been positive, and to the actual fact of killing' ; and not to be deduced from the presumption of circumstance. Under our law, one witness is sufficient to convict ; and, even, where the testimony goes but to circum- stance. In this respect, our law is more sangviHary than that of the Jews : and, even, though the injunction of Moses might be said to be given in this case, as in another, " because of the hardness of their hearts." Might it not then be a rea- son for a commutation of a capital punishment for imprison- ment for life, that, especially, where a conviction had taken place, on the credit of one xvitness^ or from circumstance on the evidence of more than one. Unless the code is so ameli- orated, in this particular, it is more sanguinary than €ven the Jewish law; for the lesser degree of evidence being suffi- cient to convict, makes the law more sanguinary. Neverthe- less this is under the christian dispensation^ which has been considered as softening the rigour of the Mosaic precepts in many instances. It is not my meaning to suggest an alteration of the laW in regard to circumstantial evidence being sufficient to con- vict ; for circumstance often speaks stronger than words ; and there could be no security from assassination, unless the law were so ; but it will be a consideration for the doctrine of continual reprieve which I advocate ; as on a conviction from circumstantial evidence, if providence should at any time, bring to light the innocence of one condemned, as has some- times happened, it might not have been altogether out of the power of the society to relieve his person from confnement; and his name from infamy. But the restraining the malefactor from doing hurt, as to future time, in his own person, is not the only object of pun- ishment. The example to others will be a preservative against what they may do. This will bring it to the question; which is most likely to affect, the carting to the gallows, or to the place of hard labour and confinement for life. I do Law Miscellanies. . S43 not take it there would be much difference as to the effect. For I count but little on the effect o£ a. present terroryhav/e- ver shocking the spectacle. The best means of preventing the catastrophe, will be found in restraining the passions by a useful occupation, and impressing moral and religious in- struction on the mind. Prcsstat cautela quam medela. In the countries of Europe, Britain in particular, Avhere the ef- fect of capital punishment has been tried abundantly, it has not been effectual ; not more so than transportation and exile ,; which in most cases has been substituted for it. We have no Botany-bay to which we can transport ; but we can ac- complish the same thing by confinement and hard labour. What then would be the amendment, in this particular, which I would propose to the penal code ? It would be, that, on conviction for murder in the first degree, the convict shall undergo y- and the language of the constructive contempt. " He that despis- eth you, despiseth me ; and he that despiseth me, despiseth him that sent me." It is not the court that is despised ; but tlie law which they are bound to administer. We say " against the peace and dignity of the commonwealth," in an indictment ; and yet the commonwealth, that is the body of the people, know nothing of the myitter, and feel neither peace nor dignity affected. A taU man, which in the old language means a strong man, impels another with his foot upon what are called the posteriors. The commonwealth, in fact, that is the body of the people, never hear of it, or take any heed of the consequences ; nevertheless the law pursues, and punishes in the natne of the commonwealth. But a principal of these contempts, is an interference with a case defiending in the courts of justice. It is the policy of the law to provide against this, by giving the suitor a right to call upon the court, for a summary interference to restrain it. But why not turn the matter over to a jury; and let them in the first instance find a bill ? I grant that where the libel is upon the court itself, it might be prudent, and would answer the end as well, to let the fact come forward established in that way. But where the cause in court is affected ; where any blemish is thrown upon that while it is depending ; the right of a third person intervenes ; the right of the suitor who calls upon the court to interfere by a summary firocceding. Can the court refuse in this case ? " I call upon you. Messieurs Judges, for protection ; for redress ; you have the power; it \%the law of the la?id. You arc sworn to dis- pense the law ; it is your duty. I demand my right. My case sliall be considered pure until it is determined otherwise by a final fiearing and decision. Will you tempt me to break the peace ; to murder this man that has attacked my interest and my honour, by his publication, relative to the controversy that is in law between us. If you withhold the. summary redress, which the law gives. 246 Law Miscellanies. you tempt mo to break the peace ; and his blood be upon your heads. Shall I lie by, and let the imputation rest upon my cause, or affect the decision, and take my chance of a circuitous prosecu- tion, when the law gives me an immediate protection, in the shape of supporting your dignity i I have a right in the power which you possess ; and I call for the exercise of that power." This is called the power of the court ; but it is founded upon the right of the citizen. It is the duty of the court to proceed in this way, when called upon ; because the suitor has the election of the proceeding, by calling on the court ; or by indictment for the libel. But under an attachment, you call upon a party to say whether he is not the author of the writing. That is against a principle of the comirion law ; no one is bound to accuse himself ; and by a clause of the constit\ition, no one is compellable " to give evi- dence against himself." But the parts of the law must be taken together: exceptions subject to the general rules. The proceed- ing by attachment, and compelling to answer on interrogatories put, existed under the common law, whose maxim it was, "no one is bound to accuse himself." It is a special case out of the general principle : and there is good reason for the exception. But whether reason, or not, the exception is as old as the princi- ple. For this proceeding, and such interrogation is of immemo- rial usage; it is as old as the constitution of the courts themselves. If our constitution had meant to do away this exception, it would have voted it in express terms ; more especially as it had been ex- ercised by the courts before the formation of the constitution ; apd by implication recognized by the legislature itself, in the case of Oswald, taken up by the house. But the constitution gives the coilrts, ^ the powers usually exercised." This power was usually exercised, and therefore it is given. But there is reason for it, independent of law, and constitution. The administration of justice requires it. How can I fix a libel on the author ? The presumption is, that my adversary hi the cause depending, is the author of the writing thaX. affects the merits of it^ On this presumption the law gives me a right to call upon him. Who else can be supposed to interfere but my adversary ; or some one with his privity ? The necessity of the case justifies this ex- ception to the general rule. He may go on behind the scene and prejudice the public mind against me and my cause, and leave me to my redress afterwards. The law will not allow this. If it is Law MiscELLAKiEfc. 247 not a principle of the law, it ought to be a principle. But it is a principle as old as our Saxon ancestry, from whom the trial by ju- ry is derived. It is coeval with the trial by jury, and necessary to its preservation. It is a safeguard of the trial in which the bulk of the people are especially interested. Before they give it up let them think. Leave it to the suitors in court, and at least one side will always object to it ; probably both. All that wish a fair and Unprejudiced decision will object to it. They will not be satisfied with being turned round to an indictment, and the slow process of a jury trial to establish the fact of the libel. But they will wish more, that the party interested, shall be purged on his oath, as to his agency in tne publication. In this case, they have the consci- ence of tne party to establish the guilt. And the looking forward to him, will lessen his hope o( eecafiing detection. It is a great pri' vilcge to an honest man. It is the rogue only that needs fear it. But though the bare circumstance of being a party to the suit depending, may found such presumfition of being the author of the writing, as will justify the calling on the party to answer, by a rule to shew cause why an attachment should not issue, yet it is never done, and perhaps ought not to be done, without an affidavit of some fact to lay a ground for the motion. This in the case of a third person, is absolutely necessary ; for no presumption of the nature already Stated, can exist. " But the negative of the party to the suit depending, or of a third person, on oath, dissolves the rule, and there is an end of the sum- mary interposition. This is a firiviiege fieculiar to this special firQJ ceeding : and not possessed in the case of an indictment by a. grand jury. It softens the extraordinary remedy, by suffering a man /o be a ivitneesfor himself; and ivhat is mor<; ; taking loltat he sort/*, to be the truih-^and so far as respect the attachinenty incontrovert- ible. Butif this power, though founded on law, and the constitution, should be deemed contrary to the spirit of liberty, or good policy , a clause of a few lines, can put an end lo it : viz. " That in the case of consequential contempts., by interference in a cause depend- ing, the proceeding shall be by indictment, in the first instance ; and in no other way." It will relieve the court from a burden, which they conceive a duty ; and experience will determine whether the alteration of the common law in this particular be an evil or a good. 248 Law Miscellanies. But of what use can a rogue's oath be ? He is not supposed to have a conscience. But he can look to an indictment for perjury. But suppose he did not know, or at least think there was a cause depending ; and that he did not mean a contempt. It is not what he thought, or what he meant ; but was there a case defiendingy and what did he do ? But at this rate you abridge the liberty of sp.eech, and of writ' mg ; you make it dangerous to canvass a general principle of law ; for some suit may be depending on which it may turn. The law goes no such length. I am at liberty to canvass a general princi- ple. It is a consideration of the particular case from which I am excluded ; or the application of the facts to the law. The legality of general warrants was abundantly canvassed, at the time Wilkes was the subject of one of them ; and no exception taken to the free* dom of the press in this particular. The constitutionality of the sedition law of the United States, was brought into view pending indictments under it ; and no exception. I am canvassing a gene- ral principle at present ; and there are impeachments depending where it may be brought into view. That is nothing ; for it is the facts of the case that will be ultimately considered. The courts may have this power, and yet may exercise it with fiartiality^ ofifiression^ and tyranny. This will render the exercise of any flower impeachable. For this the accused must put them- selves upon the country ; or if clearly and palpably, a court have no such power at c//, and yet exercise it, it is a misdemeanor. For error in jvidgment where there is a right to judge, is not impeach- able ; but the exercise of a power unknown to the law, even though unaccompanied with express malice, is impeachable, and will sub- ject to a reprimand^ i:fc. according to the circumstances. The rights of the citizen are thus secured; and far be it from me to abridge them, even in idea, by any reasoning I may offer. NOTES ON smith's edition of the LAWS OF PENNSYLVANIA. BY an act of Assembly of 28 Feb. 1810, provision is made for a publication of the laws, to be examined and approved by the judges of the supreme court ^ and the Governor is au- thorised to appoint some fit person inter alia " to insert the notes of judicial decisions.'''' To what must the examination, and approbation of the supreme court be considered as ex- tending? It could not respect type, press-work, or fidelity of the publication, compared with the enrolled acts ; or even the arrangement of the laws ; but what was immediately within the province of their judgment, the insertion of the notes of judicial decisions. Nor could this examinatio7i and approbation be considered as vouching for the correctness of the deci- sions ; but, only at most, for the correct statement of these decisions. Nor even that indeed, for no record is kept of deci- *Z57Z5, but only of causes in which such decisions are made. And this, without recurring to the prothonotary's dockets, was not in their power. It would require a labour of years to ascertain all these. But as to the reasons of the decisions in a particular case, this could only be collected from the notes of judges ; or others who had taken notes. And these notes could not always be considered as correctly taken, unless noted by the judge himself at the time he delivered his opinion. Nor had any one judge the notes of other judges in his power ; much less, of those taken by the coun- sel at the bar ; or, by others. And what is more, in the case of judges who had set on the bench before him, and were deceased, unless from papers left behind them, I I 25(5 Law Miscellanies. which might, or might not be furnished, there was no oppor- tunity of information. The notes of judges, or of others, is private property ; and even an act of assembly could not enforce the procuring them. But an impracticable consequence must follow if their examination, and approbation was to involve a consideration of the laxu of the decisions. For that would require of them with the reasons given, much time, and be inconsistent with the prescribed official attendance, and necessary hear- ing and adjudication of causes in court. A great mischief would also follow, that these decisions shovdd be sanctioned, or disapproved without argument in • the particular point of law ^ when it comes again to be consi- dered. For though the stare decisis is a salutary maxim ; and the non ita refert, may be taken into view ; yet every party, in his particular case, has a right to coJitest his decisioti ; for decision is hit the evidence of law ; and the judge himself has a right to depart from the decision of others ; and, even from his own, in a new case. It cannot therefore be suppos- ed that the legislature in imposing the duty could mean to forestnl the opinions of the identical judges at a future day, by such a revision. They could mean, only ; and certainly did mean no more, than to call for some judgment in bulk upon the work, as to the reasonable industry, and pains be- stowed in collecting decisions. Whether these were right, or wrong, they could not be considered as expressing an opinion. Nay, on the contrary, if decisions in the individual opinioti of any of them ; or of the whole erroneous, were left out, it would be a reason for refusing their approbation. The pub- lic had it in view ; and had a right to know, as far as possi- ble what decisions had taketl place. This doubtless, with a view to provide by law Avhere they might think it necessary to interpose. This., by acts declaratory of what they conceiv- ed the law to have betn, or explanatory of acts of the legisla- ture, where the conslruction put upon them by the courts, appeared, as thev might think, to be erroneous : or, to supply or amer.d where there appeared to hr a. defect in the acts themselves. Law Miscellanies. 251 Nevertheless, though on my part it was considered, and as it appears would seem to have been considered by the other judges, as extending to nothing more than as I have stated; yet I did not consider my self as precluded from giv- ing an opinion, if 1 chose to do it, on any decision that had been made. And I cannot say that there are not so?ne of which I do not approve. From some of them indeed, I have dissented in a judicial capacity ; and in most if not in all of these / stick to my opinion. But not in any case, where I think it wrong. Because I am more covetous of the praise of candour in retracting error, than even of correct judgment^ in the first instance, A few of the notes which I made in reviewing this pub- lication, which deserves not a little credit, for its labour of industry, and collection of decisions, I take the liberty of sub- joining here : thev will be but few of which I shall take no- tice. These chiefly which respect the law of legal tenure in Pennsvlvania. SINCE writing the above it occurs to me to subjoin a few observations more particularly upon the task enjoined upon the jud'^es of the supreme court, in examining and ap- proving the edition of the laws, v/ith notes of decisions as prescribed by the act 28 Feb. 1810. It would be a reflection upon the understanding of the legislature, and an indecency to suppose for a moment, that they could mean that the judges were to approve of the decisions reported^ but only of the re- port of the decisions. For it could not but be considered as much within the view of the legislature to have erroneous decisions reported as those which the judges might think correct. For the object of the legislature must have been, to see what the decisions were ; whether erroneous or correct ; with a view to interpose, where it might appear to them, their own acts required explanation, or amendment. Decla- ratory lav/s settle the intention of the legislature. These decisions so reported will be read in court, but no greater 252 Law Miscellanies. •weight will be attached to them^ than their own intrinsic rea- son will seem to justify. Chief justice Shippen, expressed the idea to me that decisions merely nisi prius^ and these constitute a great part, had better be burnt ; because they might mislead. But as the legislature have called for them they could not consistent with duty be omitted, and the judges could not with delicacy but approve the reporting, because the keeping any of them back, would be contrary to duty in the reporter, and the giving countenance to this by the judges, would be a participation in the fraud. So far from approv- ing these decisions in any other view of the matter, I do en- tirely disapprove of ynany of them; in other words dissent from them ; and especially such as have a relation to the lands within the purchase of 1768 ; and those lying west of the Allegheny river under the act of 3 April, 1792. In contemplation of law a nisi prius decision not appeal- ed from by a motion for anew trial, acquires in some degree the force of a decision of the court above ; but it can only be in a degree ; for the court sitting above is at a distance ; and it becomes a matter of expence to appeal. In Penn- sylvania, where until of a late period, the court in bank sat in the city of Philadelphia at the distance of many hundred miles from the county in which the nisi prius trial was, it was a matter of increased expence to prosecute an appeal; because fresh counsel must be employed in that case, the counsel at nisi prius not attending, as they could not with any possible convenience at such a distance. And even the fresh counsel that might be employed at the then seat of government could not always be well acquainted with the local laws of the in- terior, so as to do the case equal justice with those even of in- ferior talents that had more knowledge of the acts of assembly applying to rights in a particular quarter; and this, from a more careful study of them. I hav^e known the poverty of a defendant, in many cases, to operate as a bar against an ap- peal; so that whatever might be the effect of not appealing from a nisi prius decision in contemplation of law, it in fact amounted to nothing, so far as respected the decisions In the counties rev.i'Ae from the sitting in Bank. Law Miscellanies. 2o3 But, it was discouraging in any case to appeal where two of the judges sitting at nisi prius, left but two others in the supreme court to whom the appeal could be made ; and the two sitting at nisi prius, had in their turns the revision of the decisions of the two behind, who in the mean time were on the circuit elsewhere, and thence could not be supposed in fact, whatever it might be in c»ntemplation of law, to have a leaning to support what the other two had done ; not to judge severely " lest they themselves should be judg- ed." In a court so constituted, an appeal was a mockery. It was an appeal, I will not say from Philip drunk to Philip sober, for I mean no such reflection ; but it was al- most the same thing as an appeal yro7?z Philip to Philip. I admit that during a period there was what was called a court of appeals, not independent of the supreme court, but with a simul cum of other characters. But this court was holden at the seat of government, and it was a matter of still greater expence after a decision on the appeal, in the supreme court, to pursue it farther to a hearing in the last resort. The terms holden as they now are 'm districts^ and by judges who have not sat at nisi prius, or have to review the deci- sions of each other, with regard to causes in the counties, is a great improvement on the system. Thus much I have thought is necessary to say, with re- gard to the extent of that approbation which the judges of the supreme court may be considered as having given to the notes of decisions, as reported in pursuance of the act of the legislature. Under the act of the 1st Ap. 1784, in the edition of the laws which the judges were to examine and approve, we have a note of much utility tracing the history of land titles in Pennsylvania. In this note a concise and clear view is given of the controversy of Penn with Lord Baltimore, respecting the boundaries of their respective grants. :iS^ Law Miscellanies. Bat I havY already provided ; 268 Law Miscellanies. and if an cntr)' under that law was given without warrant, on the lands as before in the commonweahh, why not now? I will admit that the condition of the grant by warrant under the act of April 2, 1792, is not a condition precedent ; but that the grantee in the warrant has estate in fee simple by virtue of the grant. But I take it that by necessary im- plication, it is a conditional limitation ; the effect of which must be, that on the non-fulfilment of the condition, an entry IS given to him for whom the grantor has provided; and from the express words of the act, would it not seem that the state (the grantor) has provided for the entry of an actual settler on the non-compliance v/ith the condition of settlement on the part of the warrantee. " In default of such actual settlement and residence, it shall be lawful to, and for this commonwealth to issue new warrants to other actual settlers for the said lands." And " if words of condition be used on the creation of an estate, and on breach of the condition, the estate be limited over to a third person, and does not immediately revert to the grantor, or his representatives, as if an estate be granted by A to B, on condition that within two years, B intermarry with C, and on failure thereof then to D, and his heirs j this the law construes to be a limita- tion and not a condition." 2 Black. 155. Now it would seem to me that granting new warrants to other actual set- tlers is a provision in favour of such citizens of the com- monwealth as might be disposed to appropriate by settle- nAent. For it is as much as to say, the condition not being complied with, a right of entry is given to others who upon settlement and residence shall be entitled to warrants. It might be some question whether warrants could issue to other than persons actually settled. For as the object of the state had been defeated by the first grantees, in a prin- cipal part of the object of the lav/, the settling the country, it would be reasonable that it should provide against a like non-compliance, a second time by granting only to such aa had actually settled. But be this as it may, it would appear to be against the policy of the law to suspend the right of entry until it could be ascertained by an inquisition of issue Law Miscellanies. 269 of office, that the condition had not been complied wiih : more especially when from the difficulty of ascertaining the precise spot on which the survey was made under 2i particu- lar warrant, it must be a work of time to point it out, and ground an application for a new warrant. But sanction the entry, and in the mean time the settlement goes on, and when the warrantee comes forward with his warrant, if he ever does, his own shewing will point it out. But let it be con- sidered and which perhaps it ought to be, an estate defeasi- ble on a condition subsequent ; and applying the law, that in such case, a stranger could not take advantage of the condi- tion broken, the estate being voidable, and not void. 2 Coke Lyt. 214. Yet the question will remain, whether a citizen desirous to settle can be considered to be a stranger. Had not every member of the state, an interest in the occu- pancy of these lands could the body politic be considered otherwise than as a trustee for the whole ; where every in- dividual of the community was in the light of a cestui que use as to a right of entry and settlement oi' this vacant coun- try ? This is a construction of the act most consistent with the policy of securing the improvement of it. It is certain- ly the least favourable to the engrossing large tracts of un- cultivated country, and most favourable to the poorer sort, for whose benefit the means of acquiring land for the sup- port of a family by labour without money, in the first instance would seem to have been intended. Nay, for whose bene- fit, the provisions of the law, or any other construction, must be in a great degree, an illusion; for the country being over- spread with warrants~almost generally immediately on the opening of the office, or rather before it is opened, what chance had they to any great extent, but from the voidable nature of the grants on the non-compliance of the warrantee with the condition specified ? The negative of this doctrine was laid down in the case of the lessee of Morris v. Neighman, 4 Dal. 209, " that even if it were a case of forfeiture, no individual could take ad- vantage of it by entering on the land ; the advantage could only be taken by the commonwealth, v/hose officers might 27ii Law Miscellanies. issue new warrants m the form prescribed by the act of as- sembly." But this was at a circuit court before not more than two judges of the supreme court, and this in the course of a jury trial ; and if there was not an appeal from the di- rection of the court in this particular, it was because (and be- ing of counsel for the defendant I have a right to know) the charge of the court, and the facts of the case were against him on another point, viz. that his entry though two years after the date of the warrant, yet was before the general pa- cification of the country, during which time, the limitation ran, and the forfeiture was saved, there being a prevention of settlement, by the Indian hostilities. It is true what was suggested in Morris v. Neighman, so far as related to this point, was but impliedly sanctioned by a reference to that case, on another point ; nevertheless, involving great conse- quences, in the construction of the statute, I did not choose that it should pass as receiving my concurrence in this par- ticular. Nor as to what was laid down in that case with re- gard to the time during which the prevention ought to be considered as lasting, whether until Wayne's treaty or after, I was not prepared to give an opinion, and therefore was not willing to be considered as recognizing the one given j for which reason I objected to the introduction of a reference to Morris v. Neighman's case, or an implied sanction of the extent of the doctrine laid down in it. More especially as it was evident from the very act under which this extra court then sitting was constituted, that so far as a legislative exposition could have^ weight, it was in the face of this doctrine ; and this by unavoidable implication from the fol- lowing clause of the preamble. "As much confusion might arise, if the state were to continue to grant lands which in consequence oi former acts may have become the property of others." How could they have become the property of others, otherwise than by grant, if not by the entry of the settler ? In all other matters laid down by the presiding judge, •n the direction to the jury, in the case of the Attorney Ge^ Law Miscellanies. Q7l neral v. grantees, I acquiesced then, and am Well satisfied now of the correctness of the principles. The litigation which has arisen in regard of original title to real property, in Pennsylvania, has been owing, in a great degree, to the deception of purchasers, and the fraud and negligence of officers intrusted with the carrying grants into effect. The grant, under whatever name, or in whatever quantity, it may have been, was a matter between the proprie- taries whilst they continued the owners of the soil, and those to whom they chose to grant. It was in the evidence of ap- propriation that the community became interested. Had the^ whole country been a woodless plain like Egypt, a place of beginnmg marked by a stone or other monument, would have been all that could have been obtained. Courses by the compass, and distance by the chain, must have done the rest. But the variation of the compass and the unavoida- ble inexactness of measurement, would have rendered the identity of the specific ground appropriated, in length of time uncertain. It was a dictate of good sense therefore, and was of gv^neral convenience, the country being a timber- ed forest, to adopt the expedient of the natut?al boundary of trees, marked, as a corrective where they could be found ; and when these so marked can be ascertained, they are aly ways to govern. The instructions from the surveyor gene- ral to his deputy, from the earliest period, were to go upon the ground and run the courses and distances, and mark the trees. But as in this case the trouble of going on the ground and the expence of paying chain carriers, and a marker of the trees, and of provisions furnished for these, must be incur- red by him for whom the survey was made, there was a temp- tation to dispense with the going on the ground; or the ac- tual running, and marking the boundary trees. But more frequently the surveyor himself intrusted to make the sur- vey as officer and as agent, took it upon him to dispense 272 Law Miscellanies. with going on the ground, and made the survey on paper merely. This he could do, by stating a beginning on some other survey actually made, and taking the courses and dis- tances of that survey, or part of them, for the courses and distances j^retended to have been now run. His temptation to do this, was the saving himself trouble, his fees being charged the same as if he had gone upon the ground. A neighbour wishing to appropriate, or informing one who wishtd to appropriate, knowing there had been no surveyor on the ground, or boundary tree marked, would speak of this land still vacant ; nor would the return to the office of a survey, on this ground, give him information of which he Gould reasonably take notice; because there having been, in fact, no survey made on the ground in question, he must conclude it to be some other ground, on which the survey was made. And here sprung the first error of our courts of justice in sanctioning a survey where a conflicting claim came in question, which had not been made by going on the ground, and actually running the lines. These were the di- rections of the proprietary office for the granting lands, and where this was not done, it must be the fault of the grantor, or the fraud of the officer, and the ground ought not to have been considered as yet legally measured off; but as belong- ing to the unappropriated mass, and liable to be disposed of to others. For though the officer must be considered as the agent of the proprietary the grantor of the soil, yet he must be viewed also, in the light of the agent of the grantee and as against whom as agent, the grantee has redress by complaint to the principal, or by action at law against himself. His acts to a certain extent must be considered as the acts of the grantee ; and third persons, innocent, bona fide purchasers, ought not to be affected by the irregularity of carrying a grantintpeffect according to the implied or known terms of the contract. Where it becomes a wrong to others ; that is the occasion of their taking the same land as unappropriated, this wrong ought not to be taken advantage of by the authors of it. It is conirarv to the maxim. Law Miscellanies. 273 But the irregularity was not only In not going on the ground to run the courses and distances, according to the in- structions of the office or the authority of the warrant, and taking for boundaries, the surveys of others made at other times, but in taking up the courses and distances made under a different warrant returned afterwards on a survey not on the ground for which it called ; or courses and distances run with a view to a warrant that might be taken out, and which when taken out was returned as made at a date subsequent to the date of the vrarrant, and with which date the marks on the trees would not correspond ; and which the testimony of the vicinage would refute having knowledge of the time when the survey was actually made. Notoriety of appro- priation is a great object; audit was the act in pais the car- rying the grant into effect by actual admeasurement, and lay- ing off by marks that even the unlettered could read, that was in the view of the owners of the soil, and ought to have been regarded by every purchaser. The neglect of this, or omission, was a legal fraud upon the public who had an interest in the notoriety of appropriation. For the proprie- tary William Penn, took his charter subject to an implied condition of settlement. For this is not only the object of all colonization ; but it is held out in the charter as the ob- ject of the grant, " the enlarging the English empire, and promoting useful commodities." This from the preamble of the charter ; and again in Stc. 5. " that this new colony may more happily increase by the multitude of people resort- ing thither, Ave for us, our heirs and successors do give and grant by these presents, pov.'er, licence and liberty unto all liege people and subjects both present and future of us, our heirs and successors, excepting those Vvho shall he specially forbidden to transport themselves, and families to the said country," and doubtless the proprietaries under this charter, had this object honestly in view, because, if fi'om no other reasons, their interest was connected with it. Every pur- chaser had an interest in the population of the country; for the improvement of the settlement was the iinprovement cf his mdividuui fliim. Every stroke of an axe struck by Ills M M 2/4 Law Miscellanies. neighbour, in clearing the country was half a stroke fot him. Could any thing more effectually defeat the object of the crown in granting, or of the proprietary in tak- ing the charter ; or of the purchasers interested in the im- provement of the country, than irregularity in the appropri- ation, defeating the notoriety of it, and misleading settlers. It was a monstrous evil, and the judiciary at an early hour ought to have set their faces against it. The proprietary board of property did; and I take it that, in the exaroina- lion of their proceedings, it will appear that in general they discovered a willingness to save an applicant from the wrong likely to be suffered, either in his settlement, or warrant from a want of notice of what purported to be a prior appropria- tion, but which had not been regularly carried into effect. Be that as it may, the commonwealth succeeding to the owner- ship of the soil, would seem to have had their attention drawn to these irregularities which had prevailed, and to the mis- chiefs of them. For by an act of 1785, entitled an act to provide further regulations whereby to secure fair and equal proceedings with the land office, and in the surveying of lands, Sec. 9- 3 Dall. 316, it is provided that " every survey hereafter to be returned into the land office of this state, upon any warrant which shall be issued after the passing of this act, shall be made by actual going- upon and measuring of the land^ and mai'king the lines to be retwmed upon such 'cvarrant^ after the warrant authorisiiig such warranty shall come to the hands of the deputy surveyor to xvhom such xvar- rant shall be directed^ and every survey made theretofore^ shall be accounted clandestine^ a7id shall be void, and of no effect ■whatever^'' and every deputy surveyor, upon request to him made, shall give a receipt in writing, signed by him, to the person delivering any warrant of survey; in which receipt shall be set forth the day and year when, and the order in which the same warrant shall hare come to the hands of such deputy surveyor, and also the grantee's name and surname, and the number of acres to be surveyed thereon, and als?^ the number of the same warrant." Law Miscellanies. 27o The mischiefs that did exist before the passing of this act, were the not going on the ground and ^narking the lines by which act in pais there could be notice, to the whole ccnn- munity ; but returning a survey as marked which in fact was not marked ; but what was an equal mischief, the tak- ing a survey that had been made under another warrant, or •ander no warrant, and returning it as marked of the date purporting to be surveyed ; which would be contradicted by the marks upon the ground, and the testimony of the vi- cinage ; and to give this act a construction according to the rules of construing statutes, the most in advancement of the remedy of these mischiefs, it would seem reasonable to ex- tend it as avoiding all surv^s not made by going on the ground, and marking the trees, but at least it must be constru- ed as avoiding all surveys made before the xvarrant came to hand^ even though the survey had been upon the ground. If a special return were made on such a warrant stating a re- turn on a survey made .for another purpose, could it be re- ceived in the face of this act ? Is not a general return there- fore concealing the fact ; or rather stating v/hat was not a fact, a deception upon the office, and an evasion of the law? I would take it to be in contemplation of law a fraud how- ever unintended by the officer or the warrantee for whom the survey was made. There are circumstances under which the warrantee would have an interest over and above the saving expcnces of a survey, in having it returned upon the old lines actually run for other purposes, unless indeed the warrant was so special in the description as to amount to a designation equal with a survey, and by that description to attach from the grant. For in the case of a warrant, not specific, it might be an object to give it a bed as soon as it existed, and before there could be time to survey it actually; and this, to exclude the laying other warrants perhaps prior; or settlements which n.ight be made before the officer, with chain carriers and provi- sions could get upon the groimd, and we know races against time have not been uncommon to get the return of a survey made. I do not mean to say that we shall presume fraud- % 276 Law Miscellanies. but that where circumstances exist that tempt to fraud, the suspicion is not resisted by a consideration of the total ab- sence of all motive. That it is in contemplation of law a fraud, I infer, because it is against the express words of the act, and against the reason and policy ; and in its nature must work an injury. What notice can any one get from the description of most warrants, though entered in a book of the surveyor of the district ? What notice from the return of a survey ? It is the marks on the ground that a settler will look for. These he has a right to have, and of these he is bound to take notice. The age of the survey can be distin- guished ; and will a settler be bound to read a survey in ap- pearance years old, as one which had been recently made? It will prove to him that no survey has been made which can correspond with the existence of the warrant. His conclu- sion m.ust be that there is no survey. The considering the entry of a warrant in the surveyor's books as a notice of the ground which it calls for, is assuming that the warrant con- tains a particular description cj the ground. This is required by the act of assembly under which the warrant issued, and where, agreeably to the act, the warrant contains a particu- lar description, it may come near to all the notice of a sur- vey. But even there it cannot separate the tract from the common stock precisely, and it is only a survey that can do it. This the purchasers are interested in having, and have a right to call for. The act has prescribed a particular de- scription in the application ; it has prescribed an entry with the surveyor of the districty an actual survey on the ground. The land office has admitted, in many instances, applications without a particular description, and the entry of the warrant in the surveyor's books gives no notice. This furnishes an additional reason Avhy the provisions of the act shall be re- spected in regard of going on the ground. By an act of assembly of the 12th of March, 1783, a dis- trict of country was surveyed and returns made into the sur- veyor general's ofRcc with a view to a sale, but which as to a portion of the tract surveyed did not take place, so that a number of the lots so surveyed, remained on hand. At the Law Miscellanies. 277 opening of the office, April 3d, 1792, for the sale of the lands, west of the Ohio, and comprehending this district, it fell into the common mass and was for sale, not under the act of March, 1783, but under the new act of 1792. These lots not to be sold at vendue, and as they had been surveyed in lots of 200 or 300 acres, but made subject to the new law, and the conditions warranting and the returns of surveys made under the law of March, 1783, were in the office as of that date. The marks on the trees were of that date. Could any settler entering under the act of April, 1 792, ever dream that marks on the ground, made nine year.s before, could be considered as a survey lately made. As between the war- rantee and the commonwealth, such return of survey might nothe void; but it is impossible for me not to hold it voidable where a third person is affected. Even if notice were brought home to a settler of the circumstances of the case, I should not think he was bound to take notice of the accept- ance of such returns ; for the surveyor general had no pow- er to take such surveys off the file and attach them to a war- rant. But the contrary of this would seem to have been de- termined by a majority of the court; and in contemplation of law the majority must be right. But the minority owe it to justice to dissent ; and in the construction of a statute es- pecially. In the language of Justice Chambre, 2 Bos. and Pul. 403, " where I find no ambiguity in the act, and think that the act has not been expounded, but contradicted, I feel it my duty to adhere to the authority of the statute." I can have no doubt but that under the act of assembly a survey returned without going on the ground h voidable; and a sur- vey made even by going on the ground before the warrant comes to hand, is void. The inclination of my mind is to hold them void in both cases. For that I take to be the true construction, if not according to the strictness of the term in both cases, it is according to the intention of the act. I ad- mit that the first clause may be considered directory^ the not going on the ground ; and the return only voidable ; for the arrangement of the words, may bear a distinction* SrS Law MiSCELLANlESf. A source of litigation with regard to lands lying west of the Allegheny river, was the conduct of the secretary of the land office in admitting applications. The law of the third of April, 1792, provides that " upon the application of any person who may have settled and im- proved, or is desirous to settle and iaiprove a plantation, to the secretary of the land office, v/hich application shall con- tain a particular description of the land applied for; there shall 1)6 granted to him a warrant for any quantity of land not eicceeding 400 acres.^^ This restriction respected the quantity of land that was to be put into any one warrant, but not the number of warrants that any one might take out. The object was to secure reasonable fees to the common* wealth, and towards the support of the land office, making many, and therefore small grants. But it was construed that no man should have more than 07ie warrant in his own name. Hence the expedient of the names of friends, or fic- titious names, and the necessity of conveyances from these increasing the expences of the grant, by conveyancing, and recording which the law did not contemplate, or render ne- cessary ; it was the oversight, or misconstruction of the land office. - But this was a small matter compared with the monstrous error which accompanied it, the construction of the prece- ding clause of the section ; the application " containing a particular description of the land applied for." Did not this imply such a description as to distinguish it from all other lands, and which no one could make who had not traversed it,' and taken some natural boundary, or designated it by an artificial ? Yet after what is called a leadirig location^ others were admitted as describing by reference ; thus, an applica- tion for a tract of land at the mouth of a certain river, and for another adjoining, and a third adjoining that, and so on to the end of the chapter. Such applications could be made, and in fact were made, and admitted, from a map, or even without a map ; many just from the name of a stream which from the relation of a traveller was said to run through the country. Hence the nuinbcr of applications filed the first Law Miscellanies. 2/9 day of the opening of the office. The whole country was applied for in an instant ; nay a greater extent of country would not have satisfied the applications that were filed. No man meaning to settle bona fide, could obtain a warrant for a tract that was not anticipated by a pretence of applica- tion under this admission of the land office. It was a fraud in the first instance upon the public, and the intentions of the law. This through the ignorance of the secretary of the land office, who admitted the applications. The Governor was in fault that did not on this great and momentous occasion attend to it ; or perhaps he misconceived the thing himself, and gave countenance to the error. But hence the intention of the law has been in a great part defeated. This intention was, in a great part, the accommodation of the settlers, and the settle- ment of the country. But what is perhaps a more lasting evil, hence has arisen the endless litigation and insecurity of title in the country. Such is the value of mind, whether m discernment or application. A touch of a finger at the end of a lever moves a great weight. A small matter of care and judgment at the beginning of a purpose, changes the event of great undertakings. Speaking of the unwarrantable and mischievous indul- gence of the land office, in admitting applications in the case of the law of April 1792, I am not calling in question the titles derived under them ; but regretting the admission as contrary to the contemplation of the law, and an injury to the purchaser. It has been of incalculable evil consequence. Innocent foreign purchasers especially have reason to com- plain. The juror^s oath altered by act cf2\st March, 1 806. (Penn- ■sylvama Legislature. J BY an act of assembly of tlie 21st March, 1806, it is enacted that the oath or affirmation to be administered to jurors, viz. " I, A. B. do swear Tor affirm as the case may be) 280' Law Miscellanies. that I will well and truly try the issue joined between C. D. plaintiff, and E. F. defendant, and a true verdict give accord- ing to the evidence, nnless dismissed by the court^ or the cause ■withdrawn by the parties,'''' It has been the subject of mer- riment with scientijic men out of the state, that the legisla- ture should have thought such a qualification of the oath of a juror necessary. But it is because the legislature thought it necessary otherwise than in accommodation to the scruples of weaker and more uninformed jurors. For it is known that in administering the oath according to the form heretofore used, the courts had oftentimes a great deal of trouble in ex- plaining to conscientiously scrupulous persons, or those who affected to be so, which was the most common case, the no- tice of the exception implied in all undertaking to do an act, that if a stop was put to the doing the act, and it ceased to be required of them, they were not bound to do it, but were dis- charged from the obligation. Thus if A promises to marry B, but B refuses, A is discharged. If A contracts to build a house for B, and B says he will not have it built, A is dis- charged. An oath to give a verdict, implies a willingness to take it on the part of those to whom it is to be given. A verdict cannot be given but to a court that is willing to take it. Nor will a court take it but for the use of parties in a suit. It is therefore implied in the nature of an undertaking to give a verdict, that a court for the use of one or other of the parties, or both, is willing to take it. There is nothing undertaken to be done in human life, but the undertaking is accompanied with this tacit condition, that it remains physi- cally, or morally possible to do it, or that those for whom it ; is to be done, are willing to have it done. When a candidate shall have been elected, or appointed, and is sworn into office, his oath is to execute the trust ; is it necessary for him in order to satisfy his conscience, to have this saving that he will enact it, unless the office is taken from him^ to which he has been so elected, or appointed ? The truth is, it is a laugh- able matter to well informed men ; but as a scruple of this kind had got a footing in common understanding, though where, and whence it originated, it is difficult to conceive. Law Miscellanies. 381 ft introduced no inconvenience, but the making the oath of the juror a little longer, to introduce the implication by ex- press words. The first time that I ever heard of such a scrtiple was from a juror in the western country, at the first organization of Washington county, who seemed to have some difficulty upon this head, from his habits of casuistry, and the scrupling articles of church government and discipline. I forget whether the court were able to satisfy him by ex- plaining the tacit condition of the oath ; or whether they ex- cused him from taking the oath^ and of course from serving as a juror. But be it as it might, he got the credit of being a man of tender conscience ; and it began to be no uncommon thing to allege such a difficulty in the taking the oath; whe- ther from conscience or from policy it could not be said. The last time that some difficulty of this kind occurred in my re- collection, with a juror, was in a court at Chambersburgh, Judge Smith, with whom I sat, said it was the law. I at- tempted to explain the reason of the law^ but the judge inter- rupted me, and ordered the juror to be sworn. I take it, that it was this very circumstance which gave rise to this ad- dition to the oath of a juror. It will be seen therefore, that it did not originate with the legislature, but with the scruples of the people, which -whether honest in all cases^ or affected, gave the court trouble. For as the legislator of the Jexvs^ is said to have given some laws to the people in the wilderness, *' because of the hardness of their hearts ,•" so our representa- tives have thought it advisable to accommodate, in some in- stances, to the weakness of the people whom they represent, and with whose concerns they have been entrusted. Legal characters of other states, or individuals of good sense, to whom I have made this explanation of the amendment in question, were satisfied, and deduced no inference of a want of understanding in our legislature, to conceive such an a- mendmcnt necessary ; an amendment changing the form of an oath from that of the common law, and which had been in iise^ and the implication of it generally understood f»r an im" memorial period of years. N N- 282 Law Miscellanies. I will observe here, as an apology for what has been in- troduced, that a judge, especially, cannot but feel a peculiar interest in all that concerns the credit of the legislature of his state ; in all that relates to their provisions, as well as to the language of their acts, whether ambiguous, or the arrange- ment defective. I had it once objected to me by a Virg-inia lawyer; an expression of the old act of assembly, I think Galloway's edition, that the state house yard should be " sur*- rounded by a brick wall, and remain an open tJiclosure for- ever;" but I put him down by that act of the legislature of Virginia, which is entitled, a '"'■supplement to an act, entitled an act, to amend an act, making it penal to alter the mark of an unmarked hog." The solecism was at least as great in one case as in the other ; our act of the 1 7th Feb. 1 762, has alter- ed that phraseology, by saying that the " same shall be, and remain a public green and walk forever.^'' An enquiry into the causes of that obloquy, under which the supreme court of this state laboured from the year 1800, down, during a period of several years. This was owing to several causes ; I shall begin with the •weakest, and conclude with the strongest, Istly, The supreme court itself, consisting of yj?«r, three of these were so connected by ajjlnities, that they seemed to be but one person. For it is necessary, not only, that judges be independent of the people to a certain extent, but also, for the public confidence, that they be independent of each other* Affinity, and habits of close connexion, cannot but beget a suspicion of such resignation of individual opinion, as to be unfriendly to the freedom, and voluntary exercise of individual judgment. There is such a thing as even a •weaker brother, or assistant judge in all tninisterial matters at least, managing the arrangement, and not without influence by address, and representation in conciliating a determina- Law Miscr.r.LANiEs. 283 tion to his way of thinking even in matters of a judicial na^ ture. For these reasons I did think, and now think with the public, without intending the least reflection upon the cha- racter of the judges, that the circumstance of a seeming at- tachment from family considerations with some of them, how- ever accidental it may have been, and not the result of intrigue w^ith the governor, that so many of a connexion having got upon the bench, was a drawback, if I may use a mercantile phrase, on the confidence of the public with regard to the judges who composed the bench at that time. But, 2dly ; What was perhaps a more obvious circumstance, the same three of the four were from wealth and connexio7iy and supposed political way of thinking, all of the aristocracy of the commonwealth. For the two natural divisions of so- ciety are into the few and the many ; or the aristocracy, and democracy under whatever name it may be disguised, or whatever character it may assume. I will not say that the judiciary power is not safely lodged in any case with that which may be deemed of the aristocracy of the state ; but in general, I do not approve of it without such a due admix- ture, as will approximate to the common people. It is impossible that a man of wealth and powerful connexions, should not consider these of better mouldy or meliore luto than the bulk ; and have a leaning, perhaps imperceptible even to a good man, in favour of people that keep carriages, and who entertain, and are entertained by him. It will be observable if not in an individual case, yet at least in a tone of mind disposed to wind up the construction of statutes, favourably to the inequality of estates and conditions. But, 3dly ; The arrangement of their own services. It was a radical error that the whole four judges, suffered themselves to be occupied a considerable part of their time, sitting upon a jury trial. It was a monstrous mis-application of their services, or arrangement of their duties. I saw the error, and knew the dissatisfaction that it occasioned both with bar and country ; but though remonstrating to the court them- selves, and to individuals of them I could not prevail in ef- S84( Lavt Miscellanies. fecting an alteration. Each admitted the evil, but no change could be brought about. How or why the obstinacy of the habit which had been established, I may suspect, but I can hot develope. The bar have always to me disclaimed any ap irobation of it, or that they were the cause of its continu- ance. But be it as it may, this was a substantial cause of dissatisfaction with the court, producing a delay in trials. For, as four men cannot walk four miles, sooner than one man, it is of no use to have four as to the effect of expedi- ting the journey. The truth is, it was a source oj^ great de- lay, to have four on a jury trial. A paper offered in evidence must be read by the presiding judge, and a note taken of it. It then comes to the second who must read, and note al- so ; and to a third, and a fourth who has the same right to read and note ; and, if he does not, at least read, he is under a disadvantage in understanding the cause. By the time it came to a fourth, which was my place, I found by both bar, and country, such an impatience at the vexatious delay, that I was led to dispense v.rith looking at it at all ; and to content myself with catching the substance from the argument of the counsel, or the hearing it cursorily read by them, without see- ing- it, which at all times fixes the impression of the contents more forcibly upon the mind. Segnius irritant animtim demissa per aures ^fa7n quae sunt occiilis subjectajidelibus. It happened that the two assistants immediately preced- ing me, took notes at gi-eat length, so that in copying a pa- per, there seemed to be no end. The delay of trials, there- fore, by this, and other means, was a great cause of dissatis- faction with the administration of justice. I say other means ; because, the trial was protracted by the taking nstes at great length of the testimony of witnesses ; and there was a con- stant cry of, " wait until I take that down," expressed by bar,, or court. The bringing many books, and reading cases at great length, was another means of the delay of trials ; together with the long comjnents made by counsel on the application of the authorities. But I come now to a 4th, Or greater cause, than all these ; the constitution of Law Miscellanies, 5a& -circuit courts. These had succeeded to the nisi pnus courts, and were of the same nature, save that judgment could be ren- dered^ at these courts, but subject to revision in term. It was the arrangement that two Judges sat on trials at these courts ; though not made necessary by the act under which these courts were constituted. This was unnecessary, and injudi- cious, being subject in some degree to the same inconvenience with four sitting at nisi prius, in the city and county of Phi- ladelphia. The time and services of the judges could have been distributed singulatim on jury trials. The augmenta- tion of judges to this extent, prevented the dispatch of busi- ness ; for one could dispatch a trial, at least in the same time with two ; and hence there was less business done by half than might otherwise have been done. But taking the number of judges into vieAV, it was impracticable, with any arrangement that could be made, to give satisfaction to the country, under the constitution of the circuit or country nisi prius courts. Of the greater number of causes depending, but few could be tried in the course of the time allotted for a county, and much time could not be allotted for twenty six or thirty counties. But as all the suitors must have a chance of having their actions brought forward, all must be put down for trial ; and xuilnesses summoned, and attending in the res- pective cases. This made it a matter of great expence to the parties, and it was a source of great pain to the judges to be under the necessity, though but little prospect of reaching a case, to detain suitors, and witnesses for the trial. For an action could not be continued over until another sitting, with- out the consent of both parties. And the court, consistent with their duties elsewhere, could not sit more than once in the year. In fact it was an absurdity in the constitution of the court to be bringing judges from a distance to each coun- ty of the state to try rc^^XXt^rs oi fact, which could not be sup- posed to be in contemplation by the new constitution, under which, districts^ were established ; and a president, a legal character, was appointed to preside. Nisi prius courts had been continued for some time after the framing and adopting the constitution; but this was an incoiisistencu with, the pro- vision which had been introduced ; and which had rendered it unnecessary, when carried into effect. At a circuit court, 286 Law Miscellanies. it was found impossible to send away suitors satisfied, by- having their causes tried, when, from the multiplicity of ac- tions on the docket at a circuit court once a year, but a few could be tried ; and the people not discerning always what prevented it, laid the blame upon the judges. It would re- quire twelve judges, one of these holding a circuit or nisi prius court, every three months, to keep down, or discharge the business without delay through the state. The system is much preferable, of district judges, with writs of error to a court of the last resort. Presidents alternating with each other in adjoining districts, under some regulation, might be an improvement. But in that case it would be unreasonable not to allow journey expences according to the extra riding. Something of this nature has been done in a particular case, but provision ought to be made by a general law, to a certain extent^ in all cases. But, a 5th, And leading cause of that obloquy under which all courts of justice, and the supreme court especially, laboured from 1800 down, was to be found in the temper of the times. The pressure of the preceding causes, had been felt by the people, joined to others more latent, and of a personal nature, so far as respected manners ; and there was an unea- siness, and struggle to throw off the whole judiciary. With a certain description there was a struggle to throw off the lato altogether. This was the case pretty generally with those editors of journals, who had been in the habit of arraigning characters at their bar, and did not much relish there being an appeal to the courts of law, in cases of libel. The common law itself, therefore, became a subject of defamation ; and batteries were erected in every county ; and gazettes playing upon it in every direction. What was common law, seemed to be uncertain, and could not be understood. No one likes the restraint of law. The idea is always popu- lar and pleasing, to be able to do without it. The language of John Cade, in Shakespeare, is much the same with the po- pular and prevailing sentiments, at a certain period in Penn- sylvania. Even learning itself began to be considered as a disqua- lification for office ; at least for the legislature. So far as respected law it seemed to be pretty generally Law Miscellanies. 2B7 the opinion that it could be dispensed with in the decisions of questions of property; indeed, in every matter of de- mand, or even trespass, unless with some reservation of ap- peal in certain cases, the idea was, that good sense^ without a knowledge of legal rules, might suffice. Hence the increase of the jurisdiction of the justices of the peace; and the system of arbitrations. The then governor, who had been chief justice of the state, undertook to stem these innovations as unconstitutional. This naturally led to the meditating a change of tlie constitu- tion itself. It requires great judgment and knowledge of the popular current in favour of what is called reform^ to know how far to stem it, or how far to fall with it, until its force is spent. Where a reform is really judicious to a certain ex- tent ; if it is resisted, short of that extent, it swells to a tor- rent, and goes to a greater excess than it would otherwise have done. The people would have the jurisdiction of the justices encreased; and arbitrations introduced, that they might make the experiment. I was for having it done ; and was sorry that any impediment or obstruction was thrown in the way. I well knew that the rage would satiate itself, and on experiment what was found salutary, would be retained; and what was otherwise would be amended or abrogated. I could pretty well see where it would ultimately rest; and that would not be far from where it began, as to arbitrations. Tlie single amendment that I saw necessary in the law as to arbi- tration, was this, that at the instance of the defendant on the return of the writ into court, a rftrence niight he ordered bv the tovrt to be conducted under their direction. And, at the dis- cretion of the court themselves, in any case, where a cauf;e ap- peared proper for a reference^ it should be ordered. This would take place chiefly in matters of account ; or in contro- versies of lesser moment. I am favourable to the increase of the jurisdiction of the justices ; and perhaps from ihc depreciation of the circulating medium, it might be still farther augmented. Be that as it may, I consider it much more favourably than I do an inde- finite reference to arbitratioji. A discontent with the judiciary branch, would seem in 288 Law MiSCELLANIESr some measure, to ha\ e subsided. The chief justice^ at least^ is above all exception. The delay in the admini- stration of justice, which as we have pointed out, was a great cause of it, has been in part removed. By an act of 24th Fe- bruary, 1806, it was provided that "no circuit court of the supreme court, shall be held otherwise than by a */w^/^^"w«^e. By this act also, the high court of errors and appeals^ which was also a cause of delay, was suspended^ so as to sustain no new cause ; but, with a power to hold two terms at which all the causes then before them should be determined and where- upon the said court should be abolished." By an act of the llth March, 1811, circuit courts were abolished, which had been a distressing grievance to the judges of the supreme court, and a great ground of delay of trials, and consequent dissatisfaction of the country. By this act it was provided that, no issues in fact should be tried in bank; a thing which the judges of the supreme court them- selves, as I have already pointed out, ought long before, to have corrected, and which they had the power to do. By the act of 24th February, 1806, the state had been di- vided into two districts of the supreme court, called the East- ern and Western: And by act 10th April, 1807, a middle dis- trict was established. And now by the act of llth March, 1811, two new district terms were added; so that so far as respected the hearing causes in Bank, justice, if not brought home to every Irian's door^ must be said, at least, to be brought nearer to it. All these were great improvements; for writs of error, to a court in Bank at Philadelphia, were to a great part of the state, but a mere illusion^ and a navxe. And yet before these terms were established, writs of error could ly only to that in Philadelphia, for it was the term for the whole state. For this reason^ a case at nisi prius^ in the retuote counties especially^ not appealed from^ founds but little presumption of an acquiesceiice in the law decided. And hence nisi prius decisions in PeJinsyhania are of the less weight. The great bulk of these referred to in Smitfi's edition of the laws^ ought to pass for nothings except so far as to give in- formation as to a knowledge of the history of the law^ and the way of thinking of individual judges. Law Miscellanies. 289 By an act of the 30th March, 1811, " the district court for the city and county of Philadelphia," was established ; to take jurisdiction, "where the sum in controversy shall ex- ceed one hundred dollars," and to which court, " all suits, and causes depending in the court of common pleas of the city and county of Philadelphia, where the sum in contro- versy exceeds one hundred dollars shall be transfered, and the original jurisdiction of the said court of common pleas of the city and county of Philadelphia where the sum in contro- versy exceeds one hundred dollars, shall thenceforth cease and determine." This gave great relief to the court of common pleas, and, by such tail race^ so to speak, the wheel of this court continued no longer to wade^ as the phrase of the millers is. It is farther provided by this act, " that no suit shall be removed from the district court by certiorari, or habeas corpus ; but, that in all cases, the final judgment of the said district court may be examined and affirmed, or reversed on a writ oj errof Jrom the supreme courts By this provision, a great relief is given to the supreme court^ lessening the number of tri- als at nisi prius, so as to present a prospect of the wheel of that court, no longer continuing to wade also. For though there is a sufficiency of business for the nisi prius of the supreme court, even sitting 35 weeks in the year which is prescribed by law, yet it is in the power of the court by this means to keep the business pretty well done, and we hear now of little or no complaint of the delay, which has been just- ly termed a denial of justice ; for it is a denial to a certain extent. All things considered, the system of the judiciary establishment in Pennsylvania, is the best in the union, but is even yet susceptible of some amendments. As I have already hinted, one of these is, the reducing the number of counties in some of the presidential districts to the constitu- tional limit of three. It is preposterous that there be four, five or six counties in a mountainous district ; and not more than three, in some cases, in the level country, and where the seats of justice are more adjoining. It is an unequal distribution Jor the same salary. The earliest attention of the legislature, ought to be drawn to this ; more especially O o 290 Law Miscellanies. as in the mountainous country of the wesfetti districts, a greater croud of business, from ejectments depending, has been thrown upon the dockets, from the abolition of the cir- cuit courts. It is what reflects much credit upon the late and present administration of the state government, that the attention of the legislature has been so much drawn to amend- ments, both of the Judicial codes, and judiciary system ; and though sometimes touched unskilfully^ in the opinion of sci- entific men; j'et, no question can be raised^ but that a dispost- tion has been shewn to do what was for the best. On the Naturalization Laws of Congress, and the principle in- volved in the right of expatriation. CAN the subject of a foreign power, be detained con- trary to his subjection ? It would be immotal to detain a bale of clofh ; and why the property of a man ? But is he de- tained by our naturalization laws ? It might not be immoral were we only to refuse the aid of our municipal law, for the apprehending and delivering him to his sovereign. But do not our naturalization laws oblige us to go farther ; and to protect him against the claim of his sovereign demanding him ? That cannot but be implied; for allegiance and pro- tection are reciprocal. But it cannot be construed, it will be said, as going fur- ther than to protect while under our municipal law. But the going that length must imply that he is his own property, and may be protected, at least, to that extent, against the claim of his sovereign. As to the protecting him while in our service, and out of the municipal jurisdiction, can in- volve a question of power only, not of right. If we*have a rtsrht to protect him while under our municipal law, we have a right to protect him while out of it, and on the high seas if we can do it. The allegation therefore is idle, that there is a distincf'on in the case, betrveen the right to protect within our municipal Jurisdiction^ and out of it. Law Miscellakies. &9t But our right to protect to any extent must depend upon the right of the naturaliz;id to withdraw hi.nself from his alle- giance ; or, in other words, expatriate hinself. Do not we sanction therefore, this right or claim of a right to expatriate himself, when we receive the abjuration of his allegiance, and admit him to become a citizen ? We expressly exact from him that he shall " absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and particularly by name, the prince, potentate, state or sovereignty whereot he was before a citizen or subject.''^ See the naturalization acts, and particularly that of the 14th Ap. 1802. If it was an immoral act in the naturalized to do this ; if it was contrary to his duty political or moral ; are we altoge- ther just, and free from blame, who receive the abjuration ? Are we not rather to be considered in the light of a particeps criminis and partakers of his guilt ? His precedent obliga- tion to his sovereign or country, if we can suppose an inex- tricable obligation to exist, must render the taking such an oath, immoral ; and as it could not be taken to us unless we accepted it, we are at least instrumental, as the phrase is, to this breach of obligation. I do not just say in th« language of Hudibras ' A breach of oath is duple. And cither way admits a scruple And may be ex parte of the maker More criminal than the injured taker i For he that strains too far a vow Will break it like an o'er-bent bow. And he that made and forc'd it broke It, Not he that for convenience took it. But the protecting him against the precedent obtigation^ whether at home or abroad, must bring us clearly, and on every principle of law natural^ moral, or pol tical, under the denomination of his offence as accessaries or as principals^ Or if ws dlttinpcuiih, it is at least the holding out an induct ment, axj^ taking benefit from the iniquityy if we do not procure it- 292 Law Miscellanies. In law there is a distinction between the stealing and the receiving' stolen goods j but in morality, the distinc- tion can only be in the degree of guilt. The nature of the crime is the same. The one may bespeak more hardihood, or address, but the minds of both are equally depraved and regardless of social duty. The subject naturalized robs his country of himself or steals himself horn it ; and we partici- pate in the robbery or stealth. In order then to justify our naturalization laws and make them honourable, it becomes necessary to assert the right of expatriation. It becomes necessary to do more ; to assert it even in the face of a nation, or of those nations, a principle of whose laws, it is, that a citizen, or svh'^cct cannot expatri- ate himself This is the case particularly with England, in whose case no exception is made ; and it is notorious that we receive the naturalization of subjects of that power. But if we assert the right of exuere Hgeantiam in the case of British subjects, can it be made any question whe- ther such a right exists with ourselves in these states, I mean the right to put off or strip ourselves of our allegiance. If a British subject has a right notwithstanding the principle of his law, can it be a question in our case with regard to whom it may be a question, whether such a principle of the common law, was carried with us in our emigration from that country. It is a .principle at least of the European country, from whence our emigration chiefly has come ; and it is in the face of this principle that we undertake to na- turalize. Can we justify this, upon any ground but by say- ing that the principle is contrary to natural right, and that we will not regard it. If locally unreasonable, and unjust with these countries, can it be reasonable or just here ? Can it be expedient in those countries, when we must attack even that foundation in saying that it is unjustifiable ? To what would I bring my argument ? It is to those who question the right of expatriation from these states ; who allege that it is a principle of the common law which we have carried with lis to thi'se early colonics; and recognized by our laws and institutions ; particularly the laws of those states, and in par- Law Miscellanies. 293 ticular Pennsylvania, who have expressly recognized the in- troduction of the common law v/ithout an exception of this principle ; and the exclusion of which can be maintained only on the ground, that colonists carry with them only so much of the common law as is applicable to their sitiiatio7i. I bring my argument also to that decision of the judges of the supreme court of the United States; or of any of them, who have questioned the right of the citizens to expatriate, and throw oft' their allegiance, under any circumstances, and in any case or at any time. The naturalization laws must be repealed or the right must be asserted. ■ It may be said that, in the act of naturalizing, it is un- derstood, or ought to be understood, that the naturalized person is to be considered as intitled to the protection of the laws only while here ; to the rights of a citizen but still lia- ble nevertheless to the de?nand of his sovereign ; and to be surrendered when demanded. Be it so, that it is so to be understood by the U. S. naturalizing, and the person natu- ralized, which is not the fact, but suppose it so, would it not be adepartui'e from the duties of one good neighbour to ano- ther, and, as in common life, a cause of dissatisfaction, if not of litigation, so between nations a cause of war, and a just cause of war, to harbour runaivays from the service of each other, not of A/refl? persons only, but of servants for life. And still more to entice, and seduce from service, by confer- ing on them every privilege of one born in the family ? The truth is, the right must be asserted in its germ and pro- gress, or the naturalization laws, must be modified, or repeal- ed altogether. They certainly must have proceeded on the ground that every individual in every political society, has a natural, and political right to leave it except during war. And this exception is expressly made by the naturalization act "That no alien who shall be a native citizen, denizen or subject of any country, state, or sovereign with whom the U. S. shall be at war at the time of his application, shall be then admitted to be a citizen of the U. S." I do not enter into the question how far the principle of the nemini liget exuere ligeantiam, is founded in reasoij, 2ii'4 La-w Miscellanies. political conveniency, or original compact, or general oon-? sent. But looking at it in relation to the naturalization law it is evident that both cannot stand together ; one or th« other must go by the board. SINCE writing the above, it came into my mind to sec whether 1 could not throw out a few hints on the subject of the right of expatriation, and consequent naturalization, which is founded upon it. I call these hints^ because I cannot undertake a formal dissertation, not having either leisure^ or abilities to do the subject justice. Does not nature seem to point outthe right from what we see even in the inanimate world? The tide ebbs and flows; and *■'■ the wind bloweth whence it listeth^* It is essential to the salubrity of the waters, and of the atmosphere, that there be a current. In the vegetable world, seeds and plants are said to flou- rish by a change of soil. In the amwia/ kingdom we hear of crossing the strain in order to improve the breed. The human species is said to degenerate both in physcial and moral qualities, by the in- ter-marriage of near relations. Dwarfs and idiots^ after a length of time, have been observed to be the offspring : If so, in a degree, the eflPect will be the same where the society is small^ the cause being the same. But be these things as they may, there can be no ques* tion but that the civilization of man, and his intellectual im- provement must be assisted by a free ingress, and egres» from one people to another. The collision polishes,' the communication of ideas improves the understanding. Arts and sciences are not the invention of one man ; but of many ; aor are they brought to perfection by one nation; but by ma- ny ; and that through successive generations of men upon the earth. If a denial, therefore, of the right of expatriation con- travenes the physical, and moral improvement of the spe- cies, and the amelioration of thi* condition of man, it mu$:fc lie the voice of nature that such right exists» Law MiscELLANiEa. 295" What is there against it, but the obligation due to a pa' rent and to country P But, it must depend upon the ques- tion, what Will contribute to the greater sum of happiness to the species. For the general result must determine, the par- ticular right. The lesser must give way to the greater. Much may be said, in favour of the obligation due to the pa- rent ; and it will be just as easy to shew that the subser- viency of the whole life is due, as that it terminates at the years of maturity, or 21 : or, that a parent has the right to inflict death, as he gave life : and the Roman law gave this power to a father. But this would be taking matters in an extreme to which no one could consent ; or rather at which every mind would revolt. But what is there to limit the right if we take it on the footing of obligation ? I know of nothing but the consideration stated, the happiness of the indi- vidual, and of the whole. The same thing in the case of that claim^ or rights if you. chuse to have it so, which the society has over all that are horn under it. It must be determined not on the principle of obligation ; but of the greater general good to the species. I had conceived an early prejudice against this claim in the case of Patkul, put to death by Charles 12th of Sweden, on the ground of the ne exuere Itgeantiam^ notwithstanding he had been 30 years in the service of the Emperor of Rus- sia. M'Donald's case also, Foster's Reports, 59, served to im- press me unfavourably towards this as a principle of the com- mon law. He was a native of Great Britain, but "had re- ■reived his education from his early infancy in France ; had sp'jnt his riper years in a profitable emplovance in that kingdom where all his hopes centered " Speaking of the doctrine of natural allegiance, the counsel in his case, repre- sented it as a slavish principle not likdy to prevail in these times, especially as it seemed to derogate from the princi- ples of the revolution. This feeling was strengthened by a course of thinking on the one side, from our situation, and that of emigrants^ in the revolutionary war and since. I had felt a predisposition, before I undertook to throw cut these hints, to be able to satisfy myself, that this principle of the •!ie exuere, might be found t« rest o» no good foundation. 296 Law Miscellanies. The fact is that I had become reconciled to a resistance to it ; and there is no question with me as to the rights but the power^ only. And I believe it is now brought to such a point that the ultima ratio must determine it. It will not be understood, that I mean to say that the cause of the present war, or the continuance of it, is the na- turalizing British subjects, though it may have led to it on the part of the enemy, and is the pretence for continuing it. For whether these states had naturalized or not, they might employ British seamen, or it might be alleged that they did employ, and the redress as they would call it by the act of the party ^ in the law phrase, would be resorted to; which would produce the consequence of taking or mistaking the American for the British in the caption. So that, unless it is left to be a matter between the governments^ and of national investigation^ and not of individual interference, it will be im^ possible, that controversy can be avoided. Of certain acts of congress, and. the construction put upon those acts by the courts of the United States. By an act of 4 Aug. 1790, sect. 45. it is prr)vided, "that where any bond for the payment of duties shall not be satis- fied on the day it became due, the collector shall forthwith cause a prosecution to be commenced for the recovery of the money thereon, by action or suit at law, in the proper court having cognizance thereof; and, in all cases of insolvency, or where any estate in the hands of executors, and administrators shall be insufficient to pay all the debts due from the deceased, the debt due to the United States on any such bond, shall be first paidy And by an act of 2d May, 1 792, sec. 1 8, it is provided that *' the cases of insolvency in the preceding act mentioned, shall be deemed to extend, as well to cases in which a debtor not having sufficient property to pay all his or her debts, shall have a voluntary assignment thereof for the benefit of his or her creditors, or in which the estate and effects of Law Miscellanies. 297 an absconding^ concealed, or absent, debtor shall have been attached, by process of law, as to cases in which an act of le- gal bankruptcy shall have been committed." By an act of 3d March, 1797, sec. 5, it is provided " that where any revenue officer., or other peirsons, hereafter becom- ing indebted to the United States, by bond, or otherwise, shall become insolvent ; or where the estate of any deceased debtor, in the hands of executors or administrators, shall be insufficient to pay all the debts due from the deceased, th'e debt due from the United States shall be Jirst satisfied ; and the priority hereby established, shall be deemed to extend, as well to cases in which a debtor, not having sufficient pror perty to pay all his debts, shall make a voluntary assignmeift thereof; or in which the estate and effects of an absconding, concealed, or absent debtor, shall be attached by process of law, as to cases in which an act of legal bankruptcy shall be committed." This prerogative assumed by the United States is alleged to be founded on sec. 8 of the constitution of the United States, " The congress shall have power," Sec. " 18 : To make all laws which shall be necessary," Sto. Now I am not one of those who have been for stinting these powers so much as has been contended in the case of a na- tional bank. For I think such a means of economy is abso- lutely necessary, and the money concerns of the union can- not well be transacted without ; at least, not to so much advan- tage for the general good. But I hold it not necessary /*& takeaway tht> property of an individual to serve the covuniun- ty. Is it not taking aruay ?ny property^ when a debt due to me is taken awa}', and the detnands of the United States a- gainst my debtor must be satisfied, before I can come in. In the case of a revenue officer., it might be justifiable in a case where I have trusted him after he had been appointed a revenue officer, because L had notice that he had been so appointed, and it was at my own risk, and with a knowledge of this privilege of the United States that I gave him credit. But having given him credit, before he was an offccr, shall ih'Mfind on wl^ich I gave hlni credit be swallowed up by V V *'9S Law Miscellanies. the United States who after my debt, and cause of action had accrued, had thought proper to appoint him such. But the act goes further than even the case of a revenue officer ; it extends to the case of any other person who shall become indebted to the United States. Thus, if I sell a tract of lane', to an individual, transfer property of any description, or contract with him for services, and render it whereby a debt becomes due ; and for which I may even take his obli- gation under seal, or what is more, have brought a suit and obtained yw^^we/zf ; yet a demand of the United States Sub- sequently founded, or established, will take a priority ; ot sxoeep the -whole from my grasp. I have been informed by the very gentleman who draughted the bill, that the words other person^ were not in the bill as originally draughted ; but were put into it as it passed through the houses, a re- presentative observing to him that it -would all have enough to do. His idea was that such a provision would be neces- sary. Necessitas nullam habet legem, is a maxim as ancient as the Latin language ; and, that necessity has no law, is as old as good English ; and even in old Saxon or the broad Scotch, it is said, needs must when the devil drives. But what is there to drive to this ? Has not the congress power to lay taxes ad libttwn? Why then filch away from an individual his debt due to him, for the sake of the public ? It is the prerogative of the king of Great Britain ; but how came it to be that of the United States, unless it is given under this term neces- sary P It is not given, but by a species of political cowardice in the representatives^ taxes are avoided because the laying of these might affect their immediate popularity. The indi- vidual xvroriged has but one mouth to exclaim against the injustice ; but the multitude that feel taxation to which they are bound to submit have many mouths. The representatives, for the time being, are unwilling to lay taxes though equal on the whole community ; and they consult the?nselves at the ex- pence of Tom, Dick, and Harry, who are in the towns, or in the woods ; and whose voice individually cannot be so much heard. They are in the habit of starting at the word *ax, like Asmodeus, at the smell of burnt fish: but are nor Law Miscellanies. 299 ihocked at the bread view of individual injustke. This sec- tion of the act ought to be repealed ; and the provision re^ strained to the case of a revenue officer trusted, and the debt to an individual which became due before the appointment. This is the farthest that the act of the legislature of the Union, on the score of natural, and moral, or legal, and po- litical justice, had a right to go. Knowledge to all the citi- zens that the United States have a priority of lien upon all the property of a revenue officer, would save from the giv- ing him credit, or if given, would take away from the credi- tor in such case, the right to complain. The United States have it in their power to exact security to any amount from a revenue officer, or other person with whom they may con- tract ; and this is their remedy a priore against delinquen- cies, and not a posteriore, the relieving in a case of default at the expence of a citizen, who is in common with the whole body politic bound to contribute his proportion to the ex- igencies of a peace or war establishment. It cannot there- fore be necessary to take the property of a citizen in this way; and if not necessary, is unjust. Under what idea but that of being necessary can it be taken ? The Congress have no power, but that which is given them. They have no common law prerogative as in the case of the kiijg of Great Britain ; or which the commonwealth of a state may exercise where it is given by law, because that law has the assent of every citizen ; or, in contemplation of law, is supposed to have it. Though even in this case, it may be questionable.; and ought to be questioned. In the state of Pennsylvania, debts due to the commonwealth, instead of being preferred, are postponed ; and much to the credit of the people who have rejected this badge of royalty, as uncongenial xvith a republican goveriiment. This amendment was made upon the former law of an ante- revolutionary period which followed the common law in the case of the kingly prerogative. It is not only reasonable that ii a loss in the case of an insolvent debtor is to be borne, it should fall upon the many instead of falling upon one^ but I deny that the commonwealth has a right to make it otherwise ; for the property of one individual cannot he taken anav. 300 L,Av7 Miscellanies. withoTit a compensation. And a preference of payment in the case of an insolvent, or where the property of a deceased person^ cannot discharge the whole, is the same thing as tak- ing away what belongs to an individual without giving him a compensation ; yet on behalf of the United States this is claimed as a right, and enacted by law. Is this law consti^ tutional ? There can be no doubt of the right to enquire into the constitutionality of a law of the United States. For the judiciary of the union admit that right, and exercised it them- selves. They go a little farther, and claim the right of en- quiring into the constltiitionality of a law of a state : witness the case of Vanhorne and Dorance where a law of the state of Pennsylvania was held to be against the constitution of that state, not because it took a%vay property without giving com- pensation, but for not giving it in money ; though by the com- mon law of England, and by the law of j ust retribution, it ought not to be in money but in ki7id. It was given in kind, a fee for a fee, or land for lafid. But if, as to the ?nedium of the com- pensation, the courts of the union, were so squeamish, how is it that they have overlooked this /aw, which takes away a right, or interest in a debtor's property, and makes no com- pensation ? But the fact is, that instead of questioning the law, they have, by their construction, extended the operation, or effect of it. So far from questioning the law, they have sanctioned the application of the maxim to the case, " that the interest of all should pfevail over that of an individual^ 3 Cranch, 82. This maxim is true, where both cannot stand together ; but not true as applied in this case ; but rather the idea that the public has a broad back, and ought to sustain a loss, rather than an individual, where one or the other must sustain a loss: divided among the whole, the loss of & particular debt is small, but may be ruinous to a single citizen. But by construction, they have extended the operation of the laws of the United States, on this head, as it would appear to me, beyond what either the letter^ or the spirit would require. For t-liisi^.ce the argument by the counsel, for the defendant in er- ror, in the case of the United States v. Fisher et al. 2 Cranch, Law Miscellanies. 301 358. The observations of counsellor IngcrsoU on the head o[ prerogativeywith us, termed privilege, supersedes all that I could have to say, in stating how far this privilege is car- ried, even beyond that of the kingly prerogative in England. It may suffice to extract a few of his observations. " It may be useful (says he,) to consider the prerogative of the Kings of England in this particular, at the least liberal pe- riod of its juridical history, where unreasonable preferen- ces of the sovereign over the subject, fdl and deform its every page. By the statute of 33 Hen. 8. chap. 39. sec. 74. '■'- his debt, shall in suing out execution, be preferred to that of eve- ry other creditor who hath not obtained judgment before the king commenced his suit, 3 Bl. Com. 420. Tiiis only n\akes the commencement of the king's suit equivalent to a judg- ment in favour of a subject." " The king's judgment also affects all lauds v^^hich the king's debtor hath at, or after the time of contracting his debt. 3 Bl. Com. 420. This relates to lands only. The personal estate escapes the royal grasp. Even there the dis- tinction for which we contend has always been observed. The preference in favour of the king is principally confined to cases where public monies have been received by an ac- countable officer to public use. It does not extend to trans- actions of a common nature." By the statute of 1 3 Elizabeth, chap. 4. " The lands and tenements, goods and chattels of tellers, receivers, collectors, &c. and other officers of the revenue, are made liable to the payment of their debts." " These are the models which the act of congress was in- tended to imitate. The lands of such revenue officers are liable to process, under the king's judgment, even in the hands of a bona fide purchaser; though the debt due to the king was contracted by the vendor many years after the alien- ation. 3 Bl. Com. 420. Here the distinction is still kept up between the revenue officers and others." " If goods are taken on a fieri facias against the king's debtor, and before they are sold, an extent come at the kind's suit, tested after the delivery cf the fieri facias to the 302 Law Miscellanies. sheriff, these goods cannot be taken upon the extent, but tiic execution upon the fieri facias shall be completed. 4 T. R. 402. Rorke v. Dayrell. " Even Queen Elizabeth, with all the supremacy of ab- solute sway, did not carr}'^ her prerogative claims to the ex- tent now urged for a federative republic, and representative democracy." " With the several exceptions already stated, and which are confined principally to revenue officers, the king of Eng- land has no prioriti/ in the recovery of his debts over the meanest peasant ©f his dominions." Mr. Ingersoll goes on to shew why the construction of the act in question ought to be restricted to the case of receivers of public monies, *' How strange and improbable it is," says he, " that congress should give a preference so much exceeding the royal prerogative of England ? Unless such a construction be absolutely necessary, the inconvenience attending it will un- doubtedly prevent its adoption. Besides the destruction of pri- vate credit, and the ruin of individuals, it would repeal all the state laws of distribution of intestate estates ; it would pros- trate all state priority, which in those cases has been long esta- blished. It would produce a collision between the preroga- tive of the states, and the United States. Suppose the trea- surer of a state should become indebted to the United States, the latter would take his whole property, in opposition to any law of the state which had passed to secure herself against the default of her officers." " If that act is to have the extended construction contended for on the part of the United States, the act is unconstitutioU' nl and void. If liens general or specific ; if judgments and mortgages are to be set aside by the prerogative of the Uni- ted States, it will be to impair the obligation of contracts by an ex post facto /aiy." " Under what clause of the constitution is such power given to congress ? Is it under the general power to make all laws necessar}' and proper for carrying into execution the parti- cular poweirs specified ? If so, where is the necessity^ oj- Law Miscellanies. 305 where the propriety of such a provision, and to the exercise of what other power is it necessary ?" *' Jt is in direct violation of the constitution^ inasmuch as it deprives the debtor of his trial by jury without his con- sent." Johnston, J. Do you admit the law respecting the final adjustment of accounts at the treasury to be constitutional as to revenue officers i Ingersoll. We neither admit, nor deny it as to them. But we deny the power of the congress to give the United States, a preference in all cases of persons who may become indebt- ed to them in every possible manner. It was not necessarj'^ for counsellor Ingersoll to go that length in the case before the court. But it has been seen that I deny the right to give a preference in any case. Patterson, J. Do you contend that by the 5th sec. the priority of the United States, will avoid even a mortgage to an individual ? Ingersoll. I say that the opposite construction leads ta that. I will take upon me to say the same thing. If the act, and the construction put upon it by the court, is carried out to its consequence, it cannot be otherwise. What is a speci- fic lien more than a general lien as to the effect of it ? It had been considered as applying to the general lien of a judgment^ and why not to the specific lien of a mortgage ; A judgment binds the lands so that the debtor has but an interest in these, subject to the payment of the debt. In the case of a mortgagee it is the same. If a distinction \i made, it is not founded on law or reason, but an arbitrary construc- tion of the court. But it is not the construction of the court, that I encoun- ter, or think it v/orth while to trouble myself with ; it is the acts themselves that I call in question, as to the poxvers oj congrtiss to enact. I wish to go to the foundation of the ille- gality of such legislation. The substratum or scaffolding being struck away, the construction will fall of course. It was a case in wbicb the commonwealth of Pennsvlva- 304 Law Miscellanies. nia was concerned, that led the supreme court of this state tu consider this question. I think it was the case oi 2i judgment in favour of the state against Nichols. Execution had been levied, and the money brought into court. A motion was made on the part of the United States to take it out, in fa- vour of a debt due to them by the same defendant. It was refused by the court. I have not heard what became of the appeal, being a case of concurrent jurisdiction ; but I coiild not but see that if pressed, and decided in favour of the Unit- ed States, it might terminate in the same disagreeable con- troversy, with that of Olmstcad and the Commonwealth. The truth is the whole system of legislation and construc- tion in hac parte, is unconstitutional and void. There might be the like reason for introducing the prerogative of the so- vereign of England if there was the like necessity. Every fiscal prerogative of that country, was in lieu of taxation to support the government. It had its foundation at a time, and under a state of things when no taxes were laid, but feu- dal services exacted by the sovereign ; or at least when the only establishment for the King's household, or support al- lowed him, was from this source. What have we to do v/ith any thing of this kind under our government, where % provision is made by law for this purpose ; and where the great source of revenue, is, er ought to be the free contribution of the people, by way of equal tax through the medium of their representatives. Of this nature is, what they pay volunta- rily by duties of imports ; or which may be laid upon internal manufactures, or negociations ; or directly upon the real or personal estate of individuals in proportion to their proper- ty. It may be said, it will occasion insurrections to exact a revenue by direct contributions ; that money cannotbe extorted; it must be taken circuitously, and clandestinely from a free people. If that should be found the case, it will prove them unworthy of a free government. But let us have an open and direct application to the virtue of the people, until it shall be proved that they have not virtue sufficient to justify the ex- periment, or the continuance of the application, to their un- derstanding, — and not to their blind sides, as it may be ex- pressed, by surreptitious, and hidirect means : more especial-- Law Miscellanies. 305 \y if these means are in their nature unjust, and a robbery of individuals. Of this nature I take all priority, or preference in the payment of debts due to the United States, over the private claims of a citizen. Prior lien, or attachment, as between citizen and citizen, ought to be the law of the land, as between the citizens of the union, and the union itself. On the extent of the judicial power of the courts of the United States. I DO not enter into the question, whether the congress may not " from time to time, abolish such inferior courts, as they may from time to time ordain and establish.*' On this head see Tucker's Blackstone's Commentaries, Appendix, 361. But the inferior courts abolished by the act 29th April, 1802, did appear to me, according to the title of the act Under which they were established, to be " a more convenient organization of the courts" of the United States* The ad- ministration of the laws, under the judicial power of the United States, was, by those courts, brought nearer to the doors of suitors, jurors, and witnesses. These called up- on, and attending from an extreme of a state to some one place within it, was inconvenient, not only from the expence^ but the loss of time, and in some cases, personal inability to attend, at so great a distance. It would seem to me that some arrangement of this nature, must be re-established, if the judicial power of the union, continues to be extended as it now M. The resolution of J. Breckenridge, then senator, since attorney general, offered in the senate of the United States, appeared to me to be a natural, if not necessary coa- aequence of the abolition of these vferior courts. This was to abridge the extent of the judiciary power of the union, confining it to " cases arising under the constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting embassa- dors, other public ministers and consuls ; to all cases of ad- 306 Law Miscellanies. miralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more states, and between a state and citizen of another state.'' Here the power might have a close ; and by an amendment to the constitution, what remains might be struck away. This is " to controversies between citizens oi" different states, between citizens of the same state, claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or sub- jects." It is not only to the inconvenience under the present sys- tem that the objection lies; but there is a radical objection at bottom to such extent of judicial cognizance, of the United States' courts under any arrangemeiTt, or organization : that is, the moral improbability to say the least of it, that the judges of these courts, can have a competent knowledge of the laws of the particular states, to enable them to decide on local questions according to the acts of the legislature, and the established construction thereon; or according to loc^ usages, and practice. But it may be answered, that there can be no necessity of having a knowledge of the construe^ tioti of the acts of the legislature; or of the practice of the courts, since not bound exclusively by these. Hoc gravamen est ; this is the rule ; it is the evil that they are not bound. It would at least be expedient that they should have a know- ledge of these. That is impracticable. It is not the lucubra- tiones viginti annorum ; but an hundred years that could suf- fice for this. The life of man would not suffice, with the greatest application, to acquire such minute information of the laws, usages and practice of each particular state in the union, as could satisfy a conscientious judge himself, that he did not err in deciding controversies, according to the laws, usages, and customs of each. And, it is not to be wondered at if under such disadvantage they would seem to have erred in many cases, or, at least, have not secured that confidence in their decisions, which their talents, and integrity, not un- der such disadvantages, would doubtless have secured with the bar, and with the countrv. I Law Miscellanies, 307 It would seem to me that if attorney general Brccken- ridge, had brought forward his resolution for an amendment of the constitution, in the first instance, and before the aboli- tkin of the inferior courts established, of which I have spoken, it might have been carried in the senate, and adopted by the states ; at least it would have been more advisable to have taken the sense of the people in this way. For if it had been thought advisable to have retrenched the judiciary poW» er of the union in this way, there would have then, been no necessity for tliese inferior courts, v^hich had^been so esta- blished, and the province of duty being lessened by the ju- risdiction struck away, these courts could with more propri- ety have been abolished; and more especially as little or no business out of the aea-ports, and commercial towns, would have remained. Such amendment to the constitution, must take place ; or tliese courts in some shape, on the score of conveniencifyZt least, must be restored. Of Errors, as it would seem to me, in decisions of "the Supreme Court of the United States. CUI bono, it may be said ; of what use to review deci- sions ; since it is the maxim, non ita refert quod sit lex, quam quod sit nota. The nota must mean settled; because what is unsettled^ cannot be known. And it must be the ef- fect of fluctuating determinations, that the law must remain uncertain^ and therefore unknown. But it is with no idea of contributing a mite towards the changing adetermin^ion, or the principle of it, that this examination is undertaken. It would be absurd to suppose it. Even a judge of that court; or even the whole court, could not change the determination, though they might have it in their power to change the prin- ciple ; or, in other words, their opinion of what wag the law in a like case. But of what use can it be that an individual undertakes to think differently from what a court has decid- ed ? I cannot say that I can give any other reason than my ovfn ambition, to let people see that I also have an opini- 60S Law Miscellanies. on ; and am capable of remarking, where there may appear to be error. Bwt what other reason can be given in many cases of criticism ? For instance, it is of no use to remark an historical error, in the divine poem of Milton, as in that^ verse ; " When Charlemain with all his peerage fell " By Fontarabbia— — ." Yet, the fact is, that Roland fought the battle ; and Charle- main was not present, and neither fell there, or any where else; but died in his bed. The verse might be altered to meet the truth of history; and, at the same time, without spoiling the measure. But I have no idea that the printers will make the alteration in the next edition. However, will it not be pardonable, not only to have made the observation ; but also to shew how the alteration could be made ? Would it not read as well, and perhaps not be less poetical, to say, When all the peerage fell of Charlemain By Fontarabbia But it may be stWed firesiimpt ion in me to attempt a re- mark upon a decision of the supreme court of the United States. I would admit this, did it not furnish an objection against all criticism, where the subject is of transcendant eminence and dignity : Thus, in the case of Milton as alrea- dy mentioned; whose genius is superior to what mine can pretend to be ; as far as " Thrice from the centre to the ethereal pole ;" or the orbit of the sun himself, " Nine times the space that measures day and night." Yet it is allowable even in such cases, to speak of a speck which the microscopic eye of a mosqueito^ can perhaps alone discern. It savoured oi profanity in him who said, though he meant it but as wit, that ' had he been consulted in the formation of himself, he would have put the calfs of his legs before, that he migj^tnot break his shins.* But, of all things human, and beneath divine, it is lawful to hazard a correc- tion. Having premised this, and taking up the reports of Law Miscellanies. 309 Cranch, I find the case of William Marburij v. James Madi' son. Secretary of State of the United States. 1 Cranch, 137. The first question that ought to have been made in this case, was, have inferior courts, a pozver given to them by t/ie constitution, or the latvs, to issue a mandamus ? In the con- stitution there is nothing said about such a power in the one court or the other. Independent of the act establishing the judicial courts of the United States, neither supreme or iifc'- rior court had the power j unless we should suppose that the supreme court succeeded to the power of the court of King's Bench; being the highest court of the union, and it being necessary for the administration of justice, that such writ, which has been called a high prerogative writ, should issue. But the legislature of the union would seem to have thought that it was at least questionable, or that it had been questioned, whether such a writ could issue even from this the highest court. For by the act to establish the judicial courts of the United States, it is provided that the su- preme court shall have power amongst other things, " to is- sue writs of mandamus in cases xvarrantcd by the principles and usages of laxv, to any courts appointed, or perscn'> holding offices under the authority of the United States.^'' Was a law necessary to give such a power to the supreme court, and could aminferior court exercise it, without a provision spe^ daily giving it. It cannot be said to be impliedly given; for these courts themselves are made the subject of a mandamus to whom it is to issue ; and it would be an inconsistency to say, if these courts refuse to do a thing, or to give redress. they might issue a mandamus to themselves in the first in- stance. Or, in the case of other persons holding offi(:es,yrh\ch are the words of the act, is there any power given to them under the act to issue a ynandamus ? The supreme court shall have appellate jurisdiction from the circuit courts. But there roust be o/z^zna/jurisdiction first given, before there can be appellate. Can any one suppose, for a moment, that any such high prerogative power would be given by the congress to an inferior circuit court? There is no such power given even to any of the higher courts in England. It is a prerogative of the sovereignty, and so called ; and can issue only frons JlO I. AW Miscellanies. that bench which controls all inferior jurisdiction ; and %vhere ulone of all the courts, in plena majestate^ the king himself, is supposed to be present. Can any one suppose then that a writ of such high and supereminent authority could be in- tended to be given, unless we Were concluded by express words, from doubling of the trust ; what is more to courts of inferior jurisdiction established by the act, under our republi- can government ? Here we may naturally suppose the citi- zen more jealoxis^ of such writs of high prerogative. No j it never came into the head of any person before this deci- sion, that an inferior court of the United States had the porver to issue such a xvrit. The king's bench has the power to issue this writ of mandamus, to the court of common pleas, who, it might hap- pen, might refuse to proceed to judgment, that a writ of er- ror might be brought; or for other cause might be the sub- ject of the writ of w«n^«/MMs; to the exchequer also. What did the congress mean more than to give a similar power over inferior jurisdictions to the supreme court of the union. The inferior courts of the union had a right to raise their heads, indeed, if it could be supposed that such a power was given to them. Even in their own case where they refused to do a thing, they must first, it seems, issue a mandamus io fAcw5e/t'<'5, and decide upon it, before it could be brought be- fore the supreme court, of the United States. This would be sitting as judges in their own case^ if the mandamus had been directed to them commanding them to do an act. If there is no orz^/;2c/ jurisdiction in an inferior court, there can be no apellate ; for an appeal implies a decision from whence an appeal is made. But by art. 3, sec. 2, n. 2, " in all cases affecting embassa- dors, other public ministers, and consuls and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the su- preme court shall have apellate jurisdiction." That must be in all other cases, where the inferior courts have original jurisdiction given them ; for original and apellate are relative terms, and where the one does not exist, the other can have noplace. The truth is that with regard to a mandamuSy the Law Miscellakies. 311 relation of the terms does not exist, because it is the supreme court alone to whom any jurisdiction is given in this case. What then, to use the language of the court, could consti- tute " the peculiar delicacy of the case, the novelty oj some of the circumstances, and the real difficulty attending the points which occur in it .?" I can see no difficulty in any of the points, nor is there any novelty of principle in the determination. But I will acknowledge there was, a peculiar delicacy, as the court express it, in the case. It was whether the judiciary should enter into a contest with the executive. They could not but see that if the mandamus issued, it must be directed to the marshal, who was the officer of the executive, and who might be instructed not to obey ; and if an attachment issued against the marshal, for not obeying, who was to put him ia jail but himself f The court would be placed in an undignified situation in such a case, who had issued a writ which they could not enforce. On the marshal's return to the writ that he was instruct- ed by the executive not to pay regard to it, what remained but to represent this to the legislature that the executive might be impeached, if they should be of the sam.e opinion with the court, as to the power of issuing the mandamus. But the legislature might be of opinion that the writ was not grant- able in such a case, and instead of impeaching the president. impeach the judges who had issued it. Or, by repealing the faw under which the supreme court was constituted, these judges might be got rid of altogether. For though the con- stitution provides that there shall be 2i supreme court, yet the ideiitity of judges has nothing to do with this. There could be a supreme court with one set as well as another. The legislature had shown what they could do, in a case just be- fore, that of the circuit courts ; and they might be disposed to do the like in the case of the supreme court. Not that I would insinuate that if the matter was per- fectly clear to the judges, they would hesitate for the sake of their own standing, to grant the writ. But weighing the embarrassment of what might be the consequence, they may naturally be supposed to have had a leaning, er predisposi- Sl'Z Law Miscellanies. tion to avoid it. Or, to use the legal ffrm,may have thought some astutia justifiable in finding reason to avoid it. But it might not be for their own sokes merely, or any regard to the commissions which they held, but for the sake of the constitution which might be injured in their case, and for the sake of that precedent which might be set at a time when one party had succeeded to the administration on the overthrow of another. So far am I from finding fault with the judicia- ry in this instance, that I will admit the prudence of what they did ; or, in other words, the expediency. And if there could be a case where the issuing the writ was discretionary^ this was such a case. But I am speaking of the legal cor^ rectness of the decision as to the power of granting the man- damus, v.'hich was put upon the ground of a want of original jurisdiction in such a case*. The court saw the delicacy of the case as involving not their own standing merely, but the sta^ hility of the judiciary branch of the government, which might be endangered, by an unreasonable^ and as they would seem to have thought, a questionable stand to support it. A principle of self-preservation, not of themselves mere- ly but of the post which they occupied to use a military phrase, may have dictated the withdrawing from a contest which might be attended with unfavourable consequences, and at all events disagreeable. It is said of the Nile receding from the blaze of conflagration, when Phseton misguided the cha- riot of the sun, Occuluitque caput. ■ And of the Earth itself on that occasion, Suum que Retulit OS in se. It was not certain what the return of secretary Madisoi; would be ; but it might be a refusal to make a return : in that case an attachment must issue, which the marshal might re- fuse to serve. These circumstances could not but be fore- seen, and are what we may presume, were in the view of the court, when they speak of it as a case of peculiar delicacy.; and attended with circumstances novel in their nature. Law Miscellanies. 313 The folloiving official ojdnion of the attorney general of the Unit- ed Utates has been trans7nitred to the different collectors^ for their government. Sir, I have read and considered the papers and documents referred to me relative to the case of the mandamus., issued by the circuit court of the United Sates for the district of South Carolina, to compel the collector of tlie port of Charleston to grant cleai^ices to certain vessels. The first question tiiat naturally presents itself, is, whether the rourt possessed the power of issuing a mandamus in such a case ? A mandamus in England is styled a prerogative writ, and in that country is awarded solely and exclusively by the court of king's bench. The constitution and laws of the United States establish our ]j^icial system. To these we must refer in order to ascertain the jurisdiction of the respective courts, the extent of their powers, and the limits of their authoi'ity. The " Act to establish the judicial courts, of the United States," passed on the 24th September, 1789, declares and defines the juris- diction of the several courts thereby created, and among these the jurisdiction of the circuit courts. Upon a careful and atten- tive perusal, it will be found to delegate to the circuit courts no power to issue writs of mandamus. In tlie thirteenth section of that act this authority is expressly given to the supreme court of the United States. In like manner it is specially provided by the act of the 3d of February, 1801, that the supreme court shall have power to issue writs of /«a«(/cw«ir. This last act having been re- pealed, and the former revived, the question must rest on the true construction to be given t© the original act. The eleventh section defines and liinits the jurisdiction of the circuit courts. It is specially appropriated to tfiis single object. There are no expressions in this section which can fairly be inter- preted to confer tlic authority of issuing writs of mandamus. Xor can the power be either implied or inferred from any language it contains. It is true, the proceeding by mandamus in England is on thecro^n^ side, as it is termed, of the court of king's bench. But ilisa prosecution relative to a civil right to enforce it, and to ob- uiinpro'.Tipt redress; and not to punish criminalty as in the case calth, and owed allegiance ; this I admit for the present, and in order to ex- clude all difficulty on the ground of qualifed allegiance. In affirmance of this inference of law, that by remaining in Jersey after the declaration of indepedennce, he became a citizen ; the act of 4th October, 1 77Q>^ declares, " tljat all per- sons there abiding, not only owe allegiance, but are mem- * For this reason it may be excusable, if not justiiiablc, and a duty, where any of a comnHi'iity di^oents from a decision, to come forward nnd orjircss it. 3^0 Law Miscellanies. hers of the then government." Doubtless Coxe leaving the state afterthis, and joining the British, might, instrictness^ and according to abstract rigid law, be considered as having been guilty oVagh treason; andif fouad within that common- wealth, proceeded criminally against for such offence. If holdeia a subject, his descendant could inherit what had not been confiscated ; or taken away by the commonwealth. Qui sentit commodum, sentire debet et onus ; and to reverse the maxim, qui sentit onus, sentire debet et commodum. Why should he be amenable as a citizen, to suffer less of property, or life, and not be considered as entitled to the benefit of inheritance, to his posterity ? Agreed therefore, " that it would have been competent for that state to allege allienage in Coxe. That a treaty of peace intervened which is a su- preme law, it is insisted, says judge Gushing, 4 Cranch, 114, " that the treaty of peace operating upon his condition at that" time, or afterwards, he became an alien to the state of New- Jersey, in cow5ey?/^7zcr of his election then made to become a subject of the king, and his subsequent conduct confirming that election." " In vain," continues that judge delivering the opinion of the court, " have we searched that instrument for some clause or expression^ which by amj implication could work this effect^ I take it to result, by necessary implication, and legal in- ference from this clause of the treaty, art. vi. " There shall be no future confiscations made, nor any prosecutions com- menced against any person, or persons, for, or by reason of the part which he or they may have taken in the present war." This cannot but be considered as a repeal of the Jersey law; iind in that case no impediment was in the way of a British adherent during the war, to return to his state, if he should chusc to elect to be considered a citizen. I consider him plac- ed in the situation precisely, with that of having chosen his side, and quitted the state before the commencement of the war. In tliat case a new government being formed he was excluded, and could not become a citizen, without some act on his part revesting himself of that privilege. I will agree that he might be allowed a reasonable time, say his whole life, to come in. But never hr.ving come in, citizc-nship did not Law Miscellanies. 321 result in him. For not until he had resumed his character, and put himself in the condition of a citizen, could he be in- titled to hold land^ on the facts found in the special verdict^ and from which the court had a right to draw, and could not but draw the conclusion of expatriation. I could not consider him as having died jfizerf/ and tn that case, real estate could not descend to the heir. For suppose him, until his latest breath, to have a right, under the treaty, to revest himself with the right of a citizen, i& contemplation of law, a moment must exist on his expiring, before the transit could be made of the estate, to Mxs grantee. But I would be willing to favour every possible legal as- tiitia to save the descent of an estate, and inheritance under the circumstance of a revolutionary period j but I am oppos- ed to every thing that would giVe countenance t6 the idea of not being able to expatriate. The principle of the nemo exuere I detest. All notion of this being a principle of the common law carried with us from a feudal country in our emigration, I would scout from our code. It had its origin in a mtlitarij establishment; and agreeable to military ideas, he might be considered a deserter^ who would leave the ranks, except upon furlough, so to speak, and might be punished as such. It is on account of giving the most distant Countenance to the sup* posed introduction of this principle that I dislike the decision in this case. Simtiis ami Wise v. Slacuni. 3 Crancli, 300. Error to the circuit ourtofthe district of Columbia, and the judgment reversed, judge Pater son dia.^.'iTiUng. I take the opportunity of expfeesing the great respect which J. entertain for the memoiyof judge Paterson, though there iiave been cases decided by him, or \f here he has joined in the decision, which I have thought wrong. His natural ta- lents were respectable j and his legal knowledge, the result of all, that application could do. But the integrity of his S 3 o22 Law M1SCELLANIE8. mind was pure, and his manners amiable. I had known him from an early period in life ; but not with intimacy, being my superior in years, and in standing. But all that I ever observed of him was dignified, and noble. I cannot say, but that in this case, where, in looking at the report, I saw that he dissented^ I had ^predisposition to find him right, against the majority of the coiirt ; and this I had the satisfac- tion, abundantly, to find ; and this I undertake to say, with- out fear of contradiction from the majority of the learned iil the law, maugrc, the weight of a decision of the supreme court. I shall just take the liberty of submitting, for the proof of this, the decision of the court, with judge Pater- son's reason of dissent contrasted. Mae SHALL, Ch. J. delivered the opinion of the majority of the court. This case depends on the construction of an act of the legisla- ture of Virginia, which allov/s the prison-rules to a debtor wliose body is in execution, on his giving bond, with sufficient se- curity, not to go out of the rules or bounds of the prison ; that is, while a prisoner. The condition usually inserted is, not to de- part therefrom till he shall be discharged by due course of laM', or shall pay the debt. The act further provides, that the prisoner, on delivering a schedule of his property on oath, to a tribunal con- stituted for the purpose, and pursuing certain steps prescribed in the law, shall be discharged, and all his property shall be vested in the sheriff, for the benefit of the creditors at whose suit he is in execution. In the case at bar, the forms of the law were observed, and a certificate of discharge obtained, after which the debtor departed from the rules. Conceiving this discharge to have been obtained by fraud, the creditor brought a suit upon the bond, and tiie court instructed the jury, that if a fraud had been piactised by the debt- or, although neither the justices "who granted the certificate, nor the security, partook thereof, yet it avoided the discharge, and lef* the security liable in this action. To this opinion the defendants' cour.scl excepted, and upon that exception the cause is before this court. The certificate of discharge may be granted either by the court sitting in its ordinary character for the transaction of judicial busi- ness, or by two magistrates who are constituted by law an cxtraor- Law Miscellanies. 3%:i x dinary cuuvt for this particular purpose. Whether granted in the one mode or the other, it is of equal validity. In either case, the judgment of discharge is the judgment of a court, and, as such, is of complete ohligation. The judgments of a court of competent jurisdiction, although obtained by fraud, have never been considered as absolutely void ; and therefore, all acts performed under them are valid, so far as x'espects third persons. A s'leriff who levies an execution under a judgment fraudulently obtained, is not a trespasser, nor can the person who purchases at a sale under such an execution, be com- j)elled to relinquish the property he has purchased. All acts per- formed under such a judgment are valid acts ; all the legal conse- quences which follow a judgment are, with respect to third persons, precisely the same in one obtained by fraud, as if it had been ob- tained fairly. When the person who has committed the fraud attempts to avail himself of the act, so as to discharge himself from a pre- viously existing obligation, or to acquire a benefit, the judgment thus obtained is declared void as to that purpose ; but it may well be doubted, whether a penalty would be incurred, even by the per- son committing the fraud, for an act which the judgment would sanction. Thus, if a debtor taken on mesne process escapes, he may be retaken by the authority of the sheriff, and if not retaken, the sheriff may be liable for an escape ; but if he fraudulently obtains a judgment m his favour, in consequence of which he goes at large, it has never been imagined that the sheriff could retake him on suspicion that the judgment was fraudulent, or be liable for an escape on the proof of such fraud. Thus too, where, as in Virgmia, an injunction has been adjudg- ed to discharge the body from confinement, if a debtor in execu- tion, by false allegations, obtains an injunction whereby his body is discharged from prison, or from the rules, it has never been con- jectured tliat tlie injunction thus awarded was void, and the acts performed under it were to be considered as if the injunction had not existed. In that case, it would not be alleged that there was an escape, and that the security to the bond for keeping the rules was liable for the debt, because the discharge was fraudulently ob- tained ; but the discharge would have all its legal effects, in like manner as if no imposition had been practised on the judge by whom it was granted. The judgment rendered in hia favour may not shield the frau- dulent debtor from an original claim, but it is believed that no case 52* Law Miscellanies. can be adtfuced, v;here an act, which is the legal consequence of ♦a judgment, has in itself created a new responsibility, even with respect to the party himself, much less with respect to third per- sons, who do not pjwticipate in the fraud. - It w6uld seem, then, upon general prmciples, that a debtor who has departed from the prison-rules under the authority of a judgment of discharge, granted in due form by a competent tribu- nal, has not committed an escape even to charge himself, much less a third person. Such a discharge might not be permitted to protect him from the original debt, even if the case had not beeii particularly provided for by statute ; but the act of departing from -the rules, aftsr being thus discharged, could not charge him with a new responsibility to which he was not before liable, much less- will it impose on his security a liability for the debt. Departing from the rules, after being discharged in due course of law, is not a breach of the condition of liis bond. This opinion receives great additional strength from those ar- guments, di-awn from the objects and provisions of the act, which have been forcibly urged from the bar. The objects of the act unquestionably are, not to increase the security of the creditor, but to relieve the debtor from close im- prisonment in the confined jails of the country, and to consult his health, by giving him the benefit of fresh air. But as this indul- gence would fui-nish the means of escaping from the custody of the officer, and thereby deprive the creditor of his person, it was thought necessary to guard against the danger which the indulgence itself created, not to guard against dangers totally unconijiected with this indulgence. Security, therefore, ought, in reason, to be required against a departure from the rules without a lawful authority so to do, because the means of such departure were furnished by being allowed the use of the rules ; but security against a fraud in obtaining such authority need not be j-equired, because the means of practising that fraud are not facilitated by granting the rules. They may be used by a debtor in close jail, as successfully as by a debtoi' admitted to the rules. It is also a material circumstance in the construction of the act, that ample provision is made for the very case. A new capias may be awarded to take the person of the debtor. This remedy is not allowed in the case of an escape ; and it is strong evidence that the legislature did not contemplate a departure from the rules under a certificate issued by proper authority, as an escape ; that tii,e remedy given the creditor is competent to a redress of the Law Miscellanies. 325 injury, replaces Idm iiithe situation in which he was before it wad committed, and is not founded on the idea that there has been" an escape. The argument founded on the provisions respecting- the pro- perly of the debtor, also bear strongly on the case. They con- firm the opinion, that a departure from tlie rules, under a certifi- cate of dischrage granted by a proper tribunal, ought not to be considered as an escape. So, too, does that provision of the act which requires notice to the creditor and not to the security. Without reviewing tlie various additional arguments tvhicK have been suggested at the bar, the court is of opinion, that upon general priiKiples, strengthened by a particular consideration of the act itself, a departure from the rules under such an authority as is stated in the proceedings, is not an escape M'hich can charge the security in the bond for keeping the prison-rules, although that authority was obtained by a fraudulent representation on the part of the debtor, neither the magistrates nor the security having participated in that fraud. There is error, therefore, in the instruction given to the jury, as stated in the third bill of exceptions, for which the judgment is to be reversed, and the cause remanded for further trial. Judgment reversed. PatersoN, J. As to the third exception, which embraces the mam point in the cause, my opinion differs from the opinion of the majority of the court, and accords with the direction given by the court below. The condition of tlie bond is, « that Simms do well and truly keep himself within the prison-rules, and thence not to depart until he shall be discharged by due course of law, oi- pay the sum of 1,285 dollars and 45 cents, to George Siacum, assignee," Sec. The act that will not exonerate the principal, will not exonerate the surety, from the obligation which they hav«, entered into ; for the surety stands on the same floor as the prin- cipal, and assumes the like character of responsibility, in regard to the terms specified in the condition of the bond. The benefit of the act of insolvency, if obtahied by fraud or perjury on the part of Simms, will be unavailing, and his going beyond the limits of the prison, in consequence or under colour of a discharge, thus procured, will be an invalid and unwarrantable departure. Fraud infects the decision ; and the legal principle is, that the fraudulent person shall not be suffered to protect himself by his own fraudu- lent act. If he shoijld, then a judgmenS which is laid in fraud> 32b Law Miscellanies. will, as in the present case, operate to the extinction of a legal, pre-existing obligatiorl or contract. But a discharge, fraudulently obtained, is of no virtue — of no operation ; and is, in truth and in law, no discharge ; it has neither legal effect, nor even legal exist- ence as to the party himself, and the surety, who stands in his shoes. If the judgment be of no avail as to the principal, it will be of no avail as to the surety ; it cannot be ineffectual as to the one, and operative as to the other. The discharge must be legal to be valid, and to exonerate the surety from the special condition of the bond. The judgment itself is a fraud on the law ; and I can dis- cern no difference between the debtor's going beyond the prison bounds voluntarily, or under colour of a judgment so obtained i except, that the latter is a case of deeper die, and less excusable in a legal and moral view than the former. Although Simms is liable to be imprisoned by virtue of a new process, yet he may have gone out of the jurisdiction of the court ; or if not, Slacum will be deprived of the benefit of the bond which Simms and Wise executed. The sheriff stands on different ground ; for he is exonerated from all liability, by an express provision in the statute. Besides, if the jvistices have jurisdiction of the subject, and should not ex- ceed their jurisdiction, it is not incumbent on the sheriff to ex- amine into tlie regularity, fairness, and validity of their proceed- ings and judgment ; he looks at the instrument of discharge^ which, emanating from a competent authority, it is his duty to obey. But though the discharge may excuse the sheriff, as an officer of the court, it will not excuse the party, nor his surety. As to them it is inoperative, and of no legal efficacy. The United States v. Fisher et al. assignees of Blight. IT cannot be a question, but that it is more pleasing to the mind to find itself with the majority of a court in giving an opinion ; and, where constrained to dissent, it cannot be un- pleasing to find that this dissent is approved by the bar j or even by intelligent persons, out of doors ; more especially if these persons are of a standing and just pretension to legal knowledge. Even an exjiression of the sense of the multi- Law Miscellanies. 32? tude, is not, in all cases, wholly to be disregarded. It can- not be ungrateful to have one's judgment approved, even by sl simple mind, because, it goes some length, however small, in reconciling to ones-self what it has done ; and giving the sa- tisfaction of believing that we had not conceived amiss of the law, and justice of the case ; but to have it approved by the intelligent, is still a greater satisfaction to the mind. It also contributes to inspire confidence in our own strength, and to se- cure independence of opinion on other occasions. This holds still more, or at least equally, where the judgment of a court below, is to undergo the revision of a court of error. So that though a judge, or a court below would from conscience; or if this was the weaker power, on principle of delicacy, and a sense of honour; or what is more, a principle of self-preser- vation, be willing not only to avoid the act, but also to es- cape the imputation of attempting, in the most distant de- gree, to influence the revision of his opinion, yet it would give him more pleasure to have his judgment affirmed ra- ther than reversed ; unless, indeed, from reasons that had occurred to his own mind, or delivered by the court above, he should come to alter his opinion. In that case, he would be unworthy of the name of judge, that would not acquiesce, and be internally satisfied. And it is only in the, case of a weak understanding that cannot well afford to he thought wrong, that, under these circumstances, pain would be felt, or unfavourable impressions of inferiority would oc- cur. It is no uncommon thing for a reader of reports, or ni- ther, it is too common to look at nothing more than the de- cisions of the court, and to take it for granted, that the mi?io- rity are in the wrong. The presumption is doubtless against them : and the maxim is, stabitur presumptioni donee in contrarium probetur. But what proof can be offered, but the examination of the reasons. And without examining, the conclusion of error is unfair. There cannot be a more useful exercise of mind to the student ihan an examination of cases, Avhere the court have been divided. Or where the ''ourt above has reversed ih.c (\v':]A'm of an inferior; as in 328 Law MiscELVANixs. the present case, which was an appeal from the dcciiiou oi judge Washington, on a writ of error from the circuit conrf of the district of Pennsylvania. It may have been seen from some things already stated on the subject of the acts of con- gress^ that I think the decision of Judge Washingto7iy and for the reasons given in this case of Blight perfectly correct. It was not necessary for him to call in question the constitu- tionality of the acts of congress, on this head ; or of the act immediately before him ; the construction that ought to be put upon it being the only question. The court above re- versed his cojistruction ; but his reasons stand, and will pre- vail. It is HOt likely that a construction so palpably errone* cits as that of the superior court, can receive the sanction of an adjudication, by succeeding judges. At all events, it can- not be, but that the attention of congress will be drawn to it, and the act will be so amended, as to be restrained in the extefit of such construction ; or repealed altogether ; and which in my judgment it ought to be; as htix\^ unnecessary to carry the powers given into effect; and, therefore, un- constitutional, and void. The congress is charged with the common defence^ and the payment of the national debt ; but the very power first given, sec. 8, n. 1, " to lay and collect taxes," &c. supersedes all necessity of a recurrence to pre- ference^ and thus taking away the property of an individual, without compensation. And what compensation could be given but the thing itself. For it is the debt due that is taken from the creditor by the preference given to the union* The question is, says judge Washington, "have the United States a right in all cases whatsoever to claim a pre- ference of other creditors in the payment of debts." Waskingtoj:, J Although I take no part in the decisior, of this cause, i feel myself justified by the importance of the ques- tion in declaring the reasons which induced the circuit court of Pennsylvania to proncunce the opinion which is to be re-exaiilir.ed here. In any instance where I am so unfortunate as to differ v.'ith this court, I cannot fail to doubt the correctness of my own opinion,. Tkit if I cannot feefcor.vlnced of the oror. I owe it in some mca- Law Miscellanies. 329 sure to myself and to those who maybe hijurcd by the expense and delay to which they have been exposed to shew at least that the opinion was not hastily or inconsiderately given. The question is, have the United States a right in all cases whatever to claim a preference of other creditors in the payment of debts. At the circuit court the counsel for the United States disclaimed all idea of founding this right upon prerogative princi- ples, and yet, if I am not greatly mistaken, the doctrine contended for places this right upon ground at lest as broad as Avould have been asserted in an English court. The whole question must turn upon the construction of acts of congress, and particularly that of the 3d of March 1797. The title of the law is " an act to provide moi'e effectually for the set- tlement of accounts between the United States a7id receivers of public inoneij." The first section describes more specially the persons who are the objects of the law; points out the pailicular ofiicer whose du- ty it shall be to institute suits against those public delinquents thus marked out ; declares the rate of interest to be recovered upon balances due to the United States, and imposes a forfeiture of commissions on the delinquent. The 2d section defines the kind of evidence to be admitted on the part of the United States, in the trial of suits in all cases of de- linquency. The 3d section gives to the United States in such actions, a preference of all other suitors in court, by directing the trial of such causes to take place at the retui-n term upon motion, unless the defendant will make oath that he is entitled to credits which have been submitted to the consideration of the accounting officers of the treasury, and rejected. The 4th section takes up the case of the defendant, and declares under wiiat circumstances he shall be entitled to the benefit of off sets. The 5th section brings us to an important part of the trial, and furnishes a rule to govcni the court hi the judgment, it is to ren- der, in cases wiicrc the claim of the United States might, by rea- son of the insolvency of the debtor, go unsatisfied, unless preferred to that of a private citizen. The 6tu section is general in its terms, and relates to execu- tions where the defendant or his property is to be found in any district other than that in which the judgment was rendered. ' 1' T ^ou "Lav: Miscellanies. This is a concise view of the different parts of this act, ind I shall now cxanriine more particularly the expressions of the 5th section taken in connection with tlwjse which precede it. The words are " that where any revemie officer or other fiev' son hereafter becoming indebted to the United States by bond or otherwise, shall become insolvent, the debt due totlie United States shall be first satisfied," &c. It is conceded that the words " or other person" are broad enough to comprehend every possible case of debts due to the Uni- ted States, and therefore a literal interpretation is contended for by those who advocate the intei'cst of the United States, On the other side, a limitation of those expressions is said to be more consonant with the obvious meaning of the legislature, which con- templates those debtors only Avho are accountable for public mo- ney. Where a law is plain and unambigitous, whether it be express- ed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. But if, from a view of the whole law, or from other laws in pari maieria, the evident intention is dif- ferent from the literal import of the terms employd to express it in a particular part of the law, that intention should prevail, for that in fact is the Avill of the legislature. If a section be introduced which is a sfrangcr to and uncon- nected with the purview of the act, it must nevertheless take ef- fect according to its obvious meaning, independent of all ijifluence from other parts of the law. Nay, if it be a part of the same sub- ject, and either enlarges or restrains the expressions used in other parts of the same act, it must be interpreted according to the im- port of the words used, if nothing can be gathered from such other parts of the law to change the meaning. But if in this latter case, general words are used Avhich import moie than seems to have been within the purview of the law, or of the other parts- of th6 law, and those expressions can be restrained by others used in the same law, or in any other upon the same subject, they ought in my opinion to be restrained. So if the literal expressions of the law would lead to absurd, unjustor inconvenient consequences, such a construction should be given as to avoid such consequences, if, from the whole purview of the la^^■, and giving effect to the words used, it may fairly be done. Tl.cse rules are not merely artificial ; they arc as clearly found- Law MiSCELLANlESc 531 cd ill plain sense, as they ai-e certainly warranted by the principles of common law. The subject intended to be lef^islatcd upon is sornetimes stat- ed in a preamble, sometimes in the title to the law, and is some- times, I admit, mistated, or not fully stated. The preamble of an act of parliament is said to be a key to the knowledge of it, and to open the intent of the law-makers : and so I say as to the title of a law of congress, which being the deliberate act of those who make the law, is not less to be respected as an expression of their intention, than if it preceded the enacting clause in the form of a preamble. But neither the title or preamble can be resorted to for the purpose of controuling the enacting clauses, except in cases of ambiguity, or where general expressions are used incon- sistent or unconnected with the scope and piu'view of the whole law. They are to be deemed true, unless contradicted by the enact- ing clauses, and it is fair in the cases I have stated to argue from them. The object of this law then, as declared by tlie title, is to pro- vide for the effectual settlement of debts due to the United States, from receivers o/j7ublic money. To effect this, suits are directed, the species of evidence to support the claim on the part of the plaintiff is poiiited out, and a speedy trial provided ; on the part of the defendant, a limited right to oppose the claim by offsets is provided, and the claim of the United States is to have a preference of other creditors, where the debtor is unable to satisfy the whole. Here then is one entire connected subject — the different provi- sions of the law constituting the links of the same chain, the mem- bers of the same body. It will r;ot, I presume, be denied, that the three first sections of the law apply to those only who are de- clared by the title to be the objects of its provisions. The 4th §ection is the first v/hich uses general expressions, without a re- ference to those who had before been spoken of j and yet I think it will hardly be contended that this section is not closely and inti- mately connected with the same subject. — When we come to the 5th section the reference to the three first sections is again resum- ed, with the addition of the words " or any other person." So that instead of the words " revenue officers or otiier persons ac- countable for fiublic money," used in the first section, this sec- tion uses the words " revenue officers or otiur person.t indebted to the United S^at^r.,'" 332 Law Miscellanies. Now it is obvious that these expressions may have precisely the same meaning, so as to comprehend the same persons, al- though the latter may be construed to include persons not within the meaning of the first section. For fiersons accountable f(jr fiub- lic money ^ are also other jicrsons than revenue officers indebted to the United States ; and the latter may, by a construction confor- mable to the other parts of the law, r\\C2i\\ persons accountable for public money ; and by an intended construction, they may com- prehend others, who in no sense of the expressions used, can be said to be accountable for public money. It is then to be inquired, is the court bound by any known rules of law to give to the Avords thus used in the 5th section a meaning extensive enough to comprehend persons never contem- plated by the title of the law, and most sedulously excluded by the three first sections ? Does justice to the public, or convenience to individuals demand it ? Is such a construction necessary in or- der to give effect to any one expression used by the legislature ? Shall Ave violate the manifest intention of the legislature, if %ve stop short of the point to which we are invited to go in the con- struction of this section ? To all these questions I think myself warranted in ansAvering in the negative. As to the first. Do the principles of equity, or of strict jus- tice discriminate betM'^een individuals standing in equali jure and claiming debts of equal dignity ? The nature of the debt^ may Avell Avarrant a discrimination ; but not so, if the privilege be merely of a personal nature. The sovereign may in the exercise of his poAvers secure to himself this exclusive privilege of being preferred to the citizens, but this is no evidence that the claim is sanctioned by the principles of immutable justice. If this right is asserted, individuals must submit ; but I do not find it in my conscience to go further in ad- vancement of the claim, than the Avords of the laAV fairly interpret- ed, in relation to the Avhole law, compel me. But I do not think that congress meant to exercise their poAver to the extent contend- ed for. First, because hi every other section of the law they have declared a different intent ; and secondly, because it Avould not only be productive of the most cruel injustice to individuals, but Avould tend to destroy more than any other act I can imagine all confidence between man and man. The preference claimed is not only unequal in respect to piivatc citizens, but is of a nature against Avhirli the most prudent man cannot guard himself. As Law Miscellanies. 333 to public officers and receivers of public money of all descriptions, they are, or may be known as such ; and any person dealing with them, does it at the peril of being postponed to any debts his debtor may owe to the United States, shollld he become unfortu- nate. He acts with his eyes open, and has it in his power to cal- culate the risk he is willing to run. But if this preference exists in every possible case of contracts between the United States and an individual, there is no means by which any man can be apprized of his danger, in dealing with tlic same person. 2. Is this broad construction necessary in order to give etToct to the expressions of the law ? I have endeavoured to sliew that all accountable agents are other persons than revenue officers indebt- ed to the United States. The words then " other persons" are satisfied by comprehending all those persons, to whom the first section extends. 3. Is this construction rendered necessary to fulfil the manifest intention of the l.egislature ? So far from it, that to my mind, it is in direct opposition to an intention plainly expressed by all the other parts of the law. To prove this I again refer to the title of the law ; to the three first sections, which are in strict conformity with it, and that too by express words ; and to the fourth section, which is so plainly a pait of the same subject, that it cannot be construed to go farther than those which precede it. Is the fifth section a stranger to the others ; unnaturally placed there without having a connection with the other section ? If this be the case-, I have already admitted rules of construc- tion, strong enough to condemn the opinion I hold. But let us examine this point. The object of the four first sections is to enforce by suit^ where necessary, the payment of debts due to the United States from a particular class of debtors.' It points out the officer who is to or- der the suit, declares at what term the cause shall be tried, lavs down rules of evidence to be regarded in support of the action, extends to the defendant the benefit of making ofFsetts under cer- tain qualifications, and then most naturally, as I conceive, comes the fifth section, relating to the judgment which the court is to render in case a com est should ensue between the United States and individual creditors on account of inability in the debtor to satisfy the whole. What if an individual creditor should attach the property of the debtor before the United States had taken steps to recover their debt ? Or if the debtor should assign away Ms ;jJ4 l^AW iMlSCEl.LANIES. property, or it sliould be claimed by assignees under a commission of bankruptcy ; or the defendant being an executor, should plead fully administered except so much as would be sufficient to satisfy judgments, bond debts, or other debts supciior in dignity to that of the United States ? This section establishes a plain rule by which the court must proceed in rendering its judgment when- ever those cases occur. What would have signified all the other provisions of the law, unless a rule of decision had been prescrib- ed in cases where otherwise the United States might never ob- tain the fruit of those steps which their officers Avere pursuing ? Can a section in a law which professes to afford a remedy in a particular process of law, be said not to belong to the law, when it leads to the point of a judgment, which is the consummation of the proceedings in the case ? I think not ; and therefore I cannot acquiesce in the opinion that the 5th section is unconnected with the other parts of the law. I have before observed that the 4th section is the first Avhich uses general expressions, without reference to those which had before been particularly mentioned ; but that when we come to the 5th section the reference is again taken up, with the addition of those words which produce the difficulty of the case. Now I ask in the first place, what necessity was there for de- parting from the mode of expression used in the 4th section, which for the first time is general, without particular reference to any of the persons before described. Would it not have bedn as well in the 5th as in the 4th section, to say " that where amy in- " dividual becoming indebted to the United States, shall become ♦• insolvent," &c. What reason can be assigned for the specifica- tion of revenue officers., one class of persons mentioned expressly in the 1st section, intended in the 3d and 3d by plain words of re- ference, and clearly meant in the 4th, when it must be admitted that the words used in the 4th section, or the words " other per- sons," in the 5th would have comprehended revenue officers if they were broad enough to include every description of persons indebted to the United States. Unless they are construed to limit and restrain the generality of the words " other persons," they are absolutely without any use or meaning whatever. . If the pre- ceding sections had applied only to revcriue officers, then from ne-- ccssity we must have construed the words " other persons," as broad as their natural import would warrant, because otherwise, they would have been nugatpry, and we would have found no rule Law Miscellanies. S3 5 in the law itself, bv» which to limit the generality of the expres- sion. But when the law professes in its title to relate to all account- able agents besides revenue officers, and the first section specifies amongst these agents, " revenue officers," we have a rule by which to restrain the sweeping expressions in the 5th section, viz. " or other person accountable, or indebted as aforesaid," This construction renders the law uniform throughout, and consistent with what it professes in every other section. 2d, In confirmation of this consUuction, the 62d section of the bankrupt law does, in my opinion, deserve attention. If the United States were, at the time that law passed, entitled to a preference in every possible case, by virtue of the general expressions in the law have just been considering, what necessity Avas there for limiting the saving of the right of preference to debts due to the United States, *' as secured or provided by any law hei-etofore passed." This mode of expression leads me to conclude that the legisla- ture supposed there were some cases where this preference had not been provided for by law. If not, it would certahily have been sufficient to declare, that the bankrupt law should not extend to, or affect the right of preference to prior satisfaction of debts due the United States." It will be seen from the above, that the whole object of judge Washington's opinion, and it was all that was neces- sary for the point in issue, or matter in controversy, was the construction of the terms " or other person." In this, no doubt, he was correct, for the whole of the language of the acts taken together cannot but show, that these words had been foisted in, or stand so isolated as to be incongruous with the rest. They must be rejected or explained : taken by them- selves they involve the most manifest inconsistency with other parts of the act. But it is my choice to go farther than Judge Washing- ton and attack the root, the constiUiticnality of these laws, or of this law. The doctrine is monstrous, that the corigrcss sho7ild be thought to have the poiver to give the union u preference in any case whatsoever. To the act providing that the com- mencement of a suit should constitute a lien, I have no excep- tion. But to cut out orhtvheirs^ or prior debts due and, t«kc the whole, is that to Mhich I excepi. 336 Law Miscellanies. Rhinelandci" V. Insurance Company'of Pennsylvania. 4 Cranch, 29. " This was a case certified from the circuit court for the district of Pennsylvania, in which the opinions of the judges of that court were opposed to each other." And in the de- cision of the supreme court, one judge is spoken of as doubt- ing. I do not know any question to chich the " non it areferC would apply with less propriety, than in this case. As a new question, it could be determined only on the principle of mercantile convenience, which is the great prin- ciple upon which every question of this nature ought to be decided. It was stated by the court to be a new question. In the case of Hamilton v. Mendez, says chief justice Mar- shal, lord Mansfield leaves it completely undetermined whe- ther the state of the loss, at the time the abandonment is made must fix the right of the parties to recover on an action after- wards brought.'''' The supreme court of Pennsylvania, chief justice Tilghman, he. sitting, it was holden that at least the itbelling, as in that case, would justify an abandonment. I did not understand it to be laid down in that case of Dutilgh V. Gatliff, that nothing short of having libelled, would justify. Bat that at least a capture, and carrying in for adjudication, and libelling, would. This was a matter short of condemnation. Taking up the matter upon original ground, I would en- quire what is it that would constitute a deviation, such as to excuse the underwriter; or what is it that would constitute such delay, as would affect the right of abandonment as for a total loss ? If a point insured against, occasions a detention to such extent, or produces a deviation, will not the measure of the one be the measure of the other ? I would take it that the moment the peril attaches, and has an effect to the amount of the whole, an action for a total loss accrues. I know no medium that can be taken between this, and ?ifnal condem- nation, without great embarrassment. I would have held ir, were it a new case that the right of abandonment arises o.i \\\z attachment of the peril; but not that the injured was Law Miscellanies. 337 bound to abandon, on that happening, but might take time in using means with due diligence to escape from it. Inde- pendent of marine regidations^ or the contract of the parties, I would have taken this to be the law ; because, independent of regulation, or the contract of the parties, I could conceive of no other general rule that would work throughout, and secure an indemnity. Upon the abstract principle, I ^ad taken it, that though Lord Mansfield had not decided it, yet that whatever would have justified the abandonment, supposing the insurer, and insured to be upon the spot at the time the peril happened, and the assured to have oifered to abandon, his right was the same when the intelligence of that fact cvLrae to hand, without regard to what in the mean time had taken place. This rule is simple, and intelligible, and any other rule leads to embarrassment. Some certain time is usually stipulated in the policy after which, on abandonment, payment is demandable of the wri- ter. Suppose that period to elapse, and payment to be made, there must be a repayment, on it turning out that a detention was over, or that a restoration had taken place. There may be an opening and shutting of abandonment, if it is to depend upon a new state of the fact. In all cases the insurer, who usually wishes to escape the having an abandonment thrown upon him, will say, wait till I see v/hether the state of the fact may not be changed, and which may relieve me from the necessity of accepting the abandonment. In that case a clause of 30 days, or other time is useless; or, rather incon- sistent with the idea of the state of the fact case. The verv inserting such a clause proves, that, in the understanding of the contracting parties, the payment on abandonment coukl have no relation to the state of the fact changing from what it was, when the intelligence set out if I may so speak, that afterwards came to the insured, and on which the abandon- ment was made. Suppose on suit brought, in answer to an allegation of the declaration, that a vessel had been taken, it was pleaded, that she had been restored, on demurrer would not that be lioldcn a d' part are ; because the question \\ as not v.hat had V V 338 Law Miscellanies. - happened, after she was lost to me, but whether she had ceased to be in my power at any time, whether from physi- cal, or moral force ; so that for a time I was disabled from the prosecution of my voyage. It is matter of election with me whether to waive an abandonment instantly on the attach- ment of the peril, or to endeavour to release myself. If I chuse not to abandon on the peril attaching, the doctrine of abandonment in reasonable time, or otherwise, will then come into view. Chief Justice Marshall says that ^''commercial contracts are seldom r'tghtly expounded by a course of artificial reason' tng-.''^ I am at a loss to know by what otherwise they are to be expounded but the application of reason where the rule is said not he Jixed, and the r/^ inconvenie^ite must guide. It is of more consequence with me than a dictum of my lord .somebody to this or that effect ; or even a decision of several my lords. For decisions are but evidence of the reason of others, but the reason itself deduced from the inconveniente, is paramount, in settling what the decision ought to be. But the non ita refert will induce an acquiescence where the rule may be helped by the contract of the parties when known and established. As in this case, where for the sake of uniformity in the laxv of insurance, the courts of the states have conceded to this ride of the supreme court of the wiiofi. It has been done in Pennsylvania, and I presume elsewhere. But that has nothing to do with the principles on which it ought to have been placed, and an examination of the opi- nions of different members of a court M'ho have dissented, or doubted in the ijitrcduction of the ride. Ex parte Bollman, and ex parte Swartwout. 4 Cranch, 75. In this case Johnston justice dissented; and my object is to examine his opinion. And at this moment of entering on it, I do not know whether I shall support his dissent, or de- clare against it. For I write as I read. And it is chief- Law Miscellanies. 339 iy because I saw there was a dissent in a case of great impor- tance, I mean involving a principle of great importance, that I have been led to examine it. " I am far, says the Judge, very far from denying the ge- neral authority of adjudications. Uniformity in decisions is often as important as their abstract justice. But I deny that a court is precluded from the right, or exempted from the necessity of examining into the correctness, or consisten- cy of its own decisions, or those of any other tribunal." This is excellent, and I am so pleased with it, it is so con- genial witli my own way of thinking, that I shall be sorry it I shall be under the necessity of finding this Judge wrong- in the case before me. He adds further, " strange indeed, would be the doctrine, that an inadvertency once comm.itted by a court, shall ever after impose on it the necessity of persisting in its error. A case that cannot be tested by principle is not laxv ; and, in a thousand instances have such cases been declared so by courts of justice." This is manly ; and spoken like a man of sense, and of independent mind, that has a conscious- ness of its own strength. He proceeds. " The claim of the prisoners as founded on precedent, stands thus. The case of Hamilton is strikingly similar to the present. The prisoner had been committed by the order of the district judge on a charge of high treason. A writ of habeas corpus was issued by the supreme court, and the prisoner bailed by their order. The case of Burford was also strictly parallel to the present. But the writ in the latter case having been issued expressly on the authority of the former, it is presumed that it gives no additional force to the claim, but must rest upon the strength of the case upon which the court acted. " It appears to my mind, continues the judge, that tht; case of Hamilton bears upon the face of it, evidence of its being entitled to like consideration; and that the authority of it was annihilated by the very able decision in Marbury V. Madison." What evidence could it bear upon the face cj it^ but the reasons upon which it went; or the mere circumstance of the 340 Law Miscellanies. court taking jurisdiction I But the decision in Marbury v, Madison, annihilated the aitthoritij of this case. In this case, says the judge, it was decided that congress could not vest in the supreme court, any original powers, beyond those to which this court is restricted by the constitution. That an act of congress vesting in this court the power to issue a writ oi mandamus in a case not within their ori^f/zo/ jurisdic- tion, was iinconstitutional and void. In the case of Hamilton the court does not assign the reasons on which it founds its decisions, but it is fair to presume that they adopted the idea which appears to have been admitted by the district attorney, in his argument, viz. that this court possessed a concurrent power with the district court, in admitting to bail. Now a concurrent power in such a case must be an original power ; and the principle case, Marbury v. Madison, applies as much, to the issuing of a habeas corpus^ in a case of treason, as to the issuing of a mandamus in a case not more remote from the original jurisdiction of the court." All this is correct. The court are involved in an incon- sistency ; but what will he say to me, who deny the case of Marbury v. Madison, to be laxu, and set up the cases of Ha- milton 2ind Burford? Disembarrassing the question from the effect oi precedent, he says he will proceed to consider the construction of the sections of the act of congress, on which the issuing a habeas corpus must depend. That is right ; let us neither hold the court to Marbury v. Madison, nor support them by Hamil- ton and Burford. It is necessary to presume, says the judge, that the case of treason is one in which this court possesses neither origi- nal^ nor appellate jurisdiction. The 14th section of the ju- diciary act, so far as it has relation to this case, is in these words : All the before mentioned courts (of which this is one} of the United States shall have power to issue writs of scire facias^ and habeas corpus^ and all other writs not specially provided for by statute, which may be necessary for the ex- ercise of their respective jurisdictions, and agreeable to the principles and usages of law." " If the power to issue the v;rits of scire facias and habeas corpus, be not restricted to Law Miscellanies. 341 ihe cases within the crimi7ial or appellate jurisdiction of this court, the case of Marbunj and Madison^ rejects the clause as unavailing; and if it relate only to cases within their ju- risdiction, it does not extend to the case which is now moved for." Doubtless the judge has the court here in a dilemma ; but was it fair to talk of Marbury and Madison, when he had professed a disembarrassment of the question from Ihe effect of precedent. But again, he says, " on considering this act it cannot be denied, that if it vests any power at all, it is an original pow- er. It is the essential criterion of appellate jurisdiction, that it reserves and corrects the proceedings in a cause al- ready instituted. I quote, says he the very M'ords of the court in the case of Marbury v. Madison." I perceive that through the whole of the opinion he em- barrasses himself with the case of Marbury and Madison ; and the argument is, in some degree, ad hominem, that is • to the court who had so decided in that case. But I wish to treat them fairly, and to take no advantage of what they had decided in that case, but to see what they ought to decide in this. I turn to the constitution, and the judiciary act itself. Having done so, I look at the opinion of the court as dc- .livered by chief justice Marshall ; and I find it correct, throwing Marbury v. Madison out of the waj", which he dis- tinguishes from the case before him^ with some astutia affect- ing to consider it as the case of an appeal. It is not on that ground, I would put it, but consider the court as having pow- €r under the act of congress, to issue a habeas corpus in the first instance. The clause is, "that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the pur- pose of an enquiry into the cause of commitment." The pow- er is concurrent, with judges of the district courts ; and not being given to these exclusively in the first instance, the judges of the supreme court, either of them, or a fortiore, the whole of them sitting in bank, have original jurisdic- tion in this case. For if they have concurrently jurisdiction, 342 Law Miscj:llamj,s. they have original. For the constitution givingthe supreme court ori^'-i;w/, in some, and appellate in all, does not exclude the power of congress to give original, where it must be ap- pellate. But the fact is, that the issuing the writ of habeas corpus^ being but incidental to the jurisdiction as to trial^ it does not come in view as to jurisdiction^ either in the meaning of the constitution or of the act of congress. It is collateral^ and sideway to the jurisdiction, v/hether original or appel- late. A justice of the peace, or a judge of the court of com- mon pleas or in his capacity of a justice of the pleas, may commit or bail for offences not triable before the justice, or before the common pleas. Justice of the peace, or other magis- trate of any of the United States, for any crime, or offence, against the United States may arrest, imprison, or bail. And even where " a person is committed by a justice of the su- preme, or a judge of a district court, for an offence not pu- nishable with death, if there be no judge of the United States in the district to take the same, it may be taken by any judge of the supreme, or superior court of law of such state.'' Judiciary act, sec. 33. Yet these judges, or courts could not take jurisdiction of the offence, to try it. It fol- lows necessarily from the provision, that each of these autho- ,rities must issue the habeas corpus, ad inquirendum, or to see whether the facts alleged amount to capital^ Lefore they can say, whether their power is precluded from a libe- ration. I am therefore obliged to be with the majority of the court, and to say, that the habeas corpus ought to have issu- ed. Craudson and oiheis, V. Leonard. 4 Cranch, 434. - THIS case involved the doctrine of the conclusiveness of "' the sentence of a foreign court of admiralty.''^ It had not bi:fore hicanyc necessarii in any* case to decide it; though it LA^V MiSCELLANILS. 343 had been argued in the case of Fitzimmons v. the Newport Insurance company. It was decided in favour of the con- clmiveness of the sentence, by four judges, Marshal, Gush- ing, Washington and Johnston, justices. Chase and Living- ston o^mew^zw^ ; Todd not being present at the argument gave no opinion. The weight of a decision is proportion- ably shaken by a want of xmanimiiy. The doctrine had be- gun to be shaken in the English courts in the case of Lothian V. Henderson, 3 Bos. and Pull. 499, Graham, B. dissenting from the majority of the court in a very able tirgument against the conclusiveness of the sentence. The bar would never seem to have acquiesced perfectly. 2 East, 476. it is said, the counsel were proceeding to con- tend that the sentence of condemnation^ admitting it to be pro- nounced by a competent tribunal, was not conclusive as to the question of neutrality, which was collateral to the ques- tion of prize or no prize. But the court said " that after th'e repeated determinations to the contrary, it would be nugatory to open that discussion again." The question is, said Lawrence, whether this sentence of condemnation be con- clusive evidence that the property insured was British, and consequently that the vrarranty of its being neutral was not complied with. The argimient was attempted to be carried into a wider field than we think it fit now to enter into, sir.ce the case of Hughes v. Cornelius, and a long string of autho- rities which have followed that decision. We must now therefore take it for granted, that, if this sentence were given by a court of competent jurisdiction, it is conclusive upon the point then in judgment." Thus it may be seen that the stare decisis^ not principle^ was that which governed. And 5 East, 160. it is said by lord Plllenborough, that, "since the judgment of the house of lords in Lothian v. Henderson, it may now be assumed as the settled doctrine of a court of English laiu^ that all sentences of foreign courts of competent jurisdiciion to decide questions of prize, are to be received here, as conclusive evidence in actions upon policies of Insurance, upon every subject immediately and properly ^vithin the jurisdiction of such foreign courts, :ind upon which they, have professed to decide judicially." 344 Law Miscellanies. I do not wonder at Eriglisli courts holding this doctrine j because having the command of the sea, and capturing, whe- ther justly, or unjustly, I do not say, more than other na- tions, they have more captures to bring to market, and therefore, it suits them that such doctrine, should prevail, inasmuch as it would lessen the value of their prizes, at an admiralty sale, if there could be a doubt of being able to give a title. Yet their judges say very little, or rather no- thing on the reason of the principle, but shelter themselves under the authority of lords, &c. 1 Camp. 418. in the case of Fisher v. Ogle, lord EUenbo- rough observed, with the concurrence of the other judges, *' It is by an overstrained comity that these sentences are re- ceived as exclusive evidence of the facts which they posi- tively aver, and upon which they specifically profess to be founded.'* And again, 1 Camp. 429. " I am by no means disposed to extend the comity which has been shown to these sentences of foreign admiralty courts. I shall die like lord Thurlow in the belief, that they ought never to have been admitted. The doctrine in their favour, rests upon an autho- rity in Shower (Hughes v. Cornelius, 2 Showb 232) which does not fully support it, and the practice of receiving them, often leads in its consequences, to the greatest injustice." This doctrine of conclusiveness^ had been adopted impli- citly from the English courts, in all, or most of the states, before and since the revolution, without the least examina- tion of the principle. O imitatores ; servum pecus — There was some reason for it before the revolution, be- cause, it hold a doctrine that suited the then colonies^ being part of the British empire, and sharing with her in this buc- cancer principle-, so as finding our account in it. But how it could exist, during the revolutionary war, and since, could have been only from a defect of examination. After the war and during our situation as a neutral nation^ the consequen- ces had been felt, and persons insured, had begun to cast themselves about, to provide against the rule, by special clauses in the contract ; such as -ivurrcnted American ; but Law Miscellanies. 345 the proof to be made here. There cannot be a stronger evi- dence of the badness of the rule^ than the necessity of except- ing it^ by a special provision in the contract^ to the contrary. This doctrine was shaken by a decision in the New- York state, 1805, by the court of errors and appeals, 2 Caines, 217. And the courts of Pennsylvania, although they sometimes appeared, indirectly, to recognize the theory of the courts of England, had honestly endeavored to escape from the practical operation, which often leads (says lord Ellenborough) to the greatest injustice, until they were in- volved in the necessity of giving judgment in Dempsey's case.* * In this case, in the supreme court, I was confined to my chamber, by indisposition, and did not deliver the opinion which I had drawn up ; but gave it to the public, not as an opinion drawn up to be delivered, but as an abstract essay, in Poulson's Adver- tiser of January 6th, 1808, and not with my name ; but it is as fol- lows : On the conclusiveness of a sentence of a foreign Court of Admiralty. THE effect of a sentence of a foreign Court of Admiralty, as between the assured and assurer, where there has been a warranty by the assured, that the property assured was neutral ; but where it has been condemned in a foreign court on the ground of being enemies proficrtij^ is the question proposed to be examined. When two nations are at war between themselves, a sense of justice will induce Ccxh to avoid injuring an individual who is not of the belligerent nation; or, if a sense of justice does not govern, ^elf-preservation will. For it cannot be the interest of either to injure an individual, lest it provoke the nation to which that indi- vidual belongs ; and involve it in a war with that power, adding to itself another enemy ; and drawing on itself the enmity of the whole community of nations, who will see its own danger in the exam- ple. For this reason it becomes the policy of each, to take every precaution against an injvu-y to a\i individual ; and while each is committing depredations on its adversary, to have some power subordinate of tiie particular government of each country, to take cognizance of prize, and confine this to the property of the enemy ; and to which aiUhority an individual who thinks himself injured may apply ; and hence the institution of Courts of Commission- ers, or the giving power to Admiralty or othrr Courts^ for the X X o46 Law Miscellanies. I had an opportunity afterwards at March term, 1808, in the case of Calhoon v. Insurance Company of Pennsylva- vania, to express my sentiments upon this point comings in- cidentally in question ; and this the more, because I fore- purpose of cxaniming in cases of injury. It must l.c incident to such authority, to order restitution of ths specific properly, with damages ; or condemn as enemies properly, and decree a sale on behalf of the government, and for the use of those concerned. The sale is made as of property which has be- come the prize of tiie nation, by the hands of her sub- jects^ and the nation is interested in protecting the purchasers. Because, othcrv. ise, there would be no purchasers, or the prize would not bring its value. The specific property sold in the mar- ket of the foreign Court, must be protected, and immunity at the same time must be secured to the purchasers from any suit or prosecution in any forum, for the asportation of the property. What has the nation of the captor to do with the matter any far- ther ? Where the property of a neutral nation is taken, why shall the neutral nation regard the change of possession, by the adjudi- cation, and sale of the belligerent nation, and be restrained from recaption, by an act of the government, or the right of reprisal ex- ercised by the act of the injured individual ? Because it may be the immediate cause of war with the nation to whom the purcha- ser belongs, cr with the nation who made the sale, and is mteresl- ed in making good the transfer. It is therefore more her interest to admit the conclusiveness of the sentence, and the validity of the transfer, and to put the matter into a train of investigation witii the capturing government. Or she may also be a capturing na- tion in /iir turn y 'and have property at market under the same pre- dicament. It is the public policy of the neutral nation therefore, that the sentence of the foreign Court be considered as conclusive on the iuhjact of the cajiture^ so far as respects the vdldity of the transfer-, and that the firoceeding in rem shall be supported ; and that no collateral suit shall be sustained betAveen the foreign owner and the late purchaser which shall bring the jurisdiction of the fo- rum, or tlie regularity and justice of the judgment in question. But as respects contracts, which, though they may involve the question of neo.tral property, yet do not tend to nullify or defeat the judgment, by affecting those who hold under it, it is wide of the national concern, and a matter of profit or loss between thos'.' who pay a premium, and those a\ ho take a v'vAi upon it. Law Miscellanies. o47 r,a\v from the arrangement of the courts, that I could not be present in the courts of errors and appeals, to which the case of Dempsev had been removed; and wished my sentiments to be known, that I might not be supposed to have concur- Let us examine, whether from the nature of the contract, the foreign judgment can at all affect it. It is on the name lioint, but is it between the same parties, or those claiming under them :' Tills is iicccssary to enable a judgment of any Court to be given in evidence in any case. The Chief Justice of the King's Bench (Mansfield) assumes this as a principle clear and admitted. " All tlie world are parties to a sentence of a Court of Admiralty." But tlie Lord Chancellor, (Eldon) expressing himself to have the con- currence of the present Chief Justice of the King's Bench, (Eilen- borough) entertained a different idea on this particular. His words arc, " that notion I apprehend, and am informed, is a mis- taken notion, and that the assured on a policy of assurance could not be admitted parties to the proceedings in a Court of Admir rally." — 3 Bosan. and Pull. 5 45. But suppose all persons who may conceive themselves to be affected hare a right, and have notice actual or constructive, to '•ome in and make themselves parties to the proceccUngs in a Court of Admiralty ; let us examine from the nature of the con- 'ract of insurance, what must be the understanding of the parties, with respect to defending the claim of neutrality before an Admi- ' alty Court, or with respect to the effect of the sentence. For what is th# premium paid, but for the risk of capture, and the effect of ihat capture ? You, the assurer, undertaking that the properly is neutral ; I, the underwriter, undertake that it shall not be captured. But it has been captured and condemned, therefore it was not neutral. The underwriter plays a saving game in this case. On capture, the right of abandonment arises, and the right of action accrues, to the assured ; the underwriter pays the value, but on acquittal, takes the property ; on condemnation, he pockets the premium, and pays no- thing. Put this matter to mercantile men, and tliey will acknowledge that it is absurd, and what they had no idea of in the contract o^inni:- ra7ice ; nor can they comprehend the mystery of the conclusive- ness of a foreign sentence, on a stipulation which pre-supposed in the rery nature of it, the possibility of an unjust condemnation. The consequences of the doctrine must shew the inconsistency with i!ic nature of the contract, and what is contemplated under it. It • ;.tu only be in the case of capture and acriuittal, that tlic assure^ 348 Law Miscellanies. red in sentiment, though not upon the bench, wijh the supreme court, in that case. July 29th, 1808, in the court of errors and appeals, judge Cooper, delivered his opinion sinct published, which exhi- has any right of aclio!i ; and this right may be divested by the condemnation ; and if an action has been instituted, it must be dis- continued at the costs of the plaintiff'; or if the money has been recovered, it must be paid back, with the costs of recovery. All these inconsistencies appeared to the Judges, in the case of Lothian and others, vs. Henderson and others, and they could get over them only with the unsatisfactory reconcilement, that the principle had been established- — 3 Bosan. and Pull. 499. The leading case is, that of Hughes vs. Cornelius ; Sk. 5'9 ; 2 Show. 232 ; and Tho. Ray. 473. We have the special ver- dict in Shower, which shews it to be an action by the owner of a ship against the vendor, under a sentence of the Court of Admiral- ty in France ; wliich sentence, though falsified by the facts found by the special verdict, was held to be conclusive ; and the proper- ty thereby altered, though the sentence be unjust. This carries the doctrine no farther than we are willing to allow, and the rea- son given would be conclusive with us ; which was, that though it be in another King's dominions, we ought to give credit to it, lest they may not give credit to our Courts of Admiralty. This case was decided in the 34 Ch. 2, the year subsequent to our charter, but on that circumstance I lay no stress ; for a decision before the charter can be no more than evidence of what the law was b^ore, and a decision since, cannot be less. But a great ground ot the common law is reason, and every principle is examinable by rea- son. — Now, the reason given, does not bear it out farther than the protecting the sale by the order of the Court of Admiralty. But it is no vuicommon thing, to have the doctrine carried beyond the principle. Hence the perversions of the common law, by the de- cisions of Judges. The superstructure overjuts the base, by the misconceptions of narrow, or through the oversight of great minds. A case is referred to in the books, 2 Ray. 893. That was on a bond with condition that if the defendant should answer the va- lue touching such a ship and goods, and in case the law should adjudge the said sjiip and goods to be prize ; ])lea that the law did not adjndge the ship and goods to be pi-ize ; replication that the French Admiralty court did afijudgc ; demurrer; judgment. And justly, because the circumstance of non-condemnation was the conditiori of Law Miscellanies. 349 bits the utmost comprehension of mind ^ which is the character- istic of a great judge ; and is the finest specimen of legal rea- soning, that ever fell from a bench. Keveriheless, it was rul- ed contrar}', the supreme court of the United States, having the bond. The condemnation was conclusive by the nature of the contract. This gives no countenance to the doctrine of conclusive^ ness on the abstract ftrinci/de. From all that can be found in the books, at least from my read- ing, nothing appears to sanction the idea of carrying the doctrine of conclusiveness farther than the proceeding in rcm^ until Ave come to the great case of Bernardi and Matteaux in the year '81, and to the decision in Avhich, though even since the declaration of our independence, I pay just as much respect as if it had been before the charter of Char. 2 ; and that is nothing, farther than reason will support. — The decision of a Court is but the reason of a Court, and no prescriptive length of time will bar the reason of another ; opinion, hoAvever old, is but matter of weight, not con^ troul, and respect and servility are distinct things. It is but by implication that the doctrine would seem to have been carried farther in this case. For though the case involved the principle, yet it was put on the ground of being out of it ; that the sentence had not proceeded on the ground expressly of the pro- perty not being neutral ; that it did not appear from the sentence that the ship and cargo were condemned as enemies property. The warranty on the part of the assured was that of neutral sliip and neuti'al property ; and it would have been competent to him to have produced the sentence as conclusive evidence of the loss, had there been a necessity for him to have gone beyond the cap- ture, to prove the loss total. But for the assurer to produce it, to excuse himself from payment of the loss, could not be compe- tent, because it would be irrelevant, and could prove nothing for him, to support his defence. It was an effect of the capture a- gainst which he had insured, and could not serve his defence ; or even if it were relevant, it could not be competent, because it was res inter alias acta^ and the assured was no party to the sen- tence. Is it thought of giving notice to the assured to make good liis warranty, on the trial before the Admiralty Court ; or does he in fact consider himself as bound to take notice of it. He abandons to the underwriter the possession and management of the property. His understaiKiing is. that it will be sufficient for Jnm, to make eood ^0.01 Law MiscELiwANits. before this time, Feb. 1808, in the case before us, decided iii favour, of the condusivenesfi oj foreign sentences. It may be presumed that it was for the sake of uniformity, between the state court, and that court in their decisions, that it was Ms Avarranty before a Court and Jury of his country, if defence should be set up on this ground, when he comes to pursue his po- licy. The c:-mpetency of the Admiralty sentence was conceded in the argument, from an oversight I take it, and no point made on this gromid. It seems to have been conceded even that it was ronclusive for him, provided the sentence had gone expressly on the poi4it of not being neutral property. — The attention of the court Avas not called to consider on which side the sentence was produced. Or as Lord Eldon says, in the case of Lothian and Henderson, " The practice of receiving those sentences as con- rlusive evidence for collateral purposes, and not merely in suits l)ctween,the identical parties in the foreign courts, may possibly have first obtained in those cases where the PlaintiiT himself pro- duced the sentence in order to prove the loss ! • The Admiraity sentence, as to whatever it meant to decide, says the Chief Justice, (Mansfield) we must take it as conclusive, and bottoms this on the reason which he had before given " that all tiie world are parties to a sentence of a Court of Admiralty," -—But the reason failing, the law fails. But the principal point not bein^ made in the argument, the decision must have less weight. Li this case we first observe the struggle of a sense of justice with the doctrine, and a disposition to lay hold of what, will take the case out of the general principle. This is accom- plished fiv.ally by putting it on the ground of the ambiguity of the sentence. Lord Mansfield said " he thought the justice of the case might be got at, on the ground of the ambiguity of the sentence." This is the commencement of the doctrine which has been since adopted, that ambiguity, obscurity, injustice or contradiction on the face of the sentence, kc. would exclude the conclusiveness, and the Courts have discovered an astutia on all occasions, to take the case before them out of the general /iiHtTci/ilc.—lL his was fore- seen by Lee in his argument, " urging the danger of opening the sentences of foreign Courts of Admiralty, Avhich are usually infor- uial, and expressing his apprehensions, that the consequence of ti'.is determination would be, that, in all cn.scs of this sort, ther.^ Law Miscellanies. 3.J1 so ruled b)' the court of errors and appeals. I take the li- berty of saying that if lord EUenboi-ough's dicta and judge Cooper's opinion had appeared, before the decision of the supreme court of the United States, it might have changed would be coritroversies about the ground of the foreign sentence." On tills Lord Mansfield said, " that this supposed inconvenience, would be entirely obviated, if the foreign Courts would say, in their sentences, condemned as enemies profxerty.'''' But not having it in his pov.'er to command this correctness in the sentences of the foreign courts, it was an inconvenience which it was not in his power to obviate ; it is ratlier curious that he should expect the Couvts cf Admiralty of the powers at war with Great Britain, so to amend their sentences, as to excuse English underwriters from paying losses — they would be careful not to take the hint. Mayne vs. Walter, 22 Geo. 3, it was ruled by the same Chief Justice (Mansfield) if the ground of the decision appeared to be a foreign ordinance manifestly unjust, and contrary to the I2.WS of nations and the insured has only infringed such a partial law, that, shall not be deemed a breach of his warranty so as to dis- charge the insurer. In that of Salucci vs. Johnston, 25 Geo. 3, it was ruled that though the vessel be condemned as prize, yet if the grounds cf tlie sentence appear manifestly to contradict such a conclusion, the court here will not discharge the underwriters by declaring that the insured has forfeited his neutrality.-^Cal- vert vs. Bovat, S8 Geo. 3, in the opinion of the Chief Justice (Ken- V on) " the justice and honesty of the case was with the Plaintiff be- yond all doubt," but it is contended, the sentence of condemna- tion precludes the plaintiff from asserting that fact. I yield to tlve rases cited, says he, " which shews that to a certain degree this court will support the proceedings in Foreign Courts, by presuming- that their sentences are just; and will not make any excejjtion at present of the proceedings of the French Courts of Admiralty. But when an attempt is made to pervert the justice of the case, it br- eomes necessary lor us to see vvhether the decision of the Court at Guadaloupe, has so determined on the fact (;f neutrality that we cannot examine into it." Gcycr vs. Aquilar, 38 Geo. 3. I'iic Cliicf Justice (Kenyon, «» when tills cahc was argued in the last term, the parties desired in Lave a sccoui'i arf^uni?nt : to tills the covnl readilv accdr-d fT-oni '2 Law Miscellanies. ri vote, and in that ca^e, we should have had no such princi- ple to disgrace our code. So far as respects our state, it was abolished by the legis- lature, by an act of 29th March, 1 809. But it is to be regretted an anxious -wish that it might produce such arguments and rea- sons as would enable them to form a judicial opinion according to their individual feeling. The situation of Judges is such that they are some times obliged to decide against their own feelings as men. We come to decide this case, says he, bound and shackled by cer- tain rules from which we dare not depart. Civilized nations con- fess to be governed by certain rules, and the comity due from courts in one counti-y, to those in another, induces them to give cre- dit to one another\ acts. And so we must continue to act in this country until the legislature shall think Jit to forbid it. There is the same comity between the different courts in this country. Where there has been a proceeding in the exchequei', and a judg- ment in rem., as long as the judgment remains in force, it is obliga- tory on the parties who have civil rights depending on the same question. Not long after Lord Mansfield., came into this court, in an action brought against the officers of the customs or excise, he was told by J. Denison that as the question had already been de- cided in the exchequer by a condemnation of the goods seized, the judgment of that court was conclusive in favour of the defen- dant here ; at first Lord Mansfield doubted the propriety of that opinion, but on enquiry finding that Mr. J. Denison was right, he acquiesced, and always afterwards acted upon it. I admit the cases of Mayne vs. Walter and Salucci vs. Johnston up to the full extent ; I admit that if a foreign court of admiralty proceed on grounds contra- ry to the law of nations, their judgment ought not to have weight in the courts of this country. But let us sec what this case is : The ground on which the courts in France proceeded was, that this was a captui'e of enemies property; audit certainly is not contra- ry to the law of nations to condemn a ship on that ground. Whc iher or not those courts arrived at that conclusion by proper means, I am not at liberty to enquire ; here tlie question is whctlier they liave not stated as the ground of condemnation, a ground wliich Avill bear them out, supposing it to be true ? And I am clearly sa- tisfied that they have. They concluded from the evidence that this was enemies property, not indeed in the formal language oi our covuls of justice, but they say in substance "we think tills enemies property and therefore Me condemn the ship and carf;o.' Law Miscellanies. 353 that a Judiciary decision had not the credit of this reform in our Jurisprudence. I mean so far as respected the state courts, and what was within their jurisdiction. Now that concludes this case ; for as long as the foreign judg- ments are binding upon us, the conclusioii we must draw from the judgment in this case in France is, that the property which \vas warranted to be American is found by that judgment not to be American property. I feel this however as the grossest injustice to Americans. The French courts seem to have proceeded in this instance on Algtrine (nay on worse) principles ; because they professed to proceed according to law, but in reality made the law a stalking horse for an act of piracy. But I cannot now question the legality of their decision ; I am bound to decide according to the law ; it is my duty jus dicere et non jus dare." Ashurst, in this case : " Though most probably we should not have given the same judgment as the French courts gave, it is not open to us now to canvass that question. — As the French courts have already given a judicial opinion upon the question, it must govern us, whatever may be our opinions concerning the real me- rits of the case." Groce, Justice ; " I feel myself bound to give judgment in fa- vour of the defendant, and at the same time lament the necessity of so deciding." Lawrence J. " If we could have examined the grounds on which the French courts determined this to be enemy's property, proba- bly we should have formed a different conclusion : but we cannot review those judgments here. They have decided the question, though by no means according to my opinion : but having so de- cided, the rule undoubtedly is, that whenever a court of compe- tent jurisdiction has decided any question, and the same question arises incidentally in another court, the latter is concluded by th« former judgment. The case of Hughes v. Cornelius shews that this rule was not confined to judgments given in our courts ; there, in an action of trover for a ship and goods, a special verdict was found setting forth a sentence in the court of admiralty in France, which was in favour of the defendant, and fier curiam, agreed and adjudged that as we are to take notice of a sentence of a court of admiralty here, so ouglit we of those abroad by other nations, and we must not set them at large, again, for otherwise the merchants would be in a pleasant condition ; for suppose a decree here in the Y Y v354 Law Miscellanies. exchequer, and the goods happened to be carried into another na- tion, should the courts abroad unravel this ? It is but agreeable with the law of nations, that we should take notice and approve of the laws of their countries in such particulars." " According to all the authorities therefore I think we are concluded in this case by the judgments given in France, however we may feel the impro- priety of those decisions." Here we have Hughes and Cornelius, and the reason given in that case, 2 Show. 242 ; " suppose a decree in the exchequer, and the goods happen to be carried into another nation, should the courts abroad unravel this ?" The protecting the sales of proper- ty made under the order of their own courts, was the policy. But could not that be done, without affecting the interests of persons M'ho did not claim under the sale ? There is no more reason ia this than to say the vendee shall not recover against the vendor on eviction, or that a surety whose property has been sold under a scire facias shall not recover against him, for whom he had been surety, lest it should affect the sheriff's sale. We also again hear of comity of nations, the reason given in the same case as reported by Sir Thomas Raymond, that foreign courts will not regard our sentences if we do not regard theirs. But do foreign courts ex- ercise a rociprocal comity ? " The courts of France (says Martial in his treatise on the law of insurance) do not carry their complai- sance so far. The judgments of foreign tribunals have then, no weight or authority whatever against Frenchmen ; and the case must be again decided in the courts. And for this he gives the authority of Emerigon, a French writer. These courts do not even respect a sale made under the order of a foreign court ; or consider it a change of property for aught that appears from this authority ; nevertheless the British, for reasons of national policy, in their own favour, which it is not necessary for us to examine, carry the comi- ty on their part to the extent which has been decided, notwith- standing the embarrassments consequent upon the doctrines which have laid them vinder the necessity of explaining and distinguish- ' ing in almost every case. Christie vs. Secritan, 39 Geo. 3. The Chief Justice (Kenyon) again says ; " in general there is no doubt but that the sentence of a court of admiralty is conclusive as to the points which it profess- es to decide ; it was so ruled in the case of Hughes vs. Cornelius." But he finds a variance between the warranty and the sentence, and on that lets the plaintiff off from the principle.- Law Miscellanies. 355 Groce, J. " In considering that, we can only look at the ground of the sentence itself, and not at the previous reasons which are stated." The case of Bernardy and Matteaux, the Chief Justice (Mansfield) looked at the reasons in the process verbal, and laid the sentence aside, and got over the doctrine in that manner, hence the observation of Martial, 290 ; " In whjat cases such sentences shall be deemed conclusive evidence to falsify, or prove the for- feiture of the warranty, has been often found to be a very perplex- ing question, and has produced much litigation and many deci- sions, which are not easily reconciled, or reducible to any well de- fended principle." 43 Geo. 3. In the case of Lothian and others vs. Henderson and others, the question had arisen in the court of admiralty " in Scotland." The judge admiral decreed "in favour of the under- writers ;" which by implication involves the conclusion of holding the conclusiveness of the foreign sentence. The assured brought the merits of that decree before the court of session by an action of reduction where the Lord ordinary pronounced an interlocutor in favour of the insured, to which after a representation for the ap- pellants he adhered. The appellants, the underwriters, having petitioned the whole court of session ; that court unanimously con- firmed the interlocutor of the Lord ordinary ; whereupon the un- derwriters appealed to the house of lords. We have now the sense of the judicial authority of Scotland against the conclusiveness of the foreign sentence ; and it comes to I'eceive a consideration in the highest judicial authority of the British government. It was argued. May 1803, at the bar of the house of lords. On this argument tlie coimsel on both sides not only spoke to the several questions ; but also argued at great length and with much learning, say the reporters, (3 Bosan. and Pul. 505) the admissibility in evidence of a sentence of a foreign court of admiralty in an action upon a policy of insurance, in or- der to falsify a warrant of neutrality. After the argument, the lord chancellor, put the question to the judges involving this principle. 11th July, 1803, the opinions of the judges seriatim. I shajl notice certain dicta in the opinions of some of them. Baron Graham, speaking of the foreign sentence says, "I am relieved from the necessity of saying what I think of the disgrace- ful sentence ; and how far an English court of justice is bound to adopt their conclusions, when directly contrary to the premises from which they are drawn. To receive such sentences as con- 356 Law Miscellanies. elusive, would be, in effect to say, that we give no credit tp wli^at they truly state, but absolute credit to what they falsely conclude." Chambrc, adverts to the embarrassing consequences of the doctrine ; and which had been a question raised in that case, " whether on the event of condemnation, if the underwriters had given their bills, and before payment, the sentence of condemna- tion had arrived, they could legally have refused payment of these bills ; or whether if the money had been actually paid, it could have been recovered back, which, taking the sentence to be concl\isive, it must be conclusive to all purposes whatever, and so overturn every fact established by other evidence. If so, the bills would have been given under a mistake of what ultimately turned out to be really the fact, and then the consideration upon which they were given would have failed al initio." It is in this manner he would reconcile the doctrine with justice, and which difficulty the opinion drew along with it which he adopts. " I think," says he, " the sentence conclusive against the claims of the assured, agreeable to all the decisions on the subject, beginning with the case of Hughes vs. Cornelius, (confirmed as that was by the opinion of Lord Holt in two subsequent cases), and pursuing them down to the present period. It is true that in Hughes vs. Cornelius the question upon the foreign sentence arose in an action of trover, and not in an ac- tion on a policy of insurance where the non-compliance with a warranty of neutrality is in dispute. But from that period to the present, the doctrine there laid down respecting foreign sentences is considered equally applicable to questions of warranty in actions on policies, as to questions of property in actions of trover. It has been supposed indeed, that the cases warrant a distinction between those sentences which expressly take into consideration and ulti- mately decide the non-neutrality of the ship, and those in which the same point does not appear to have come so immediately un- der the consideration of the foreign courts. But I think wherever the courts in this country have been able to collect from the sen- tence that the point of neutrality has been decided, they have held themselves bound by that decision. Indeed the doctrine upon this subject is most ably summed up in the admirable judgment of the master of the rolls, in Kendersley vs. Chace. Had the French sentence in this case merely stated the French ordinance, without concluding as they have done, this case might have fallen within some of the late determinations of the Court of King's Bench. But the French court has gone further in their determination, and ap- plying the facts and the orditunces, they have di'awn a conclu- Law Miscellanies. •^ST slon which perhaps no court in this country would have done, but by which they have decided that the ship Catherine being an Ame- rican^ had forfeited her neutrahty. I am therefore of opii^ion that the assured are boiuid by this decree of the French court. The case of Hughes and Cornelius is still the leading case, in which tJie decision was originally of proper extent, but like bajl report, the doctrine of this report has since grown to a monstrous size. Ingrediturque solo et caput inter nubila condit. Le Blanc, J. in this case says, " that, these sentences are ad- missible and conclusive evidence of what they undertake to de- cide, it seems not no\.v safe to question." The doctrine is here put on the footing of precedent, and not on the ground of legal reason or political relation. Lawrence, J. discovers himself to be well aware of another embarrassing consequence of this doctrine. It occurs to him as it did to Chambre, that on the capture, the ri^ht of abayidonment arises ; the cause of action accrues ; but is liable to be defeated, all effect of it divested by the subsequent sentence of condemna- tion. But a second difficulty occurs to find out, on this principle, what it is against nvhich the insured insures, if it be not the effect of the capture, and wdiat almost necessarily follows it, according to the acknowledged practice of the French courts, we will add British, a condemnation. He supposes it may be against the cap- ture, wherever an acquittal follows ; because the voyage might be defeated, and the assured be entitled to abandon, and call on the underwriter as for a total loss. I doubt whether it ever entered into the head of an insurer, that it was only in the case of a capture, where an acquittal follow- ed, that he could be entitled to recover. Heath, J, says nothing of the conclusiveness of a foreign sen- tence, but puts the case before him, on the intention of the parties. The object of the parties, says the Judge, "was to ascertain the neuti'ality of the ship, in case of capture or seizure, by the medium of such proof as would be sufficient in the case of a loss, by the pe- rils of the seas. The manifest injustice practised by the French courts of prize, at the date of this agreement was so public, and notorious, and was the subject of so many suits in this country, that I presume we may judicially take notice of it. If so, the meaning of the agreement, as clearly and manifestly may be collected from the terms of it, was to indemnify the insured against the iniquity of these sentences, and for the underwriters, in consideration of 358 Law Miscellanies. the high premium of ten guineas per cent, to take tiiat risk on themselves ; for this was a high war premium." M'Donald, Baron, places his decision on the special circumstan- ces of the case ; " but with respect," says he, " to the effect of those unjust sentences of the foreign tribunals, although I might have hesitated in concurring with some of the cases, it is now too late to encourage any doubts, as they have been acted upon to a very great amount." Eldon, Chancellor, with the concurrence of Chief Justice El- lenborough, stiites, " it docs not become me to impugn a practice acted upon for so long a series of years, and that by men in the ju- dicial character, who must ever be looked up to with reverence in this country. I well know also how much property has been af- fected by this principle and how much more may now be afloat on the faith of that long train of decisions in Westminster hall, by which the principle in question has been sanctioned." Chief justice of the common pleas, (Alvanly) " after the long scries of cases in Westminster hall, in which foreign sentences have been received for the sam.e purposes for which the French sentence in this, is now set up, and the long period of time during which ihosc cases have been acted on by the commercial part of this counti-y, and acquiesced in by the legal part of the community, I cannot admit that it is still open to this house to decide that foreign .sentences are not admissible evidence in suits between the assured and the underwriters, in order to falsify the warranty of neutrali- ty. Nor do I feel that opinion shaken by the consideration, that t!ic point has never yet received the express decision of this house. At this late period, such a decision upon that point as the respond- ents now contend for, might almost induce the merchants of Lon- don to shut the door of Guildhall against the judges." This is putting it, not on the ground of reason, but the fear of merchants, or a consideration of the effect of unhinging a principle. Prizes sold under the orders of the British Admiralty courts where the merchants were purchasers, could not be affected carrying the principle no fai'ther than it originally stood in the case of Hughes and Cornelius, but this it is probable was in his mind ; or if he look- ed only to the consequence of some adjudications being found to have gone upon a wrong principle, the merchants might complain, But by taking this distinction on the proceeding in rem and carry- ing it no further than to protect the sale, the jurisprudence of the country would have been less embarrassed than it now is in this particular ; nevertheless common sense went down under an idea Law Miscellanies. 359 of the insuperable difficulty. An early oversight has become law in that country, and reason which had struggled long against it in the breasts of counsel and the heads of judges, has been over- reached by the imperceptible advances of original error: which has grown a monster in jurisprudence, and like usurpers of power in the governments of men, it maintains itself by the mischief it has done. Let us see whether it has got such a footing in our jurispru- dence here by the decisions of our courts. Vasse vs. Ball, 2 Dallas, 270, at March term, 1797, in the su- preme court, would seem to be the first case, where the point was made. The counsel for the plaintiff say, there is not in fact, any judicial determination of the English courts, antecedent to the American revolution, which declares that a sentence of a court of admiralty cannot be examined and controverted between persons who are not parties to it. It is not alleged on the part of the de- fendant, that there had been any other than English precedents to warrant the doctrine. Shippen, J. expresses an inclination to think our courts bound by the foreign sentence, and where the decree proceeded express- ly on the point. M'Kean, chief justice, seems to have confined himself to the subject of the condemnation. " The idea," says he " that a sentence of a courts of admiralty is conclusive, arises from this con- sideration, that the court always proceed i?i rein. The decree na- turally and necessarily binds the subject of the proceeding-, a ship, or cargo ; and any person pvirchasing under the decree will, of course, be secure. But this case was not determined on the ge- neral principle. — It is true, that the inclination expressed by chief justice Shippen, and the weight of that inclination would seem to have led to a general impression out of doors, that the doctrine of the English Courts would be adopted ; for since that time, and be- fore, owing to the English decisions, that had been done, which the Chief Justice of tlie Common Pleas, in Lolhian and Henderson, suggests. *^ For," says he, " it being once known that such is the law respecting foreign sentences, those who do not choose to sub- ject themselves to the caprice of a French Court, may stipulate in the policy that tb.e evidence of a Frencli Court shall not be adu- ced in evidence against their claim." Our merchants have introduced these stipulations in their po- licies, that they might not subject themselves to the caprice of Ei.g- lisij Courts. But there need be no subjection to the caprice of 360 Law Miscellx\nies. either, if our Courts would not subject themselves to Engiish de- cisions on a general principle, where error hath manifestly inter- vened, and which the very precautions of the stipulation prove to be contrary to common notions of convenience or justice. Taking a decision to amount to more than mere evidence of ■what the law is, and of itself to be a ground of law, or to constitute the law, it has been shewn tliat at least it is not a clear case, that the decision in Hughes vs. Cornelius, went farther than has been stat- ed ; but even had it gone farther ; and, that to the extent gone, it was to be considered in England as afirincifile of the common laiv, yet might it not be a question whether it was a principle of that nature which in our colonization we would cany with us. For though it hath been held, that if an uninhabited country be disco- vered and planted by English subjects, all the English laws then in being, which are the birth-right of every subject, are immediate- ly there in force, " yet this must be understood" says Blackstone, ^^ with very many and very great restriction?: and colonists carry with them only so much of the English law as is applicable to their own situation, and the condition of any infant colony ; such for in- stance as the general rules of inheritance and of protection from personal injuries. The arlljicial refinements and distinctions incident to the /irofierty of a great and commercial fieofile., are neither ne- cessary nor convenient for them and therefore are not in force." But the obligation of the English laws over the colonists of Penn- sylvania will depend upon the Charter to William Penn, which expressly provided as to this. Sec. 7. in these words " and our far- ther will and pleasure is that the laws for regulating and govern- ing of property within the said province, as Avell for the descent and enjoyment of lands, as likewise for the enjoyment and succes- sion of goods and chatties, and likewise as to all felonies, shall be and continue the same as they shall be for the time being by the ge- neral course of the laKV in our kingdo7n of England^ until the said laws shall be altered by tlie said William Penn, his heirs and as- signs, and by the freemen of the said province, their delegates or deputies cr the greater part of them." Considering that by this clause, authority is given to the deci- sions of English courts and that up to the revolution, they were as binding in this state as in England ; yet this must be restricted to discussion upon such laws, as under the words of the Charter, became ours. Will it be contended that these laws include clear- ly and unequivocally such a principle as that in question ; a prin- c-ple of national policy ; but is it a principle of the law of nations. Law Miscellanies. 361 adopted by general usage or recognized by writers ? But no de- cision even in the English courts ; save that of Hughes and Cor- nelius, took place before the period of our revolution. That of ^Mansfield in Bernardi vs. Matteaux as has been said, was after the revolution. No decision has taken place in our own courts from the period of our emigration, until the period of our revolution, nor since, extending, or sanctioning this doctrine of the conclusive- ness of a sentence of admiralty in any case, much less to the extent here contended. And if it did not make a part of the common law, and is introduced nndcr that term by the legislative act after the adopting our first state constitution "that all laws in force at the time of making, Sec. shall continue ;" what foot-hold have we in ap- plying this late doctrine of the English courts ? more especially when from the decisions of foreign courts of admiralty in matters of capture, dl ideas of justice have been lost, and with regard to French captures and condemnation even in the opinion of the Eng- lish courts themselves : in wliich we agree with them, that at certain periods, libelling and condemnation were the same thing, in the French courts. But we add, in the English courts of admi- ralty also. There were the forms of justice, but not the substance. We had monitions, to save appearances, and even had appeals ; but it depended on the order and temper of the government from time to time, what chance of liberation. These things being so, and from the nature of things they will always be so, can it be a matter of sound discretion in our courts to extend a dubious con- struction, or doubtful doctrine to our jurisprudence ? The United States v. Judge Peters. 5 Cranch, 1 15. WOULD not this case seem to have presented an occa- sion, where it became necessary for the supreme court to ■exercise an ori_§^f;2G/ jurisdiction in issuing a mandatmis. It may be said, that, in those cases " in which a state shall be a party, the supreme court shall have original jurisdiction.^^ But in this case there was no state nominally a party, nor could the court know the state of Pennsylvania, the state suggest- ed to be a party, as being in interest before the court. An amendment to the constitution had declared, " that the judi- Z z ^ 362 Law Miscellanies. cial power of the United States shall not be construed t<» extend to any suit in laAV or equity, columenced or prosecut- ed against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." But it was laid down by the court, chief justice Marshall's opi- nion, 141," that the state of Pennsylvania had neither posses- sion of, nor right to, the property on which the sentence of the district court was pronounced ; and since the suit was neither commenced nor prosecuted against that state, there remains no pretext for the allegation that the case is within that amendment of the constitution which has been cited ; and consequently the state of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this case." The district court had not refused a mandamus to themselves ; for it would have been absurd to have asked it. There could have been, therefore, no ap- peal from their judgment whether or not it ought to issue. For it was this court that refused to do an act, the issuing un attachment. It was anginal in the supreme court ,* and in the face of the case of Marbury v. Madison, the mandamus was issued. I do not say the court erred in this case ; but that in the case of Marbury v. Madison, they erred ; and ought to have exercised an original jurisdiction in issuing a mandamus. The state of Pennsylvania Avas incidentally at least, and in my opinion, substantially concerned. But I do not enter into this question, having had it in view only to shew that the court did in this case exercise an original jurisdiction in issuing a tnandamus. The controversy was alarming at the time, and could not but distress every good citizen. As to the state being the real party interested, and substantially concerned, I subjoin in a note, a publication on that side of the argument, and which appeared after the business rvas closed, in the Demo- cratic Press of the 15th March, 1810. It is a point to which sooner or later we must come ; resist- ance to the jurisdiction of the federal courts, unless by an amcncl- nicnt to the conbtitution, the necessity of it is superceded. Foi Law Misckllanies. 363 it is -not to be supposed that these courts will not usurp ; not that I attribute to the individuals who compose them, other dispositions than those common to the nature of man. But place any one in authority, and it will be natural for him to wish to extend his pro- vince. In the English courts, it is thought to be an excellence ; and it is even laid down as a characteristic of a good judge, " to en- large his jurisdiction." This is a maxim which has been attempt- ed to be qualified, by a substitution of " to enlarge justice." But that this could not be the original maxim, is evident, from the ab- surdity of talking of enlarging justice. For in that case, it would become injustice. The meaning of the maxim is, that it is not the part of a good judge, to be squeamish in determining the ex- tent of his cognizance. — And in fa.ct, in the comls of England, they have not been squeamish. The court of King's Bench, is in strict- ness, a criminal court ; j'et by a fiction has drawn to itself the juris- diction of matters of meum and tuuin, which were originally the exclusive subject of the cognizance of the common pleas. We know the controversies that have existed on these heads, betv/een those courts ; as well as between the courts of common law in ge- neral, and the court of Chancery, in matter of jurisdiction. But this controversy can come to no dangerous result in that country ; where they have an appeal ; or a Avrit of error to the house of lords, where the question can receive an ultimate determination ; this, not by the courts, claiming the jurisdiction; but by an independent tribunal; this tribunal, not perhaps, so well informed as either of the respective courts, claiming jurisdiction ; but not having their opinions pre-engaged or their passions emljarked in the contro- versy so that ia the opinion of the people being more remote from bias, they are more likely to give satisfaction. We have seen a late controversy in the state of New-York, between tlic supreme court and the jurisdiction of the chancellor in a matter of conteimpt.* The writ of error or appeal, I forget which it was, /ay by the constitution of that commonv/ealth, to the Senate of the state. This ti*il)unal not perhaps, correctly ; but to the public satisfaction, because an independent tribunal, deter- mined against the chancellor's authority ; though it had been sanc- tioned by the opinion of the majority of the s^ijircme court. Where a question of jurisdiction arises, there never will be satisfaction by a detennination of the tribunal itself which claims the jurisdic- ti<'»n. And we know that the giving satisfaction, is a matter of * The Commonti'calth v. Van JW-ss. 364 Law Miscellanies. much moment to the peace of the community, in the administra- tion of justice. Hence it was, that in forming the federal constitu- tion, there was no point upon which the ablest members of the convention, were more at a loss, than upon this, of the jurisdiction of the federal courts. After all, it was considered as a matter which must be left in a great measure, to future regulation ; and was a principal ground of that clause of the constitution, which provides for an amendment. It was impossible to foresee, perfectly, how this wheel would move ; or what necessity there might be for the enlargement or the contraction of it. If the constitution had remained as it was, the judicial power of the union, extending to a case where a state "Was a party, there Avouldhave been less difficulty in ascertaining, the constitutionality or legal exercise of the power, there being no exclusion. But the amendment to the cofistitution of the United States necessarily introduced a difficulty, in all cases where a state might allege itself a party, the pica to the jurisdiction being made to the very power whose jurisdiction it was the object of the amend- ment to exclude. It is thus, that in the alteration of any structure or machine, an alteration of more is required than the particular part; and this, in order to adapt the proportions of the other parts to that Avhich is altered. The amendment of the constitution in the particular in view, ought to have carried with it, the establish- ment of some authority to determine in what cases "the state was a party." This authority ought to be independent of that tribunal which was to take cognizance of the trial, supposing it to be a case where the state ivas not a partij. This was a great omission. Of what use to exclude a jurisdiction, and at the same time to /eo-ye it to itself to say whether it was excluded ? Admitting that it may be some check on the discretion of the power ; yet it can constitute no certain bar. The state independency which was in the view of the amendment, is not secured in an effectual manner ; but still subject to the federal judiciary. It will be said what amendment could be thought of : what practicable. The most convenient that occurs to me to think of, and the most advisable to adopt, would be the Senate of the Union. These consisting of an equal representation of the states ; interest- ed equally in the conservation of their independence, would be the safest and most natural tribunal before whom a question of the state sovereignty could be brought. Without some such tribunal, what is a state to do in case of federal usurp ition ? If a munici- pal court usurps jurisdiction, it is justifi:.b!e to resist the process. Law Miscellanies. 365 It is a pvlnciple of law, that the process oF a court having no juris- diction of the case, is not merely voidable, but absolutely void. The officer with the process in his hand is a tresspasser; and may be resisted. Who is to judge whether the court has jurisdiction ? The mdividual interested has a right to judge for himself. No man can question his right, but it must be at his peril. The state sovereignty, under this amendment, is placed as an individual in the union of the states. Has not the state a right to judge as an individual would have, of the jurisdiction of a court from which process issues ? But it must be at its peril. I agree ; and this proves that it must be the state sovereignty itself ^ that alone can take upon it to determine when and where its sovereignty has been in- vaded ; and where it ought to resist. It must be a question of state decision, and no authority is competent to decide so as to act in consequence of a decision, but the state itself. This proves that the judiciary of a state, being bu.t a branch of the government, cannot be competent to decide on the jurisdic- tion of the United States courts ; so as to liberate on a habeas cor- pus ; for this would be drawing with it, an opposition to the laws of the United States by an act of the judiciary; and would be ad- mitting a power to involve the state in war, without the knowledge or consent of the sovereign power. Posse against posse, would be the same thing as a levied force, on the side of the executive of the state ; and that of the union. Had the State, in the case of Olmstead a right to decide for itself, on the jurisdiction of the United States ? What doubt can there be of this ? Has an individual a right to judge for himself, of the jurisdiction of a covirt to which he is called to answer ? Doubtless. There is no lawyer, or law book, that will deny this. But it must be at his peril that he undertakes to decide. It will be the expediency that will be the only question. It will not be advisable perhaps where the court, whose process he undertakes to dispute will have a right to decide on his plea. He must look to the consequences, and count all the costs. In a communitv where his defence may come before a different tribunal, the prin- ciple not only holds of a void process ; but it may be carried into practice, and acted upon by the people ; it must be a clear case indeed, that will induce a man to resist where he means to insist upon the want of cognizance in the tribunal, from whence the precept may issue. He will suffer much, before he will ven- ture to kill or wound in opposition to the writ. The like prudence Will be observod on the part of a sovereign state, who is as an in- 366 Law* Miscellanies. dividucil in the community of states. Greater hesitation will be ne- cessary where it can only be before the very court that issues the process, that the enquiry can be made of the want of jurisdiction. But if resistance is not made, it is waving a right on the ground of expediency ; which may cease to have the appearance of a right, by the submission. It may grow into precedent, and be protected by the stare decisis of the law. For acquiescence is itself an evi- dence of right ; and it is observable that in this very case of Olm- stcad;, the decision of the court in the case of Doan vs. Penhallow ; 3 Dall. 54, and the acquiescence of the state concerned, that of New Hampshire, is made a foundation whereon to rest, as to a particular of the decision then to be made. It is called settling' a matter where it has been once decided., nor, with this principle of regarding precedent, do Ave find fault ; but we shew the effect of a decision, and an acquiescence. But what madness must it be in a state to resist where the pre- sumption almost necessarily arises that the determination of the same court will be the same ; it will be a bold daring, unquestion- ably, and must look like madness. In the case of an individual it may have the same appearance to resist the jurisdiction of a mu- nicipal court: especially where the government is known to make a point of having a lav/, or the construction of a law carried into effect. Yet John Hampden did resist the le-vy of ship money ; and was indicted and convicted for that resistance ; yet the resist- ance Avas not ultimately without a good effect ; and though I say nothing as to the right ; much less the expediency of resistance in Olmstead's case, yet I entertain the idea that it will be attended with the good consequence of leading the public mind to attend to tjie necessity of a provision for the removal df the grievance which gave rise to that expedient. I do not say our marshal did not do his duty in Olmstead's case ; for there was but one other thing that he could have done (and this he was not bound to do) which was to return his writ with a special indorsement of the ofifiosition made to the execution of the process ; so that the court, on laying this before the executive of the union ; and which by him, being laid before the representatives of the people, the grounds of the resistance of the state might be considered ; and the expedience of an act of war on one of the state sovereignties might be the sub- ject of deliberation. For it would behove the union to be as cir- cumspect, and cautious in making war upon a state, as in a state to make pp^josition to the g-eneral government. It is true^ a state Law Miscellanies. 367 is the •weaker power ; but the convulsion of a struggle Avould not be favourable to the permanence of the stronger. It is presuma- ble that the Legislature of the state in enacting the law of 1803, acted under the idea that the matter miglit take such a turn aa that which we have hmted ; viz. a special return of the marshal ; and which I humbly think might have been advisable, rather than a calling out the posse in the first instance. For I cannot think that the ultima ratio, directly looking at it, could be in view. It was too appaling to be contemplated, without more apprehension, than had generally pervaded the community. . That the idea oi resistance by means of the ci-vil authority, could come into the mind of any one well informed, is impossible, because the absurdity of the consequence when drawn out, posse agamst posse ; sheriff against marshal, shews the falsity of the proposition. But I take it, the mind of the Legislature was directed solely to the getting the matter brought before the Congress of the Union, in order to have it considered, whether it was a casus belli, or, just ground of the declaring war against a state ; or in other Avords declaring that state in rebellion ; and determining on a recourse to execu- tive force to subdue it. For that the /losse of the district, could have been competent if the opposition of the state had continued, is not to be supposed. The proportion of the force on one side, and on the other, rendered it morally, if not physically impossible. But the state thought it expedient to submit ; and it did appear to me to be expedient. Enough had been done to attract atten- tion ; and this must have been the original object of the act of As- sembly of 1803. But could not attention liave been attracted by remonstrance on the floor of Congress, through the medium of our Representatives ? that is one way doubtless ; but it must have been in the shape of an imfieach7nent against the Judges ; and though I will not say that an assumption of jurisdiction, where it does not exist, is not impeachable ; yet v/hoever could tliink of sustaining an impeachment where the error was miLrely that of the judgment, and no question of tlie purity of the intention ? And i take it that in this case of Olmstead, no one has evei- for a nui- ment questioned the integrity of the United States courts ; but the error of the judgment only. The human mind nuist incJine so much in such a case to acqull, that the determination could not be as ina mutter of mourn and tuum of state right, and Mould be totally incompetent to ascertain v, ilh satisfaction to those co/i- rerned ; or even lo the pul/iic, the abstract justice of the cuse. 358 Law Miscellanies. The legislature, I make no doubt, had all these considerations in tlieir minds in the act of 1802, and their views were not direct- ed ultimately to a conflict, but to a negociation. It was thought sufficient to break the case. The fact is, there are situations in the affairs of communities, where something palpable only can rouse. Lucretia's stabbing herself by her own hand, and Virgi- nius stabbing his daughter, are instances of this in the Roman re- public. What but the one could have roused attention to the tyranny of kings, and the other to that of the decemviri, so as to have produced a change, as no one has since doubted, a ha^ipy amendment in the constitutioji of the go-vernment ? There is such a thing as a stage effect, in order to engage attention. The pub- lic attention must be excited a great deal by this transaction ; and not the less perhaps, because it has not been carried farther ; since it has been taken up in the legislature of the state, canvassing the authority of the power to call out the militia, and resist the process of the court. That the legislature must approve it, was unavoida- ble to be consistent with themselves ; such of them as had been of the legislature and had actually voted for the law, for in that case, they had ordered it. They had not only enacted it in express terms, but it had continued a statute of several years standing. The legislature in session at the very crisis it began to be acted on, and no bill brought in, or motion made to modify or repeal it. As to the Governor having done what had been enjoined, there could be no question on a candid consideration of the words ; nay, I am not able to put any face on a construction to the contrary, or to de- vise how it could have been avoided by him. It is a duty positive- ly enjoined, and which admits of no evasion, from the express terms of the injunction. The Governor by the constitution of the state, or by law, has no command over the civil authority. He could not command a single justice to issue his warrant, to arrest the Marshal for a breach of the peace ; if it could have been of any use to arrange the civil authority of the state against that of the union, under the idea of having a force competent to resist, or not iKvolving the same consequence of a disruption of the commune i-mculuvi., or cord which binds us together. The only means which the Governor had iojirotect against the /irocess of the fede- ral court was the miliiia. V/hen the President of the United States tells the Governor, in his correspondence, that it was his (the pre- sident's) duty to execute the laws of the union, it was as much as to savi^ws/" as it is yrjurs to execute the lar^s \f tjic utate. Law Miscellanies. 369 If the question had beenfirofiosed in the state legislature ^simfily 971 the duty of the GovernoTy m executing the laiv^ but at the same time involving by im/iHcation^ no apfirobation^ of the law it" .self there would have been less difficulty, and of course less dis- agreement of opinion ; for it cannot be contested with candor, but that the duty of the Governor was imperative^ unless you allow him in his executive capacity a right to judge of the obligatory force of a law ; and I could not infer from any thing I have heard, that any one would be willing to allow him that latitude. Had I been a member of the legislature on the late occasion, I do not say that I would have been prepared to sanction by imfilica- tion^ the policy or expediency of the law ; for that involves an ex- tensive investigation. I lay out of the case what has been said of the matter ceasing to be a question of state concern by the substi- tution of names, or the denominatio?i of property. For in this I think there is nothing solid. The subject of controversy was at first a vessel, the state on one side, and Olmstead on the other, clai- mants of the prize. This property was turned into money, that money deposited in the custody of the law, by bringmg it into court. The state being a body pohtic could not take it out of court but by the agency of an officer. The treasurer of the state as her officer, did take it out, and the money was turned into certifi- tates. Does this divest the state of its claim upon the property ? Is it less a matter between the state and Olmstead than it was be- fore ? The treasurer indorsed on the paper that covered the certi- ficates, " these will become the property of the state when" &c. What had Olmstead to do with the certificates ? It was the money for which the vessel had been sold by order of the admiralty court, that was tlie subject of his claim. The passing this into certificates, was not his act. It was that of the state, of which act, he could not, in contemplation of law, be supposed to have any knowledge. It was the vessel, or the pi'oceeds in money, that he could alone claim. If the money arising from the sale of the vessel had been converted into cattle, could he have claimed the cattle ? Or if he did, could he have said, the money has now Siecome cattle, and therefore the clairn of tiic state is extinguished, and she has ceased to be a party. Yet this is the miserable quib- ble upon which the great legal characters that have canvassed this subject, on the- part of Olmstead, have undertaken to put it. But it would seem to rac that if nothing more soiid can be advanc- ed, the m-ittcr must be considered a state claim. The position is 3 A 370 Law jNIiscELLANifts. more tenable that, tlie amendment to the constitution does not extend to suits of admiralty., and maritime jurisdiclioji. This position I will not undertake to canvass, because it is not necessary. For it seems to me that, since the adoption of the constitution, admitting- that, a parte post, the United States courts draw the jurisdiction of all claims of right, or complaints of Avrong originating^ on the high scasy let the parties be what thcj- may, and this as a jurisdic- tion incident to the sovereign power ; yet this ground of claim was antecedent to the constitution, and not surviving to the new, be- cause not cognizable under the old. Doubtless the jurisdiction had been assumed, or at least claimed under the old confedera- tion ; but it was this very assumption or claim which the state at all times had protested against, and Avas unwilling to admit. It will not justify her to say that committees, or that congress under the confederation, had sustained the appeal ; but she called it a usurpation, and still calls it a usurpation, it beuig originally a mere matter of fact that was triable in the case of Olmstead, and that having been found by a jury, and the state when she gave the appeal to congress in admiralty cases, expressly excepting an appeal on a jnatter of fact ; and the admiralty court of the allied states, before the ratification of the confederation having no juris- diction, but by the express grant of each state, the confederation could not by relation, give such a power. To say the least of it, the jurisdiction assumed was extremely questionable, and it can- not be said by any candid man, but that there was strong ground whereon to rest an opposition. With respect to the policy of con- testing or submitting, I say nothing ; and it is to be presumed the state might have acquiesced, but for the assumption of jurisdiction in other cases, which had excited considerable alarm, but of which I have no disposition to enter into an examination at present; but at the same time, expressing my apprehension, that without sonic tribunal other than the courts of the United States themselves, it may be found difficult to go on without a schism. I propose the senate of the Union as this tribunal, and in order to secure all lea- sonable consideration in favor of the judiciary decisions, on ques- tions of jurisdiction, let a majority of two-thirds be necessary to reverse a judgment of a court, on a plea to the jurisdiction, and this is the same majority which would be necessary to convict on an impeachment. Unless it is to be assumed as a principle that the United States courts " can do no -wrong " their Jurisdiction will be questioned, ;}nd wlien questioned, what can be done by an uidividu- Law MiscEi.LANir s. 371 nl state but to resist ? This may be clone without looking forward to a disruption of the union as s. necessary consequence. On tlic resistance of the colonies to the mother country of Great Britain, at the commencement, and for a long period, there was no idea of a revolution, on the part of Ae colonies, but of bringing the matter to a negociation. This proves that resistance to an un- constitutional jurisdiction, does not necessarily involve an inten- tion to dissolve the government. Remonstrance, and representa- tion may l)e found ineffectual ; and the only means left may be an opposition to the exercise of the assumed authority: and the on- ly question will be, whether to wait until the invasions are so monstrous and palpable as to shock every mind; or to re&ist the fii'gimiing' of usurpation. This was done in the resistance by the colonies to the mother country of Great JJritain. For it v/as not so much the weight of the oppression that was felt, but an abntraci firinci/ile that Avas dis- puted, which gave rise to the revolution. The claim of binding the colonies by an act of parliament " in ell cases w/iatevcr." The principal oljjection to the stopping short of resistance to an unconstitutional authority in the first aggression, is the danger of allowing precedents. It is now agreed in Olmstead's case, and made the foundation ; and indeed the only ground that I see on the part of the United States courts, that the recommendation of congress to institute Admiralty courts by the individual states, and the individual states in that and other instances, submitting to these recommendations gave them the force of laio : and the quaUfLca- tions of adoption, are disregarded. The exception is thrown out of the case, and the whole power recommended, is assumed \ and because it has been assumed', it has become legal. The states were united but sub-modo ; and they had no prize court. They actually had no pov. cr to establish a Judiciary tribu- nal in any state. Each state was a sovereign power itself, and but in the capacity of an alUj^ for the purposes of the confederacy. Tlie prize court was that of the state, with a power of revision to the council of the confederacy, as far as the state had judged it ne- cessary to concede it. It was not necessary, save in the case of an alien alleging the firivilege of a neutral ; and even in this case, not farther than the conclusion of law from facts found. But admitting it to be ne- cessary, it Avas an argument why the revision, without exception^ h'h.ould have been given to the congress ; but it could go no length 372 Law Misgellanies. to prove, that it had been cfiven. It has been said, that it was aii incident to the sovcrcig'nti/ ; but this is beg-ging the qviestion, that there was a sovereignty to this extent. If it v/as an incident of sovereignty, why not establish admiralty courts by authority of the sovereignty ? Why treat it as a matter of courtesy and recom- mend ? It has been contended that to Tccoimnend was the same as to enact. Had the recommendation of congress, agreeably to the 5th article of the treaty with Great Britain the force of an act ? There was not the least attention paid to it by any of the states, though this was after the ratification of the confederation in 1781 ; not until which had the congress any power whatever, but what they were allowed to exercise. The point is not tenable ; and whatever may have been the justice of the claim of Olmstcad.^ the committee of Congress formerly, or the courts under the present constitution, had no jurisdiction of the question. I will admit, that where there is jurisdiction the courts will look at the justice of the case, on grounds of moral equity ; and will be astute in saving it from the operation of a general rule. But on the contraiy, in considering the question of jurisdiction, they will not be justifiable, in looking at the merits of the particular case; for they have no right judicially, to think upon the subject. Where the danger is of being trespassers to an awful extent, the endan- gei'ing the peace of the union, it becomes them to stop short, ra- ther than exceed. In applying their powers to a particular case, a strict construction is demandable. No wantonness of assumption in the face of a people, jealovis of state rights. I will leave it to be considered by themselves for the present, whether there has been on all occasions, such delicacy in taking cognizance, as a mind perfectly awake to the importance of the consideration, would have thought it advisable to exercise. The necessity of some tribunal to pass upon the question of ju- risdiction of the United States courts, where a state is concerned, has been pressed upon the state of Pennsylvania, in the case of what is called the actual settler under the act of Asse7nbly of the 3d April, 1792. The case of every actual settler under that act, is in fact a case where the state is concerned ; and an ejectment, though nominally against the settler, is in fact against the state. Under the act of 3d April, 1792, a great tract of country was disposed of in consideration of money and settlement. The one half consi- deration, the inoneij /tart, to be paid first, and the settlement to be made afterwards ; or the settlement to be made first, and the one half consideration rmoney) to be paid with mterest afterwards. In Law Miscellanfes. 373 the case of him who has paid the one half consideration (money) and is to satisfy the remaining half by settlement, it is stipulated that it shall be in a given time ; as, otherwise he might never satisfy, at all, what remained due. This is stipulated to be t-vo ycars^ within v/hich tlie satisfaction remaining due shall be begun to be made. And that, Avithin that time, it shall be begun to be made, unless prevented by the enemies of the state. On the part of those v*'ho had paid the one half consideration (money) first, and were to satisfy the remainiiig one half of the consideration of fhe purchase, the settlement, w'xihXn two years. It is said, they have been prevented by the enemies' of the state from beginning within tKvo years to make a settlement ; and therefore are excused from satisfying the state as to the remainder of the consideration altogether. I say nothing of the absurdity of this consti'uction of the contract nvhich the courts of the United States have sanctioned ; because I deny, that, being a state claim, they had jurisdiction of the question. For, in case of the remainder of the consideration, the settle ment, not being satisfied, within the time, an entry is given to the state to have it made by such as shall make the settlemciit first, and pay money with interest afterwards. The state enters ; which she cannot do, being an incorporeal body, but by purchasers under her ; or in other words, persons actually settling, and coming under the contract of satisfying as to the remainder of the consideration, (money) afterwards. The ejectment in that case is nominally against the actual settler, but in reality against the state. For if the actual settler is disturbed in his settlement, the state loses the ^d\i original consideration cf the sale. But how shall it appear to the United States courts, that the state is the party when she is not nominally on the record ? The an- swer is easy ; by admitting evidence of the truth of the fact ; and this to the courts themselves, who are to judge of the jurisdiction, on affidavit shewing the truth of the fact. The enquiring as to the real plaintiff or defendant in a case, is familiar in the courts, either with a view to the competency of testimony offered ; or as to the liability for costs ; and this is by facts disclosed to the court on affidavit, or otherwise. The operation also of a verdict, and judgment on the same point, and between the same parties re- ally, though not nominally, can be reached only in the same \Vay ; and it can be reached in this v/ay, notvvithstanding all shifts in the Tcal party to put forward another name on the record by a collu- sive transference, or substitution, by any contrivance that the craft 374 Law Miscellanies. of the profession or the manaj^ement of the suitors may devise. In such a case it is the duty of the court to endeavor to get at the fact ; and to defeat the subtilily of evasion. In the amendment to the constitution, are tlic cases in view only those, where the state is nominally a parly, and where the re- covery must act directly upon it as a body politic ? That is to say "where money is recovered, the levy must be upon the money of the state, in the hand of the state treasurer : or upon public lands, and tenements such as a state house lot, or building. If that be so the amendment can in most cases be evaded. The suit for debt, if such be the nature of the demand, may be brought against the treasurer, as having that money in his hand to which the claimant has a right ; or on an ejectment brought against a tenant of the pub- lic lot, a recovery may be had though it is the state that is actu- ally put out of possession. If the co\irts cannot reach such a case ; or if it camiot be pushed upon them so as to oust their jurisdic- tion under this amendment, my argument is gone, and the state prerogative thought to be saved, will be narrowed to a very small compass indeed. It can be applied only to cases, where the party cannot by any means give his claim such a shape, that he may pur- sue it indirectly without putting the state in his writ, or declara- tion. The state of Pennsylvania never can be reconciled to what she Qonceives to be an unwarrantable assumption of jurisdiction of the United States court, under the act of 3d April, 1792, laying even aside the construction, monstrous and shocking, as it would seem to be, which they have put upon that act. She has been very near going as far in that case, as in the case of Olmstead, and by a le- gislative act prqviding against tiie effect of a judgment given in such a case, by directing the governor to ofifioae force ; which if they were to do, I do not know how he could escape the duty but by resignation ; and in that case he miglit be followed by an im- peachment for a dereliction of his duty. It is under a sense of these difficulties, and appaling consequences, that I look forward to an amendment of the constitution, by providing a tribunal inde- pendent of the courts to decide in the case of a contested jurisdic- :io}7. . PENNSYLVANIENSIS. Law Miscellanies. STuS Pierce v. Turner. 5 Cranch, 154. ERROR to the Circuit Court of the District of Colum- bia, &c. case on a special verdict. In this case Johnson, J. dissented from the opinion of the court ; and on examination I am of opinion that he vra.s right; and not only right in his judgment, but concise and correct in his reasons given. In page 170, he hits the point like a ball from a rifle, and knocks down the fallacy of the argume* on the other side. Credit given on the ostensible possession of property ; is the credit to be defeated by a deed that is concealed, and the person to be benefitted whose duty it was to have made it public. " The creditors, in order to maintain their action," (says the Judge) " prove first, the property in the wife before marriage ; then her in- termarriage with their debtor. These facts, in operation of law, upon her personal property, sustain their right of reco- very. But, in opposition to their claim, the wife endeavours to avail herself of this deed ; and the question is brought up on an exception taken by the creditors to its validity. The ground of their objection is, that it wants that evidence of authenticity which the law requires to make it, as to them, a valid instrument." I am decidedly of opinion with the dissentient member of the court ; but I take the opportunity of saying that I do not like a dissenting judge saying, as in this case, I am unfortunate enough to dissent. For there can be no misfortune in the case. We knov/ what is meant ; it is as much as to say, I am sorry, that in this case, I have to run a little counter to the self-love of the court, and lo wound their pride so far as my thinking them fallible, mav affect. The sting is, that by this peace-offering to their tem- per, it should for a moment be thought possible, that it had been hurt, or pride wounded. It becomes a judge to have such self-denial, and to be of a mind so perfectly resigned to the love of truth and jusiice, as not to think of his situation, as to the cum qulbus, he may be. This, may not be wholl\- in human nature ; but I would have afpearances spved, and those from whom one dissents, not supposed to have scnx feeling on account of it ; nor ont''< own self to be in the least 376 Law Miscellai<^ies. mortified, because he has not the greater number on his side". The maxim, cum Platone errare, quam cum aliis recte sen- tire, has been long exploded, as a self-degrading, and igno- ble sentiment. To deliver the dissent, simply without apo- logy, or compliment, is the best. Nothing need be said un- less, that, in expressing the less, or more confidence with which the dissent is made, there may be the qualification of saying. It would seem to me ; or, on the contrary, to say, to- tis viribus contra, " Go not with a multitude to do evil," is a maxim ; and it ought to be the same, go not witn a multi- tude in thinking wrong. These observations are not made for the sake of the judg- es of the supreme court ; for I have no idea that they will ever read them ; or perhaps come to hear of them ; but cer- tainly will not be disposed to pay much regard to them. But it is for the sake of the student who may become a judge, that I give the hint. The fact is, I have been always dissa- tisfied with the apology, " it is my misfortune to dissent," &c. Sec. &c. and, this, in so severe and stern a situation as the administration of justice. Will not the by-standing suitor feel a degree of indignation in hearing such declaration of " mis- fortune to dissent .^" For, it must be the language of his mind, " it is not your misfortune ; it is to your credit ; and it is your good fortune, to have the good sense to differ; and so far from softening the matter out of deference to your brethren, you ought, or at least, it would have pleased me better, to have given your words the implication of some dissatisfaction at the error of the judgment of the majority. Not, as the expression would import, that you have had qualms in dissenting, which only arise from some apprehen- sion, not so much of your own error, as of their displeasure. The fear of man bring-eth a snare.'*'' Law Miscellanies. 077 Hepburn and Dundas v. Colin Auld. 5 Cranch, 262. JUDGE Livingston, in page 273, expresses himself in a very manly manner. I concur with his observations. Livingston, J. expressed his non-concurrence in the reason- ing of the court, in the latter part of the opinion just delivered by the chief justice. He would dismiss the bill, even if a good title could now be given by the complainants. This court can no more dispense with punctuality as to time in any case, than with any other part of the agreement. But in this particular case, time was of the essence of the contract. The object was payment of a debt ; and from the anxiety of the defendant to resist a decree for a conveyance, and the desire of the complainants to urge it upon him, it is to be presumed that the lands have fallen in value during this delay of the title. The remedy by a decree for a spe- cific performance is a departure from common law, and ought to be granted only in cases where the party who seeks it has strictly entitled himself to it. It is said that by the English authorities, the lapse of time may be disregarded in equity, in decreeing a specific execution of a contract for land. But there is a vast dif- ference between contracts for land in that country and in this. There the lands have a known, fixed, and stable value. Here the price is continually fluctuating and uncertain. A single day often makes a great difference ; and in almost every case time is a very material circumstance. He dissented also from another part of the opinion, which inti- mates that if this were simply a deficiency of a few hundred acres, it would be considered as a case of compensation. This part of the opinion does not seem to be necessary, and does not affect the present case ; but this court can in no case compel a specific per- formance on terms and conditions. We cannot decree a special execution for p^rt, and assess damages as to the residue. This is like a contract for 5,000 bushels of wheat. A tender of 4,5©0 would not be good ; and we coukl not compel the purcha- sei* to take a less quantity than he contracted for. So here the contract was for 6,000 acres. The complainants have a title to a part only ; we could not compel the defendant to take that part, and give him damages for the non-conveyance of the residue. 3 B 3TB Law Miscellanies. The United States v. Evans. 5 Cranch, 280. IT will not be inferred that I approve of all the decisions of the supreme court, which I have not noticed. Of some I do approve ; others I 4iave not considered so fully as to have an opinion concerning them. I have taken notice only of such as struck me, en passant, as exceptionable. Amongst these I put down that of the United States v. Evans, It was a writ of error to the district court for the Kentucky district. In the court below, the judge at the trial rejected certain testimony which was offered by the attorney for the United States, who, thereupon took a bill of exceptions, and became w#n suit ; and, afterwards at the same term, moved the court to set aside the non suit, and grant a new trial, upon the ground that the judge had erred in rejecting the testimony ; but, the court overruled the motion, and refused anew trial; whereupon the attorney for the United States sued out his writ of error. By the court, " where there has been a non suity and a motion to reinstate overruled, the court cannot interfere." If the writ of error had been brought on the motion which had been overruled, I grant, the supreme court were right in not sustaining it. But I should infer that the writ of er- ror was brought on the non suit, and not upon the tnotion to set it aside. But the non suit was suffered ; it was voluntary. It was voluntary by compulsion, as the British make their fencibles. It was the rejection of the testimony by the court which oc- casioned it, and compelled, in its consequence, the suffering a non suit. Non suit is a judgment of the court, where it is ordered, or directed; and it amounts to the same thing where the suffering it, is a consequence of overruling testimony, without which the party cannot go on to the jury with a pros- pect of success in supporting his action. That a court can direct a non suit where there is no testimony^ volente, no- lente, the party, is abundantly to be deduced from the Eng- lish practice ; or if not from that practice, it is abundantly established from principle in cases in the " Constitution- Lawt Miscellanies. or9 al court of errors and appeals, South Carolina, reported 2 Bay, 133, 187,437, Edanus Burke, President; himself an host; ipse agmen. I cannot cite myself for an authority^ but I can cite my reasoning-, in r case, ut valeat quantum valere potest; and, on this head I refer to 5 Binney, 319. Taking it that the party could refuse a non suit, that is to suffer it, when the court rejected testimony, what remained to be done, but to go through the form of taking a verdict which must, in that case, of necessity be against him, and then on a judgment for the defendant, to bring his writ of error, and assign the rejection of the evidence as the error which had been the cause of the finding by the jury? But, on principle, the non suit in consequence of a rejection of evidence, is the court's act. It is their judgment, and re- fusing to take off the non suit, leaves the matter just where it was ; it can do no harm, if it has done no good, to have made the motion. These matters are amongst the minutife of practice ; and I do not at all wonder that the judges of the supreme court having their minds intent upon great objects, and principles oi general laxu, a matter of minute practice should appear not to have been examined ; but overlooked in a particular case; I should be surprized to find it otherwise. The proboscis of an elephant cannot take up a needle, though it can involve the trunk of a tree and bear it down. It is one of the most difficult things in the profession of the law, to acquire a knowledge of the smaller rules, and the reason of them — Non equidem invideo, miror majus I am astonished that the judges of the superior court having so extensive a province of legal examination, can contract their minds at all to a thing that lies in a nut-shell ; in other words, can make out so well as they do in subordinate ques- tions. That they have erred in local questions, has been ob- served by professional men from other states, so far as I have had an opportunity of conversing with them. But no- thing is inferred, detracting from the reputation of their na- tural powers, or acquired talents; but the impracticability «38d Law Miscellanies. of being competent to every thing that; under such exten- sive system, it becomes necessary for them to decide upon. " Non omnia possumus, omnes." Another consideration is, the judges of the supreme court have not time to read ; commensurate with the occasion for it. They are half their time carted in stages, or running in cur- ricleSy from the one end of the continent to the other ; and how c'^n they have time to read ? It is the same thing with the judges of this state as to the riding, and the constant employment of their time ; I mean as to the judges of the supreme court, and perhaps, in some degree, to all the others ; to some of them I know it applies, the judges of the mountainous districts ; and still I find I must explain myself, or strike out stages and curricles^ so far as respects the judges of the mountain districts. For the roads are such that neither stages, nor curricles can run. But as to judges of our supreme court, were it not that we are confined to matters of a small compass^ our time being so much employed, we could not have leisure to read, what under other circumstances, might be necessary for our sta- tion. In all mouse-trap matters, as they may be called, we do pretty well, so far as I can infer from the not hearing- much complaint from the profession, or the people. O'Neal V. Thornton. 6 Cranch, 53- THE judgment of the circuit court of the district of Co- lumbia, was in this case reversed by the supreme court. In that case was introduced the construction of an act of Mary- land, which authorized a re-sale of lots in the city oj Wash- ington., as often as default should be made by any purchaser. The court below had been of opinion, that the right to resell was co-extensive with the original power to sell ; that every sale was a nexv sale, and within the statute ; that the terms, *■'- new sale ^^^ ^*- frst contract " ^'' original purchaser,''^ ^'■second sale^^ and first purchaser, are all relative terms ; that the ex- Law Miscellanies. 581 pression in the second section of the act was extensive enough to comprehend all the re-sales. It was, " that on sales of lots in the said city by the said commissioners, under terms, or conditions of payment being made at a fu- ture day, &c. and, if the purchase money should not be paid, &c. the commissioners might sell the same lots at vendue," &c. That sales of lots, means on aiii/ sales of lots ; that a re-sale was as much a sale as the original sales ; that the act meant to give the commissioners the same right as to the sales of lots, which a vendor of personal property has in England ; which is, that, " if the purchaser does not pay for the goods on the day stipulated, the vendor may sell them again at the risk of the first vendee." The supreme court were of opinion " that a single re-sale only was contemplated by the legislature ; and, that by such re'Sale., the power given by that act is exercised." That is, that by a single execution of the power, the commissioners became functi officio ; notwithstanding, a default of pay- ment at the re-sale would produce the same necessity for a re-re-sale, that there had been for a re-sale. A strict adherence to the letter of an authority, would, in human affairs, be vexatious, and would require such spe- cifications and distinction in the mandate, as would embar- rass all ordinary transactions ; and, even in the highest, would lead to great inconvenience. To give an instance, in an ordinary transaction, I take one from the Jest book, Liber Facetiarum, where the master directed his servant to bring him a fish, which he did, but brought it as it was, without having undergone any process of cookery. Boil it, said the master, and bring it. This the servant did, but brought it in his hand. Whatever you bring me again, said the mas- ter to his new valet, who was a simple Scotchman, whatever you bring me again, said he, put a plate under it. In the evening calling for his slippers, the servant, sticking to the strict letter of what had been directed, brought them on a plate. But, to give an illustration more directly applicable, the construction of the court, as to a single performance of an 382 Law JMistiELLAKits. act, is, as if a master had ordered his servant to mount his liorse, and ride him ; and the servant had done so, but hav- ing been dismounted by some accident, he would not consi- der himself warranted in rc-mounting-^ without a new instruc- tion. The toiies quoties he might say, was not within the letter of what he had been directed to do. BUickstone in his commentaries, speaks of the suUenness ; or affected timidity of English judges, in the narrojvness of their constructiou of powers given. I do not apply this to the honourable the supreme court ; because I can easily see how they were misled in the construction put upon the act. It was by the equivoke of the word purchaser. He is a purchaser who bids\ but he is more a purchaser who pays. All the intermediate biddings, between the '■''Jirst contract^"* and the last, upon which the money is paid, pass for no- thing, and ought to have been thrown out of view in the con- sideration of the case. All these biddings were ?i frauds and the striking off ought not to have been spoken of as a sale at all ; nor ought the bidders and note givers to have been call- ed purchasers. They were speculators, swindlers, or what else name they might deserve; but they could not be called purchasers. What though a note was given ? If forged, or the maker or person on whom drawn insolvent ; for it dif- fers not as to the vendor ; it amounted to no consideration paid ; and if not a fraud in fact, was a fraud in law. In such a case, a great national object, the sale of lots with a view to raise funds for the public buildings of the city, in order to ac- commodate the national legislature, and the officers of govern- ment, a liberal construction of an act ; an amplitude ought to hare been given to it, as being an extraordinary case, and distinguishable from those to which general rules would ap- ply. But even considering it a case, where only A and B were concerned on a private contract, I should think the construction and reasoning of the supreme court, as to this f rroneous. But as to another point. This was an action of assumpsit upon a promissory note, "' given by O'Nealc tj Thornton, surviving commissioner of the city of Washington, for the money of lots No. 1 and Law Miscellanies. 38C 2. The defence was, that there was no consideration for the note, inasmuch as the superintendant for the city, &c. had abandoned, or rescinded the contract of sale, by having sold, and conveyed the same lots to another person in fee simple." I will acknowledge that whether this sale to another per- son, was valid, or not valid, the surviving commissioner Thornton, to whom the superintendant had succeeded, was concluded from a recovery on the note, having parted with the legal title to another person, and it did not lie in his mouth to say that this re-sale was not valid. But the court unnecessa- rily introduce, in the opinion delivered, a principle of great importance, and, in which I conceive them to have erred i viz. that this sale to another person was not valid^ because it was not a re-sale^ but a re-re-sale. The original^ and first sflle had been to Morris and Greenleaf. It is admitted by the court that the re-sale was valid. Why not the re-re-sale ? Because, say they, the power given under the act of Mary- land was functus officio^ upon the re-sale. This all turns upon the equivoke of the word purchaser^ in the act. He cannot be considered as having purchased, or being really a purchaser within the meaning of the act, who does not com- ply with his undertaking, and pay the money. The term purchaser, may apply to the original bidder, because he paid som'e money, and, to a certain extent, complied with the contract. But the intermediate bidders, who had paid no- thing, were not in the understanding of the act, or on any principle of law to be considered purchasers, but bafflers ; or to use the Saxon term, brockers, at the sales. Had there been a thousand of these they would be laid out of the case ; and even though they had given notes, and not paying at the day, the commissioners had a right to treat their pretence of purchasing as a nullity, and toties quoties, to set up again. What the commissioners, or the superintendant, in their places had a right to do, in equity, or what a court of chance- ry, would have decreed, they might do, the act of Maryland, exercising a cliancery discretion, sanctioned, or prescribed the being done. It was a stepping out of the ordinary course of legal remedy by the- legislature of Maryland; but it vras G84 Law Miscellanies. doing no more than might be done by an ejectment at com- mon law to compel payment, or what a court of chancery would do in order to reach the same object. The exigency ; the great national object justified the festinum remedium of an interposition. It would seem to me to be taking a narrow view of the power given by the act to confine it to any thing short of a sale that would raise the money. The mere let' ter of terms was not to be considered, but the substantial meaning and intendment of the act; and I would not consi- der the power as functus officio, until a real purchaser was found, who would pay the money. I think it the more unfor- tunate that this construction did not take place, inasmuch as it was of great moment for the city of Washington, that the original object of the sales should be accomplished, the erecting public buildings, &c. and also for the purpose of settling titles for lots that these might be built upon, with safety by the real purchasers. The improvement of the city in all respects depended upon this. I was led to consider this act the more, as a case was lately tried before me, at nisi prius, Philadelphia county, in which the case of a sale and re-sale, and re-re-sale of some of these lots came into view. It was an action on a bond given in consideration of a sale, or re-sale, or re-re-sale, for it made no difference with me, of some of these lots. The constitutional power of the state of Maryland to pass such an act was questioned, as being, in the first place, an act to hnba'ir contracts^ and in the case before us, an ex post facto law. I was of opinion that an act to hang these speculators would have been in the natuie of an ex post facto law ,• for what they had done, was done before the act passed. But that as to impairing contracts, there was a wide difference between annulling a contract, and giving a remedy to en- force compliance with it. This a court of chancery will al- ways do. There was nothing more, done in this case. Law Miscellanies. 285 The Chesapeake Insurance Company v. Stark, 6 Cranch, 268. THIS was error to the circuit court of the district of Maryland. The action was, covenant upon a policy of in- surance of goods, &c. Defence, amongst other things, that the abandonment was not in due time. Special verdict finding the facts. Marshall, chief justice, delivered the opinion of the court ; and after observatioiis on what did not so immediately affect, goes on to say, " The only point which presents any difficulty in the opinion of the court, is the objection founded on the omission, in the verdict, to find that the abandonment was made in reasonable time. The law is settled that an abandonment, to be eftectual, must be made m reasonable time ; but what time is reasonable is a ques- tion compounded of fact and law, which has not yet been reduced to such certainty as to enable the court to pronovmce upon it, with- out the aid of a jury. Certainly the delay may be so great as to enable every man to declare, without hesitation, that it is unrea- sonable, or the abandonment may be so immediate, that all will ad- mit it to have been made in reasonable time : but there may be such a medium between these extremes, as to render it doubtful whether the delay has been reasonable or othei-wise. If it was a, mere question of law which the court might decide, then the lav.' would determine, to a day or an hour, on the time left for delibera- tion, after receiving notice of the loss. But the law has not so de- termined, and it therefore remains a question compounded of fact and law, which must be found by a jury under the direction of the court. In this case the jury have found an abandonment, but have not found whether it was made in tlue lime or otherwise. The fact is, therefore, found defectively ; and for that reason a -venire facias di novo must be awarded. It may not be amiss to remark that the judicial opinions whicli we generally find in the books, on these subjects, are usually given by way of instruction to the jury, or, on a motion for a new trial, not on special verdicts. The distinction between the cases deserves consideration." The facts being found by the special verdict^ if a question oflaw^ could not the court say what was the law -arising from these facts? If a conclusion of reasonable time 3 C 33G Law Miscellanies. from the facts must be drawn by the jury, in a special ver- dict, it is a conclusion of fact, and not of law. What had the court to do with it, if a question of fact solely ? They have a right to assist the jury in weighing the evi- dence, and the power to set aside the verdict if against the weight of it. But this does not make it a question com- pounded of law, and fact, if there could be such a compound. Strictly speaking, we might as well talk of a compound of co- lour and sound ; things judged of by different senses ; anJ which cannot be compounded. But there is a conclusion oifact from facts ; and a con- clusion of law from that fact. As for instance, 1 and 1 make 2, which are two facts, making one. But 2 and 2 make 4, which is a conclusion of y(7c# from facts. Again 1 and 1 make 2, which is a fact ; but two are ne- cessary to constitute a conspiracy, which is a conclusion of law : three to make a riot, which is a conclusion of law also. So, whether an entry with force and arms, is an indictable offence, or a. trespass merely, is a question of law. So that strictly speaking it is not a compound question, but two ques- tions of a different nature, and one of which must be resolv- ed before the other. If the question is put to the jury, they must resolve the question of fact first, in their own minds, in the older of resolving, and then draw the conclu- sion of law, which, if they find a general verdict, they must draw. If they give a special verdict, which in all cases they may do, they draw the conclusion of fact only, and need not go onto resolve the other question, viz. what is the laxv thence arising ? But it is but one question at a time, they can resolve, and therefore the question is not compound: save so far, as, that where the jury gives a general verdict, they solve both questions at the same time and by one answer. This has been the result of my investigation when I have endeavoured to analize, and ascertain what could be meant by a compound question. But in the case before us, that an abandonment must he made, to entitle to recover, is a question of law. That an abandonment must be made in reasonable time is a qikestion of law- But the jury having found the time,\% it a question ot Law Miscellanies. 387 Ia\^ or fact, to draw the conclusion, and to say, whether or not that time was reasonable P The court say it is a conclu-» sion of law, why not then draw it? why reverse the judg- ment, and send it back to a jury, with costs, and the expence of a new trial ? There appears to me an incoJisistency in the proceeding. If, as the chief justice lays it down in another case, 6 Cranch, 339, " that what is reasonable time for abandonment, is a question compounded of fact and law, ofiohich the jury must judge under the direction of a court^^'' it is the only case that occurs to me where a reference to a distinct forum, can- not be had J the jury finding the fact ^ and leaving the laiv to the cow t. Reasonable time, in the ease of an abandonment, and m that of a bill of exchange, or in any other case, must be the same. In the case of a bill of exchange, the jury in a special verdict finding the time, will not the court in England, as a question of law, draw the conclusion ? If the jury must do it as a conclusion of fact, what have the court to do ? What direction could a judge on the trial give, but that if you find so, and so, then, in our opinion reasonable time had passed. "When the jury have found so, and so, cannot the court say rea- sonable time had passed within whicli an abandonment ought to have been made. This, considering it a question of law, and not of fact, as the court have laid it down. Notes relative to Judge Tucker's Commentaiy on the Constitu-< tion of the United States, Sec. I HAVE not entered into an examination how far the constitutio7i of the United States, and the acts of congress under it have wrought a variation in the jurisprudence of the state of Pennsylvania, from the law of England. And this, not only because such operation has not an eflfect peculiar to this state; but also because^wc/^e Tucker, has noticed abundantly, what might be said on this head. The code of each state, so as it is affected by the constitution, or an act of congress, is lex o88 Law JMiscellamls^ sub graviore lege, subject to a higher law ; and must, so far as it goes, be changed by it. This observation is to be un- derstood as going no farther than acts of congress within the outward groove or orbit of the constitution. I cannot say that I have examined minutely the valuable commen- taries of that civilian, so as to be able to point out mistakes, if any had occurred to me ; but a learned jurist has given me a note of a few oversights, or miscontructions, as they ap- peared to him, which are to be met with in the comments of judge Tucker, in his view of the constitution of the United States. If this publication, which is not very probable, should at any time reach the notice of that judge, he will not be dis- pleased with having it suggested to him, that he might reconsi- der. It is well known that judge Blackstone availed himself of the observations of others, Junius, Priestly, Furneau, &c. to change some things that had been given in the first edition of his commentaries ; and many alterations have been made which would appear to have occurred to his own reflection. I could point out one particular of law, which he had stated so equivocally in the first edition, as to mislead; but which in his later editions he has corrected. It occurs 2 Com. 252. Treating of the qualified property of the bailor and bailee, '* may all of them vindicate, says he, in their own right, this their possessortj interest against any stranger or third per- son, according to their respective interests.''^ I have known very learned counsel to contend from this authority, that neither of them could recover otherwise than according to their respective interests. It would seem to have occurred to the commentator that it was equivocal, and he has struck out the expression, " according to their respective inter- ests:' Comparing small things with great, if it might be allow- able to mention what I have written, there will be inaccu- racies which may occur to myself, and much more to the learned of the profession in the matters of this publication, which I will have no pride to oppose, but the contrary, in hearing of them being pointed out. The only considera- tion is, or rather y^ar, that not many learned in the law, and capable, will do me the honour to examine and to note the Law Miscellanies. 389 observations from reason, or from law, which may exist. With regard to the commentaries of judge Tucker, on the constitution of the United States, &:c. the note of the > learned jurist is as follows. " The passages in Tucker's Blackstoue which have truck me as inaccurate, are the following. Tucker's Black, vol. 1. 181. The author states the cases in which he thinks that the judicial power of the United States is ea- clusivelij vested in the tribunals of the federal government, and enumerates them as follows : 1 . All cases affecting ambassadors, other public ministers and consuls. Note. This does not seem accurate, for an ambassador, &c. may sue in the state courts if he please, though he may not be swd there. Therefore the power is not entirely exclusive. 2. All cases of admii-alty and maritime jurisdiclion. Note. If the author meant all cases which arc exclus'roely of admiralty jurisdiction, such as prize and its incidents, he is right, but if he meant all cases of admiralty jurisdiction generally, in- cluding bottomry, mariner's wages, &c. he does not seem correct, for in all these cases there is a remedy at the common law, differ- ent in its form, indeed, and sometimes in its effects, frona admi- ralty process, but still the common law lakes cognizance of the subject matter, and the jurisdiction of the court of admiralty in such cases is even scid to be only fierinissive^ and ex rei necessi- tate et favore legis. 3. 4. 5. Seem correct. 6. Controversies to which the United States are a party. Note. There appears nothing to prevent the United States from sii'uig^ though tiiey may not be sued in a state court, nor in- deed in any court, directly, and indirectly it is not clear that they may not be sued through their officers in a state court ; I believe there have been instances (I think, in New-York) of a collector sued in a state court for torts committed under colour of his offi- cial duty. Of this, however, I am not sure, but upon the whole, Mr. Tucker's assertion seems too broad. Again the decision of the chief justice on the habeas corpus in Blight's case, shews that state courts have taken cognizance of controversies to which the United States are real parties ; for Blight's confinement was by the authority of a federal court, and the United States, or what is the same, the authority of its judiciary was clearly involved." 390 Law Miscellamls. On the conbiruction of Art. 4. Sec. 4. of the Constitution ot the Unitqd States. "The United States jfAcr// guarantee to every state in this union a republican form of government, and shall protect each of them against invasion ; and, on application of the legisla- ture^ or, of the executive^ (when the legislature cannot be con- vened) against domestic violence." This would seem to be an amplilication of the power given to congress under head 15, of Sec. 8. Article 1. of the constitution, viz. " to pro- vide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." Under article 1. sec. 8. 15. The congress shall have power to pro- vide for calling forth^ ^c. Under article 4. sec. 4. The United States shall guarantee^ Sec. The first gives the pow- er to do ; the last enjoins the doing in certain cases, which must, in substance^ fall under the first head, at least so/ar as respects the protecting against invasion ; and against domes- tic violence. But, on a question put by governor Strong, of Massachu- setts, to the justices of the supreme court of that state, these justices certified an opinion, inter alia, that, in calling forth the militia, " no power is given either to the president, or to the congress to determine that either of the said exigencies does in fact exist." Masachusetts Reports, 449. But it would seem to me unavoidably deducible, from sec. 4. arti- cle 4, that there is but one case where it is left to the legisla- ture, or, to the executive, where it cannot be convened, to exercise the right of determining as to the exigency in which the militia may be called forth, and that is, " to protect against domestic violence." That is distinguishable clearly in section 4. article 1, from the guarantee of a republican form of government, and protecting against invasion. For, it is on application, See. that protection against domestic via- Icnce in to be given. The other cases are left out of this clause, and precede it, and there is no application in such vases specifitd. The justices of Massachusetts would there- fore, appeyr to me to be erroneous in their opinion, that the I Law Miscellanies. 391 president or congress have not the right to »juclge of the exi- gency of an insurrection or invasie7i. Domestic violence is distinguishable from an insurrection to resist a law of the United States. It may be in opposi- tion to a law of the state ; or it may be a great riot without a specific object, but bidding fair to terminate in a dissolu- tion of the government. With great propriety, it is left in this case to the legislature, or executive of tlie state in their ab- sence, to say whether such an exigence exists^ as calls for the arm of the union. But if the violence has for its object, a resistance to a law of the union, how shall the state officially -know, that resistance is made. It must be communicated through the medium*of the general governmeaty to whose au- thority it is made ; and does not this involve in it, necessari- ly ^ the judging of the exigency ? can the state be supposed to have a negative upon this judging, and to say, your law is not resisted ; you have raised a groundless clamour against these insurgents, and they may go without day. This is the law phraseology, when a complaint is dismissed ; and the defendants discharged from appearance. But who is to determine the exigency when a republican form of government is about to be put down in a particular state ? It cannot be the legislature, or the executive, even if there had been the strongest exclusion as to this. For it must be a case where a republican legislature and executive had been overthrown, and the ojie or i\\tfexv had usurped the government, that such an exigency could exist ; and it would be an inconsistency to suppose tliat these would make an appli- cation for the arm of the union to suppress themselves. It is in the case yf domestic violence where the United States are not supposed to know of the outrage, or of the ne- cessity of the interposition of the general government, that the application must be made, by the legislature, or the exe- cutive, of the particular state. The necessity of interposi- tion must be judged of by the particular state ; the Dignus vindice nodus. But in the case of " invasion ;" who is invaded ? Say '.t.il(' .Vr». 1 . who is to f'ivf noino i.f (]-,is rr> '.rate No. 2? >392 Law Miscellanies. Must it not come through the medium of the general govern- ment to No. 2 and to all the states ? Does it not then follow that the general government, so far as respects No. 2. and all the rest, is to determine, M^hether or not, the exigency ex- ists of No. 1 being invaded? But admit the United States who are to guarantee^ and protect^ &c. have a right ; and must of necessity, determine, in the first instance, whether an exigency exists ; yet a par- ticular state has a negative upon that determination, and may say, it does not exist. If so, the outer -wheel is then stopt by the cog-ivheel^ and the machine can no longer xvork. It is assum- ing false premises^ therefore, in the Massachusetts' justices to say, that the power is not delegated 1,o congress, or to the president to determine when the laws of the union are resist- ed, insurrection on foot, or invasion made. But who shall command the militia, in case of their be- ing called forth ? The president, or his lieutenant, doubt- less. In this capacity Hamilton acted under Washington^ in repressing the insurrection in the western parts of Penn- sylvania, in the year 1794. I do not know that he acted un- der a commission eo nomine, but de facto, I saw him in the exercise of that command. General Lee was the ostensible lieutenant. But may not the president appoint as his deputy ; or, suffer to act, the officer who commands the regular force on foot at the same time f But can the officers of the lingular force on foot, from him down, be substituted in the command of the mili- tia for their officers ? No; there is no necessity for it; nor, can it lawfully be done. But who is to take the command when a regular force is on foot, and militia embodied at the same time ; and the president is not present, nor has he any deputy, or lieutenant to command for him ? I do not take that to be a case likely to happen, and I shall not enter into an examination of it. My mind has been chiefly intent upon the other questions. But supposing the exigency of an invasion to exist, ac- cording to the deter7ninatio7i of the congress and president^ atid the militia are called forth to repel invasion ; or to pro- tect against it ; (for both these terms are used in the const:- Law MisGEtLANiEs, 393 tution, article 1, the term '■^ repelling- invasion^'' is used. Article 4. " Protecting against invasion, is used.J Can the militia he ordered beyond the boundary of the United States ? That will depend upon the question, if comnwn sense and na- tural reason is to determine it, which of the two means will be the most effectual in repelling an invasion, or protecting against it ; the stopping at the limits^ or carrying our arms into the country of the enemy* Nations usually adopt this last mode, because it saves their own country from ravage, and it is more effectual to chace a fox or a wolf to his den, even though it is beyond a boundary, than to wait for a renewal of the de- predations which they may have committed. But Here take notice, that I have heard it observed, upon close reasoning, that the word but^ frequently occurs. I answer, that the course of reasoning, on any subject, is syllogistic ; and, if it is worth any thing, cannot but in the nature of it, contain a syllogism; and though there is no major or minor formally stated, yet all course of reasoning on a moral sub- ject, must partake of the nature of a demonstration in ma- thematics ; and postulate, and axiom must be assumed ; look at Euclid, and you will see a but at every new step that he takes in building up his structure. In Aristotle the same; first principles are assumed, and what is deduced from these, forces your acknowledgment, as you proceed, until the conclusion is wound up. I was proceeding then to say, Btitj • Must not an enemy have invaded, before you can be justified in passing a boundary ? To put the case in the strongest possible manner, let it be, that not a single trespass has been yet committed in any quarter of the territory. For if hostilities have been committed on any one quarter, it is A trespass upon the whole. I say, let it be, that, no act of hostility; no trespass, has been committed, by land, or by water ; in that case, can it be allowable, under the constitu- tion, to carry the militia beyond the boundary, even though it may appear, and actually be, the most effectual way to protect against Invasion ? In strictness of terms, it may, perhaps, be said not to come under the head of repelling an 3D 39i Law Miscellanies. invasion ; but, certainly it may come under the head of pro'' tecting against it. The practice^ which constitutes the laxu of nations will illustrate this. When an enemy is about to make war, or invade, when, or where is it hesitated, to an- ticipate hostilities, and to invade ? Among pugilists, the Jlrst blotv is said to be half the battle* It is by boarding first i^ that we save ourselves from, capture, to use a nautical allusion, and defend the ship, when oftentimes by no other means could it be defended. The Romans passed over into Africa, to defend Italy, and to save Rome. NOTES ON BLACKSTONE'S COMMENTARIES, 8ic, SECOND SERIES, •' The customs of London arc confirmed by an act of Parlia- ment." I Bl. Com. 75. THE general latv of England, has nothing in it, of the nature of our attachment law, consisting of acts of assem- bly, and the adjudications of our courts. And in regard of practice^ varies essentially from that under the custom of London. I refer the student to a treatise, by Thomas Sear- geant, on the attachment law of our state, as an elementary tract, which would do credit to any lawyer, more especially to one so young in the profession, and in years. It is inva- luable to the practising lawyer in our state ; and, I should think, must be to those of other states who have attachment laws, as I presume all have. I will take the liberty of ex- tracting from this publication, the preface to his work, as giv- ing some view of the object of this very elegant and classi- cal performance. " The principles of the law relative to foreign attachment are important in Pennsylvania, not only from its frequent recurrence in practice, but from the circumstance of its being an ex parte proceeding, and therefore requiring to be conducted with regular- ity and precision. As it is also a proceeding against absent debtors, it is peculiarly interesting to the inhabitants of other states, who are frequently parties concerned. A means, therefore, of procur- ing information on this subject, although a branch of the local law of the state, seems calculated to be generally useful. " Under these circumstances, a collection of the laws relative *o foreign attachment appeared to be desirable. As our origin3-l 596 Law Miscellanies. acts of assembly, relative to attachment, were borrowed from ihe custom of London, and do not, in themselves, form an entire sys- tem, it has been usual to resort thither, to supply and illustrate them : and a system no\v' exists hi Pennsylvania formed partly from the custom of London, and yet dilTering from it in many im- portant particulars. What was to be found in print lay dispersed ; and it was thought to be useful, if nothing more could be done, at least to bring together the different points decided, as a mfcans of aiding a more entire view of the law upon this head, than can at present easily be obtained. " This has been attempted in the present treatise. The writer has assiduously sought all the information on the subject that was to be found in print, and has obtained, through the kindness of his friends, some few, but important manuscript cases. In addition to these he has, for the reason before stated, introduced most of the law under the custom of London ; a considerable portion of which appeared to be applicable here ; and even that part which could not be so considered, tending to illustrate the grounds and reasons of the proceeding. " He has felt the difficulty attending the formation of an elemen- tary work, arising from the paucity of our own decisions on the subject : the only legitimate sources, from which the interpreta- tion of the laws can be derived : particularly in what regards the practice, which varies essentially from that under the custom of London, and can be ti'aced only in the decisions of our own courts." « Penal statutes must be construed strictly." I Bl. Com. 87. EXTRACT from Dodson's life of Sir Michael Foster, published, London, 1811. "Sir John Eardly Wilmot, late lord chief justice of the court of common pleas, was the particular friend of Mr, Justice Foster : and Mr. Wilmot, in his memoirs of his very justly honoured father, has inserted sonie short correspondence on legal subjects between these friends, and spoken of Mr. Justice Foster in lan- guage significantly descriptive of his true character. Sir Michael Foster says he was conspicuous, not only for his knowledge of cri- minal law, but for every quality of an urnght, enlightened, and flagacious magistrate. Law Miscellanies. 397 " Although Sir Michael Foster generally concurred in opinion with the other judges ; yet, on several important questions, he differed from some, if not from ail of the judges. A remarkable instance of this sort occurred in the case of John Midwinter and Richard Sims, who was tried before him at the lent assizes for ihe county of Gloucester, in 1749, for unlawjulhj^ maliciously^ and feloniously killing a mare. Midwinter was foupd guilty, and re- ceived sentence of death. But the judge having doubts as to the case of Sims, the jury, by his direction, found a special verdict with I'egard to him. The question in that case was, whether Sims, who was present, aiding and abetting Midwinter in killing a mare of the prosecutor, was ousted of the benefit of clergy by the statute 9 G. I. chap. 22, by which it is enacted, " that if any person, or persons, shall unlawfully and maliciously kill, maim, or wound any cattle^ every person so offending, being thereof lawfully con- victed, shall be adjudged guilty of felony, and shall suffer death, as in cases of felony, without benefit of clergy." Mr. Justice Fos- ter thought that Sims was a felon, and a principal felon ; but that, as aiders and abettors are not named, nor described in the statute ; and the law requii'es statutes so penal to be construed lilemlly and strictly.^ he was not excluded from the benefit of clergy. The other judges thought him to be cjccluded ; and some later judges have agreed with them. But the argument of Mr. Justice Foster, whom Sir William Blackstone very justly styles a very great mas- ter of the crown law, and, who, as lord chief justice De Grey, upon an important occasion said, may be truly called the magna charta of liberty of persons as well as fortunes, amounts, in my opinion, to a demonstration, that all those learned judges have mistakesn the law. Sims might deserve as severe a punishment as Mid- winter, but no punishment which is not authorized by law, ought to be inflicted on any man ; and the point is, v/hethcr the law in this case hath provided the same punishment for both. Mr. Justice Blackstone, it is material here to observe, adopts the distinctions which Mr. Justice Foster endeavours to establish, and he lays down these rules : That, " when the benefit of clergy is taken away from the offence (as in the case of murdei-, burglary, Sec.) a principal in the second degree aiding and abetting the crime, is as well excluded from his clergy as he that is principal in th'- first degree. But that where it is only taken from the fierson. com^ mitting the offence, as, in the case of stabbing, 8cc. his aiders or abettojrs are uoX. excluded ; through (he tenderness of the lavu 398 Law Miscellanies. ivhich hath determined that such statutes shall be taken lUci'ally, 1 Hale, P. C. 529. Foslcr, 35 6. '•• In the appendix to the third edition of the crown law, I inserted this case, Mhich the author had most reluctantly omitted in the first edition, at the pressing solicitation of lord Mansfield, who, in February, 1772, wrote to him the following letter. " I return your papers which I have read with great pleasure and approbation ; but I very much wish that you ':vould not enter your protest with posterity against the unanimous opinion of the other judges in the case of Sims. If the determination was con- trary to former authorities there is no harm in it. Sims was, in every view, equally guilty, and in the very same degree. In real truth, and not by fiction of law, they both did the act. Midwinter might not have been able to maim had not Sims holden. Sec. The authorities which you cite prove strongly to the contrary ; but they seem to be futindcd in subtil nicety, and very learned inter- pretation ; and upon the larg-c principles which you lay down, the doing justice to the public, and adapting the punishment to the degree of guilt, it is impossible to say that Sims was not equally criminal ; and if his punishinent was less, it could only arise from a slip in penning the act. The construction is agreeable to jusr- tice ; and therefore suppose it wrong upon artificial reasonings of law, I think it better to leave the matter where it is. It is not " Dignus vindice nodus." " If this case had been published agreeable to the author's deter^ mination, in 1762, it is probable that the lives oi three unfortunate men would have been spared. Seven men were indicted on the statute of George 1. c. 22. being the same statute on which Mid^ winter and Sims, were indicted, for shooting at John Green, in his dwelling-house; and were tried at the Old liailey, in 1768. Thi-ee of them were proved to have been present when the others fired, but they Iiad not been syen to use any fire-arms them- fielves. The jury found them all guilty ; and the judges, on a re- ference to them, determined that the offence of all was capital, and they were all executed. The words of the statute are, " if any person, or persons shall wilfully and maliciously shoot at ajiy person in any dweliing-house, or other place, every person so ofr fending, and being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as in cases of felony Avith- out benefit of clergy." This case is exactly similar to the case of >Iidwint('r and Sitns, and if IMr. Justice Foster's opinion in. that f:a?e be wrll founded ; , namely that the benefit of clergy is taken k Law Miscellanies. ' 309 a\^ay only from persons actually committing the ofFenccj it fol- lows necesarily that those men suffered a more severe pu- nishment than the law authoriseth. Sims, as I have already said, might deserve as severe a punishment as Midwinter; but if by law the benefit of clergy be taken from the latter, and not from the former, the same punishment ought not to be inflicted on both. In such cases nothing ought to be left to the discretion of judges ; it is their province jus dicere, not jus dare. " The discretion of a judge is, as a great man hath said, the law of tyrants ; it is al- Avays unknown ; it is differtnt in difftrent men ; it is casual, and depends ufion constitution, temper and passion. In the best, it is oftentimes caprice ; in the worst it is every vice, folly and passion to which hutnan nature is liable.'^ See lord Camden's argument in the case of Doe v. Kersey. 5 Geo. III. 1765. in C. B. " Bell's case was thus ; he was tried at the Old Baily, in 1753, on an indictment for high treason, grounded on the statute 8 and 9. William III. c. 26, for having in his custody sl press for coinage without any lawful authority, or sufficient excuse, and was convict- ed. On a reference to the judges two questions were made, « 1. Whether a press for coinage is one of the tools or instru- ments within that clause of the act on which this indictment is founded ? " 2. Supposing it to be within the clause, whether the facts stated in the case amount to a sufficient excuse, so as to take the defend- ant out of the penalties of the act. " Upon the first question, chief justice Ryder, was single, and thought that a press for coinage is not one of the tools or instru- ments within the clause of the actonv/hich the indictment is found- ed. This opinion rests on a very slight foundation hi point of law } but it was probably occasioned by an excess of caution and tender^ ness, he having been attorney general at the time of the trial. " Upon the second question, the majority of the judges thoup-ht that as the press was intended for coinuig Louis d'ors, and other fo- reign pieces not the current coin of this kingdom, his case Avas not: within the act. But the other two judges were clearly of ophiion. that as the press was intended to be used, in coining, and was fitted as well for counterfeiting the coin of the kingdom, as any other coin* the prisoner's case was within the act. It would not be a defence, they thought, within the sense and meaning of tlic act, for him to say, I intended the press -for a very wicked purpose, b\it not for the purpose it was adapted to ; 1 intended to counuit a misprision of treason ; but not hig;!! treason ; tlic word:, suffice for an cjccuse. too Law Miscellanies. meaning in this act, as they do, in all language, an honest, a fail', a reasonable excuse, which an honest man may make -without blushing. " To a memorandum of this case, justice Foster has the follow- ijig note.* " This case was omitted by the advice of Lord Hardwicke ; I am satisfied that the cliief justice, (Ryder,) upon the first ques- tion, and the other judges on the second, were totally mistaken. A great man, formerly of the profession, by whose advice it is omit- ted, told me that he hath no doubt upon either of the questions. I believe that his advice proceeded from a regard to the judges ; or from his fear of establishing a bad precedent by the authority of great names, though Tie did not explain himself fully upon that head. " A sentence in a letter of lord Hardwicke, February 24, 1761, is the following, " Permit me to beg that you would reconsider whe-* ther it may be advisable to send into the world the case of John Bell. I forbear to express my reasons for calling your attention once more to this case." " His lordship having conceived some doubts on the case of Earl Ferrers was very desirous to prevent the publication of it ; and with that view he Endeavoured by a degree of intimidation, to prevail on the author to suppress that case ; and also the case of John Drummond, and captain John Gordon. But the author was so perfectly satisfied in the case of Earl Ferrers, that he could not comply with the importunate request of a man whom he loved and honoured. I am not, and I believe that Mr. Jus- tice Foster was not apprized of lord Hardwicke's objections ; but I well remember to have been told by Mr. Justice Foster, that, in the opinion of his son, Mr. Solicitor General York, they were lujt well founded. " From these instances of integrity and firmness, it may l^e seen that the compliment paid Mr. Justice Foster by the cclebra ted Churchhill, in his Rosciad, was not undeserved, " Each judge was true and steady to his trust; As Mansfield "iinse, and as old Foster just.'" * In his reficrt oj" casea or. the rroivn lair- Law Miscellanies. 401 " The sheriff is an officer of very great antiquity in this king- tlom. ■ The deputy of tlie earl, or Comes — The king by his letters patent committing custcdium comitatus to the sheriff, and him alone. All the judges, together with the other groat officers, and privy counsellors meet — • The judges propose three persons to be reported (if ap- proved of) to the king, who afterwards appoints one of them to be sheriff. ■ • Sheriffs were formerly chosen by the inhabitants of the several counties." I Bl. Com. 339,340,341. THE sheriff in this State, from an early period, was elected by the people of the county, and commissioned by the governor ; afterwards, to give the governor some selec- tion, two persons were elected, and returned ; one of whom was commissioned. Experience having shown abuses in the office, several successive acts of assembly passed regulating the election, and commissioning of sheriffs. I have not the old acts of assembly by me to enable me to trace minutely these provisions ; nor is it of moment to be particular on this head ; as, whether the election, was at first annual, or triennial ; or whether on the expiration ot his term, the same person was re-eligible. This, however, I recollect from memory, that, at an early period, it was pro- vided that two persons being elected, and returned to the go- vernor, and one commissioned, the other should not act as deputy to him that was commissioned. This, doubtless, to prevent collusion, and, to use a mercantile phrase, joining stocks in the election. It was afterwards provided, that no sheriff shall be re- eligible, but at an interval of three years from the time he had been sheriff; and farther, by an act before the revolu- tion, that no one who had acted in the capacity of deputy to the sheriff within one year from the expiration of his office, should be eligible to the office of sheriff. This was a most salutary lav/, as precluding favour to a former sheriff to some extent ; salutary There are always rules to be taken upon sheriffs to return writs, puymonev, &c. and attachments 3 E 4(^2 Law Miscellanies. may be necessaiy to enforce these rules ; and attachment te the person may be in the way of Se»ung the attachments or- dered by the court. I do not find this act ; I mean to say, that I cannot imme- diately turn to it, not having what are called the province laws in my office. It would not seem to have been brought forward in Dallas, Smith, or Pardon. Is it possible that it could have been repealed, or considered so ? Governor IM'Kean acted upon it in 1800, in the case of a deputy elect- ed in Allegheny count}'. He rejected him who was highest upon the return precisely upon this ground. An abuse of the office in another way, had taken place about this time; as will be seen by the following document taken from the docquet of the supreme court, and the papers filed in that office, or in the hands of the counsel ; and my own note taken at the time. Sitjiremc Courts March Term^ 1801. Shoemaker v. Wilson Judgment of March, 1797,^. fa.\<9 Scptem. Testatum7?.ya. to Allegheny of Decemb. Levied on 289 tracts of land 400 acres each and 74 warrants 400 acres each. Sale of Avarrants as personal property for 720 dolls. On the 280 tracts inquisition held and land condemned. Venditioni exponas to March 1798. Land sold for the sum of 4000 dollars 81.200, less than 5 cents an acre. 3 March 1798, On molion of Joseph Thomas, and by consen" of Thomas Collins, rule to shew cause why the sale of the 74 wai rants under the, fc. fa. ahd the sales under the venditioni exponas should not be set aside. 12 May 1798. Deeds ackno'U'ledffed in jII- Icgheny and recorded the sajne day. Attorney Thomas "absconding, nothing heard until March 1800. Duncan in support of the rule. Levy, inquisition, and the words James Sample, Sherifl", not in the hand writing of James Sample, but of Thomas Collins. fTniTants and Tracts /lut u/i and sold ir Intlk several at a time. No copy of tlie rule to set aside inc sales, served upon the pur- < hasrrs prior to making out the deeds. Proof that at -the time of KMiscntirigtOthe rule., Thomas Collins expressly stipulated that : copy-ftliolild be served upon the purchaser. Ali<";';ed tliat Tliovias Collins ivas himself the purchaser.^ and V.vkI notice of tJic rule. Postponcd'to give time to establish this." Law Miscellanies. 403 March Term, 1801. J. Ingersol, Tilghman, Duncan in support of the rule. Dallas, and Reed ui support of the sales. Deposition of James Sample that his signature to the return of sales was^m the hand writmg of Thomas Collins, but that he sup- posed he had given him authority. 2. Deposition of J. Sample at a subsequent date and in the hand writing of Thomas Collins, that he (Sample) had gi^'en him autho- z'ity tasign his name. Allegation that Collins was the principal purchaser. And yet having notice of the rule had surreptitiously gone forward, and with a haste ivhich marks that knoivledge, procured the deeds to be acknowledged, and to be recorded the same day. Dallas. It cannot be. Thut would be at ground not for setting aside the sales only, but the ^tt^rneT/ himself. Depositions read establishing the fact that Collins was interest- ed in the sales originc(llij^ and at the time of taking the rule. Sales net aside on the ground of irregularity., the setting ufi and selling more than one nvarrant and tract at a time. Here, it may be seen, was attorney at law, deputy she- riff, and purchaser in the-same person. I believe I might gay, that at the time qf the transaction, 1797-8, there was deputy prothonotary., also. Hence it will be seen, that if this act of Assembly, of which I speak, should, from some oversight, be found to be repealed, or considered so by some implication, it will be expedient to re-enact it, adding perhaps a section making it penal for an attorney at law to act as deputy sheriff, or deputy prothonotary, or be a concealed purchaser at a sheriff's sale. It is true, it may be a long time, before such a combina= tion of characters, and combination of functions in one character, may a^ain exist as did at this time in that western country. " For it is a principle of universal law, that the natural born subject to one prince, cannot, by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former : for this natural allegiance was intrinsic, and primitive, and antecedent to the other ; and cannot be divest- 404 Law Miscellanies. ed without the concurrent act of that prince, to whom it was first due. Indeed, the natural born subject to one prince to whom he owes allegiance, may be entangled by subjecting himself absolute- ly to another: but it is his own act that brings him into these straits and difficulties, of owing service to two masters ; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince." 1 Bl. Com. 369. I had passed over this dictum or position of Blackstone, seeing the very excellent note of judge Tucker in loco. Nor does it occur to me to add any thing, now, more than the sanc- tion of my opinion, if that should carry w^ith it any weight. I must therefore say that I concur in totis with what this American jurist has said upon the subject. I did not won- der at that great man, the British commentator, laying it down to be the law of England, that the natural born subject^ cannot put off his allegiance ; but that he should lay it down to be a principle of universal lam, is the ground of my asto- nishment. But more astonishing still, is it, that, even some in this couatry, the United States, seem to have been led away with something like the same sentiment. I can ac- count for it only, in the case of intelligent men, on the ground o£ political bias; and this from not having a hand in the administration, or that party in the republic to whom they are attached, not having a hand in it. For I admit that when Jefferson in his inaugural address, said " we are all federalists, all republicans," he spoke the truth, with the ex- ception of a Jew attached to foreign governments. But had he said, we are all out ; all in; would this haye been cor- rect? I excuse the minority, on the ground of human pas- sions. But the time, in the nature of our government, can- not be remote when those that are out, will be in ; and why suffer for a moment, the messuage to be dilapidated, and a single stone of the building lost. I consider it, the losing a corner stone ; the surrendering an essential right, if we admit for a moment the degradation of our honour^ the les- sening our privilege as an iaispsndeti': people, that we can- not reciive all that CQine to us without qiiestians asked, save Law Miscellanies. 405 so far as we chuse to put them. The law of that island (Britain) is " lex sub graviore lege," Divisos orbe Brittannos ; It is subject to the divine law, the law of nature^ and the laxv of nations. Universal law, is directly the contrary of this lex loci, or feudal law of Britain. For what is that lex loci but an institution of barbarism, introduced by the Norman conquest ? to whom is this allegiance due, of which they speak, but, to the person of the sovereign ? See Cahi?i^s Case. How is it that the exiiere patriam^ has got into the place of the exiiere ligeantiam ? William III. did not dare to confound them; and when he took the duke of Berwick^ prisoner in the Loav countries, did not venture to * In the sketch of an historical panegyric of the marshal of Ber- wick, by president Montesquieu, prefixed to the memoirs of the marshal, the question is noticed, whether he had a right to be- come a Fi*enchman. This question says the president, Grotius, PufFendorf and all those wi'iters who have influenced the opinions of Europe, have decided; and declared to him, that he was a Frenchman, and subject to the laws of France. In these Memoirs, the marshal mentions the case of a general officer^ a Por- tuguese, while the war was carried on by him (the marshal) at the head of Spanish forces, on the frontier of Portugal, who wrote a note bifa countryman^ " to acquamt me, that although he was not known to mc, yet he had so much respect for his catholic majesty, that he would give me the intelligence of all that passed ; and in- deed he was very exact in apprising me before hand of all the di^er- ent movements^ tl.c enemy intended to make, which was of great service to me. He sent v/ord that he was very desirous of see- ing me ; that he could easily contrive it, when it was his turn of duty, under pretence of visiting the out posts ; and if I Avould send an ojRRcer to him at a certain spot, he Avould come there by night and visit me in my own quarters. Accordingly every thing was executed as he had proposed, and I held a conference of two hours with him, with which I was very well satisfied, from the ac- curate and particular account he gave me of the state of the ene- my and their designs. This visionary man had taken it into his head, that he was serving the king his master by this j?/zc coiitri- vance ; for, said he, it is against his interest to be at war ivith ■^pQin ; so that it is necessary that his eyes should be opened by 4.0& Law Miscellanies. proceed against him on the footing of a traitor. The duke of Berwick was England born, and a natural son of James II. "■' The prince of Orange," says he, memoirs vol. 1. 117, " certainly had a design of sending me prisoner to England, where I should have been closely confined in the tower of London, though that would have been contrary to all the rules of war, though he pretended that I was his subje£t, and consequently a rebcL^^ But the lex loci of Britain considers a subject as the hinges or the ?iai'ion*s property ; and shall we be justifiable in harbouring a slave ? I quote a case ad hominem ; that of Somerset V. Stuart; Loft's reports, 1. Somerset, a native of Virginia, and a salve by the lex loci, but having been brought upon English ground, a habeas corpus from lord Mansfield issues, and he is pronounced y^e^*. Could he have been retaken by the owner, out of a British vessel on the high seas P The floating domicile would have protected him, as much as the clausum, or close on land. The power of the government would protect him where the municipal laxv could not reach. Azuni has been quoted, as sanctioning the right of search; and that the right of search^ implies a right to take the body of a mail, when found upon the high seas. But this he does not say ; nor can it be inferred from the role d* e- quipage, or muster roll of the crew being called for ; for which- he cites Hubner j for this is only for the purpose of ascertaining the character of the vessel, whether neutral, or belligerent. The ship, or cargo may be made prize of war ; but, are the crew ever taken to be the subjects of an ad- miralty condemnation, or of sale? 2 Azuni, 213, N. York edition, 1806, translated from the French. There is no car- rying in, for adjudication; or admiralty process to try, whe- mis/Grtimes." It may be on the same principle that citizens not thinkuig the present war /ust, or expedient, may be more pleased with our disasters than our victories. It is of moment therefore, that the right of expatriation, Avhich is at the bottom of our contro- versy, so far at least as respects the justice of the war, be explained ; iUld it is "with this view, that I have said any thing on the subject.. Law Miscellanies. 407' ther a person alleged to be a British subject, may not have been an American born. It can be accounted for, only on the ground of prejudice, that such a violation of a right which Britain herself asserts against the world, the protecting her domicil, whether upon the water, or on terra firma, should not be considered a just cause of xvar, I say nothing of the expediency of putting ourselves in a situation, by our naturalization laws, to be under the necessity of suffering national dishonour^ or pro- tecting all whom we have naturalized. On this head I have already thrown out some ideas. For the right of an indivi- dual to expatriate, and any nation to naturalize, I may sub- join some authorities, and some reasonings in a proper place. I observe only here, that Britain would not surrender even a murderer from another power, that had taken refuge in her island. And can it be doubted, but that she would pro- tect him on board a merchant ship, by her maritime law and power, as much as if at land by her municipal ? In the one case a writ of habeas corpus would issue from the civil au- thority ; and in the other, a demand would be made of the go- vernment trespassing ; and the injury not being redressed, she would denounce war. She would consider the taking a single individual as a cause of war ; not for the sake of the person, nor for the sake of the trespass, in the particular in- stance, but for the sake of the principle ivhich it involved* Note to me of a learned jurist, to whom I put the question as to his idea of the universality of tlic acknowledgment of ^ler- petual allei-'iance. It is said that this doctrine extends all over Europe, but no- thing is less true. In I'dc first place the ^^■ord ullegiance, tliough of French derivation, h;is obtained in England, and there alone, the sense in which ^\c use it. In the Frcncli laiio-uagc the Avord itself is unknown, at least I never ha\c read it in any l)uok or found it in any dictionary. In its origin, it scenia, it, implied no more than the feudal relation between the lords and vassals of certain fiefs caUedT?.'^^- Uffcs, in which the vaSsftl swore feally to his lord, by put- tins^ his hands into his, in token of bodily subjection, and saying the words, jco devicns -uoatre home, I arn or become your man, alias ■^-our slave — T^"' m^I ■,. ,.,.f „^:^\ ■,, ■''-■•riptron, andlhosc- 403 Law Miscellanies. who held no feudal lands, were not bound to swear hommage lige*. were not liege men, and did not owe of course allegiance. In process of time flattery, in England, applied the word allegiance to the relation between king and subject, — It was at first a com- pliment, a word of course, but time-serving judges scon gave a legal sanction to its application, and the duty of allegiance as now vinderstood in England became law. But tlic same was not done in any other country. In France the legal effects of the relations between king and subject were left to the rules of the law of nations, and of the civil ■ law, until the troublesome times of the revocation of the edict of Nantes, when the emigration of the protestants becoming conside- rable, tyi'annical laws were made to check it. But those laws were always considered by the sensible men in France, as in England the treason laws of Henry 8. — /\nd though a despotic government might sometimes use them as a rod, yet they were well under- stood to be the offspring of bad times. Still those laws did not go so far as to establish the English doctrine of perpetual allegiance, they prohibited emigration with- out leave of the prince under certain penalties, one of which waa that the emigrant should be considered as an alien., a proof that he was not thought to remain perpetually a subject. See Royal Edicts, August 1669, July 1682, August 1682, and July 1705, all TC\3iCLC Jla grant e prosccutione firotestantium. Now see how these laws worked in practice. In the year 1747, Gen. Ligonier, born a French subject, but then in the Bri- tish service, was taken prisoner at the battle of LaAvfeldt, and brought to Lewis XV. The monarch invited him to dine at his table. Less than two years befoi'e, several Scotch and Irish officers in the French service, taken prisoners by the English, had been hanged, embowelled, quartered, and suffered the horrid punish- ment of traitors. I copy the relation of Voltaire on tliis subject in his own words : " Cct officier general des troupes angloises (Ligonier) etoit nc " son sujct ; il le fit manger a sa table ; et des Ecossois officiers " au service de France, avoicnt peri par le dernier supplice en " angleterre, dans 1' infortune du prince Charles Edouard." Volt. Siecle de Louis XV. p. 226. Edit. Kehl. The late Edicts of Bonaparte, I take to be a violation of the fundamental laws of France, an act of wanton tyranny, that Avill expire Avlth his power. Law Miscellanies. 409 I know of no similar law in any other country in Europe. The civilians are agreed that a subject may freely emigrate, except in certain cases, which are well understood. — See Heinec- cius, Grotius, Vattel, and all the host of publicists. Even Dr. 2ouch, an Englishman, agrees with Grotius, that " extra hos ca- " sus (public danger and the like) credibile est ad liberam civium " discessionem populos consentire." — See Zouch, de jure inter gentes, part. 2 Chap. 12. See also SirLeoline Jenkins, who ad- mits that natives of France, settled in a neutral country previous to a war, are to be considered by the British as neutrals. I copy his own words from his letter to the lords commissioners for prizes of the 1 7th Sept. 1666 — in 1 Magens on Ins. 527. " Among the Laders, my Lord, I found two names which I " guessed to be French, and the secretary who solicits this business " could not but acknowledge the persons (Du Prie and Heron) to "be Frenchmen bom. But the salvo that he and the shipper gave '• me upon oath, is that Du Prie had lived in Hamburg with ins wife " and family for above these 20 years, and that the other had li'Red " there likewise these 8 years — iv/iic/i, regularly, is sufficient inka-iV " to excuse him, as I humbly conceive, from being subjected to the ^'' same reprisals with the rest of his countrymen.''' The case of Clark soitenced as a Spy, remarked upon. Elijah Clark was convicted as a spy at a general court martial holden at the court-house in the village of Buffalo, on Wednesday 5th Aug. 1812, and continued by adjournment, from day to day, until Saturday 8th Aug. 1812. The facts in evidence were, that he had, about 18 months before, removed with his wife to Canada; and that having cros- sed the lines " did linger about the encampments and army of the United States, for the purpose of spying out our state and condition ; and of reporting the same to our enemies ; and for these reasons the court are of opinion that the said Elijah Clark is guilty of the crime whereof he stands charged; and falls under the 101 article of the act entitled " an act fur establishing rules and articles for the government of the 3 F 410 Law Miscellanies. armies of the United States," passed the 10th day of April, 1806. And they do adjudge and sentence the said Elijah Clark, to be continued in the present place of his confinement until the 1st Friday of September next, and that he be at the hour of two o'clock in the afternoon of that day, taken from his said place of confinement, and hung by the neck until he be dead. PHILETUS SWIFT, President. GEO. HOSMER, yud^e advocate. Head- garters ^ Manchester^ Niagara frontiers^ August 13, 1812. GENERAL ORDERS. iNIajor general Hall, having doubt how far the prisoner* (Elijah Clark) within named, comes within the description of a spy, by reason that he is within the letter of the second section of the 101 article of the act, entitled "an act for establishing rules and articles for the government of the armies of the United States," which excepts thereout, " all persons not citizens of, or owing allegiance to the United States of America," is pleased to order, and doth hereby order a suspension of the execution of the within sentence, until the pleasure of the president of the United States can be known thereon. By order of the Major General, GEO. HOSMER, A. D. C. OPINION OF THE PRESIDENT. JVar Department^ Oct. 20, 1812. Sir, The proceedings and sentence of the general court mar- tial, which was had in the case of Elijah Clark, conformable to your orders of the first of August last, and which were by you transmitted to this department, have been received and laid before the president. I have the honour to inform you that the said Clark being considered a citizen of the United States, and not liable to be tried by a court martial as a rpv, the president is pleased to direct, that unless he should Law Miscellanies. 411 be arraigned by the civil court for treason, or a minor crime, under the laws of the state of New York, he mvist be dis- charged. Very respectfully, I have the honour to be, Sir, your obedient servant. W. EUSTIS. Major General A. Hall, Niagara. GENERAL ORDERS. Consequent on the opinion of the president. The pleasure of his excellency the president of the Unit- ed States of America, in relation to the case of Elijah Clark, who was tried and convicted of being a spy, under and by virtue of general orders of August 1st ultimo, and whose execution was suspended by general orders of August 13th ultimo, having this day been made known to the major general through the honourable the secretary at war, therefore, in conformity to the directions of his excellency the president, it ie hereby ordered " that the said Clark being considered " a citizen of the United States, and not liable to be tried by " a court martial as a spy, therefore, unless he should '•^ be arraigned by the civil courts for treason or some viinor " crime under the laws of the state of New York, he must " be discharged." All officers and military authorities whatever, in whose custody the said Clark shall or may happen to be, for the cause aforesaid, are hereby directed to release him from his said arrest as a spy. Lieutenant colonel Philetus Swift is particularly charged with the execution of the order. By order of Major General Hall, GEO. HOSMER, A. D. C. Bloomfield, December 2d, 1812. Once a cltii&en, and always a citizen, until the contrar}" be shewn ; so that it ^\(\. not follow that because Clark had removed to Canada, Sec. he had expatriated, and consider- ed himself a subject of the king of England. It was incon- 412 Law Miscellanies. sistent with his safety to set up that plea ; and therefore, it may be presumed, that he did not set it up. By his tempo- rary allegiance he could commit treason against the king of England, even though he had not been naturalized, or had put off the United States. But he could not be considered a spy to the United States, in consequence of that temporary allegiance ; and, in this, the court had erred in taking cog- nizance of his acts in that point of view. If he had set up the defence that he had become a subject of the British go- vernment in Canada, there would have been no difficulty : he might have been hanged at once. It was not because he could not have ceased to be a citizen; but, because he did not allege that he had expatriated, that the civil authority alone could interpose ; and, to this, he was ordered to be delivered. I see no evidence in this, of President Madison giving countenance to the idea of the exiiere patriam ; or of Clark not having been able to put off his condition, or character of a citizen of the United States. When he came before the civil tribunal, he might plead his expatriation, and if found for him, he could be remitted to the military juris- diction to be hanged according to his sentence. I can have no idea that president Madison would con- trovert the doctrine of feudal allegiance according to the law of England; but as to an American citizen not being able to put off his allegiance to his government, it is quite another matter. But even in England as to the extent of the claim of perpetual allegiance to a subject who relinquishes his feud, I presume he would question it. The feudalist cannot put off his ligeance to his lord by a law of the feudal system; but it is rat'ione tenurcc^ that he can- not : the feud is the vinculum. But if he ceases to claim the feud, what right has the lord to his homage ? He owes ser- vices for the clod, while he claims the clod. But unless he is adstrictus glebae ; or tied to the clod, like a serf, he can put it off. Must a man who has no clod, or is willing to relin- quish it, be tied to the xvhole clod of the dominium, so that he cannot put it off?' Law Miscellanies. 413 That the feudalist cannot untie himself from his ligeance to the lord paramount the king, is a law of that system. But still, this is ratione tenurse, and from his infeudation. That this principle should apply to such as have no feud, or are willing to shake off the clod, is contrary to the artificial rea- son of the system. Hence it is, that colonial emigration car- ries no such principle with it, that mere labourers, or per- sons merely merchants, or manufacturers, ought not to be considered as having any thing to do with it. Seamen, who plough the wave, what have they to do with a feud ; or an adstriction to the clod of the kingdom ? Their employment is not on terra firma ; and it can only be by -AJictiQn that they can be considered feudalists. Independent of an adstriction to the clod, the sovereign can claim them only so long as they are willing to stay on the land, or have contracted to stay. A contract cannot exist where their services have been impressed. The pride of an Englishman would be hurt, if he was told that he was a serf to his monarch ; and what else can he be considered, if he cannot shake off his clog, but must be considered as tied to the island ? The ultima ratio must now determine the question as between the United States, and the Brituh empire. It is brought to the test between the two governments, by order- ing to England for trial, individuals taken in arms, and al- leged to be the subjects of that power. The retaliation by a taking inwithernam, as the common law terms it, individu- als of that government, must bring it to the test; and I may therefore consider it, a little more fully. There can be no doubt, but that it has come to be considered their law, that a subject cannot put off his allegiance. In the charter of privileges, extorted from king John, liceat de cetero, uni- cuique de regno nostro exire, salva fide nostra, nisi tem- pore guerre. Sec. Fealty, to the king, and the going in time of war, is the exception ; the putting off the allegiance of the sovereign, makes no part of the privilege of going abroad ; and this involves the not putting off subjection to the go- vernment. Being so, it is but the cant of poets, and ora- tors, to say that an Englishman is free-born. Neverthe- less, Daniel de Foe, in his poem, stiled, the true English- man^ though poetical licence might allow it, docs not yen- 414 Law Miscellanies. ture to scythe free Englishman. The truth is, in strictness, the Englishman is not free-born. When we come to the lawyers^ they will tell you, of a general restraint^ under the charter ; and a particular restraint by the writ Ne exeat reg- no. An English subj,ect, is therefore confined to the prison- bounds of the island. I say island, because, that is the home- stead of the government. A British subject is in legal strict- ness, as much confined to those limits of subjection, as the convicts at Castle William, on Governor's island, in Boston harbour. Tufts and Burroughs had the privilege of the island ; but they were restrained from leaving it. But do the British take subjects belonging to other coun- tries ? They are no slouches at this. But do they keep them too ? Ay, defend them against all the world. They would think themselves degraded to give up even a murderer^ a fugitive from justice from another country who had taken sanctuary with them. Does not this operate as an estoppel, which is a term of their own law, to say, that other people shall not have the same right ? Will they admit that the United States have a right to reclaim a citizen expatriated, and take him out of a vessel at sea j or a port on land, and hang him ? John Bull would roar like a mad bull, if this preten- sion was set up. I admit, that whether derived from the Ger-^ man, or, more immediately imposed by the Norman, the ne Hceat exire, nisi salvafide, to the prince, is a law of their island. But when it comes to be a matter with the right of another nation^iheiY own practice may be set up. But if it werenottheir own practice, there is another right to be con- sulted, that of another nation. This must be determined, by an appeal to the law of nature, and the law of nations. The law of nature, does not acknowledge the prohibition to expatriate. The Roman law gave a right to the parent to put to death his offspring, either by exposing, or by capi- tal punishment, when the child offended. Did this take away the right of a Sabine, a Volscian or a Samnite to pro- tect the child, when he came amongst them ? The Roman re- public, even in the plenitude of her arrogance, when she came to her full majesty, did not affect this. We hear nothin^of *t, even in the times of thQ Csesars, as a cause of war. Law Miscellanies. ^15 Extract of two notes of Mr, Duponceau^ under the head of allegiance, from the American edition of the Edijiburgk EncyclopOidia ; 506 and 508. *« The %vord allegiance is of modem date. In the ancient books and statutes it is written legeance ; and, from thence, has been framed the barbarous latin word ligeantia. The generally admitted derivation of these words, from the latin lig-are, or alligare^ as expressive of the bond, or connection subsisting between the lord and his vassal, has always ap- peared to us to be a forced etymology ; because few of the genuine terms of the feudal law have been borrowed from the latin language ; but their origin is rather to be sought for in the idioms of the northern conquerors, who introdu- ced that system into the provinces of the Roman empire. Doctor Johnson very properly derives allegare from the French word lige^ which was itself the denomination of a particular species of feud called fief lig-e. The French and particularly the Angivins and Normans said, homme liege^ vassal liege^ hommage liege^ fef liege; and out of the adjective, liege, formed the substantive li- gence ; ixovcs. which the English made l?geance,SLndligea7itia, and afterwards allegiance. The French as well as the English etymologists derive the word liege from the latin ligare; but we cannot agree with them in this opinion, and are inclined to tract; that term to another and more legitimate source. Thefef liege is defined by the French feudists to be a species of fef the tenure of which is called iigence ; by which the vassal is bound, not only to fealty, but to person- al service, which distinguishes it from the fitf simple (fee fiimple) which binds the tenant to ftalty only. Hence the fief lige, is, by the French jurists, also denominated ^ since the commencement of this century to lay almost to- tally aside, l)y one general naturalization act, for all foreign pro- testants. 1 Bi. Com. 374. THE British government would seem to have no scruple about the right of impatriation. They take from whence they can get, without any restraint but considerations of po- licy, so far as respects themselves. And will they not pro- tect bv land, orxvater^ those xvhom they receive? Laav Miscellanies, 41:9 I quote a sentence from a very able publication of that conntry^ Coif/>ett^s Weekly Register, Aug. 4, 1813. While in this countrj' that editor of a paper here was no squeamish advocate of British claims ; and no slight abuser of Ameri- can character in general, and American characters. I had been sometimes disposed to apply to that writer, in my own mind, the language of king Henry V. in the case of Grey ?.nd Scroop. " If that same demon that hath gulled thee thus, Should, with his lion gait walk the whole world, He might return to vasty Tartar back, And tell the legions — I can never Avin A soul so easy as that Englishman's." But, as Don Quevedo, in his Vision of Hell, introduces tlie Devil preaching; (and it could not be denied, but that, though not a doctor of the Sorbonne, his doctrine, in that in- stance, was orthodox,) and was justifying himself against the charge of those that had come to thjjt place, alleging that he had tempted them, whereas it was in a great degree their oAvn evil passions that had impelled them ; so I quote Cobbett, though not admitting him to be an authority in all cases ; nor is what he says of much consequence, but as it is ad hominem, of the English practice in hnpatriati&n. " It should be considered," says he, " that our own laws make exceptions as to allegiance. An American may be- come a British subject by marrying an English 7voma?io From the time he marries, the law gives him the claim to all the rights enjoyed by Englishmen ; and the same law im- poses upon him all the duties of an Englishman, This law, of which no gentleman can be ignorant, has been, not long ago, acted upon by our government, as I understand, in this way. An American was impressed in our fleet — He was claimed by the agent of thx American government, as an American ; and his discharge demanded accordingly. The ansruer zuas^ that he was a British subject having married an English woman; and the demand of his discharge was re* fused accordingly.''' 420 Law Miscellanies. This vencraljle body of men, being separate and set apart from the i*est of the people, in order to attend more closely to the ser- vice of Almighty God, have thereupon large privileges allowed them by our municipal laAvs. 1 Bl. Com. 376. MINISTERS of religion of every denomination^ are ex- empted from militia duty by an act of assembly for the re- gulation of the militia, of the 9th April, 1807. And, by a decision of the supreme court of this state, July 12, 1813, nobis dissentientibus, " a clergyman who officiates as such is not bound to serve as a guardian of the poor, notwithstand- ing he so far attends to secular business, as to keep a store for the sale of merchandized The majority of the court thought themselves warranted in considering it a part of the common law introduced from England ; or a usage here, amounting to common law by the tacit consent of the people, to exempt the clergy from all secular duties. The decision being so, I am content. But will it not be difficult to say vrho are ministers, so as to be exempted ? Herman Husbands preached to his wife j and affected like saint Paul, at Rome, ** in his own house, to receive all that came in unto him." Boden Teugh's Church consisted of four persons ; himself and wife ; and his son and wife. His grace was j *' God bless me and my wife ; My son John and his wife ; We four, and no more ; and let all the rest shift for themselves." There wanted but a denomination to exempt these ; and the)' might have taken that of Husbandists ; or Teughites. Now, that by this decision of the supreme court, it has come to be a rule of law, to exempt from all secular duties, having no church establishment in this state, some criterion must be fixed upon to distinguish. I should take it, that it might be the living by the altar ; or making the ministering in holy ordinances, the chief employment of their time. The court by this decision, would seem to have gone the whole length of the law of England. May it not then follow, that if the clergy are thus privileged, even from being a (Tucirdian of the poor, which is a duty connected with a cha- Law Miscellanies. 421 ritable institution, the legislature may think it reasonable, that they be excluded from eligibility, or appointment to office of a profitable nature, which is the case in England. Perhaps the preachers of all denominations would rather say, in the language of the merchants to the king of France, Laissez nous faire ; let us alone ; the judges have not served us, by distinguishing farther than the act of assembly has done. " There are two kinds of divorce, the one total, the other par- " tial ; the one a vinculo 7natrimonu\ the other merely a inensa et '' thoro." I BL Com. 440. . IN England, on a cause arising ex post factor as intolera- ble cruelty, adultery, a perpetual disease, the ecclesiastical court administers the remedy of a divorce a mensa et thoro \ but if the cause existed previous to the marriage, as consan- guinity, corporeal imbecility, or the like, a separation a vin- culo matrimonii may be decreed : 2 Bl. Com. 94. In cases even of adultery^ the party complaining is driven to parliament for redress. Coop. Just. 534. In Pennsylvania, power was given to the governor, by an act of ir05, to grant divorce from bed and board, to the party complaining of adultery. But this power has been superseded by an act of the 19th Sept. ITSS, which enables the supreme court to proceed, on complaint of a party, and grant a divorce not only from bed and board, but also from the bonds of matrimony itself where " either party at the time of the contract was and still is naturally impotent or in- capable of procreation, or that he or she hath, knowingly en- tered into a second marriage, in violation of the previous vow he or she made to the former wife or husband, whose marriage is siill subsisting, or that either party hath com- mitted adultery, or wilful and malicious desertion and ab- sence, without a reasonable cause, for and during the spaa; and term of four years." By sec. 10, it is provided, that the supreme court may grant the wife a separation from bed and board,, in case the 42ii X-Aw Miscellanies. \ husband shall maliciously either abandon, or turn his wMc out of doors, or by cruel or barbarous treatment endanger her life, or offer such indignities to her person, as to render her condition intolerable, or life burthensome, and thereby force Ikt to withdraw from his house and family. By a supplement, passed, 2d Ap. 1804, the same powers are given also to the judges of the coi^rts of common pleas. In cases that are out of these provisions, application must be made to the legislature. The t ou3riLuuon ut feuds, had its original from the military po-: licy of the northern, or Celtic nations . It was brou gilt by them from their own countries, and continu- c4 in their respective colonies, as the most likely means to secure their ncto acquisitions. 2 Bl. Com, 44. THAT it was brought from their ow7i coimtries,, I incline to doubt. The contrary would seem to appear from Cjesar ; Com. de bel. Gal. 1. 6. c. 12. And this is the earliest his- torical document we have upon the subject. Pleriquc quuni aut sere alieno, aut viagnitudine tributorum^ aut injuria poten- tiorum premuntur, sese in servitutem dicunt nobilibus.* From this we find that taxes were paid; and thence it may be inferred that the tenure of lands xvas allodial^ not military ^ Druides a bello abesse consueverunt, neque tributa una cum reliquis pendunt. Militice vacationem omniumque re- rum habent immunitatem.f From hence it would seem that their establishment was the same with us in their repub- lics ', taxes, and militia duty. Noticing the custo^ns of the Germans, 1. 6. c. 21. he says neque quisquam agri modum certum, aut fines proprios ha- * The greater part when pKCssed with debt, or the weight of taxes put themselves in servitude to the nobles. t It is customary for the Qruids to be absent from war, nor do they pay taxes with the rest. They have an immunity from mi- iHiaduty, and from all things. Law Miscellanies. 423 bet. Sed fnagistratiis ac principes, in annos singulos, gentl- bus cognationibusque hominum qui una coierunt, quantum eis, et quo loco visum est, attribuunt agri, atque anno post alio transire cogunt.* Thus we see not only that the assign- ment of grouads \Y2ls of the civil authority, but that it was done by the magistrates, and principal men ; the word prin- cipes not ducesy is used. At the same time, there was no permanent benejicmm or military feud. But Tacitus, in that invalulable monument which he has left us on the manners of the Germans, gives us a much more minute account of the state of society, and customs amongst these people. Arva per annos mutant, says he.f Tacit, de mor. c. 26. They could not therefore be considered as having each a particular portion of soil to which they were attached ; and for which they owed service, homage, and allegiance* The distribution of soil, and establishment of military 'services was the result of the tiew situation in which these were pla- ced. This new division of property, says Doctor Robertson, together with the maxims and manners to which it gave rise, gradually introduced a species of government formerly un- knoxon. This singular institution is now distinguished by the name of the feudal system : 1 Rob. Cha. V. 10. I yield therefore to the opinion of those who maintain that we have no trace of this system in the Saxon govern- ments. It was introduced into England by the conquest of the Normans, and still remains, so far as it exists in Eng- land, a monument of that conquest. " The last and most important alteration,*' says Black - stone, speaking of the effect of this conquest, '' both in our civil and military polity, was the engrafting on all landed estatesy a few only excepted, the fiction oi feudal tenure i * Nor lias any one a certain measure of land, or their ownboun- davles : but the magistrates and chiefs eve7'7j year assign to the tribes, ai.d kindred tribes that come together, as much as seems fjoodto them, and in what place ; end year after year tlicy oblige them to remove. ^ TIk-v rha'i'^e grounds every y(;iv. 424 Law Miscellanies. which drew after it a numerous and oppressive train of ser- vile fruits, and appendages ; the genuine consequences of the maxim then adopted, that all the lands in England were derived from, and holden mediately or immediately of the crown," 4 Bl. Com. 418. and 438. He adds, " these slavish tenures, the badge of foreign dominion." A legitimate prin- ciple of these tenures, was the doctrine of unalienable and perpetual allegiance. It was not necessary that the emigrant to these shores should carry that principle with them as applica- ble to their situation, having left, as will be admitted, this badge of servitude, the feudal system behind them. Those who give such a principle countenance, will deny that it is peculiar to this law, and will endeavour to give it a founda- tion, as Blackstone would wish to do, on the general grounds of universal law. But for this see the excellent note of judge Tucker, in loco. How far this system has been broken down in England, and how far, what I consider to be a root of it, remains, this doctrine of inextricable allegiance^ the student will investi- gate. I may say something more of it in another place. But God forbid that I should consider it as introduced here. This vestige of the iron age, and vassalage of the iron crown, our republican institutions have put, and will puV down. Si qua manent sceleris vestigia nostri Irrita, perpetua solvent formidine terras. " The last consequence of tenure in chivalry was escheat ; « which is the determination of the tenure, &c. by either natural « or civil means." 2 Bl. Com. 72. EXTINCTION of inheritable blood by civil means does not take place in Pennsylvania. *' No attainder shall work corruption of blood, nor except during the life of the offen- der, forfeiture of estate to the commonwealth." State Const. Art. 9, Sec. 19. Law MiscELLANi£s. 425 In default of heirs, land escheats to the commonwealth. In England the King, who is esteemed in the eye of the law, the original proprietor of all the lands in the kingdom, de- rives a part of his ordinary revenue from this source. 1 Bl. Com. 303. By our act of assembly of 29 Sept. 1787, entitled " An act to declare and regulate Escheat," it is pro- vided. Sec. 1, that, " if any person who at the time of his or her death, was seized or possessed of any real or personal estate within this commonwealth, die intestate, without heirs or any known kindred, such estate shall escheat to the com- monwealth subject to all legal demands on the same." The act goes on, and provides that " no escheat of real estate for want of heirs, shall be where brothers or sis- ters of the half blood, or father or mother, or grandfather or grandmother of the deceased, survive, to take the same." The student wull at once see that this provision of the act changes the law as it is in England, where land will ra- ther escheat than ascend to parents, or go to the half blood, or to blood not of the first purchaser. The law of escheat is regulated by the law of distribution. Escheat, therefore, does not go to the commonwealth, in prejudice of aliens, who are enabled by act of assembly of 23 Feb. 1791, to ac- quire, to take, hold and dispose of real estates, by devise, or descent, and dispose of personal estates to which they may be entitled by testament, donation or otherwise. 2 Smith's laws, 425. To complete the title b}' escheat, the English law re- quires the lord to enttr^ or sue out a rvrh of escheat. By the act of Pennsylvania, 1791, 2d Smith, 42 ^, provi- sion is made to complete title by escheat to the common- wealth. Sec. 3. Escheator general to be appointed, with de- puties. On information of any person dying without any known heirs, the escheator general, or deputy issues his pre- cept to the sheriff or coroner, who issues his summons for an inquisition to be holden to ascertain the escheat, which in- quisition shall be transmitted to the prothonotarv of the su preme court, &c, &c. &c. 42G Law Miscellanies. Hither might have been referred the advantages which usee! to arise to the king from the profits of his military tenures, to which most lands in the kingdom were subject, until the sta- tute 12 Car. 2. c. 24, which, in a great measure abolished them all. 2 Bl. Com. 286. BUT, a doctrine which I assert to be a relict^ to pun upon a word, of this truly feudal system, and a principle of the military tenures, is, that a subject cannot throw off his alle- giance when he quits the feud. This the government of Eng- land,* if not the jurists, assert not to be the offspring of that system, but to stand upon a broader base, that of the common law., antecedent to the introduction of feuds. They even attempt to prove it upon the basis of universal law. They are willing to admit, with all their eulogium on the rights of Englishmen, that an individual can no more escape from that kingdom, than a dog with a collar about his neck, but is lia- ble to be restrained : or than if he were a slave that had escap- ed ex ergastuloy or work-house among the Romans. As be- tween the government, and the individual, it is one thing ; but when the protection of a foreign government attaches, it is another. As for the individual, it will be in vain for him to t?i[\ioithtnatitr alright., and liberty of an Englishman, when the crocodile has him in his jaws. But as to the foreign go- vernment which has received him, the only question will be the right to protect him, and the power. As to the right to protect him, I may consider it something farther, in the course of this publication. As to the power, I leave it to our administration ; and can only say, that being myself per- suaded of the right, I would give it up only with my last breath. Nisi cum vita simul amittet. It is a principle, of the application of which the British are not aware, when they insist upon it. Nescis quam legem in te sanciris iniquam. * There would seem to be a chain still fastened to the foot ol" that people. Law Misf:ELT,ANiEs. 427- Does It not operate as in the nature of an estoppel to them, ihat they themselves vnpatr'iate ? Will they venture in the face of this, or without having such a face, to carry that claim into effect, so far as respects the protection of foreign nations. They did not think it pru- dent in the revolutionary war, in the case of general Lee, nor in the case of Napper Tandy, nor will they think it pru- dent in any case in the present war. They have the exam- ple of Napoleon before them, as to this claim of perpetual subjection ; but the example of the iron, or any other crown, will not paralize the American spirit, in contending for the freedom of mankind, in opposition to this imprisonment of any one in an enchanted island.* " As to the power of charging lands with the debts of the owner." 2 Bl. Com. 289. BLACKSTONE here speaks of the lien of a judgment as in the nature of a pawn. The judgment binds, and gives a pledge, subject to discharge by the payment of the debt ; and such judgment binds without limitation of time. But by an act of assembly of 4th April, 1798, it is enacted, " that no judgment now on record in any court within this common- wealth, shall continue a lien on the real estate of the person, against whom the same has been entered, during a longer term than five years, from and after the passing of this act, unless the person who has obtained such judgment, or his legal representatives, or other persons interested, shall, with- in the said term of five years, sue out of the court, wherein the same has been entered, a writ of scire facias ^ to revive the same.*' Sec. 2, provides "that no judgment hereafter entered * See Mr. Duponceau's note, page 175, to his translation of liinkershoeck's Quest, jur. pub. " It is lawful to emigrate from France, and it is so ivhcrevcr the country is not a firl^on.'" 42S Law Miscellanies. &c. shall continue alien, &c. during a longer term than five years, &c. unless the person, &c. shall, within the said term of five years, sue out a writ of scire facias, to revive the same." Sec. 3. provides for the proceedings to revive a judg- ment, viz. " that all such writs shall be served on the terr- tenants, &c. and also on the defendant, &c. and where the land is not in th^ immediate occupation of any person, and defendant, &c. not to be found, proclamation shall be made in open court, at two succeeding terms, &:c. and the court, unless sufficient cause to prevent the same is shewn at or be- fore the second term subsequent to the issuing of such writ, shall direct and order the revival of any such judgment, du- ring another period of five years, and so from period to pe- riod." Sec. 4. disables from commencing or maintaining suit on bonds given as sureties for public officers, after the expira-.. tion of seven years from the time at which the cause of action shall have accrued. The question has arisen under this act whether the pur- chaser of land which had been subject to the lien of ajudg- ment, and who had not notice of the judgment, was in any better situation than the plaintiff in the judgment. By the opinion of the supreme sourt of this state in the case of the bank of North America, v. Fitzimmons, it was decided, that notice or not notice had nothing to do with the act. 3 Bin. 343. Mr. Smith in his note to this act, 3d. 332, takes no notice of this decision ; whence, it is presumable that it was made prior to the decision in 3 Bin. He gives at full length the opinion of judge Washington of the circuit court of the Uni- ted States, which was impliedly considered by the state judges (Tilghman and Brackenridge) to be erroneous, as having gone upon the mistake of an assimulation to the statute of enrolments, registry act, &c. in England. Judge Yeates be- ing a stock-holder in the bank, did not give an opinion. Law Miscellanies. 42*J The next species of subordinate magistrates, whom 1 am to consider, are Justices of the Peace. 1 Bl. Com. 349. THERE is no civil jurisdiction given to the justice of the peace by the law of England ; but his authority is, as the title imports, merely in matters oj the peace. But from an early period in Pennsylvania, jurisdiction of civil C07itrover- sies had been given by successive acts of assembly; and from time to time, enlarging the sphere of jurisdiction, as to the nature of the complaint made ; or, as to the sum demand- ed, whether on a contract, or in the case of trespass. The constitution of the state recognizes this, by Art. V. viz. the judicial power of this commonwealth shall be vested, 8tc. Sec. &c. injustices of peace. This would seem to exclude, VI termini, the vesting single justices with any other juris- diction than that of the peace. But the constitution must be supposed to use the term according to the well known, po- pular acceptation of it, as comprehending matters of a civil jurisdiction, as well as of the peace. The jurisdiction of the justices of the peace, therefore, extends beyond mere mat- ters of the peace, and comprehends civil matters, in like manner with the county court, in England, "which is held every month, or oftener, by the sheriff, intended to try little causes not exceeding the value of 40 shillings.'*'' So that the civil jurisdiction of justices is derived, entirely from positive law; and was originally confined, as the county court in England, to d.-^bts or demands imder 40 shillings. Chief Jus- tice Hale, in his considerations touching the amendment, or alterations of lav. s. Chap. 7, (Hargrave's Law Tracts, 249,) gives the reasons of such jurisdiction in small matters to the county court, and suggests an increase of jurisdiction. The heading of the chapter is, " The present inconveniences re- lating to courts of justice ; and first touching the county court." He then proceeds; " By the true and wise constitution of this kingdom, suites, where the debt or damage amount not to 40s. v.ere not to be de- termined in the courts of Westminster, unless a title of land came in q':c':tion ; but they v.'ere to be determined in the county court, 430 Law Miscellanies. hiriiclred cf>yrt, or court baron. And this was the ancient law. Vid. ntut. Glocest. 6. E. I. At that time 40s. was a considera- ble sum, 1. in respect of the intrinsecal value of the coin, for then 20d. made an ounce of silver, and at this day it is 5s. viz. sixty pence, and upon that single account forty shillings then, ariseth now to six pounds. But 2. that was not all ; for, as I may say, mo- «cy was at that time dearer than it is now, because there was not so much. And hence it is, that the prices of all things at this day, are mucii dearer now than they were then ; because money is much more plenty now than it was then, as it will appear to any that looks into the proclanxations of prices and commodities, both in the beginnings of iters and p'arliaments in the times of E. 1. and E. 2. Vid. Rot. Pari. 8. E. 2. n. 29. in schedula, a proclama- tion for the price of victuals, viz. a fat ox fatted with corn, 24s. — a fat cow, 12s. — a fat hog, 40d. — a fat mutton unshorn, 20rf. — a fat mutton shorn, 1 4^.-— a fat hen, Id. — 24 eggs, Id. which eviden- ces a great advance of the price of things at this day, besides the advance of the extrinsecal denomination of money. " By this, that hath been said, it is apparent, I . That it was the wise constitution of the common law, to keep small suites from the great courts at Westminster. 2. That if an equal pro- portion in the denomination of small suites were held, that if 40*. were the lowest measure of the suites to bs commenced in these great courts, at least ten pounds would be the lowest measure at this day. " And yet it is very apparent to any man that converseth with business, that, divide the suites that come down to the assizes to be tryed at the great courts, near one half thereof are under 40s. at least in some counties, besides those many, that are ended upon process serving and before they come to tryall. " And yet there is not one of those suites brought to tiyall, but Ht this day stands each of the parties in at least 10/. but if it pass for either, there is an allowance that recovers four times as much cost, as the principal amounts to, viz. at least eight pounds. " And by this means, 1st. Suites are multiplied. 2. Expen- ses and charges are multiplied, 3. Attorniesand solicitors multi- plied. « There have been several attempts in parliament to remedy this, viz. the statute of 43. Eliz. cap. 6. 21. Jac. cap. 16.' But ihev have proved ineffectual, partly by the mutual connivance of ^.tlorncvs and pracllcers, to decline the benefit of these statutes, because it would abridge their employment and profit ; partly by Law Miscellanies. 431 the influence of officers upon the practlcers in the several courts, lest by that means their offices should decay ; but principally, be- cause, as the present constitution of the county courts and hun- dred courts stands, it were a kind of extremity to put these sta- tutes fully into execution ; for it were to drive men from the courts of Westminster, for small matters where they may have justice, unto inferior jurisdictions, where as they are at present constituted, they are like to have little or none. " The first business, therefore, would be to rectify inferior ju» risdictions ; and then we may with probable safety and advantage, abridge the courts of Westminster from these trivial and inconsi- derable suites, where the ordmary costs, that arc given to the par- ty that recovers, exceed the value of what he recovers. Tlierc- fore I propound, " ( 1 .) That the county court may be established in this manner in all places. 1. That there be in every county court, a person learned in the laws, a barrister of at least seven years standing, that may be the steward of the county court, by grant from the king, quamdiu ae bene geeserit, with a fee of per ann. out of the perquisites of the count}-. 2. That the steward do try the cau- ses at issue in che court by jury of twelve men, and be the judge to give judgment therein. 3. That the perquisites of the coitrts be answered to the king. 4. That there be also a sworn clerk to make and keep the records. 5. That there be a select number of attorneys, not exceeding the number of six in any one county, to be deputed, and upon cause to be removed, by the chief justice of the common bench for the time being; and none other to be the immediate attorneys to the court. " (2.) That, although in a proportion as hath been observed, 10/. now is less than 40*. in the time of Ed. 1. yet I should not pro- pound so high a measure for them, but they should hold plea of any debt, or debt, or damage, of the value of si. where the title of freehold, or lease for years, comes not in question. " (3.) That where the sum in demand exceeds not that sum, the cause should not be removed from thence by any rtcordari^ certiorari, fione, or habeas corfius, unless upon oath made, that the title of the land will come in question ; and if upt^ii that surmise and oath, a plaint or suit be removed by either paity, and it appear to be untrue upon the pleading or triull, the j)arly removing the suit to pay double costs. '• (1."^ That the processes be onlv V,\ sommons, attachment. ■t^^ Law Migcellaxies. and distress, and the execution hy Jieri facias or kvunjacui, uii? damages. We heard n© more of it ; I presume there was a compromise. "An assize of nuisance." — 3 Dl. Com. 220. " A REMEDY which has been long antiquated in Eng- land, and which if ever pursued in this state, has certainly not beei} used more than once, or twice : indeed no prece- dent has been of its having ever been carried completely through" Chief Justice Tilghman, 2 Bin. 194. The novelty of the case induces me to give a report of an assize of nuisance^ which was carried completely through. It was that of Livezey and another, against Gorgas, and others. It had been removed by certiorari from the court of common pleas to the supreme court ; and after a motion to quash the certiorari (see 2 Binney, 292) came before me at a court of nisi prius, holden for the eastern term, May 26tli, 1811. Lewis for the plaintiffs. Rawle for the defendants. December, 1807. — No. 33. Philadelphia County^ ss. The commonwealth of Pennsylvania., to the aheriff of Philadel- phia county. GREETING. Whereas, John Livezey, and Joseph Livezey, have com- plained to us that Benjamin Gorgas, Jacob Gorgas, John Weiss, George Hortcr, and Catherine his wife, Joseph Weiss, William 8truper, and Jacob Weiss, unjustly and witliout jucigment, have erected, levied and raised a certain wall and dam, thereby ob- titructing a certain mill race and water course, und have diverted a certain other mill race and watercourse in the township of Rox- borough, in your county, to the nuisance of the freehold of them the said John LivCxey and Joseph Livezey, situate in the same Law Miscellanies. 439 township and county, witliin 30 years last past ; and therefore, We command you, that if the said John and Joseph shall make you secure of prosecuting their claim, then you shall cause 12 free and lawful men of the neighbourhood to view the said mill race, water course, and tenements, and the nuisance thereof done, and the names to be impannelled and summon them by good summoners that they be and appear before the judges of our court of common pleas, at Philadelphia, at our county court, there to be held, the 7th day of December next, together with the parties ready to recognize, 8cc. and put by sureties and safe pledges, the said Benjamin Gorgas, Jacob Gorgas, Sec. if they be found in your bailiwick, so that they be and appear then and there before our judges aforesaid, ready to hear and recognize, 8cc. and have you then and there the names of those pledges and this writ. Witness, Jacob Rush, Esq. President of the said court, at Philadelpliia, the 26th day of September, 1807. CHS. BIDDLE. John Doe, I pig^j^gg Richard Roe,^ ^ John Denn, ? <-. Richard Fenn, \ Summoners. Sheriff's Return, Served the within writ upon the within named Benjamin Gor- gas, Jacob Gorgas, and John Weiss — the within named George Horter and Catherine his wife, Joseph Weiss, W^illiam Struper, and Jacob Weiss, have nothing nor have any of them any thing in Tuy bailiwick, by which they may be attached, nor are they or anv ©f them found within — The residue of this writ to me directed, - appears in a certain pannel hereto annexed. So answers JOHN BARKER, Shtriff. The names of the recognitors of an assize of nuisance between John Livezey and Joseph Livezey, plaintiffs, and Benjamin Gor 5^as, (ut supra) 1 Abraham Duffield, 2 Daniel Thomas, 8cc. in all 24, (which n\imber sheriff must summon in an assize. Co. Litt ; 155, a" albeit the words of the writ be duodecim, yet liy an ancient course the sheriff must return 24, and this for tlic c-.^;pcdilion of justice.") 440 Law Miscellanies. Sheriff's notice to John Weiss, who was the actual tenant to the precipe. You are hereby informed tliat the recognitors of the within named assize will be and appear at the mill race, water course and tenements within mentioned, and the nuisance thereof, on the 19th day of the present month of October, at 10 o'clock, A. M. then and there to view the said mill race water course and the nuisance there- of done and you are summoned to be and appear before the judges within mentioned then and there ready to hear the recognition with- in mentioned. JOHN BARKER, Sheriff. Docket Entries in the Comi Pleas, of Dec. Term^ 1807. — No. 33. John Livezey & Jos. Livezey,"^ Assize of Nuisance, Dec. 7. 1807 A'S. _-.... Benjamin Gorgas, Jacob Gor- gas, John Weiss, George Hor- ter and Catherine his wife, Jo- seph Weiss, William Struper and Jacob Weiss. Eject. Sept. 30, 1807. Proclamation made and rccogni- nitors of the assize called, 15 of whom appeared, the parties to ^the suit were then called — the plffs. appeared by Mr. Lewis their atty. and the said Benj. Gorgas, I Jacob Gorgas, appeared by Mr. J Rawle their atty. and protested against such their appearance being construed into an admission of the regularity of the plaintiff proceeding in any respect what- ever, the said John Weiss saith he is seized of the premises in the count of the plaintiff mentioned, wherein the said dam, See. are alleged to have been erected, and prays leave to present to the court an affidavit by him made, which is granted, and the said af- fidavit is read and filed. Whereupon the said John Weiss prays that the view in the said assize may be set aside, he the said John Weiss not having had a reasonable notice thereof, as he alleges. The court thereupon having heard the plaintiffs, by their counsel, and the said John Weiss, by his counsel, refuse the said prayer of the said John. The action was then removed by certiorari to the supreme court. Whereupon a summons to the recognitors issued from the said supreme court, as follows : The Commoriioealth vf Pennsylvania, to the Sheriff of Phila- dcl/ihia Comity, GREETING. WK command you that you cause to come before our jiistirc^ Law Miscellanies. 441 ©f our supreme court, or one of them, at a court of nisi prius to be holden at Philadelphia, for the county of Philadelphia, on the 19th day of the present month of April, at 10 o'clock of the forenoon of the same day, the recognitors of assize, namely, Abi-aham Dufiield, Daniel Thomas (inserting all their names) who were summoned and returned by the late sheriff of the same county as recognitors of assize in certain plaint of assize of ^nuisance prosecuted in our court of common pleas, for the same county by John Livezey and Jacob Livezey, against Ben- jamin Gorgas, (insert all the defendants) which said plaint of assize has been removed by our writ of certiorari from our said county court into our supreme court, when the same is still pend- ing before our justices of the same court, so that the recognitors of assize may recognize. Sec. and pass on the said plaint of assize be- tween the parties aforesaid, and have you then and there this writ together with tlie names of the said recognitors as you shall an- swer. Tested, Sec. as usual in other cases, Retur*n. April 2. 1811. Summoned the within recognitors, viz. Abraham DufField, Daniel Thomas, (ut supra) and nil habct as to Isaac Keen, and John Keen, who are dead. So answers, John SiVyder. Afterwards there issued a second summons to defaulting rc^ /cognitors, (return ut supra.) 4 Ajiril 26, 1811, Sufireme courts nisi /irius,tora)n'BR ack- ENRIDGE, Justice. 1. Recognitors being first called — writ of assize was read by Mr. Lewis. 2. Sberifi's' fctum then read — till qf which papers were then filed. 3. Writ of certiorari read. 4. Return read. 5. Plaint read, as follows. John Livezey and Joseph Livezey x'."l In the s'lprcmc court Henjamin Govgas, and Jacob Gorgas, J of Pennsylvania, foi' .fohn Weiss, George Hortcr and Cathc- LPhiladelpIiia county, of rine his wife, Joseph Weiss, William i the term of March, A '-•'..rupcr, and Jacob Weiss, Dcfcnclgpits.} D. 1808. 'V'^"- Z'.'Wtr" r'viTcih to recognize if Benjamin Gorgds, and 3 K 442 Law Miscellanies. Jacob Gorgas, John Weiss, George Hortcr and Catherine his wife. Joseph Weiss, William Struper, and Jacob Weiss, unjustly and without judgment, have levied and raised a certain wall and dam, thereby obstructing a certain mill race and water course in the township of Roxborough, in the county of Philadelphia, to the nuisance of the freehold of John Livezey and Joseph Livezey, situated in the same township and county, within thirty years now last past ; and therefore the said John Livezey and Joseph Livezey, by William Lewis, their attorney, complain that the said John Livezey and Joseph Livezey, on the first day of January, A. D. 1793, were and still are seized in their demesne, as of fee of and in one water mill, ten acres of meadow, ten acres of pasture, and ten acres of arable land, situated in the township and county aforesaid, together with a certain water course and stream of water, running along the said mill race and water course, and along the said ten acres of meadow, ten acres of pasture, and ten acres of arable land, to and from the water wheel of the same mill, which said water mill before the levying and raising of the said wall and dam, and the obstructing of the said mill race and water course, could by each day and night grind 200 bushels of bread corn ; and the said Joiui Livezey and Joseph Livezey.. being so thereof seized, the said Bciijamin Gorgas, and Jacob Gorgas, John Weiss, George Horter, and Catherine his wife, Joseph Weiss, William Struper, and Jacob Weiss, on the day and year aforesaid, at the county and township aforcfaid, tmjustly and without judgment, levied and raised a certain wall and dam, thereby obstructing the said mill race and water course, and the said stream of water running from said mill, by reason whereof the said mill cannot grind more that» 20 bushels of bread corn by each day and night, to the nuisance of the freehold of the said John Livezey and Joseph Livezey, and so they, the said John Livezey and Joseph Livezey, say, they are injured and damage have sustained to the value of five thousand dollars, lawful money of the United States, and tlierefore they bring this assize. Pledges 10 proHCcme I ^"JJj^^J^g'l'joE. 6. Plaintiffs called, viz. John Livezey and Joseph Livezy, cpmc forth and prosecute your writ of assize. The plaintiffs appear by Mr. Lewis their attorney. 7. Defendants called, viz: Benjamin Gorgas, and Jacob Gui (;is, John Weiss, George Hoi'tcr, and Cathciine his v.ifc, Joseph Law Miscellanies. 443 Weiss, William SUupLV, and Jacob Weiss, conic iiito court or else this assize will be taken against you by default. Benjamin Gorgas, Jacob Gorgas, and John Weiss appear by IMr. Rawle, their attorney. 8. The other defendants being called three times, and not ap- pearing, Mr. Lewis prays as follows : Sir, I pray that the assize may be taken by default. Per curiam. Let it be so. 9. Mv. Lewis then arraigns the assize by again reading the writ and the plaint, and then thus addresses the court: " You well understand that John Livezey and Joseph Livezcy have arraigned an assize of nuisance to their freehold in Roxbo- rough, against Benjamin Gorgas, and Jacob Gorgas, John Weiss, George Horter, and Catherine liis wife, Joseph Weiss, \^'^illiam Stiuper, and Jacob Weiss, and I pray, that, as to George Horter, and Catherine his wife, Joseph Weiss, William Strupei*, and Jacob Weiss, it may be taken by default." 10. Defaulters again called forth three times thus: Come forth or this assize will be taken by your default. Mr. Lewis — Sir, I pray that this assize may be taken by de- fault. An agreement of the following kind was then filed. " I agree not to object to the regularity of this case, proceed- ing in this court, in the record returned, by reason of the non-ap- pearance of five of the defendants, who were I'eturned nil habent, i. e. the record shall be considered in this court as fully as it was in the common pleas, but waving no other objection." (Signed) WILLIAM RAWLE, For B. and J. GoTffas, and John IVeiss^ 11. Mr. Lewis files the plaint aiid calls upon the defendants to plead ; defendants, though entitled to an adjournment of some hours, agree to plead instanter saving their rights. Pl'-a, Livezey,"! V \ Gorgas. J And now, to wit, at tiiis same term comes as well the said Benjamin Gorgas and the said Jacob Gorgas, by their attorney iforcsaiil, :is the suid Jolm Wt-iss by his attorney aforesaid, and 444 Law Miscellanies* defends the force and injury when, he. and the said Benjamin and Jacob, pray judgment of the writ aforesaid, because they say that the said wall and dam, which they the said John and Joseph Livezey above complain and unjustly allege, Avas erected, levied, and raised by the said Benjamin and Jacob Gorgas, and the said John Weiss, who is above impleaded jointly Avith the said Ben- jamin and Jacob, to the nuisance of the said John and Joseph, was at the county aforesaid, erected, levied, and raised by a certain John Gorgas, long since deceased, in and upon the freehold of him the said John Gorgas, as well he might, and not by them the said Benjamin and Jacob Gorgas, and John Weiss, or any of them, •which said John Gorgas afterwards, to wit, on the first day of January, 1781, at the county aforesaid, died seized in his demesne, as of fee of and in the said tenements whereof and wherein the said wall and dam was erected, having first made his last will and testament according to the form of the act of assembly in that case made and provided, and thereby and therein devised the said tenements, together with all his other lands, mills, tenements, and hereditaments to his five sons and four daughters, to wit, John, Benjamin, Jacob, &c. 8cc. Sec. (reciting a chain of deeds and con- veyances and the entry and seizin under each of them,) to a certain John Weiss, and his heirs, Avho by virtue thereof entered, and was seized as the law requires ; and so the said John Weiss became in his lifetime seized of the whqje of the said tene- ments whereon, 8cc. in his demesne as of fee and being so thereof seized, the said John afterwards, to wit, on the ■ -■■ < day of July, A. D. 1803, at the county aforesaid, died so seized, after whose death the said tenements descended to Catherine, the wife of the said George, to the said John who is now impleaded, to Joseph Weiss, to Ann who is married to a certain William Struper, and to Jacob who is nov/ an infant under the age of 21 years, the heirs of him the said John, by virtue whereof the said Catherine and George, in right of the said Catherine, the said John and Joseph, the said Ann and William, in the right of the said Ann and the said Jacob, who is now an infant, then and theve before the of the said writ into the tenements where- on, &.C. entered, and whereof seized, as the law requires ; and this they arc ready to verify. Wherefore they pray judgment of the said writ, and of this they put tliemselves on the assize ; and they bring here into court the said several writs, deeds, and indentures above mentioned. Sec. and if not the said Benjamin and Jacob, by their attorney aforesaid, defend the fovqe and injury when, 8cc. aiid Law Miscellanies. 445 feJiy that tlic assize aforesaid between them and the said Jqhn and Joseph ought not to be taken, because they say that they did not erect, levy and raise the said wall and dam, thereby obstructing the said mill race and water course, and the stream o f Mater running from the said mill, nor obstruct and direct the said mill race, water course, and stream of water, to the nuisance of the freehold of tlie said John and Joseph Livezey, in manner and form as the said John ,and Joseph have complained against them ; and of this they put themselves on the assize. And if not the said John by his attoiniey aforesaid, defends tlie force and injury when, &c. and Says that the assize between him and the said John and Joseph ought not to be taken, because he says tliathe did not erect levy and raise the said wall and dam, thereby obstructing the said mill race and water course, and the streatll of water running fi'om the said mill, nor obstruct nor direct tlw said mill race and water course and stream of water to the n\ii- sance of the freehold of the said John and Joseph Livezey, in man- ner and form as the said John and Joseph Livezey, have complain- ed against him, and of this he puts himself on the assize. Replication to be reduced to form hereafter. 13. The plaintiffs reply that the defendants, Benjamin Gor- gas, Jacob Gorgas, John Weiss, and the other defendants, did levy and raise the said wall and dam, to the nuisance of the freehold of the said John Livezey and Joseph Livezey, in manner, Sec. ai:>d of this in like manner put themselves on the assize. And so issue was formed. 14. The assize was then called and each separately asked bv thc clerk if they had viewed the place — six or more having answer- ed affirmatively, the clerk then administered to 12 of them the following oath or affirmation. You shall v/ell and truly try this mattei' of assize between the parties according to your evidence. When the assize has sworn or affirmed. — They v/ere thus charged by the clcik- Oentlemen recog^nitors of assize^ You are to enquire whether the defendants, unjustly andwitli- out judgment, (as in the words of the plaintiff,) within 30 years last past, and if they did then you are to enquire what costs and dama- ges the plaintiffs have sustained by reason of such levying, Sec. (lit supra) an4 if they di(>not levy raise, Jcc. (ut supra) tljen you arti 446 Law Miscellanies. to say so and no more and so stand together and hear your ei .- dencc The plaintiffs counsel then reads the plaint and opens the casQ i^oin!:^ on first to prove the freehold to be in the plaintiffs, and 2ly, thenatiiroof the nuisance done thereto — insisting that the defend- ants dam, &c. was not only an injury to the plaintiffs mill, but also injured his freehold and prevented him from building another mill. Sheriffs' notice to the recognitors. April 1. 1811. Sir, You are hereby summoned to be and appear before the judges of the supreme court of Pennsylvania, or one of them at a court of nisi prius, to be held at Philadelphia, on the 19th day of the pre- sent month of April, at ten o'clock in the forenoon, as a recognitor of assize in an assize of nuisance wherein John Livezey and another ure plaintiffs, and Benjamin Gorgas and others are defendants. For Francis Johnston, Sheriff, Thomas Elliot, deputy. Mr. Benjamin Cottman. Lewis for plaintiff: contended that in cases of nuisance every man has 3 remedies: 1st, to prostrate it himself; 2d, to bring an action on the case and recover damages, and 3dly, to brhig an as- size of nuisance in order to remove the offendin'g cause and to re- cover damages for the injury sustained in case of an obstinate per- son. The last was the only sure and adequate remedy. 3 Blac. Comment. 220. That the law was clear and undisputable that no man had a right to use his own property so as to injure his neighbours ; that a man had no right to come to his neighbour's line and throw a cup of water or even spit upon his land ; that if de- dendant's dam, had raised the water an inch upon the plain- tiff's freehold, it was a nuisance for which an assize will lie ; it is comparatively fcstinum remedium, wherein the tenant must plead presently and no imparlance without good cause and if there be se- veral defendants and any one of them do not appear upon the first day, the assize shall be taken by defendant against them. 1 Salk. 82-3. Enough in this action to declare for a nuisance to i-he plaintiffs' freehold generally, 9 Co. 53 b. 5 Co. 100 b. Con- .sequeiitial damage or preventing the plaintiff from exercising a right, war, a nuisance as by overhanging his house, and preven- ting him from raising his higher, 9 Co. 54 b. Battons case and therefore preventing tiic pUuiilifffrombuiidnga new mill which he Law Miscellanies." "*" 447 had a right to do was a nuisance to his freehold ; plaintiff had a right to say defendant should not raise the water upon him one inch • — although such raising produced no immediate and direct damage, and that when a plain right was clearly invaded, the actual amount of damage sustained was not the important point to be considered, 2. Ld. Rayd. 958, 6 Mod. An assize will well lie for the alienee against the alienee ; for if a man by a wrongful act become liable to my action, he cannot by alienation of the premises whereon the cause of action still subsists, whicli alienation too is his own act, deprive me of my remedy ; that the statute 1 3 Edw. I. c. 24. giving a writ in similar cases, expressly gives the action against the alienee ; that the only difference was this, by virtue of that sta- tute, the writ must be both against the wrong doer and the alienee. That every contuiuance was a fresh nuisance, and therefore the alienee who continues it, is equally liable with the alienee who first levied it ; that a quod permittat must be against the alienee alone, because it must always be against the tenant of the free- hold ; but an assize must be brought against both. A quod pennit- tat lies as well for the alienee as against the alienee, 5 Co. 100 b. That a descent is an alienation, and the nuisance may be laid to the damage of the freehold of tt>e plaintiffs' ancestor, ibid. It follows then, that if the whole mischief had been done by the father of the Gorgas's, that the action will lie against them, together witli the other defendant, John Weiss, the tenant of the freehold. De- fendants say an assize lies only against tenant of the freehold, or his servant ; it is admitted that the tenant of the freehold must be joined, which has been done ; but if any thing be done on the soil of a tenant of the freehold by a stranger, it will well lie against the tenant and the stranger, F. N. B. 239, 290. 3 Vin. ab. 220. pi. 16. Lilly's Reports, 53. As to notice, an assize will lie without no- tice against him who did the wrong ; but it is admitted that notice of some kind ought to be given to the alienee. The statute docs not re(]uire notice ; but tlie courts by an equitable construction \ipon it, to prevent a man from being sued without knov/ing of demand, or having been called upon to do what is right, liut de- fendants have been called on ; they have had notice and paid money on account of this very nuisance, brought to June, 1804; and this was superior to any notice t!iat could have been given them. There are cases in Avliicii an action is tlie only proper de- mand, I Mod. 175. As to notice of bonds to executors, 2 Vtrn, 3r. 88. 11 Viner, 350. pi. 13. 2 Bac. 434, old edition. Btii there isiM) case whtvc a'-tion is not a propfi- notice and demanf! 448 J^Aw Miscellanies. If, upon this notice, defendants had removed the nuisance. It wouiu have been a good plea to this assize. But John Weiss is liimsclf guihy of levying and raising the nuisance; he increased the height of the dam, and repaired it, and this is levying, raising, and keeping up the nuisance ; for if it leaked, and th6 leak was stopt by himj he thus caused the water to raise upon the plaintiffs' freehold. If it be objected the word levying is not applicable to encreasing, it is answered by saying, that in an assize the plaintiff may abridge his demand. It is said the defendants' dam is no higher than is absolutely necessary for his own purposes ; but this is clearly no answer to our complaint. For if a man wishes to build a mill, and cannot do it without raising the water upon my freehold, he has no right to do it without my consent ; and this privilege is as fair a subject of purchase, bargain, and salQ as any other that can be imagined. The nuisance must be so abated as to completely re- dress the injury but must be done in a convenient manner, and the materials of which the thing abated is composed, belong to the defendant. Sir William Jones' Reports, 222-3. Mr. RaAvle for defendant, argued that Mr. Weiss was. sole seiz- ed, and that the other defendants had no interest in the premises whereon, &c. since 1796. That the action was not maintainable by the alienee against the alienee, 2 Lutw. 1588, is so expressly, 2 Ins. 406. 404. 405. 12 Mod. 639, that a devise was an alienation, 2 Black. Com. 289, or transfer, 1 Dall. 170, that he who pursues a special remedy must pursue it strictly. If the father disseized, A. and died seized the disseizee is put to his writ of right, and can- not have an assize, 2 Roll. ab. 142. Assize lies against heir only, when he refuses to reform the nuisance, ibid^l Vent. 48. 1 Mod. 27. 16 Vin. ab. 33. Jenk. Cent. 250 — The plaintiff must precede his action by giving notice of what it is he requires to be done, and whereon the same previously requires a request^ it must be prov- ed, and no action lies till request. 1 Saund. 33. If he who origi- nally erected the alleged nuisance had been living, he might have been joined with the alienee, but as he is dead, and his heirs or the alienee have done nothing to increase the nuisance, but used it as formerly, and as the alienee had notice to discontinue it. The assize as brought cannot be supported. That keeping a thing hi repair, in the same state in which the tenant, found it when he came into possession, can by no means be considered erecting it- No evidence to shew the plauitiff had suffered any damage. If there. is water in the plaintiffs tail race, it is owing to a natural obstructioK in tlie stream, which it: isintJic power of the plaintiff to recover Law Miscellanies. 449 That the assize would only enquire whether there was an actual damage at the time of bringing the assize, and that they had no right to take into consideration any pretended intention the plaintiffs might allege they had of erecting a new mill. John and Joseph Livezey vs. Benjamin and Jacob Gor- gas, John Weiss, and others. Assize of nuisance ; erecting a dam, obstructing a mill race and water course. 10th Oct. 1 747, freehold in Thomas Livezey as to part. 9th Aug. 1 760, freehold in Thomas Livezey as to the other part. This by title deduced from the proprietary. 15th June, 1790, devise of Thomas Livezey, Joseph and John Livezey. 30th Nov. 1807, notice to defendant to produce papers. These produced, purporting to be receipts to defendant for money paid for the privelege of keeping up dam accord- ing to agreement. The first, 19th April, 1775,Livezey to Gorgas,^15,pri- vilege one year for swelling the water on a part of my land. April 1776, receipt, ^15 for like privilege. olst March 1777, £l5. 5th May 1781, ^15. 29th May 1782, J. and B. Gorgas executors, £55 sum then due. This just before repeal of tender laws (depreciation mo ney.) 29th May 1791, £\0, June 1782, receipt. April 1785, receipt for^TlO in full for liberty of keeping up, 8ic. Jan. 9th, 1793, record of action brought in common plert* for the nuisance. 8th March, 1802, 480 dollars damages. 17th March, 1802, 108 dollars remitted. Before this there had been a referenrt- 3 L 4S0 Law Miscellanies. John Huston (sworn.) 31st March, 1783, agreement shewn to the with€ss pur- porting to be between Thomas Livezey and J. and B. Gor- gas. The witness. (Benjamin Gorgas brought this draught with him. I was desired to witness by B. Gorgas. Not then executed, the deed not being according to the under- standing of B. Gorgas. It was lowering their water more than agreed upon.) It is now offered to be read. It is a draught of a writing to be executed with alterations in favour of Gorgas, in the hand writing of J. Sergeant, who was of counsel for Gorgas. It is admitted and read as evidence of the sense of the parties at the time. John Gorgas (sworn.) As to Weiss repairing the dam, &c. Earnest Felty (sworn) as to the nuisance. Reading Howell (sworn) as to the nuisance. Titus Yearkus (sworn) these as to the nuisance. Suit of 1791, for this nuisance. Nov. 1794, read suit vs. Gorgas. Barker late Sheriff (sworn) as to holding the inquest un- der an order from the orphans' court for a valuation in par- tition of this mill and tract of land adjoining. It is proposed to ask the sheriff whether an allowance was not made in the partition in consequence of the reduced Aulue of the mill by this nuisance. Question; whether he was not present with the jury in fixing this value ; and whether a reduction of some hundred povmds was not made ? Exception to the question, as not the best evidence. P. Curiam. If any note by the Jury appeared on the proceed- ings as the ground of valuation, this would be the best evi- dence. The next best evidence are the jury themselves ; or some of them. This is secondary and cannot be admitted. Joseph Storm (sworn.) Nothing taken into view as to this. I was one of tht^ jury. Law Miscellanies. 451 Rawle pro def. Gorgas (sworn) as to these being the ojily papers he has : ar- ticle, Sec. George Ayrcs (sworn) was a referee in case of Gorgas and Livezey. Cannot say as to other papers laid before us. Thomas Holmes (sworn) was one of the referees ; papers laid before us : both parties said these were all t'ae papers. Alexander Martin one of the referees. All papers laid be- fore the referees. No complaint of any kept back. 10th Feb. 1782, deed; Benjamin Gorgas to Jacob. 1st April, 1796, Jacob to Weiss and Thatcher, subject to all diarges on the land. 6th October, 1800, Thatcher to Weiss, now seized of the whole. July, 1803, Weiss (old) died leaving 5 children. Ijth March, 1804, Petition to orphans' court, order and pro- ceedings. 16th Aug. 1806, prior to proceedings on the assize, freehold in Weiss alone. 28th May, 1780, original will of J. Gorgas (read.) Devise is an alienation. It will be contended no writ of assize in such case, there being here alienee of devisee ; that is alienee of alienee. The statute which gave the writ casu consimili extends only to the alienee. So a writ of assize does not lie versus alienee of alienee. 2d. Will insist that as against heir or alienee this writ will not lie, unless on request made to heir or alienee. Law respects de- scent cast. It is not pretended that request has been made to J. Weiss, the son (present deft.) 3d. Defendant must be seized of the freehold, or be servants of those who are. Note : This ojjserved with regard to the others mentioned in the writ. 1774, J. Gorgas lived on the land ; Livezey, a representative in the legislature. Reference and the award. Note; thisto ground a presumption that Gorgas was overreached by Livezey in the ar- bitration ; article of agreement, Ecc. the one weak, the other Avise. Livezey v. Gorgas ; action brought. Sept. 1794, Rule of reference; report made; exceptions for plaintiff overruled by court, arnl report confirmed. Writ of erro;; 452 Law Miscellanies. and appeal. Judgment reversed (supreme court.) Record re- mitted. Venire, issue, 8cc. Declaration and plea in this suit, verdict of jury (read.) Exception to the report being read, as it had been set aside. The reading overruled. It is a nullity. Andrew Hay., (sworn) to shew not a nuisance. John Boyer, (sworn) to the same effect. Richard Griffith, (sworn) to the same effect. Samuel Gorgas, (sworn) to the same effect. Benjamin Gorgas, (sworn) as to papers in his possession ; has no others to produce. Authorities will be relied on. Salk. 82, of the nature of assize. 3 Black. 220. ^ Take notice, &c. 10th October, 1797, Livezey purchased. 9th August, 1760, purchased other land. So, firofirietor of land on both sides stream : had in view to build another mill. BarendoUar, from whom he purchased on one side of the stream, never disputed. ^ Andrew Heath, (sworn) must have been young, so might not have heard of complaint. Authorities continued. 2d Ray. 958, Right of vote in an elector. 6 Mod. The minimum of right in an election. 9 Coke, 54, b. An impediment to build is a nuisance ; and re- medied by him impeded, before he builds. 13th Ed. I. c. 24. As to remedy to be extended to alienee of alienee. Heir and devisee are alienees. In -dSth Mod. 639, assize must be versus alienee. ' 3 WoUaston, 189. 5 Coke, 100, b. 9 Coke, 53. Erected to the nuisance of the ancestor; descen-t cast, 8cc. Fitzherbet, Nat. brev. 289. Acts done by a stranger not ten- ant of the freehold. It lies against him who dicj the tort, and against the terre-teimnt. 3d Viner, 220, pi. 1 6. Lilly's R. 53. Tenant of freehold must always be made defen- dant as well as those who did the wrong. Law Miscellanies. 4ofj Per Curiam. But in this case has not rent been paid by the son of Livezey to Gorgas ; a draught of the article in their hand writing ? Rawle ; I speak of request. Lewis ; I turn to the statute to show that it does not require it ; and it is only a conclusion by the court, as to what is reason- able. The bringing the action, a request. Action by plaintiff' v. the two Gorgas's; reference, &c. June, 1804, an assize v. B. and J. Gorgas, and J. Weiss. Was not this notice ? This three years before the present action. 1 Mod. 175. There are cases where as to notice it must be by action. But m all cases notice. 2 Viner, 27, 88, same. 2d Viner, 350, P. L. 13. Debt versus executors, &c. 2 Bac. 434. This is notice to all three defendants. But Weiss has himself raised the dam and continued the nuisance. Receipts by Gorgas shews, that while they continued to pay, it did not raise higher than height agreed upon. Maintaining and keeping up dam, is not that a trespass ? Rawle, in continuance. j.Vlill has not been impeded for an hour, or a jninute. But the present incumbi'ance is by an heir of the devisee ; notice is necessary ; for May 27th, 1780, devised by Gorgas to J. and B. Gorgas. 31st August, 1782, B. to J. 2d September, 1782. J. became seized of the whole. 1st April, 1796, deed to Weiss and Thatcher. 6th October, 1 800, conveyance to Weiss, father of defendant, by Thatcher. ^ July, 1803, deed to G. Weiss. Since April, 1796, J. and B. Gorgas had no concern. Weiss the now tenant of the freehold. J. and B. Gorgas did not build a dam in the first instance, nor had any concern with a tenant. Statute does not apply to alienee of alienee. 2 Lutwitch, 1538. Note, Stat. Will. 2. c. 24. which gives, does not extend to alienee. 2 Inst. 406, reading of Coke upon statute. 12 Mod. 639, if alienee dies, the party must have a Avrit of cn- i-y in the per, and not an assize. 2 Black. Com. 287. 1 Dal). 170. Transfer, a devise. 454 Law MiscELtANiES. Now as to request. 2 Levintz, 153, case of notice which docs not come up to re Tjuest. 2 Rolle, 142, pi, 1. if a man erect, Sec. 1 Vent. 48. 1 Mod. 27. 16 Vin. 33. ' Jenkin's Centuries, 260. P. C. This seems most to the point ; but notice by action see. 1 Saunders, 33, demand necessary, if he originally erecting is still alive, he may be joined ; but where dead, 8cc. Dall. pro quer. 2 Questions. 1 . What arc the rights of the plaint ? , 2. \Vh at the remedy ? The bringing the action proves the law. The elastic nature of the common law. In an action on the case, can bring into view only damages lie- fore the suit brought. Traces the chain of title ; evidence of the nuisance. Compares the testimony, Sec. Sec. Per Curiam^ to the Jury. The proprietor of the soil through which a stream runs, cannot divert it from its natural bed, save within his own bounds ; and if even within his own bounds, he divert3 it, he must be answerable that it is brought back to its bed be- fore it passes the boundary below ; nor could he divert it within his own bounds so as to waste it, and lessen the quan- tity that would have come to him below. He must use his stream so as not to diminish it to him to whom it is next to come. He cannot change its natural channel. The pro- prietor below has a right to the stream as it came to him by the usual supply of nature, so far as that no act of him above shall otherwise, than by a reasonable use, diminish it. The proprietor above cannot sa)', the stream is lessened, it is true, by the course I have given it, but it does you no da- mage; you have enough still. That answer will not suffice; it goes only to the quantum of the injury^ and the aggrava- tion of it. It is sufficient if the quantity of water is reduc- ed unreasonably, that would otherwise have descended to him that, ie below. What is against his consent is a wrong. Law Miscellanies* 456 He must be the judge of what he wants ; and whether the lessening is a help or a hurt. This is not ideal. The owner of the soil above may have it in his power maliciously to waste the water, by turning it where it would sink in part and disappear; or he might, to serve another, turn the stream through his ground, and give it a new channel. I take it that an action on the case would lie for such a depri- vation. Be that as it may, the law is clear that the owner of the soil above has a right to the stream in its natural state ; un- increased in depth by him below. That is, he has a right to the fall and current of the stream through his land, with the same descent at the boundary below that it had in its natural state. The proprietor below cannot increase the depth of the stream above by any impediment, so as to be justifiable. But he cannot increase the depth above, otherwise than by flooding some of the soil, making that a part of the channel which was not before. In the application of this principle it is true, as in the application of the principles of law in all cases, the maxim of, de minimis, occurs ; the law will not regard small things. But what is the meaning of this maxim ? It is that the law ecies of treason, are two sufficient witnesses Avithin l)ic act." The judges drew the legislature after them in lliis illiberal construction of the statute, and by 7 William II, it is sanctioned by the clause, " on the oath or testimony of two lawful witnesses, either both of them to the same overt act, or one of them to one, and the other of them to another overt act of the same treason." But at the same time, the illiberal constructions of the judges arc rectified and restrained in another very mate- rial particular ; it is provided by section 4th, that where " two or more distinct treasons of divers heads, or kinds, be alleged in one bill of indictment, one witness produced to prove one of the said treasons, and another witness pi-oduccd to prove another of the said treasons, shall not be deemed or taken to be two witnesses to the same treason. Another error in the decision of the judges is corrected, oral least the construction given by them, is ameliorated by 7 William, chapter 3d, section 8th, by which it is provided, " that no evidence shall be admitted or given of any overt act, not expressly laid in the indictm.ent." By the treason law of the United States, a great improvement has been gained on the statute of 7 William. The proof demand- ed by our law is, " the testimony of two witnesses to the same overt act of treason, whereof indicted." And by our act, the construc- tion given by the judges, at some period in England, to the clause of the statute of 1st Edward VI, is rectified. The " willingly and without violence confessing the same," had been construed to be a confession out of covn-t, made however casually ; this is fixed to a confession " in an open court." It will be seen that the decision of the English judges have op- posed the improving mind of the legislature ; they have reduced it from time to lime, contrary to the natural and humane meaning, by subtile and unreasonable construction. But in ascertaining the necessary proof of treason, the law of Congress has corrected ..11 this, and fixed it on the basis of reason and humanity. The only q\iestion now to be considered, or at least the only Law Miscellanies. 479 ■will receive a death-blow, by the resistance made to it at the present time. It is astonishing how it came into the mind of an enlightened Englishman, such as Blackstone, to justify it, and to call it a principle of universal laxv, as he would « question which I shall consider, is, What shall be said to be a " levying war?" I shall state first what by the decision of the judges of England, has been construed to be a levying war. It would strike the common mind, that the taking arms to de- throne the king, or to change the government, could alone amount to a levying war : that there must be not only an assembling in arms, but an animus subvertendi, or intention of overthrowing in the case. But it has been carried much further by the judges. To explaui this, I cannot 6erve the public better, than by transcrib- ing a chapter from the most sensible writer on this subject ; that is judge Foster. It is chapter 2d, of discourse 1st, of high treason, on the clause of levying war, and adhering to the king's enemies. " Lord chief justice Hale speaking of such unlawful assemblies as may amount to a levying of war within the 25 E. 3, taketh a difference between those insurrections which have caiTied the appearance of an army formed under leaders, and provided with military weapons, and with drums, colours, Sec. and those other disorderly, tumultuous assemblies, which have been drawn toge- ther and conducted to purposes manifestly unlawful, but with- out any of the shew and apparatus of -war before mentioned. " I do not think any great stress can be laid on that distinction. It is true, that in case of levying war, the indictments genci'ally charge that the defendants were armed and arrayed in a warlike manner ; and where the case would admit of it, the other circum- stances of swords, guns, drums, colours, See. have been added. But I think the merits of the case have ncVcr turned singly on any of those circumstances. " In the cases of Daniarcc v. Purchase, which are the last/;r/;f/- ed cases that have come in judgmtjut on the point of constructive levying war, there was nothing jf/ven i7i i-vidnice of the usual pa- geantry of war, no military weapons, no banners or drums, nor any regular consultation previous to the rising. And yet the want of these circumstances weighed nothing with the court, though the prisoner's counsel insisted much on that matter. The number of the insurgents supplied the want of military weapons; and they were provided with axes, crows, and other tools of the like nature, nropcr for the mischief they intended to (.fleet. 480 Law Miscellanies. seem to have done in these Commentaries ; though at the same time under the head of parental subjection, he admits that it has its limits. " To those," says he, " who gave us existence, we naturally owe subjection and obedience ^/i/ring* •Furor arma minifitrat. " Sect. 1. The true criterion therefore in all these cases is Qtio aniino did the parties assemble. For if the assembly be upon ac- count of some private quarrel, or to take revenge on fiarticular persons, the statute of treasons hath already determined that point in favour of the subject. "If, saiththe statute, any man ride ofien^ " ly [so the word dencouuert ought to have been rendered]] or se- " cretly with men of arms against any other to slay or rob him, or " to take and keep him 'till he make fine for his deliverance, it is " not the mind of the king nor his council that in such case it shall " be adjudged treason ; but it shall be adjudged felony or trespass " according to the laws of the land of old times used., and accord- " ing as the case requireth." Then immediately followeth ano- ther clause which reacheth to the end of the statute; and provid- eth that, if in such case or other like the offence had theretofore been adjudged treason, whereby the lands of the offenders had come to the crown as forfeit ; the lords of the fee should notwith- standing have the escheat of such lands, saving to the crown the year, and waste. " I will make a short observation or two on those clauses. *' 1 st, The first clause is evidently declaratory of the common law, it shall be adjudged felony or trespass according to the lanv c^f the land of old time used. The second hath a retrospect to some late jvidgments, in which the common law had not taken place ; and giveth a speedy and effectual remedy to lords of the fee who had suffered by those judgments. " 2dly, The words of the first clause descriptive of the offence, " if any man ride armed openly or secretly with men of arms," did in the language of these times, mean nothing less than the asscmbling bodies of men, friends, tenants, or dependents, armed and arrayed in a wai'like manner, in order to effect some purpose or other by dint of numbers and superior strength. And yet those assemblies so formed and arrayed, if drawn together for purposes of a private nature, were not deemed treasonable. " Sdly, Though the statute mentioneth only the cases of asseni bling to kill, rob, or iwpi'.son, yet thcfic, put as they are by way Law MiSCELLAKlES. 481 our tmnority" 1 Bl. Com. 453. Rutherforth, and every other English writer, to parental subjectien assigns the same limit. On principle of natural reason, the contrary suppo- sition, would enslave descendants ad infinitum. Adam came from his Creator, a perfect man* To the Al- of example only, will not exclude others which may be brought within the same rule. For the retrospective clause provideth, that " if in such case or other like it hath been adjudged" — what are the other like cases ? all cases of the like private nature are, I apprehend, within the reason and equity of the act. The cases cit- ed by Hale, some before the statute of treasons, and others after it, those assemblies though attended many of them with bloodshed and with the ordinary apparatus of war, were not held, to be trea- sonable assemblies. For they were not in construction of laAV, raised against the king or his royal majesty, but for purposes of ii- private personal nature. " Sec. 2. Upon the same principle and within the reason and e- quity of the statute, risings to maintain z.firivate claim of right, or to destroy fiarticular inclosures, or to remove nuisances which affect- ed or were thought to affect in point q/" interest the parties assem- bled for these fiur/ioses, or to break prisons in order to release par- ticular persons without any other circumstance of aggravation, have not been held to amount to levying war within the statute. " And upon the same principle and within the same equity of the statute, I think it was very rightly held by five of the judges, that a rising of the weavers in and about London to destroy all en- gine looms, a machine which enabled those of the trade who made use of it to undersell those who had it not, did not amount to levy- ing war within the statute ; though great outrages were coUimit- ted on that occasion not only in London but in the adjacent coun- ties, and the magistrates and peace officers were resisted and af- fronted. "For those judges considered the whole affair merely as a firi- vate quarrel betivevn men of the same trade about the use of a par- ticular engine^ nvhich those concerned in the risinff^ thought detri- mental to thc?n. Five of the judges indeed were of a differerit opi- nion. But the attoiT.ey general thought proper to proceed agahist the defendants as for a riot only. " Sec. 3. But every insurrection which in judgment of law i? i.ntepded against rlie person yf the king, be it to dethrone or im- .3 P 4t^^ Law Miscellanies. mighty he owed his bringing up to manhoocl, and placing him where he was. We may suppose the first man bound, in like manner, to take care of his offspring, until brought to the same period ; and in so doing, it was but the discharge of an prison him, or to oblige him to alter his measures of government. ov to remove evil counsellors from about him, these risings all amount to levying war within the statute ; whether attended with the pomp and circumstances of open war or not. And every con- spiracy to levy war for these purposes, though not treason withii> the clause of levying war, is yet an overt act within the other clause of compassing the king's death. For these purposes can- not be effected by numbers and open force, without manifest dan- ger to his person. " Sec. 4. Insurrections in order to throw down all inclosures, to alter the established law or change religion, to enhance the price of all labour, or to open all prisons, all risings in oi'der to effect these innovations of a public and general co-nc€rn by an arm.' edforcCf are in construction of law high treason, within the clause of levying war. For though they are not levelled at the person * of the king, they are against /«« royal majesty. And besides, they have a direct tendency to dissolve all the bonds of society, and to destroy all property and all government too, by numbers and an armed force. Insurrections likewise for redrcssuig natio?ial griev- ances, or for the expulsion of foreigners in general, or indeed of any single nation living here under the protection of the king, or for the reformation of real or imaginary evils of a fiuldic nature^ and in luhirh the insurgen/s have no special interest, risings to ef- fect these ends by force and numbers, are by construction of law within the clause of levying war. For they are levelled at the king's crown and royal dignity. " Sec. 5. It was adjudged in the 16th Car. 1. a season of great agitation, that going to Laml)eth house in a warlike manner to surprise the archbishop, who was a privy counsellor, it being with drinns and a multitude to the number of 300, was treason. " This is a very imperfect account of an insuiTection, which hath found a place in the best histories of that time. The tumult hap- pened on Monday the 11th of May, 1640, about midnight. On Thursday following the special commission under which the judg- es sat was opened and proceeded upon ; and Benstead a ringlea be the construction of tl^e clause of « levying war." I mean taking up the subject, as certainly we have a right to do, unshack- led by the decisions of the English Judges. Taking up the subject on first principles, it might be said, tliat evQn a simple trespass tends to the subversion of the government j and every breach of the peace is said to be against the peace and dignity of the commonwealth. But where the trespass is with numbers, and with arms, it is arrayed more formally against the order of society, and might be construed treason. It was with a view to such construction that the statute of 25 Edward III. pro- vides " if any man vide armed openly, or secretly with men of arms, against any other, to slay or to rob him, till he made fiaie for his deliverance, it is not the mind of the king, nor his council, that in such a case it shall be judged treason ; but it shall be judged felony or trespass according to the law of the land, of old time used, and according as the case requireth." It was on this principle the boundary of construction was set- lied by the judges generally ; that, " risings to maintain a private claim of right, or to destroy particular inclosures ; or to remove luiisances, which affect, or were thought to affect in jioiht of in- terest the fiarties assembled for those purposes, or to break pri- sons m order to release particular persons, without any other cir- cumstance of aggravation, have not been hoi den to amount to levy- ing war, within the statute." It must be therefore an insurrection which in judgment of law is intended against the government, to overthrow it ; as you would break a machine to pieces, or to stop the motion of it, by breaking or obstructing some wheel or spring that is necessary for its operation. Yet resistance to an officer in the execution of his process, by the law of the land, is but an aggravated trespass, VVith a view to such construction, our statute has provided, '* that jf any person shall knowingly and wilfully obstruct, resist, or op- pose any officer of the United States, in serving or attempting to e(;r.vej or execute any mesne process, or warrant? or order pf Law Miscellanies. 4§5 this happens at different times of life, in different countries ; in some climates, ihe mind ripens faster, and attains to the use of reason sooner, than it does in others. In the same Country too, it happens at different times of life to different any of the courts of the United States, or any other legal or judi- cial writ, or process whatsoever, or shall assault, beat, or wound any officer, or other person duly authorised, in serving or execut- ing any writ, rule, order, process, or warrant aforesaid, every per- son so knowingly and wilfully offending in the premises, shall, on conviction thereof, be imprisoned not exceeding twelve months, and fined not exceeding three hundred dollars."* I would in tlie first place lay aside constructive treasons alto- gether, and confine the law to a direct attack upon the government, and in the second place I would confine it to an attack, aniino sub- vert endi. Will it not be easy then to meditate the overthrowing the government, and go on to execute it by a resistance to a law, and by risings for indirect purposes, without a possibility of mak- ing pix)of of an animus subvertendi, or conspiracy to overthrow ? Let it be left to the jury to presume, or infer from the acts them- selves, what the intention was ; but let it always be in view as the essence of the act, that there was a directly looking forward in the mind of the person, to a subversion of the government, before it be construed treason. Every outrage, without this essential ex- pedient may be repressed, and punished under the idea of a riot, subjecting to fine, pillory, imprisonment, and hard labour. This will be more agreeable to the common sense and feelings of man- kmd, who must be struck with a sense that the outrage is a riot, but to whom it cannot be obvious, that it was meditated as an at- tempt upon the government itself, amounting to high treason. It is only by deduction and inference, that it becomes so. There will be no evidence, that any of those concerned in the attack of the house of the inspector of the revenue, general Ne- ville, ever thought of subverting the government, or had an idea that the act would be construed treason. Whatever the ultimate views of these may have been, who projected the taking the ma- gazine at Pittsburgh, certain it is, thai, the bulk had no looking forward of mind to more than a redress of what they called griev-* ances, under the government. If the construction therefore for * Laws of the United Staicn. 406 Law MiscELLANfls. persons : all who live in the same climate, do not come to maturity of judgment, at the same age. No particular per- son, therefore, can be said naturally to have arrived at years of discretion^ or he capable of acting for himself ; till we have which I have contended, is supportable, either of these acts will amount to a riot only. It will be said that our legislature, in excerpting the very* words of the clause from the statute 25 Edward III. must be sup- posed at the time to have had an eye to the construction given to this clause by the decisions of the English courts ; and by adopting the terms, has sanctioned the interpretation. The presumption doubt- less exists. But it does not necessarily follow ; and in favour of life, unless it necessarily follows, let not the construction govern. The legislature may have attended to the constructions, or they may not ; the question admits a doubt. This being the case, it is contrary to the law maxims of humanity, to establish the pre- sumption. The legislature intent upon restraining the treason law to a single clause, may not at the same time, have pursued the constructions of that clause in their minds. It is not proba- ble they did. It was not necessary. The judges had the power to construe these words, on principle of reason, with the same licence as if they never had been in a treason table of England.. The ultimate question then will be, whether it be necessary for the preservation of the government, that the treason law be car- ried so far as to make the circumstances in the case of Neville's house, or the march to Braddock's fields, amount to that offence. I admit that by the decision of the English judges, the attack upon the house of the inspector, is clearly treason. For though it was not destroying all inspection offices, yet it was for a pur- pose of a fiublic nature^ and in •which the insurgents had no spe- cial or individual interest,* exclusively of the community. I also must admit that the march to Braddock's field, by the same consti-uction, must be treason ; for though the expelling in- dividuals would be but a violent trespass in itself: yet connected, as it was, with a view to the operation of a law which these men were supposed to countenance and support, it will be brought to the same thing. But the question may be made, whether it be necessary for the preservation of the government, that these or * Foster, 2 U . Law Miscellanies. 497 observed how that particular person behaves in common life. When he shews by his behaviour, that he has the use of his reason, then, and not till then, he is past his natural viiiiority, like cases be adjudged treason, where no evidence is alleged of an avowed intention to bring about a revolution. Elementary writers, at the head of whom is the marquis de Beccaria, have with great plausibility, questioned the right of so- ciety to punish, by taking life at all. They stand on surer ground, who question only the necessity. By the Russian code, and that of Tuscany, it has been reduced to an experiment ; and capital pu- nishment is found not necessary. The only use of this at present, is to enforce a leaning of the mind towards a construction of the law, that will resti'ain it to the highest species of treason, and what alone ought to bear the name ; a conspiracy to overthrow the go- vernment. As our treason law stands, it is more the interest of the go- vemment in point of reparation from the offender, to have the act considered in the light of an aggravated riot only, than to have it made treason ; in which case there is no forfeiture of property.* Reasons of policy would therefore lead to that construction of the clause, for Avhich I have contended. Nothing can be right that is contrary to the feelings of the hu- man heart, and at which the reason of the common mind re- volts. Let it be told one of these accused, that the essence of the charge against him is an attempt to shake the foundations of the government to which he had sworn allegiance, and to overturn as far as in him lay, the existing order of society, with all the ad- vantages of security to person, property, and fame ; and to bring about anarchy at first, and tyranny of one or a few in the end. He would say, I never had such a thought. Others will believe him; and they cannot feel an acquiescence with the law that would by construction fix this design upon him. In every other crime, it is known and contemplated to the ex- tent, what the individual is about to perpetrate. In homicide, he knows he is about to kill a man ; in burglar}^, to break a house : in larceny, to steal an article. The fact in its nature and conse- * " JVo conditioner judgment y for any of the offences aforesaid., nhall zDork corrufition of bhod, or any forfeiture of estate ." LaiVH of United States, 15,1. 3 R 498 Law Miscellanies. " Civil laws do, indeed, usually fix some certain age, as the limit of minority for all the subjects." The law of Eng- land has fixed this at the age of 21. Until this period, the parental authority exists, which is founded in the duty to quences exist clearly to his mind. He is under no necessity of construing and inferring, in order to know what he is about. It is the quo aniino, the mind with which a thing is done, that is at all thnes to be considered. And if it cannot be found tliat the mind meant the act, it cannot be considered as the act of the mind, which is the man. I Avould therefore understand our law, as having in view only a fixed, formed, deliberate intention of subverting the government, as that offence which it will construe high treason, and punish with the loss of life itself The accused had meditated death to the government, and the law in this case, and this case only, will me- ditate death to him. The legislature of the United States contemplating precisely »\ich a case as that of the insurrection of the western countiy, has provided for the suppressing it by an act of May 2d, 1790. " Whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any state, by combinations too powerful to be suppressed, by tlie ordinary course of judiciary pro- ceedings, or by the power vested in the marshal, by this act ; the same being notified to the president of the United States by an associate justice, or the district judge, it shall be lawful for the president of the United States to call forth the militia of sUch st-atc, to suppress combinations, and shall cause the laAvs to be duly executed. And if the militia where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the president, if the legislature of the Unite d States be not in session, to call forth and employ such numbers ol" the militia of any other state or states most convenient thereto, as may be necessary, until the expiration of thirty days, after the commencement of the ensuing session." The " opposing the laws, or obstructing t^ie execution," are the phrases ; not that of traitorously conspiring to subvert the government. So that it would seem to have had in view, an insurrection for a purpose of lui inferior nature, and calls it, "an unlawful combination," which though tending in its consequence to overthrow the government, vet had not tiiat for itsi object in the contemplation of the actors. We are relieved, therefore, by tliis act, from an oljjection whir^i Law Miscellanies. 499 provide for the child. " This authority," says the same au- thor, p. 168, " must necessarily cease, when the duty ceases upon which it is founded : after the child is able to think and to judge for itself, it is no longer the duty of the parent to think and to judge for it ; and consequently the will of the child is no longer under the absolute control of their will. However, they have still a demand upon it of gratitude, esteem, and reverence : it is still bound to honour them, by shewing all marks of respect, and more particularly by pay- ing a deference to their advice and direction. For as they, from their longer experience, are more likely to judge right- ly than the child is ; so their former care of it, may convince it, that they are disposed to contrive for its welfare. But, notwithstanding the child owes them this duty of honour, they have not, as its parents, such authority over it, as to restrain its acts, because the obligations to these duties, are of the imperfect sort." If the child, after coming to the years of maturity, and being at its own hand, if I may so express it, acquires pro- perty independent of the parent, has it not a right to protect that property against the trespass of the parent^ and go to laxv for that purpose? This proves, that by the law of na- ture, or society, it is not unlawful to resist the wrong of a parent, as injury to property, or person. Can it be unlawful then to resist the wrong of the society under which one was born, merely because it must be considered in the light of a parent society ? If it is lawful to emigrate at all, and be- come the member of a new community, it must be lawful to join in resistance to the parent society if it does wrong to might exist, that unless such outrages as these were construed treason, the power of the federal government could not move to suppress them. On the ground, therefore, of the preservation of the union, I see no necessity to carry our construction of tho clause of " levying war," so far as to embrace llie late acts in the western country within the crime of treason. If, in any case, proof can be directly made, or if the jury, from ihe facts themselves, cannot but presume that a subversion was in '■ended, it maybe so construed, but not otherwise. oOO Law Miscellanies. the new community, and to fulfil the obligations to tkat Jiew society of 'which it has become a member. If this reasoning is conclusive, it must be lawful to carry arms, defensive, or offensive, as the nature of the case may be, against the parent state. For this is necessary to the existing as a mem- ber of the new. To make it treasonable^ therefore, after having become a member of a new, to bear arras, and be- ing taken in jjirms to be punished capitally, is contrary to the laws of nature ; as the being taken prisoner^ and put to deatli^ is contrary to the laxvs of arms. This is an extent, therefore, of the law of treason in England, beyond the law of Pennsylvania, as it was before the Union, or under the Union, exists here. Unless indeed chief justice Ellsworth's doctrine, in the case of Williams, should be considered the law, that in these states no one can put off his allegiance to the government. Chief justice Ellsworth, a great and up- right man, I acknowledge, and for whose memory I have a high respect ; did he never suffer the subject of a foreign government to be naturalized in his courts, and hear the oath of abjuration taken renouncing all subjection, and alle- giance, more especially to that sovereign, or state, of which the naturalized had been a member ? Did it ever come into his mind that one so naturalized, could owe but a qualified allegiance to these states, of whose supreme court, he was a judge ? Did it enter into the mind of the judge, that the new ci- tizen was not equally bound, with all others, to do militia duty ; and, if for the sake of offence, or defence, the sove- reign authority, should order, he was not bound to obey ? If so, could he say that the new citizen was not equally bound to be protected, whether upon the sea, or upon the dry land? Could a distinction be drawn between his rights and his duties, from that of any other member of the communi- ty? The truth is, it was an over-sight in the chief justice, and looking to what had been considered the law of Eng- land, he did not distinguish in the case. I excuse the judge, us being, I am confident, an inadvertency; but I lay it down as a nefarious principle, and outraging human reason to give Law Miscellanies. iOl it the least countenance. We have the right of every other independent country, to consider every one coming to our shores, and manifesting an intention of joining our society, as entitled to be received, and protected, by land, or water, within ou» municipal jurisdiction^ and beyond it^ by the arm of the nation. As to the expediency^ I say nothing ; I leave that to the politicians. I lay it down only, that naturaliza- tion involves the duty^ and the pledge of protection ; and a citizen of the United States^ chusing to expatriate^ in time of peacey is not liable to our treason law, even though found in arms with a foreign force invadirig us. As to the expediency, I mean the policy, of naturalizing- at all ; and not repealing the whole body of the naturaliza- tion acts of congress ; I do not mean to connect this, because I know it would be denying a yiatiiral right to those of a more populous countiy, emigrating to a country less popu- lous in proportion to the soil, and it would be denying our- selves a right to take them ', and it could be on the principle of self-preservation that we could dispense with the taking them. But as to the letting all go that chuse to go, I con- sider it not only their right, but our interest. We have no such Merino-breed of men, that there can be any thing in the way to hinder it. Those that emigrate from us, consult what they think their own interest, and we may be well rid of them. Whether Britain, were there not a matter of pride in the way, might not say the same thing, I leave it to her to determine. But to return from my digression. The treason law ol England has been rendered sanguinary by the construction of the judges. " One witness to one overt act, and a second witness to another overt act of the same species of treason," is an instance of this. But still more the leariiiig of the judg- es to convict on a charge of treason. I do not believe that in the whole state trials in England, there will be found a case, where there was not that leaning visible, where it was evi- dent the crown wished a conviction, whether in a case of misdemeanor, or of felony of treason. In the case of Aaron Burr, with us, the leaning, if any, was the other way, and 502 Law Miscellanies. therefore I consider the principles laid down in that trial, as gaining much to the citizen of the United States, as a bar- rier against the application of British rules in the construc- tion of treason. It contains some excellent land-Hiarks, that may serve to guide in after times, when parties' may pre- vail, ^xid Judges may have the same leaning" with the prosecu^ tor for the state. Not that I mean to insinuate any thing the least disrespectful, to the executive, or to the court, in this instance, but the contrary, and as a trial, in opposition, to all that we have seen in England, where the accused, for high treason, could scarcely ever be said, to have had a fair chance for his life. " In civil cases, we have seen that every defendant is bailable ; but in criDiinal matters it is otherivise." 4 Bl. Com. 296. AVITH submission to Dr. Blackstone, says Junius, " I think he has fallen into a contradiction, which, in terms at least, appears irreconcileable. After enumerating several offences not bailable, he asserts, without any condition, or li- mitation whatsoever, " all these are clearly not admissible to bail." Yet in a few lines after, he says, " It is agreed that the court of king's bench make bail for any crime whatsoe- ver, according to the circumstances of the case." To his first proposition he should have added, by sheriffs or justices ; otherwise the two propositions contradict each other : with this difference, however, that the first is absolute, the second limited by a consideration of circumstances.^^ These were the words of the first edition of the commentaries upon which junifus animadverts; a contradiction ; which I will acknow- ledge perplexed me not a little at an early period. But in a subsequent edition, the words," all these are clearly not admissible to hail^'' have been omitted. Nevertheless in ano- ther part, the words at the head of this note preserve the contradiction in some degree taken by themselves as they stand in the sentence. For if in all cases a defendant is Law Miscellanies. 503 bailable; but in criminal matters it is otherwise., it must fol- low that in criminal matters^ every defendant is not bailable. He still should have added, that it is otherwise in criminal matters, unless by a judge of the king's benchy or by that court. In his letters to lord Mansfield, Junius undertakes to prove that unless in a case short of being taken in the main- or, the Lord chief justice of England, has no more right to bail than a justice of the peace ; that a person positive- ly charged with felonies, stealing, and taken in flagrante de- lictOy with the stolen goods upon him is not bailable. I agree with Junius that if the lord chief justice did bail, it was an abuse of his discretion. And upon this principle our consti- tution has settled it : by Art. 9. Sec. 14. '* All prisoners shall be bailable, unless for capital offences, when the proof is evident or presumption great.''"' This I take it to have been precisely what the comtnon law was before the provision of statute in England, or con- stitution here. But the constitution here specifies what the discretion of the judge at common laxv would have dictated to be his duty. 4' All presumptive evidence of felony should be admitted cau- tiously." 4 Bl. Com. 358. THERE is what is called violent presumption ; that is where such circumstances exist as usually attend the fact. Presumptive proof of this nature is held sufficient to convict. In a playful work published some years ago } and where I thought myself at liberty to support even a paradox, it be- ing evident that I did not mean to be serious in every thing, I advanced some sentiments on this head, which, as not be- ing continued in the second edition, I may here extract. It is from what I had entitled Modern Chivalry, Vol. I. p. 99 ; and is as follows. *' I doubt much whether reason or experience., (that is of conviction or presuniptive evldt-nce) approve the doctrine. .'504 Law Miscellanies. Reason tells us that there may be all the circumstances that usually attend the fact ; and yet, without the fact itself. Ex- perience evinces that it has been the case ; for we have heard of persons convicted ef a capital offence ; and yet with their last breath, asserting innocence. Nay, in the very case of some who have been supposed to have been murdered; (hey have afterwards been found to be alive. But, on ab- stract principle, a conclusion of certainty cannot he drawn Jrom presumptive proof . Because, in a case of the most violent presumption, there is still a possibility of innocence; and where there xsdi possibility^ there must be a doubt; and will you hang man, woman, or child, where there is a doubt P " In all cases, there ought to be complete proof, because the convicted person is to be completely hanged; and the jury previous to this, must find a verdict upon oath ; that is, must make complete oath of the guilt, ** It is the ground of the doctrine of presumptive prtmf, that where you cannot help suspecting, you ought to be po- sitive ; whereas the just conclusion would be, that where you cannot help suspecting, there you ought to suspect still ; but no more, " In algebra minus multiplied by minus, makes plus ; but not so in arithmetic. In mathematics, the three angles of a triangle, are equal to two right angles ; but these are all angles that are put together ; they are things of the same kind ; but the greatest angle, and the longest side, will ne- ver make a triangle, because there is no inclusion of space. There must be a number of things of the same kind, to make an aggregate whole ; so that ten thousand possibilities, pro- babilities, and violent presumptions, can never constitute a certainty. It can never be made a question, how many un- certainties, will make a certainty. " Semi plena probatio ; or the going but half way to- wards proof, cannot amount to proof sufficient to convict. For a miss is as good as a mile. If the evidence is not po- sitive to the fact, how can the jury find the fact ; because as the current cannot rise higher than the source, so the verdict of the juror ought not to be more absolute than the oath of Law Miscellanies. 505 the witness. In all cases, therefore, short of positive testi- mony, what can be done but to acquit ? " These hints may be of service to weak judges; so, that honest people may not lose their lives, or be rendered infamous, without full proof of the offence. It is hard enough to suffer, where there is full proof; but to be in the power of a juror, or a judge's imagination, comparing, and construing circumstances, and weighing probabilities, con- tingencies, and what might have been ; or what might not have been, as the humour, wheel or whim of the brain may suggest, is inconsistent with that fair trial, which in a free government ought to be allowed. Were I a juror, it would seem to me I should not find a verdict without positive evi- dence of the fact. For it would not be in my power to re- store that fame or life which I had taken away; and if a guilty person should escape, it was none of my look out ; but the business of providence to furnish proof; and if proof was not furnished, let providence take the matter on him- self; and punish the culprit either in this life^ or in a future state. Invisible things belong to the Omniscient ; and it would seem great arrogance in man to take upon him to de- cide in cases of uncertainty, I can declare, that, in the course of my experience at the bar, I have known one hung, and two others within an ace of it, who were innocent. The one that was hung was a tory case, where the popular cla- mour was against the man, and light presumption became violent under such a charge, from the temper of the times, and that part of the country where the conviction took place." So far the extract from this publication, and though I might not be disposed to lay it down at this time, to such extent ; viz. that I would not convict at all upon circumstan- tial proof in criminal cases ^ yet a great distinction ought to be taken in the consequence. For though the life of man might not be safe, were it understood that nothing short of posi- tive testimony should convict of murder ; and circumstances are said to speak as strong as words or stronger even ; yet, I should think that death in case of conviction short of po- 3 S 503 Law Miscellakies. skive evidence ought not to be the consequence ; but im- prisonment only. It might be left to providence to discover, and bring to light a fact which might shew innocence ; but, after life shall be taken away, there is not this room left. And we do know, from history, and trials in criminal cases, many instances, where providence after the legally con- demned, but innocent person executed, has brought to light facts which have established the innocence ; and in one case at least, known in our reports, that no murder had been at all committed. I refer to the case of the uncle and his niece. She was heard to say, O ! uncle do not kill me, after which she v/as missing, because she had absconded with a relation in a distant part of the kingdom. He was condemned upon the presumption of circumstanctr, and was executed. She af- terwards appeared to claim his estate. I have not the book by mc ; nor do I know of more than one copy in this country, " A report of criminal cases in the high court of sessions, Scotland," by an advocate of that court, a Mr. Arndt ; but I will cite the outlines of one case from memory. A person convicted of murder upon evtdetice Jrom circum- stance^ and the day of his execution fixed, solicited earnestly a reprieve for three months ; and that, if providence did not in that time interpose for him by bringing the truth to iighty he would be resigned to the dispensation ; but, that he had a strong impression, providence would not resist his prayers, which for the sake of his family, he had so earnestly put up. A reprieve was obtained for this space of time ; and the lord president of the sessions going in the mean time, to a summer residence in the north, overheard some men that were at work in a stone quarry, under the hill by the road side, say to one, why so down cast this day ? What is the matter ? Matter enough said he. There is a man to be hung this day at Edinburgh^ for a murder xvhich I committed. He was ap'prehended, and confessed the whole, viz. That had been the daij appointed for the execution of him xvho had been reprieved. The result was, if I recollect right, they were both pardoned. The first because it had appeared that he Law Miscellanies. 507 never ought to have been convicted ; and the last because It would be an inconsistency in legal proceedings, to hang one for a murder yxvhich the luzu had said, had been committed by another. Extract from Malcoine's Miscellaneous Anecdotes ; published, 1811. THE following shocking article appeared in most of the newspapers of 1681. " From Dublin we have an account, that at the last ses- sions there, an innkeeper being condemned for robbing on the highway, when he was at the gallows, confessed an hor- rid murder, complicated with most strange circumstances, which he had committed. The story, take as foUoweth. Last Christmas, two persons, strangers to one another, came into his inn, the one of them having a considerable charge of money. After they were in bed, and asleep, he took the sword of the person who had the least money, and killed the other, and put the sword into his scabbard again, all bloody. The person whose sword was made use of, arose in the morn- ing early ; called for his horse, and prosecuted his journey, so soon as he was gone, the innkeeper goeth into the room where the murdered person lay, and witli a seeming amaze- ment, cried .out that one of his guests was murdered, and, upon search, found that his money was lost. Every one sus- pected the person who so lately rode forth ; upon which he was pursued, overtaken, and, the innkeeper drawing his sword, it was bloody, which was so strong a presumption of guilt, that, being tried for his life, he was found guilty. But, on the other side, the innocence of his countenance, and beha- viour when he was apprehended, and the extreme surprize he seemed to be possessed with at the sight of his bloodv sword, and his not deviating from the right road to the place he overnight discoursed to be travelling unto, and the mo- ney h)3t not being found about liim, the judge had some ^08 Law Miscellanies. scruple upon his mind, and obtained a repi'ieve for himi and upon this confession of the innkeeper, a full pardon." I add the following case in which I was of counsel, and the only counsel, for the defendants. In Westmoreland county, Pennsylvania, in the year 1782, two persons by the name of Miller, and Cunningham, were indicted on a charge of murder before judges Pente- cost, Cook and Hays, commissioned to hold a court of oyer and terminer, for that and other counties west of the moun- tains. Two hunters, the deceased one, coming early to the cabin of Cunningham (the son) were entertained by him, and his bottle of whiskey produced. After having drank what was in it, they wanted more ; and, offered to buy a quart, that they might shoot at a mark, the loser to pay for it. He said that he had but a small quantity in a keg which he shew- ed, and had it for the use of people that were to come that day to put up a cabin for his brother-in-law. Miller, pointing to Miller who was there in the house with him. Miller's wife, tl|e sister of Cunningham ; and Cunningham the father, were the only persons then in the house. This the surviving of the hunters, and Cunningham the father testified on their examination, on the trial, as also what follows ; viz. that the deceased of the Hunters, insisted on having a quart to shoot for with his companion, and they would pay for it. Cun- ningham persisted in refusing, and for the same reasons. Upon which the deceased drew his tomahack from his belt, and swore he would split the keg, unless he got the whiskey, and advanced seemingly in order to do it. Upop this Cun- ningham (the son) laid hold of him to prevent him, and a scuffle ensued. The deceased threw Cunningham across the fire ; from which, by an exertion, he recovered, and got the deceased down. The surviving hunter, had in the mean time been interposing as he said to part tJie combat- ants ; but as Cunningham, (the father) said, it was to as- sist his com/ianion', under which impression the father laid hold of the surviving hunter, and endeavoured to put hira out of the house j and did put him out, and the scuffle conti- nuing some small distance out of the house, the surviving Law Miscellanies. 509 hunter, whose face was towards the house, saw his compa- nion, the deceased, as he testified at the door ; and just in the inside, as )ie had his hand upon the ' cheek door, he was knocked down with the but-end of his own rifle, as it after- wards appeared to be, and with which stroke the barrel was broke from the stock. In this case the blow could not have been given but by one of the three ; the sister of Cunningham, the younger; Miller's wife; or by Miller himself; or by Cunningham^ the younger. No one would think of the sis- ter a very young woman, of apparent timidity, and delicate appearance ; and the surviving hunter testified that she ap- peared much frightened on the occasion. Miller was put in the bill of indictment; but the suspicion did not attach so much to him, as to Cunningham, the younger, who had been in grips with the deceased, and had appeared to have the ad- vantage in the struggle. Miller could not be called upon to accuse himself; nor to accuse Cunningham ; for that would be the same thing as to excuse himself; or in other words, give testimony for himself; since one or the other of the two must have committed the homicide. The sister, the wife of Miller, could not be called upon to give testimony against her husband ; nor against Cunningham, for that would be the same thing as testifying for her husband, since if Cunning'- ham was the slayer, Miller, could not be. I had asked Cunningham (the son) in whose favour would the sister lean in case she was called upon to give evidence. His answer was in favour of her husband. But if his father had a leaning, in whose favour would it be. His answer was it would be in favour of him the son. From the narrative of Cunningham, the son to me, he stated that having got the deceased down, he dc sisted, and let him up, and that he the deceased had turned to go out, pro- bablj^to join his companion out of doors, v»'ho was engaged with old Cunningham, who appeared by far the stoutest man of the whole. That Miller, in the mean time, had seized a rifle of the hunter, and turning the but-end, struck at the deceased; and with so powerful a blow, that it broke off the stock at the lock, and billed him. 510 Law Miscellanies. In the communication of Miller and his wife to me, and of Cunningham, whom I heard separately, it was understood, that being counsel, I could not give testimony of it, or was not bound to do it ; so that no danger could follow from a confession of the real truth of the case. Miller, or his wife, were silent, as to the manner in which the matter happened, but Cunningham gave a relation with simplicity, and perfect consistency with all the circumstances testified by his father, and by the surviving hunter. I had no doubt of his inno- cence. Nevertheless, tht. opinion of the public was against him; and the same jury passing upon Miller, found no diffi- culty in acquitting, but hung 18 hours upon Cunningham; but finally acquitted ; not upon any doubt they had of Cun- ningham's guilt ; but on my argument contending that so outrageous a trespass^ and the necessity of self-preservation, made it justifiable. In examining old Cunningham, I had asked him, whe- ther, when.the one with whom he was engaged out of doors, and who had disengaged himself, and was making to re-en- ter, in appearance^ to assist his companion, had drawn his tomahack from his belt, and was advancing with it. He said no. But when he came to be sworn, he took care to add this circumstance, and to say that he had his tomahack drawn. The surviving hunter, said he had not ; but the question was, which of these should be believed. In convicting both Cun- ningham and Miller, one innocent person must have suffer- ed, and if one had been convicted, it would have been the innocent ; and this from the presumption of circumstances. This, I take it, was the only special commission of Oyer and Terminer, issued since the formation of the constitution, in 1776; and one person who was convicted of a capital of- fence, at this court, was afterwards pardoned ; John Dickin- son, who succeeded to the presidency of the council^ having doubts as to the legality of such a commission issuing. OBSERVATIONS ON ACTS OF ASSEMBLY THAT MAY BE REPEALED OR MODIFIED. Act of 3d December, 1782. THE act entitled an act to prevent the erecting any new and independent state within the limits of this common- wealth, 3d December, 1782, might be repealed; the occa- sion that gave rise to it having ceased to exist. It was a consequence of the cession made by Virginia to Pennsylva- nia of some part of the territory claimed, with a view to a compromise. The inhabitants of the territor}' ceded did not see the reason of such cession ; nor were they willing to acknowledge the justice of it. The truth is, it involved a great question ; viz. how far a state could cede territory, and another state acquire jurisdiction, with a view to a set- tlement of boundary. Nothing but what comes under the head of the transcendental right, as Burlamaqui stiles it, could excuse it, or justify; the salus populi suprema lex. I have no doubt now but that the people in that part of the state, at that time, had the right to have objected; and re- fuse submission to the Pennsylvania government. But I thought otherwise at the time, and took a decidedpart in sup- port of the Pennsylvania jurisdiction. It was shortly after the cession in the spring of 1781, that I went to that country, entering on the practice of the law, having been before ad- mitted in the court of common pleas of Philadelphia. The Pennsylvania courts were shortly afterwards established in that part of the country, the county of Washington, which comprehended the principal part of it, having been before 512 Law Miscellanils. laid out. Conventions in the mean time were holden, and the sense of the people taken as to submission or resistance. The idea was to declare themselves independent of Virginia or Pennsylvania, in the same mannet as Vermont had done of the states of Massachusetts and New York. It was sug- gested that a new state might be formed Vith a seat of go- vernment at Pittsburgh, having the Kanhaway on the one side for a boundary, with Muskingum and Lake Erie on the other, and to the eastward the Allegheny mountain. I will not say that but for me this would have taken place ; but I certainly contributed very much to obstruct the proposition. Could I have foreseen the want ©f support in the Indian war from the state of Pennsylvania, or Virginia, or from the United States, the people being left to defend themselves in a great measure, I might have been disposed to think that an indepen- dent government would have been most advisable for their support and preservation. But be that as it may, so it is that a contrary policy was advocated and prevailed. - It was kt my instance, and on my representation through the Pennsylva- nia representatives to the legislature, that the act in question passed ; and I believe it is the only act in the code which contains a clause of changing the venue,^ This act may be repealed, as now unnecessary under the general government. See the constitution of the United States, art. 4. sec. 3. I have said, that I did not think but that it might have been justifiable in the people of the territory ceded, to have considered themselves as thrown into a state of nature^ and to have formed a nexv and independent government ; because what authority had states to cede, when in pursuance of the 9th article of the confederation then existing, a judicial tri- bunal was established, by which the controversy might have been determined, the principle settled, and the actual boun- * By a subsequent act, 3 1st August, 1785, the clause changing the venue is repealed as contrary to the constitution, that trials shall be by a jury of the vicinage. Tliis would seem affirmatory of the principle that the venue cannot be chsnged in a criminal case. « Law Miscellanies. 513 dary ascertained ? The principle which governed me chiefly was the consideration suggested in the act ; viz. that the commonwealth of Pennsylvania had succeeded to the proprie- tary ownership of soil) and was pledged to pay a consider- able sum in compensation to the charter proprietaries ; and the ungranted lands in that quarter was a fund for raising the compensation to be made ; and of which I thought it would be unjust to deprive the rest of the community. But if I had known the little account to which this turned after- wards by the mismanagement of the legislature, and the land office, and speculators intending a great deal, but making little for themselves-; and all these things obstructing the improvement and population of the country, I might have thought less of the value of my efforts on this occasion. Whatever they were, certain it is, that I encountered some danger in opposition to the popular current, on the Virginia side of the state. But it is not consistent with my object in the present book to go farther into what might be called a matter of histary rather than of jurisprudence. An act to regulate arbitrations, and proceedings in courts of justice. 21 March, 1806. THE system of arbitration under this act, I have always considered as a matter of experiment ; and was well satisfied that the experiment was made, and a fair trial given it. For it appeared to me, that though it might not answer the expec- tations of the most sanguine, yet some improvement tnight grow out ofitk I have considered the appeal as objectiona- ble, so far as respects the party ivho calls for the rule of re- ference beiyig entitled to it. And this, I take it, has been found, upon experiment, to be a grievance. In the year 1807, on the circuit towards Lake Erie, I fell in with an inhabitant unknown to me, and, to whom I was unknown ; and entering into conversation v/ith him, on the affairs of the country, I found him dissatisfied with it, 3 T AM- Law Miscellanies. and disposed to leave it. His grounds of dissatisfaction, were a great variety of matters ; but, amongst these, he spoke of the hills, the roads, the mountains as unpleasant ; and the winds, the weather, and the seasons, as unfavoura- ble : but most of all, the laws, the lawyers, the justices, the judges, the courts and arbitrations. What of the justices^ said I, you have an appeal in some cases, and where they do wilful wrongs there is a law enabling you to take deposi- tions, and bring them to account. Ay, said he, but if we do get a hitch upon them, and bring them to the trig, they plead ignorance^ and who can dispute that ? But as to judges, said I, you have the presidents of dis- tricts ; do not they do pretty well ? Why, said he, they might be of some use^ if they would let the jury take their own way, but this they will not do. They swear them ; but dont swear themselves, and so are at liberty to say just what they please. But said I, you have circuit Judg-es that come trotting up here J (circuit courts had not been then abolished j) judges of the supreme court, they call them, what fault do you find with these ? Why, said he, I have been at some of their courts j and have heard their charges ; and they seem to steer pretty clear a while, in the trial of a cause j but to- wards the winding" up^ I have observed, that they always lean a little more to one side than the other. As to the judges not being sworn, said I, presidents or circuit court judges, they are sworn at Jirst^ when they take the oath of ojffice. That is, said he, like the man saying grace over a tub of beef which he salted up ; but none when he sat down to dinner. But, said I, in the administration of justice, there is a way provided of getting clear of judges ; you have your ar- bitrations ; justice brought home to your own doors. If a cause is brought into court, you can take it out, and leave the judges sitting on their stools with nothing to do. A}-, said he, but they have a trick of takitig the cause back again; so that we arc just where xve were at first ^ with more costs to pay. Law Miscellanies. SIS Though this Illustration of the way of thinking of the people is introduced with a view of pleasantry not always suitable for a serious work, yet it did appear to me, and does now, that appeals ought to be restrained, to the party called upon to refer. Why shall he who calls for a reference, appeal from a tribunal of his own chusing, unless in the case of misbehaviour of parties, or of referees ? This is the common iaxv ground of setting aside an axvqrd. Act of Assembly, 21 March, 1806. Sec. 13. '' That in all cases where a remedy is provided, or duty enjoined, or any thing directed to be done by any act, or acts of assembly of this commonwealth, the directioiis of the said acts, shall be s^ric^/^/ pursued, &c." This is a section of an act entitled, " an act to regulate ar- bitrations and proceedings, in courts of justice." It is not improbable that the arbitration acts will receive a revision by the legislature at no distant day } and if so, I would recom- mend the striking out the word strictly in this section. It is not only a maxim of the common law, but is a dictate of humanity^ and a maxim of reason, that penal laws be constru- ed strictly, but remedial laws liberally. The courts have been much embarrassed with this word, and at a loss to know what to make of it. It certainly could not be the intention of the legislature to change the rule of construction in this particular ; and yet it has the appearance of doing it. Wliile therefore, we are endeavouring to reach the sense of the act in this particular, we are transgressing the letter of the provi- sion. That I may explain what I mean, I will cite the lan- guage of Blackstone, on the liberal construction of terms. 3 Bl. Com. 430. " A court of equity determines according to the spirit of the rule, and not according to the strictness of the letter. In general laws all cases cannot be foreseen ; or if foreseen can- not be expressed; some will arise that will fall within the ol6 Law Misclllanies. meaning; though not within the words of the legislature, and others, which may fall within the letter^ may be contrary to his meaning'^ though not expressly excepted. These cases thus out of the letter, are often said to be within the equity J of an act of parliament ; and so cases within the let- ter, are frequently out of the equity. Here, by equity, we mean nothing but the sound interpretation of the law ; though the words of the law itself may be too general, too special ; or otherwise inaccurate or defective. These then are the cases which, as Grotius says, "lex non exacte definit sed arbitrio boni viri perniittit," in order to find out the true meaning of the law given, from every other topic of construc- tion." 3 Bl. Com. 430. We have an English statute, 28 Hen. 8. c. T. Sec. 28, which provides " that the present act shall be taken and accept- ed according to the plain words and sentences therein contain- ed,''^ It might as well have enacted that the words should be plain, and hdivcno ambiguity ; and the arrangement of a sen- tence or sentences, be so intelligible that no misunderstand- ing in the case, should take place ; or have enacted that all judges whose province it was, to construe them, should have no difference of opinion ; or, that all judges should have legal knowledge, and good sense. Notwithstanding such a statute, it might puzzle a king in that country, to find judges who would all agree, if they exercised their individual judg- ments ; or, that would understand a statute precisely, as each one of the legislature might say, they had intended ; for, perhaps even the members of parliament among themselves, might not agree, as to what, in their opinions, the meaning of the statute was. The truth is, it is one of the most difficult things to ex- press an idea in such manner that there can be no mistaking. Let any one think of giving an order, or direction to an a- gent J or, of having given instructions to an intelligent per- son relative to the most common business ; and, how often will he find that he has not been sufficiently comprehended. Or, in the case of receiving instructions from an intelligent person, how ofteiT will he find that the meaning is somewhat to be guessed :*:. But how much will the chances of an un- Law Miscellanies. 517 certain meaning occur when the subject of the direction is on a matter not familiar to the common yyund^ and involves a great scope of action that is to be embraced by the rule. Cases that occur, will often prove that the highest powers of the human mind are not adequate to the anticipating of them. It is not in human nature to foresee every thing. It is under a sense of the difficulty, I have heard it said, that the wisest head could not frame a law, but a cart and horses viiglit be driven through it. If it can be at all done, it must certain- ly be by one who understands the use of terms ; the arrange- ment of words ; the remedy to be provided, or the duty en- joined; and can foresee^ like a skilful general, when he lays the plan of a campaign, or disposes his troops for an engage- ment, where it is that the adversary may find a weak part^ or make an impression. But from the number of minds that are to be consulted before a bill can pass the chambers of the legislature, were it even drawn in the most skilful manner^ it will be disturbed by amendments. According to the proverb, many cooks spoil the soup. In the nature of the case, it is impossible, always, to avoid ambiguity where alterations^ by additions or by striking out, are made. There will be as many different meanings to be extracted, as there are spellings of the word Sunbury on the hand-boards, on the road from the town of Reading to that place. Of this we have a remarkable in- stance in the construction put upon the 9th section of the act of 3d April, 1792. The judges of the supreme court adhered to the letter; and even these differed among themselves. The judges of the state (supreme court) en- deavoured to reach what they considered the intention, and even these as to the intention, differed : some adhering less or more to the letter, others rejecting the letter^ and following what they took to be the 7tieaning altogether. The ambiguity of what is expressed, has led to much difference of opinion pn the bench, and has been the source of litigation to the people. Where " More is meant than meets the ear," \i\\\ be the case, in all diction. But if the letter is to go- 518 Law Miscrllanies. vern ; and if what is said must be taken strictly^ the substan- tial meaning and intention will oftentimes be lost. A dilTerence of inclination to construe according to the letter or intention^ 6\\\Acd the Roman lawyers. There were those •" who contended for a strict adherence to the letter and forms of the law ; others for a benign interpretation of it, and for allowing great latitude in the observance of its forms.^^ Butler's Horse Juridicfe, 49. I always thought, says lord Mansfield, in a report of the case of Perrin v. Blake, which has come into my hands, " that the strict adherence of courts of justice to the letter of the law, is productive of the worst consequences. In all ages there will be strict lawyers. But it is to be hoped that, in all ages, there will be lawyers of a different bent of genius, and a different course of education." It cannot but be supposed, that there will be a wide dif- ference between the penning of an act of the legislature, and that of a last will and testament. In the one case, great de- liberation, and by men selected for their understandings ; in the other, by the individual presumed to be inops con- silii, or unassisted ; and in many cases, in a great degree unlettered ; and, it may be, in his last sickness. Yet the same principle will apply in one case, as well as the other, viz. that the intention is to govern. That it is oftentimes difficult to get at this intention, is certain. For where an un- lettered individual himself draws or dictates his will, or rather dictates the heads of it ; or where an ordinary scri- vener, such as may occur, puts it into language, it must, in most cases, defeat his intention to be collected from the whole will, if the letter is to govern. I introduce the case of wills only to illustrate what I mean by construction ac- cording to intention, not that I would put an act of assembly to, the same extent, on a footing with the construction of wills, for the reasons already given. For in wills there i$ Qhtntivats great difficidty. When Satan went on his voyage to the new world, our earth, Milton occupies the fallen angels in his absence, with discussing metaphyscis. Law Miscellanies* 519 " Others apai-t sat on a hill retired, In thoughts more elevate, and reasoned high Of providence, fore-knowledge, will, and fate, Fixed fate, free-will, fore-knowledge absolute, And found no end in wandering mazes lost." Had last wills and testaments been then, he might have given these to construe. Not that they might not be able to find out the meaning by the mumping, if the intention -was to govern^ but if adhering to the letter^ they would find such contradictions, and inconsistencies, that it would be difficult to know what to make of it. The English are divided on the subject of construing wills. All agree that the intention is to govern, save where a technical term occurs ; and in this case some are governed by the term; or, in other words, by the letter. So that it is not what a man meant, but what he ought to mean by the rules of art f th-it is to guide. Nor is it even what technical rules will permit him to mean ; but it is a compound of the two, what he meant, and what he ought to mean, that con- stitutes the enigma and comes to be unriddled. This will sometimes be a question worthy of CEdipus to the Sphynx. For in one case, it will be said, the intent controuls the tech- ?iical term ; and, in another, the technical term, controuls the intent, " I am sensible," says sir Joseph Jekyll, (master of the rolls,) 2 Peere Williams, J'41, " there is a diversity of opi- nion among the learned judges of the present time, whether the legal operation of words, in a will; or the inte?it of a testator shall govern. For my part I shall always contend for the intention; and I think the strongest authorities are on that side. For if the intention is sometimes to govern, as it is admitted, it must, and not always give way to the legal construction ; and, yet at other times, shall not govern, there. will then be no rule to judge by; nor, will any lawyer know how to advise his client; a mischief which judges ought to preveat." And, by lord Mansfield, 2 Burr. 770. " No tech- nical wdrds are necessary to convey a testator's meaning ; and, whenever that is doubtful, it must be collected from the whole scope of the xvhole will compared with the several 520 Law Miscellanies. parts." And In Perrin and Blake's case, he says, " That he always thought, that, as the law had allowed a free communication of intention to a testator, it would be a strange law to say, now that you have communicated that intention so that every one understands what you mean, yet because you have used a certain expression of art, we will cross your intention^ and give your will a different construc- tion ; though what you meant to have done is perfectly le- gal ; and, the only reason for contravening your intention, is because you have not expressed yourself like a lawyer." Such was the judgment of a majority of the king's bench. But, in the exchequer chamber, on a hearing, it was revers- ed. The majority of the judges stuck to the strict letter, and the technical terms of the will. In this country the bulk of judges have followed this de- cision of the exchequer, because it was that of the majority. Judge Pendleton, in Virginia, did not follow it, as has been already noted. " Victrix causa diis placuit, sed victa Catoni." Judge Tucker, in his notes on Blackstone, recognizes this way of thinking of Pendleton. And in his judicial ca- pacity, April, 1810, " that there are no precise words, no precise arrangement of them, nor any thing, in any degree technical, necessary to the discovery of the testator's real and legal intention. Whenever, from the whole face, and context of the will, we can collect the testator's intention, we are bound to give it effect." 1 Munford, 541. So far with respect to the construing last wills and tes- taments, with a view of explaining the difficulty of reconcil- ing in all cases, the pursuing the strict letter of an act of as- sembly, with what they must obviously have intendeds For such is the imperfection of language, that terms^irQ, equivocal : or vary in their meaning, according to their situation in a sentence. There is also what the grammarians call an ellipsis, in language ; %vords used in a preceding clause, which are omitted in a second, and to be understood, or brought for- ward, and supplied. We have instances of this in last wills and testaments, where the judges in early times, not the best Law Miscellanies. 521 grammarians ; and seeing that the meaning required it, and not knowing how otherwise to reach it, have changed not a letter only, but a word, and substituted one directly contra- ry ; as, or, for and ; and vice versa ; and, for or. That is read the will so. I have no objection to this, but as it sa- vours of what is arbitrary, and has the appearance of doing violence to language. It is something like the house-wife challenging her bag at the mill, P for John, and R for Pat- terson. Were judges to pursue the strict letter of a statute, they would have less trouble. For it does not require much un- derstanding to distinguish A from B. And this is accord" ing to the letter. I have no idea that tautology, and multiplying terms con- tributes to perspicuity, and there is danger when it is un- dertaken to enumerate, that something may not be embra- ced as in tlie British parliament, where the word person was used in the bill, and a member moved an amendment, per- son, or persons; and another thinking to carry the matter still farther, and make sure, doubly sure, made a farther mo- tion to add person, or persons, he, she, or they. Another in order to shew the danger of undertaking te specify parti- culars, concluded with moving that it be he, she, they, or it ; for there might be an hermaphrodite, in the case. The truth is, that hseret in cortice, qui haeret in literse ; he sticks to the bark who sticks to the letter ; and it is only by penetrating through the rind, to the substantial wood, that the meaning of an act can be ascertained. C U 522 Law Miscellanies. Act of Assembly, March 19th, 1810, prohibiting in courts of justice, the reading, or quoting Britisli precedents subsequent to 4th July, 1776. THERE is a British statute of an old date, I cannot im- mediately turn to it; and I cite from memory, prohibiting the judges from suffering themselves to be feasted when they go the circuit. The words are, " shall take no gift of any one, with the exception of food, or drink, and of this very little." Under this minimum, or very little, I presume may be comprehended what was merely complimentary, on the score of respect, or friendship ; as, in our times the liba- tion of a glass of wine, or a dish of tea with the female part of the household ; but no formal invitation to sup, or dine, or any thing like what might be called an entertainments This statute must have been founded on some experience ihzt such hospitalities operated as a species of briberjs for it is classed with the accepting- gifts ; and, doubtless, it is but a delicate mode of conciliating a pre-judgment. And hence it is that compliments to sup, x>r dine, are usually given to those whom we mean to conciliate, or pre-dispose. It was a paradoxical apothegm of the great Franklin, that the best way to gain a man, was to take him by the throat, And^ when Aristippus was reproached by his brother philoso- phers, because he bent his knee when he presented a petition to Dionysius, " what can I help it," said he, " if that man has his ears in his feet ?" In the same manner it may be said by one who has a matter pending in court, and entertains, " how can I help it, if I know that judge, to have some part of his hearing in his throat." But would it not have been sufficient for this British statute to have prohibited only the accepting cards to sup, or dine, from a suitor in court ? How could a judge ascer- tain whether the person giving the invitation was a suitor, not having at hand the court docket to evolve, or inspect ; and it would be indelicate to ask the person, offering himself as a host, '* pray sir, have you a cause in court P" Besides, it might be rather xvith a view to a cause that he Intended to Law Miscellanies. 523 bring, or expected to have brought against him, than to one pendlngy that the invitation was given. He might think of the rule of prudence, " Cast thy bread upon the waters, and thou shah find it after many days." A cunning stager con- scious to himself of a misdemeanor, or a felony committed, fnight apprehend an indictment, and be willing to save his bacon in one sense, at the expence of it, in another. Or to make an oflfering, not " of a turtle dove, and two young pi- geons" to the priest ; but of a duck, or a goose to the judge* But, to say nothing of a suitor ^ might not something be done in that country of roast beef, through the medium of a barrister, or counsel in the cause, who might find out the weak side of a judge ; whether he was to be gained by flattery to his understanding ; or, deditus ventri, by food to his corporal taste. The exordium of an orator, according to Cicero, ought to be, " reddere auditorem docilem, attentum, benevolum." And were counsel to blame when they had discovered, that at least the temper of a judge might he soothed by using the means put in practice by the hero of the iEneid in his descent to Elysium, to soothe the centinel at the out-post ? Melle soporatam, et medisatis frugibus offam Objicit Oiling the springs of a machine makes It run smooth ; and wine will put a judge in good humor ; though the dan- ger may, be that he will be put into too good a humor with one counsel at the expence of another ; or at least oj" the cause which he supports. It is not in the natural order of things, for men in autho- rity who have discipline to support, to become guests ; much less who have controversies to determine between man and man. There is a repugnance in a mind of sensibility in deciding against your host^ if you can help it ; and you will at least have a wish when his cause comes to trial, that it may turn out good. But the principal obligation is the enabling the unworthy to derive character from the station. For though the judge himself may be neither pleasant in his manners, nor respect- 524 Law Miscellanies, able for his understanding, yet, in contemplation of law, he is supposed to have at least legal knowledge ; and his Station carries with it the majesty of the people ; and it is not pro- per that a knave should have it in his power to say, I had a judge, or the judges to dine with me. And how cap judges on the circuit know, in every case, what there may be against the man that appears to entertain them. But, for their own sakes, on account of regimen and com- tnand of time, if for no other consideration, the judges will find it most advisable to decline invitations. I do not think, therefore, it will be necessary to provide by law, as in Eng- land, at an early period they would seem to have done. But of this enough ; I go on to speak of that which was my main object, the muzzling^ not the mouth, but the mind of a judge, in prescribing to him that he shall not take a nip of information come from whence it may. What would we think of a British statute prohibiting the quoting precedents of our courts ? It may be said, such an act of parliament would be unnecessary ; for, my lords the judges of the Eng- lish courts, are too self-sufficient to admit to be read our de- cisions. There may be something in that ; but, they would be startled at an act of the legislature prohibiting the reading these. A liberal and enlightened chief justice of one of their benches would say, do we not hear occasionally read to us, the laws of other countries, or the decisions of their courts so far as they can throw light upon a matter before us; and why exclude the reasonings of a people, or the de- cisions on a law that is common to us both ; nay even, why exclude reasonings on their acts of Assembly enacted since our separation, which have an analogy to our statutes made since or before P I do not know whether the judges would permit a learn- ed Serjeant to quote a decision made in Pennsylvania, if it had a bearing on the point, as shewing what our reason was ; yet, I should think it strange if they did not permit it, when it is pretty evident that they read these themselves ; and what is more, profit by them. That they read, at least, the New York reports would seem to appear from their Law Miscellanies. 525 backing out^ to use an American phrase, on the doctrine of the conclusiveness of a sentence of a foreign court of admi- ralty. This doctrine was first shaken in the New York state, by a decision of the high court of errors and appeals ; and followed up in Pennsylvania, on my part, in the supreme court ;* and afterwards in another case, by JLidge Cooper in t/ie high court cf errors and appeals. If lord Ellenborough had not read the reasoning in these cases, or heard them read, he appears at least to have adopted a greater liberality in his way of thinking on the subject than other judges, who had sat on the same or other benches before him. See 1 Camp. 418. Park. 495. 6th edition. And 1 Camp. 429. Park. 619. On these and the like grounds, I incline to be of opinion that the act in question, 19th March, 1810, ought to be re- pealed. Were it not that my sentiments are known as having no overweening attachment to British precedents, save so far as they carry with them 72<3/wra/, or legal reason, I should be more embarrassed in objecting to this act. But, were it not that I should be unwilling to enter into a contest with the legisla- ture, where public opinion, or prejudice is on their side, I might be disposed to question the constitutionality of this act. It would seem to be abridging the right of the judiciary, to hear all reason on a question before them. What is"'t to us Though it were said byTrismegistus ? But if we are to hear the saying of a lord, years, or cen- turies ago ; and before the 4th July, 1776, why not what another lord has said since^ to explain or contradict the adju- dication ? The fact is, early decisions were, many of them * I claim nothing but having been the precursor of judge Cooper on the same side of the question ; and this I have a right to claim. But his opinion^ published in a small octavo, I would recommend to every American student, not so much for the reasoning and ideas, as for the analysis^ and systematic corn^ prehension of the subject. It is a model that will deserve to be adjnired. 526 Law Miscellanies. narrow; and why ere to dtlVat tlie plaintifi" in the advant-:,^e he has gained by the opinion of the 536 Law Miscellanies. single judge, and to relieve the defendant from the decision of which he complains. It may be so ; but may it not be justifiable ? It would seem to me ; as I must acknowledge it does ; that the single judge has erred in his judgment in this case; and, even on this preliminary question, it seems to me, that it is proper to overreach it in the contemplation of the mind, and to enquire what has been the decision of that judge. It is allowable then, at least I have done it, to look at the case stated, even in determining the first point. For astutia, in an endeavour to get at justice, is allowable ; and to admit a rigorous or liberal construction of an agree- ment, with a view to that object I have been disposed to do so in favour of the defendant. For it would seem to me that the defendant ought to be considered as relieved from the stipulation as to the costs of the prosecution in question. My memory does not serve me with a positive recollection ; but it seems to me, that in the course of my reading I have seen something which has led me to doubt the power of the court to impose the stipulation; and on principle there would seem reason to doubt it. For though in fact, in a forcible entry, there is a private, as well as a public wrong, and oftentimes the injured party resorts to the indictment merely with a view to his private wrong, yet I should be at a loss to conceive, that the power of the court could oblige him to stipulate for costs in this more than in any other cri- minal case when the statutes have not done it. If so the stipulation would be void, and on that ground the defendant would be relieved. But supposing the stipulation legal and binding, it respected an acquittal on trial. But here by the agreement on the part of the commonwealth with the defen- dant, the prosecution is arrested short of a trial ; a nolle prosequi is entered on payment of costs. It is true the pro- secutor assents to it. But nevertheless it is the agreement of the attorney for the state with the defendant ; and I would take it, that the agreement takes the case as to costs out of the stipulation, and puts it wholly on the recognizance. The prosecutor, the stipulant, directed the proceeding for costs .: bat what could he be supposed to mean, but that* the proceed- Law Miscellanies. 537 ing should be on the recognizance of the defendant; and for the purpose of costs only, and not for the purpose of trial. But no recognizance had been taken, as stated in the case. This was the oversight of the officer of the common- wealth, and for which the prosecutor the stipulant is not answerable. If the officer is reduced to the necessity of re- curring to a process to bring in the body of the defendant, and going on to trial, from the default of a recognizance, it would not seem to me reasonable that he should hold the prosecutor to his stipulation, who, in consequence of the agreement of the attorney of the state with the defendant, had given up the prosecution. It is under these impressions that I may be disposed to give the stipulant the advantage of any want of conformity to the agreement on the strictest construction of it, in order to let in a consideration of this point. Justice is the great object of us all, and when that does not certainly appear to have been attained, the mind is not satisfied, more especially if all ad- vantage has not been had in the hearing by such tribunal, in the first or last resort, as it may have been in the contempla- tion of the party to have had, who thinks himself agreed by the determination. It is possible that on hearing the matter argued, I might think with the judge who has given an opinion; and in or- der to get at this, if the party to the agreement on the one side, will hold the other to the conclusiveness of the effect of the opinion, I v/ould hold him to the strictness of the agreement as to the tribunal before whom it was' agreed to be heard, and unless he would consent to waiv|e the conclusive- ness, and give the advantage of a hearing on appeal, I Avould turn round to begin again, on the case stated, or leave him to his action as it was commenced, and the ordinary progress r)f the suit. 3 Y JoS Law Miscellanies. Opinion in the case of lessee of Ziebach v.Morgak. THE following was delivered in the case reported, 3 Bin. 69. It was a case which had been»holden over for advise- meat, and I had made out my opinion, but from oversight, I had omitted to deliver it to the reporters not that it was of much moment to insert here, more than to shew that I had considered the case ; and did not merely concur^ as it stands in the report, but delivered reasons. There are a number of other cases, some of them reported, and some not, where I made out opinions ; though at an early period, I was more in the habit of delivering them, not from written notes : some of them which had been written out, I did not deliver, because, finding that we concurred, it was left to the chief justice J to deliver the opinion of the court. « Some of these which I had drawn up, I threw into the fire, as having been always averse to the trouble of keeping papers, where it was not absolutely necessary. My notes in other cases^ I have given to some of the bar, or have lost. To Mr. Mountain, of Pittsburgh, I gave a number; and when on that circuit last fall, I thought of enquiring for them Avith a view to this publication, thinking to insert some. But I was unwilling to give him the trouble of looking them up, if he had preserved any of them. Seeing his bodily weak- ness, and knowing that the business of the term must at that time press upon him ; and for which all the strength that he had, was necessary. In a number of cases, I had given the opinions I had drawn up, to some one or other of the judg- es ; to chief justice Tilghman, one in a case of the first im- pression, Dessebats v. Berquier, which I had drawn up with some pains ; but it was mislaid, or handed over by him to some other of the judges; or it is possible to myself; but which I could not find at the time the covirt delivered their opinions, or since ; and therefore I could only express my concurrence with the sentiments they had delivered, at least it was not necessary to take up time in doing more. For they were to the same effect with reasons that had occurred to me. Law Miscellanies. 53^ There is one note upon an important question, the case of Starrer v. Shetz, which I could wish to have had, in order to insert it here. It was argued in the high court of errors and appeals, in which court I had taken a seat, to hear the argument. But some idea being expressed, that I had given an opinion in the court below ; (the supreme court) I with- drew, though I had not so understood it myself. The fact is, it had been argued before I came upon the bench of my supreme court ; but at the delivering of an opinion on the case by that court, I was on the bench, and may have said something as approving of their way of thinking, but did not consider myself as sitting in the case, but only observing upon the reasons which they had given. There v/as a misunder- standing in the case some way, either on my part, or on that of the counsel concerned, and I gave up my own recollection of the fact, and yielded to them. All I know, is that I had not considered myself as having given an opinion, &c. But having withdrawn from the hearing of the cause in the court of errors and appeals, I made anote afterwards, of what, as at that time advised, I should have been disposed to have thought of the case. I gave to judge Smith, that note together with his own notes to me, of the argument of counsel on the former opi- nion, when heard in the supreme court. His notes contain- ing what I probably had written, are not now to be found amongst his papers ; and probably must be in the hands of some gentlemen of the bar. I have not had an opportunity ©f enquiring. What is the use of all this ; it may be said, the profes- sion can go on, and justice be administered, and the law understood without a report of your opinions ; but it con- cerns myself to increase the evidence of my industry, and attention to the duties of my trust and station. It may be said that there is an inconsistency with this, in my throxving into the Jire Jtiany things, which, I acknow- ledge I had drawn up with some care. The truth is, had I expected that I should have had any opportunity of giving them to the public, I might have preserved some of these ; but Mr. Dallas, had, in a great degree, Avithdrawn himself 540 Law Miscellanies. from reporting cases, his professional business occupying his time ; and, this accumulating fast upon him, in the courts of the United States, from his office as district attorney ; and, from his great, and still opening talents. Mr. Binney had not yet oft'cr^d himself as a reporter, and therefore not seeing a prospect of publicity to my labours, I consigned them, I was going to say, to the tomb of the Capulets ; but, that figure not agreeing, I will say, to the funeral pile of the Caesars. Mr. James Mountain, of whom I have spoken in this note, is, I understand, much regretted, even, by those of the profession not friendly to his way of thinking on political questions. He argued two cases during the term, which unquestionably accelerated his dissolution ; the exertion be- ing more than he could bear; we may be said, on that oc- casion, to have heard the words of the dying- swan : he died in three days after the Term, The following are the words of the will on which the law point made in this case arises: " My wife, &c. shall continue to live in the house with her children until the term of the lease is expired, and she must observe the agree- ment which was made, &c. The executors namely W: L : M : and R. shall be empowered to sell my land in, &c. When my debts are paidy if any thing should remain^ my wife shall keep, &c. and my oldest son shall have £5 per advance ; and then each child shall have an equal share, and my wife shall have the third part, and if my wife cannot bring up and maintain the children properly, then the executors shall take the children away and put them out to good people, that they may be brought up. And in order that my last will and testament may be executed I constitute as executors IF. L. M. and /t»." The sale in the case before us has not been by W. L. &c. but by some of them ; others having refused to act. The question then will be, can the sale be made by fewer than the whole. Looking into the books I have extracted some authorities which I will note btfore making any observations •:)f mv owij. Law Miscellanies. 5M " It can scarcely be imagined that a testator when he in- trusts his executors with a power of selling land, should mean to have those for whose benefit he directs the sale, disappointed by the death of one of the persons invested with an authority', which the survivor is equally capable of executing." Coke Lytt. 113. Hargrave's note. " Where a naked power is vested in two or more nomi- natini without any reference to an office in its nature liable to a survivorship, as an executorship is, it would be a con- tradiction to the general rule, to allow the power to survive : but where a power of selling is given to executors, or to per- sons nominatim in that character, it is not wholly irreconcila- ble with the rule, to deem a surviving executor a person within the description. For by the death of one executor, the whole character of executors became vested in the sur- vivor, and the power being annexed to the executors, r^tione officii, and the office itself surviving, why should not the power annexed to it also itself survive, as well as where it survives by reason of being coupled with an interest ? But Avhether lord Coke's notion of the power not surviving, or the opposite one most conformed to strictness of law, is not now of any great importance, as such a power though ex- tinct at law, would certainly be enforced in equity. His dis- tinction is taken in case of a devise that passes no interest, or estate to the executors ; but merely a power or authority : but, though admitted in point of law, it would not avail in a court of equity, as this jurisdiction, notwithstanding the extinction of the power at law, would compel the execution of it, for the sake of those for whose benefit the power was given." Idem. Powel on devises controverts the correctness of taking no distinction between a devise that executors shall sell land, and devise of land to executors » Law Miscellanies. I have not the opinions of chief justice Shippen, Yeates or Smith, nor that of chief justice Tilghmari, but I give my own, which may serve to give some idea of the reasoning on at least one side of the argument. Opinion. M'Lean the defendant was acting as a justice of the peace in Adams county. Rule to shew cause why an infor- mation in the nature of a writ de quo warranto shall not issue against him. Brackenridge J. A county is a corporation^ with com- missioners, treasurer, coroner, sheriff, constables, justices of the peace, judges of the courts, &c. It is struck off, from the state at large, and may be, as in this case, within the bounds of an old county ; but it becomes a distinct and iri- dependent body. Can the commissioners, treasurer, coroner, sheriff, &c. of the old county, continue to act within the new ? Not un- less the authority is specially saved, in the act of incorpora- tion of the new. This has been done in the erecting many counties. It has been done as to certain officers in erecting this county : " The sheriff, coroner and public officers of the county of York shall continue to exercise the duties of their respective offices, within the county of Adams, until si- milar officers shall be appointed agreeably to law within the said county of Adams." 4 State laws, 533. Is a justice of the peace, such an officer, as is within the meaning of this act ? If so ; he is, at least, supersedable, and superseded at 'all times, by the elections, or appointments of others of the same description and authority, in the ordinary way, provi- ded by the constitution, and the laws of the commonA^ealth. But can an officer of the old county, the justice of the peace in question, falling as to residence within the new, act within the new, independent of any legislative act ? How can he become known to the new ? There seems some copula wanting to connect him with it. It may be matter of authority, to consider what has been the legislative construction in the case ; by implication we have abundant evidence. Law Miscellanies. 54^ Oar first legislative act is that of erecting Lancaster county. By this act it is provided, " that the county of Lancaster shall enjoy all and singular the jurisdictions, pow- ers, rights, &;c. which any other county doth, or may or ought to enjoy." But nothing is said, specially, of the ap- pointment of the justices. 1 State laws, 242. The act erecting York county, specially provides even for the jurisdiction of the supreme court, and justices (mean- ing county justices) shall be commissioned by the gover- nor. 1 State laws, 326. In erecting the counties of Cumberland, Berks, North- ampton, Bedford, Northumberland and Westmoreland, it i;^ provided, in the same words as to the Supreme court and as to the justices. 1 State laws, 328, 352, 562, 607, and 663. These acts were under the proprietary government. In erecting the county of Washington, under the consti- tution of September 28th, 1776, the jurisdiction of the su- preme court is preserved, and it is directed that justices shall be elected in the townships and commissioned by the president and council. 1 State laws, 874. In erecting the county of Fayette, provision is made, in like manner, and also for the first time, it is provided in the act of incorporation, " that the justices of the peace com- missioned at the time of passing this act and residing within the county of Fayette, or any three of them, shall and may hold courts of general quarter sessions of the peace and ge- neral jail deliver)-, and county courts for the holding of pleas, and shall have all and singular the powers, rights, jurisdic- tions, and authorities, to all intents and purposes, as other the justices of courts of general quarter sessions and justices of the county courts for holding of pleas, in the other counties may, can or ouglit to have in their respective counties." 2 State laws, 155. It is observable, that it is as judges of courts, authority is given them, not as justices of the peace, general- ly, for the keeping of the peace and the recovery of debts. By the c institution of 1776, chap. 11, sect- 26, the legisla- 3 Z 540 Law Ml6C£LLAMi.I>. tare may establish courts, and under this power it «iay have been, that they undertook to establish judges. In erecting the county of Franklin, it is provided, " that the justices of the then present county of Cumberljind, which v.'ill hereafter be within the said county of Franklin ^ shall bfe justices of the peace for the said county until the expiration of their several ternnis for which they were respectively ap- pointed." This goes the whole length of the power of a justice of the peace. 2 State lav/s, 216. In erecting the county of Montgomery, power given to justices commissioned in the old to act as judges in the new, 2 State laws, 221. In erecting the count}- of Dauphin, justices already com- missioned, are authorized to act as judges. Power is not given to act as justices of the peace generall}-. 2 State laws, 254. In erecting the county of Luzerne, provision made for the electing and commissioning justices. Nothing said re- lative to justices already commissioned. 2 State laws, 466. In erecting the county of Huntingdon, the justices of the peace commissioned at the time of this act and residing with- in the bounds and limits of the said county, shall be justices of the peace for the said county during the time for which they were so commissioned. 2 State laws, 527. By the act erecting Allegheny county, provision is made " that justices now commissioned and within the limits of the new county may hold courts." 2 State laws, 595. By an act erecting Mifflin county, "justices commission- ed at the time and residing, &c. shall be justices of the peace for the said (new) county." 2 State laws, 71 8. By the act erecting the county of Delaware, "the justices then in commission are authorized to hold courts; and that a// public officers, other than justices of the peace^&hzW con- tinue to exercise the duties of their respective offices, until similar officers shall be appointed. 2 State laws, 732. This clause implies several things. 1st, That a justice of the peace might be comprehended under the term " public officers." 2'Uy, That he could not act without the aid of the legislature. Law MiscLLLANi: s. o4r It had been doubted and might well be doubted, whether as a justice of the peace deriving his coJintitutional existence from the commission of the president and council, he could de- rive any extension of authority, from an act of the legislature. So far as respected their authority as justices of the peace, generally, this legislature excepted it. The act of assembly enacting the county of Lycoming, is the first act, erecting a county, after the constitution of 2d Sept. 1790. It is provided that the president of the third district, of which district the said county of Lycoming is hereby declared to be a part, shall have like power, &c. ; but no notice taken of associate judges that might fall with- in it, nor justices of the peace. 3 State laws, 716. In erecting the county of Wayne, it is provided " that, the sheriff, coroner, and other officers of the county of North- ampton, other than the justices of the peace^ shall continue to exercise the duties of their respective offices, within the county of Wayne, until similar officers shall be appointed agreeably to law within the said county." 4th State laws, 242. This act is under the constitution of 2d Sept. 1790. In the act erecting Centre county, the jurisdiction of the supreme court, as in all the other acts is extended, and that of the district president ; but no notice taken of justices of the peace. 4 State laws, 542. In erecting the last counties in the state, those of Bea- ver, Butler, Mercer, Crawford, Erie, Warren, Venango, Armstrong, the authority of the judges of the supreme court, and district president, is extended, but no reservation of the power or authority of associate judge^ or a justice of the peace* Expressio unius exchcsio est alterius. The question will then come to this, can the justice of an old county act in the new, without the reservation of their authority, by the legislature, in the incorporating act ? How can he be known to the new county ? Can the justice of York county, in his commission, begin his precept " Adams county, scilicet?" In this case he might act in bolh counties. In th? old coun- 548 Law Miscellanies. ty by the authority of his commission and in the new by vir- tue of his residence. But is not his commission during good behaviour; and can the legishiture, by erecting a new county, in fact, abol- ish it ? It does not affect his commission. It abridges or takes away the sphere of action only. His commission was taken, subject to the eventual sub-division of the county: a power, which the legislature has and must exercise. And, I take it, there is no privation of right in the case. And, that independent of the aid of the legislature, to say the least of it, a justice acting in one county under colour of a com- mission in another, is a trespassor. The strongest thing that occurs to me to be said to the contrary, is the term " public officers," in the act for erecting the county of Adams. "The sheriff, coroner, and public officers of the county of York, shall continue to exercise the duties of their respective offices within the county of Adams, until similar officers shall be appointed agreeably to law, within the said county of Adams." In the acts for erecting the counties of Delaware and Wayne, there is the like provision with an exception " as to justices of the peace," which exception, I take to be expla- natory and not implicatory, that under the term, " public officers," justices of the peace could be comprehended. It is as much as to say, by public officers we do not mean jus- tices of the peace. Independent of the explanation, it must have been evident, as in the case before us, that the legis- lature could not mean these. The reservation of authority is in favour of " public officers," until similar^ shall be ap- pointed. The provision, therefore, must respect officers, supersedable by the appointment of similar. But justices of the peace, hold their commissions, during good behaviour, and are not supersedable by the appointment of similar. Under the term, " public officers," therefore, I take it, jus- tices of the peace are not comprehended. There being no legislative act in conservation of their authority and exten- sion of it to. the new county, it can be known only to the old. Law Miscellanies. 549 The argument comes to this, that the commission of the justice for the old county does not enure for the use of the new, unless there is a saving of his jurisdiction in the erec- tion of the new, that is, the new county erected subject to the jurisdiction, if this could be done. It does not lie upon me to say that it could. But, a fortiori, it cannot be without. And in this case there is no saving, but the new county laid out without respect to the jurisdiction of the justice. He may remain a justice of the old county, therefore, and may withdraw within it, and act, but has no connection with the new. He is not known to it de facto ; nor by operation of law, nor by legislative exception or recognition, or new com- mission from the governor by virtue of his signature to a law, directly, or by implication, authorizing them to act, if the signature could be supposed to have that effect, which it is not necessary for me to say that it has, but certainly without it there cannot be authority for an officer dismem- bered from an old countv to act in a new. On the granting new trials. MY mind had got a set against granting new trials, and this on two grounds. 1. Appeals from the circuit courts on motions for a new trial which had become pretty x\Q7!ir\y a matter of course ; and trials in the first instance, passed for nothing ; at least for very little. I saw that in the nature of things we could not go on, so as to give satisfaction to the country. In the 2d place also I was impressed with what I thought a too great facility with the court, in sustaining of this kind and grant- ing new trials contrary to the sense of juries on matters of fact^ on the ground of the verdicts being agamst evidence. This more particularly in some cases which had occured in the western district on the subject of what are called \m- provement rights. It was under this impression that I deli- vered the following in the case of Laugblin v. Maybury, at 550 Law ?Jiscf.llanif.s. the sittings in term, for the western district, Sept. 1807. I will not say that these sentiments delivered here, or ex- pressed to the same effect elsewhere, contributed to have the circuit courts abolished; hin this soon afterwards took place. I have been led to consider a little the orig-inaud nature of granting new trials. It succeeded the writ of attaint : This writ was founded on an allegation oi perjury ; (a) (a) St. Westm. 1. 3. Ed. I. c. 38. An attaint shall be granted in a fee of land. For as much as certain people of this realm, doubt very little to make a false oath, which they ought not to do, whereby mucli people are disinherited, and lose their right ; it is provided, that the king of his office, shall from henceforth grant attaints, upon in- quests in plea of land, or of freehold, or of any thing touching free- hold, when it shall seem to him necessary. This statute is in affirmance of the common law. 2d, Inst. 236. But though an attaint, did lie upon a false verdict before this, yet because in plea real, remedy of a higher nature, the king some- times refused to grant it. Brief of conviction, old name for writ of attaint. Stat, of Marl. c. 14. The witnesses named in the deed, should be joined with the in- quest. But if they, of their own head will say, that it is disseizin, their verdict shall be admitted at their own peril. 13. Ed. I. c. 30. That the justices assigned to take assizes, shall not compel jurors to say precisely, whether it be disseizin or not, so that they do show the truth of the deed, and require aid of the justices. By Statute, '. 4 of Ed. II. distress is given in case of default of j ury of attaint to bring them. 1 Ed. III. c. 6. It is provided that for the great mischiefs, da- mage and destruction that hath happened to divers persons, by the false oaths of jurors, in writ of trespass, from henceforth writ of attaint shall be grant d, as well upon the principal as upon the damages, and the chancellor shall grant without speaking to the king. 34 Ed. III. c. 7. Here ii is av.'ardcd against the falsehood (A' jurors, to the poor without line. Law Miscellanies'. 551 and this allegation was founded on express proof, or on a presumption of corruption in the jury, by the party. Hence at common law where the writ must be against the whole jury, the defendants could not have been fewer than thirteen. This appears from the recital in the statute of 15 Hen. VI. The presumption of corruption in the jury by the party, where it was matter of presumption, and not of express proof, must have been draivnfrom the glaring injustice of the verdict. That it must have been a case of manifest wrongs will appear, from the greatness of the punishment on conviction. This wrong could more easily appear, when the matter in is- sue to the jury was simple, as at an early period it was in all cases. As questions became more complicated, the Avrong could not always so manifestly appear ; and hence the presumption of corruption^ did not so necessarily arise. The punishment of course, became disproportioned tO' the evi- dence ; conviction did not follow, and the attaint ceased to be a remedy. It was attempted to be helped out by sta- tute, reducing the punishment: yet reciting in all cases, the reason and ground of the writ, to be that of corruption by the party^ and perjury in the jurors. But the questions sub- mitted to a jury becoming every day still more complicated in evidence, and intricate in law, from the removal of re- straints in the alienation, of real estate ; or from the rela- tions and transactions of a more improved state of society, the unreasonableness continued more and more to be felt, ol 9 Rich. 11. c. 3. Attaint given upon a false oath, and also writ of error on the judgment. 11 Hen. VI. Complaint of the great damage and disherison tliat cometh by the usual perjuries of jurors, the which perjury- doth abound and increase more than it was wont, for the great gifts that such jurors take of the parties, kc. costs and damages given on conviction. 15 Hen. VI. Great perjury which horribly continueth, See. 1 1 Hen. VII. c. 21. Whereas perjury is much and customary "used among such persons as pass upon issues. Sec. 23 Hen. VIII. c. 3. Att. v. persons giving, Sec. and v. party. Sec. 20/. 5s. \ to king ^ to party, See. fine and ransom by the discre- 'ion of tiie justices, before llu: fulso sacrament shall be found. 552. Law MiscELLANrcs. considering that as a crime which might be no more than a mistake : the writ of attaint with all the softening of statutes in the penal consequences of conviction, ceased to be a reme- dy ; for no conviction would follow ; the feelings of the- heart and the reason of mankind revolted against it. It is now a mere tiame ; and the inference of perjury has ceased to be drawn, even in a case of glaring injustice; htcznst defect of intellect^ or of attention^ in the course of a long examination, ©r pre-conceived, and imperceptible bias, may be sufficient to account for it ; and I take notice of this early mode of ques- tioning the verdict of the jury, only with a view to show that originally it could not be questioned upon slight grounds. In place of the writ of attaint which was now disused, recourse would seem to have been had in extreme cases to the court of chancery, where, under a consideration of the circumstances of the case, neru trials were directed: this led to the courts of law themselves entertaining motions for new trials. Motions of this nature, had been always enter- tained on the ground of ?nishehaviour of the jurors or par- ties ; or zrregidarity in the finding, or delivery of the ver- dict ; and the reason why we do not hear more of these mo- tions at an early period, is because "the old report books do not give any accounts of the determinations made by the court upon motions." 1 Bur. 394. In Stade's case. Style, 138. which is our first on the subject oi granting new tri- als^ it was moved that judgment be stayed upon a certificate of the judge, that the verdict had passed aganist his opinion; and that there might be a new trial; for that it had been done theretofore in like cases. But Rolle, (chief justice of the king's bench) said "that it ought not to be stayed, though it have been done in the common pleas j for that it was too arbitrary for them to do it.^^ Nevertheless, (though, at first, with great strictness) the practice of the common pleas would seem to have prevailed ; " and of late years," says lord Mansfield, 1 Bur. 395, " the courts of law have gone more liberally into the granting new trials ; and not only after trials at nisi prius, but also after trials at har, as readily as after trials at nisi prius ; or indeed Law Miscellanies. 553 rather more so, as the latter must be done upon what could have actually and personally appeared to a single judge only, whereas the former is grounded upon what must have mani- festly and fully appeared to the whole court." As a reason for granting new trials he further observes, " that as most general verdicts include legal consequences^ as well as propo- sitions of fact ; in drawing these consequences, the jury may mistake, and infer directly contrary to law." This ivas the beginning of his doctrine, which led to the rcidikmg pro- positions offact^ in some cases, legal consequeiices ; and final- ly to the exclusion of the jury in some instances, fronv the province of drawing legal consequences at all. I impute it to his introduction, that in subsequent practice, more liber- ty hath been taken with the verdicts of juries, than, it would seem to me, principle would warrant. It became fashion- able to allege, and indeed tracts (Eunomus, Sec.) have been written to prove, that the juries were, in no case, judges of the law; that if they did not determine the law, it was be- cause, on a general issue it was incideiital to the finding the fact, and involved with it ; that the courts had not only dis- cretionary power, but were bound to control the juries in their verdicts ; that if juries were to give an hundred ver- dicts against what the judges took to be law, new trials should be granted ; for juries ought not to be considered as having even a concurrent right to judge of law, but, as di- rected by the court : that the direction of the court was the only evidence they could have of law ; the only speculum through which they could look at it. On this I observe, that, in every general verdict, two things must be involved, theyiac^ and the conclusion from the fact. Hence it cannot be that the jury are judges of law. Whence then the ino.Kim^ ad questionem juris, ^ic.fCbJ The (b) That decantatum in our books (as my lord Vaughan calls it) Ad questioncm facti, Ik.c. is true ; for if it be demanded, what is the fact? The judge cannot enter it. If it he asked, what the law is In that case ? The jury cannot answer it. But upon the general issue, if the jury be asked the question, guilty or not? Which ia- '!':'■ ■ '■ •• '•••'. ♦''.'••■' •csolvc both law and fact \n :",; ■ - ■'• - r^u'dtv ■i A 554 Law Miscellanies. maxim means, that where the legal conclusion can he separa- ted from the fact ^ it shall be drawn by the court. This caa be done only by the pleadings, in the course of which, the facts are admitted, and the conclusion alone remains to be drawn. In drawing the conclusion, the mind thinks of some ge- neral principle under which the fact may come; and in this operation of the mind, the court must necessarily travel into ornot guilty. So as thouf^h they answer not singly to the ques- tion, what is the lav/ ? Yet they determine the law in all matters where issue is johied and tried, but "where the verdict is special. Rut in such cases the judge of himself cannot answer or deter- mine on the particular of the fact, but must leave it to the jury', with whom let it rest and continue forever, as the best kind of trial in the world for finding out the truth ; md the greatest safety of the just prerogatives of the crown, and the just liberties of the subject ; and he which desires more for either of them is an enemy to both. If the court might charge the jury to find for the defen- dant ; because, though the jury will generally respect the senti- ments of the court on points of law, they are not bound to return a verdict conformably to theirs. Per. judge Iredell. 3 Dal. 33. It is the peculiar province of the jury to infer facts from the evidence. Gushing justice, 3 Dal. 33. On questions of fact, it is the province of the jury; on ques- tions of law, it is the province of the court to decide. But, it must be observed, that by the same law which recognizes this reasona- ble distribution of jurisdiction, the jury have nevertheless a right to take upon themselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for as on the one hand it is presumod,that juries are the best judges offact, itis onthdother hand presumable that the court are the best judges of law. Bui; slill f^olh objects are lanvfully vjithin your fionver of decision. Sup. C United States, Jay, Chief justice ; 3 Dal. 4. Can it then be the right of the court to set aside a verdict mc^t - finitely ? It will be to say, youmay determine the law; but your de- termining is nothuig. Yet this must be the result of the doctrine of an arbitrary poiver in the court to set aside a verdict on ih^ ground of being against law. Law i\Iisc£LLANir.s. 555 die fact from which the conclusion is drawn. They cannot but, in the first instance, make an inference from the evidence of what the fact ia the case is. It does not follow, therefore, that it is only matter of law of which the courts judge in granting a new trial. In every case, on a general verdict, they must judge of the fact first, fc) Hence the imperfection of their judgment, in judging of the justice of the verdict. And it follows, that they are not bound, and cannot be justi- fied in granting new trials against the sense of successive ver- dicts. Where a mind has the faculty of reasoning, and that fa- culty is strengthened by the exercise of reasoning, as is pre- sumed to be the case with a judge, great power is acquired in separating, and comparing ideas; and where a knowledge of general rules enables to determine under what rule the facts of a case come, we approach the nearer to something like certainty : yet such is the diversity of transactions, that the application of a general rule in all cases, would work in- justice. CdJ How then can a judge know, or undertake to say with certainty that, where a jury departs from what he would call a general rule ; there is not something in the na- ture of an exception in the case, which attaches the feelings of the heart, and forces a verdict contrary to the direction of the court who apply the general rule. For this reason a verdict of a jury ought not lightly to be questioned^ even though it has gone against the opinion of a judge. (c) Co. Lit. sec. 368. Also in such case where the inquest may give their verdict at large, if they will take upon them the know- ledge of the law upon the matter, they may give their verdict ge- nerally, as is put in their charge ; as in the case aforesaid they may well say that the lessor did not seize the le&see if they will, &c. (d) There is an excess of discrimination in investigating the qualities of tilings, which in legal as well as other objects of critical disquisition, tends only to draw out a question to infinity. That the foundation of every rule must of necessity be imperfect, and that it is impossible to bound the scope of its application to a ma- thematical point. Rob. on Frauds, cites 2 Atk. 41, 42. 556 Law Miscellanies. It is Avith less confidence that a court ought to advance in granting a new trial on the ground of being agohist evi- dence. " And one reason for this (which can never be an- swered) is, that the judge cannot fully know upon what evi- dence the jury gave their verdict, for they may have other evidence than what is shewed in court;" Tri. Per pais, 274. That is to say, the impressions of a jury of what they them- selves know of the parties, or witnesses ; or -what is collected from the manner in xvhich the testimony is given^ cannot be communicated, and makes no part of the evidence before the judge. To say that the evidence therefore, in the language of judge Foster, 1 Bur. 397, greatly preponderates against the verdict, is a matter which in ro common case can be done. I am therefore not disposed to think that in every case, " Where there is a reasonable doubt," (which is the ex- pression of Lord Mansfield,) we are justifiable in setting aside a verdict. The granting a new trial must involve the idea, that the court so exercising the power have the evidence all before them^ from which the fact was inferred by the jury. Unless there- fore in the case of a judge before whom the evidence ivas given^ there cannot be the same evidence that was given to the jury. For though the whole be taken down by the notes of the judge, literatim as to written evidence, and verbatim as to the oral testimony, yet the impression cannot be communicated. For " as much may be frequently col- lected from the manner in which the evidence is delivered * as from the matter of it." 3 Black. Z7Z. " The law's delay" is proverbial; it is enumerated by the poet amongst the evils of life. It furnishes an argu- ment against the turning the successful party round to ano- ther trial. Nor is it him that it delays only, but other suit- ors. There is greater delay in this state, from the granting new trials, than under the judiciary system of that country from whence we derive the practice. There, the four terms occur every year, to which the motion for a new trial can be made, and the cause may go to trial at the sittings after term ; or at a nisi prius court, allowing only reasonable Law Miscellanies. 557 time for the commission to issue, and the jury to be sum- moned ; and the new verdict may be had in three months. Here, so far as respects the nisi prius, the delay of a new trial, ordered at March term, must be until December, and in all the circuit courts, it cannot be less than a year. So that the delay of judgment and execution, independent of the merits, is of itself an object for a motion for a new trial. Hence it is that in the circuit courts the motion for a new trial, where the verdict is for the plaintiff, is a thing- ofcourse^ an appeal being given from the judge refusing a new trial, and the delay of course obtained. It being thus a thing con- templated by the judge before whom thi; cause comes to be tried, that a motion for a new trial will be made, he is led to delay the trial by taking down the written evidence at great length, and to ' chronicle the small beer' of the testimony ;* endeavouring to reach the whole body of the evidence ; so that the time allotted for the circuit is taken up with some- times little more than a single cause ; and when a new trial is gi-anted, the judge who comes the next year, has the same cause to occupy his chirography, and prepare for the motion that is to be made again. This may be said to be in some degree the fault of the system ; but the court must take the system as it is, and in matters of practice must look to it ; and the reason ab inconveniente must weigh with them in all that is within the province of discretion. Our legal discretion must have respect to the rights of other parties who are waiting in the country for a hearing of their claims. And at a time when the cry of delay is loud against the administration of justice ; it would seem to me that it is our duty to consult despatch in the trials ; and to refuse, unless in extreme cases^ the throwing the mat- ter back upon another jury. The public sentiment as far as I can collect it, is with the juries, and we hear less of the in- justice of verdicts^ than of the delaij of trials. If a more spar- ing interference of the courts should be exercsied ; it may come to be felt by the people, and lead to a reform in a sys- tem, which does not give time for those revisions of verdicts * To suckle fools, and chronicle small beer. Pofie. 558 Law JNIiscellanils. which the constitution and holding of the English courts admits. Is it a time for the courts of this country to be stretching to the utmost extent the control of verdicts, -when the strug-g-le is^ whether there shall be law judges at all? Rules of law arc to be regarded, as much as the principles of any other science ; but a great part of these rules which we call law, are but the dictates of natural feeling, or moral reason ap- plied to the case before us ; principles of equity and justice resulting from the relations or contracts of men. The judge in the plenitude of his pride, is apt to arrogate to himself, as having alone the capacity to judge of these, or to apply ihetn^ xvhich is but the exercise of reason. A consideration of these particulars ought to give respect for the deductions of even uneducated men, so as not lightly to set aside what they have thought the justice of the case. A knowledge of rules is the result of reading, or of hear- ing : but the application of them requires a different facul- ty, and which we denominate common sense; now it is allow- ed on all hands, that a man may have at least the reputation of a great judge, and yet be deficient in the knowledge of hun^an nature, and in natural understanding. It is the pro- vince of a court to assist with the knowledge of rules ; and of a jury to assist in the application of them. This gives a jury a wider field than the mere finding of a fact, even sup- posing them excluded from determining what the law is. The sense of a jury in the application of law to the fact, is a great help to the court, and a great support. Consilium simuly atque auctoritas adsunt. (e) \Tacit de Mor. Germ.] A pas- sage which expresses the case, and perhaps shews the ori- gin of juries. I never therefore find the verdict in agree- ment with my way of thinking, as to the justice of the case before me, but I draw from it strong confirmation of my opinion ; nor, ever find it against it, but I go a great way in taking it for granted that I was wrong. And with good reason ', for it has been rare, that I have not observed in the fifj Liguntur in iisdcm consiliis et /irinci/ics qui Jura fier fiagos vicos'/ue reddnntj conci'Jian siwul atque auctoritas adsunt. Law Miscellanies. 55^ jury all due deference to the judgment of the court, and it must be a strong sense of right or wrong, that will lead them to dissent. It is this experience, and this course of thought that has given me some renitency to applications for new trials. It has been perhaps increased by the time taken up in arguing them, and the making them in the circuit courts, mere matter of course ; so that every cause must be tried, xv'ith a view to a new trial, and the judge is more con- cerned to get the evidence forward to the hearing in term,- than to infer from it in the first instance. So much with respect to the province of the jury in draw- ing a conclusion of law, and the province of the court, in controling this conclusion in setting aside a verdict. But in matter of fact the conclusion of a jury is still more to be respected. I will not say that it is exclusively their pro- vince; but it is peculiarly their province and likely to be invaded. It must be a strong case that would make me e^sy in throwing the parties upon the country for a new trial, whefe there has been no surprise ; where there has been a full hearing, and with the advantage of learned counsel* But when the motion is made merely on the ground that the verdict is against evidence; and where the judge who has tried the cause, and before whom the verdict was taken, and sanctioned it with his judgment, and now declares himself satisfied with it, I am nearly prepared to say, that to inter- fere, is a power which I will not undertake to exercise, at least I am prepared to express a wish, that the legislature may interfere and take av.^ay the appeal in such cases from the circuit court altogether. In order to prevent delay this must be done, or the system must be changed. But under the head of granting new trials on the ground of being against evidence, I do not comprehend cases, where looking through the evidence, it may be seen that in the nature of the case tlicre is evidence behind, which had not fcecn before the jury, or in the words of the chief justice of the common pleas, 3 Bos. and Pul. 495, '' some facts might be established which arc left equivocal;" or where an evi- dent oversight of so;nc facts appears, a party may be allow- 5i60 Law Miscellanies. ed, in the language of Chambre, 3 Bos. and Pul. 372, " the opportunity of taking the opinion of another jury." Having made these preliminary observations, I shall now consider in a few words the case before the couri. It may be said to involve a question of law ; for that an actual settlement is necessary, to support the claim of the plaintiff, or to protect the defendant, is matter of law ; and it may be that what shall be construed an actual settlement may be considered as matter of law ; but this consideration in the nature of the thing, is so involved with the conclusion to be drawn from the facts, that it amounts to the same thing ; for the question will be, whether the facts of the case constitute an act of settlement. The legal conclusion, and the conclu- sion from the evidence cannot be separated. The verdict can therefore be considered only on the ground of being against evidence. Here then we have the conclusion of a jury, and the sanction of the judge before whom the cause was tried ; and what weighs still more with me, that judge, after reflection and a lapse of time, declaring himself satis- fied with the verdict. I shall therefore not be disposed to disturb it ; but to concur in refusing a new trial. Observations to the student on the practice of THE LAW. SINCE I wrote what I had said, " might be called an introduction," &c. I have seen the preface to the American edition o( lord Erskine's speeches, New-York, 1813. The editor is of opinion, "that it can be demonstrated, that there is actually a greater aggregate amount of talent exhibited at the American, than at the English bar." He founds this upon reasons a priore, that there ought to be. " For, in this country," says he, " there is no other outlet for the first rate talent of her children, than that of the profession of the law. That, the nature of our political institutions forbids any hope of our statesmen acquiring any permanent power Law Miscellanies. 561 or extensive wealth and influence in the community ; and consequently, offers no adequate inducement for the primary talents of the country to devote themselves, exclusively, to a life of politics; whence the government, whether national, or of each single state, seldom, or never commands for its permanent service, the first rate abilities of America ; that the pulpits of America are not sufficiently favoured by pub- lic opinion to offer an adequate bounty of stipend, reputa- tion, and influence to conciliate to their service the life-ef- forts of paramount, comprehensive talents ; that the navy and army of the country have not yet grown up to a suffi- cient size and extent of magnificence, to vindicate to them- selves the highest order of American genius ; and, that in no country of the globe have trade and mechanics, or the plough taken to themselves permanently, very commanding abilities." I am not able to say what may be the relative merit of English, and American lawyers ; but this I have uniformly found, that the inhabitants of all states, and even districts of a state, are in the habit of conceiving that the lawyers of their states, or districts are the first, in legal knowledge and in eloquence. Said an individual of New- York to me some years ago, with whom I happened to lodge in an hotel, '• We have lawyers in our state that will go you back an hun- dred years ;" he meant, in citing cases. But we have, said I, some with us in Pennsylvania, that will g-o you back tTvo. Even professional men will naturally be disposed to over- rate the talents of each other, where they have only them- selves to compare with. But, in proportion to the opportu- nity they have of seeing, and hearing advocates elsewhere, their respect, or admiration must be reduced, in some de- gree, for those they have at home. The publication of our American reports, of sundry of these states, must tend to enlarge the minds of professional men, as well as of others, with regard to the relative legal knowledge, or talents of ad- vocates. I should be very happy to believe, that, from whatever caus-. it may be, our lawyers are not behind those of Eng- 4 B 502 Law Miscellanies. land, if not before them, in professional ability; and I should have no objection to believe it to be the case, that our judges are not behind those of England. For, having the honour to be a judge, I should, in that case, be inclu- ded. Nor can I see any reason why we should be behind them, unless we suffer our minds to be subdued by an opinion of their superiority, and the precedent of their opinions ; and, if we are inferior, I could assign no stronger cause, than such subjection. And it has been no small cause of my object in this publication, to give a spring t^ the mental faculties of the student, and teach him to free himself from the shackles of great names ; and, wjt/ lords upon a king^s bench, A student that is taught to think for himself, not slighting, or undervaluing the wisdom of those before him, bids fair ta rise to eminence, his mind being strengthened by reflection. But there is a medium in all admiration^ or widervaluation. I have thought the judges with us have been too much fettered with English decisions; not distinguish- ing what was decided, from the reason of it. As, for in- stance, in the case of Perrin and Blake, where, merely be- cause the technical construction in a devise prevailed, we ne- glect the reasoning, and good sense of those who support the contrary, that intention shall alo7ie govern. Hargrave, in his dissertation on the rule in Shelly's case, has abundantly shewn the fallacy of the application of it to the case of technical expression in a devise. And yet there are courts and judges that still stick to it, not considering the greater latitude that we have here in shaking a decision, or retaining it. The case also, of distinguishing between v/hat shall give real property, and personal, in full interest^ such as the testator had^ is an instance of this narrowness which is still retained. I see that it has been put down in Virginia by Tucker and Fleming, in the high court of errors and appeals, Roan sticking like a barnacle to the bottom of the old doctrine. At the same time I do not mean to un- dervalue judge Roan. His argument in the case of Reed v. Reed, 1 Munford, Appendix, shews him to possess super- '■mlnent abilities. But us to this point, the construing a Law Miscellanies. 5C3 devise, I am with the majority. Judge Tucker, in the case of Wyattv. Sadler's heirs, 1 Munford, 53r, observes, "that there is one reason which does not exist in England, why the intention of the testator in the distribution of his-lands among his children ought to be referred to an estate of inheritance, unless the contrar}' intention manifestly appear." It is, that lands were the property most easily acquired in this country, iis well as most necessary to the support of a family. A father often had nothing else to give. In distributing it, he must be presumed to do a fathei-'s part among his children by giving an estate of inheritance. The contrary construc- tion has still some foothold in this state, but it must soon go. It will certainly go by a legislative provision, unless the de- cisions of the courts render it unnecessary for the legisla- ture to interpose. But, to return from whence I have di- gressed. V I have no idea that either judges or lawyers here, are in- ferior, in natural powers^to the lawyers or judges of England. For I t2ike the man of America, I do not mean the aborigines, to be at least equal to the man of the European countries, whence we have emigrated. But I am not sure that we have equal advantages of acquiring legal information, and becoming eminent. Their law lectures by professors in the universities, is an advantage in the course of academial stu- dies. But still more, the opportunity they have of studying at what are called the Inns of court, I should conceive to be a pre-eminent advantage, having the opportunities of fami- liarly conversing with learned Serjeants ; and more especial- ly with each other; and whetting the appetite for study, and exercising the faculties of the mind in legal research, and investigation. Besides all this, the opportunity of attending the courts, and &c:eing and hearing trials, and the manner in which they are conducted, is an advantage. We have not the same advantage here, in all places. But a great drawback with us in the profeGsion of the law, is that here, every man must be his own attorney, and sometimes his own conveyancer in the course of his practice. He must attend with unceasing vigilance to watch 564 Law Miscellanies. the court docket, and take notice of the entry of rules, &c. Settling dockets, and putting down causes, and all matters preparatory to the trial takes up a great deal of time. The examination of witnesses, beforehand, where the witnesses for his client are willing to attend him, and the making out his own brief from these, with his cases, must also be at the expence of time. For, all these matters preparatory to the trial are indispensibly necessary to the knowing what can be proved, and what demand to urge, or defence to make. The first thing that a practising lawyer ought to do, Avhen a client applies to him, is to take a note of what he 'Will undertake to prove ; or will probably be able to prove, and to read it to him, lest he should afterwards say, or at least, think, you have deceived me ; you thought I had a good cause and would succeed. The answer is, take notice my friend, we are both deceived ; your witnesses have not proved up to the statement you made to me'. The examination of your client's witnesses immediately before the trial, is of moment that they may understand to what point it is that you call them ; that they may not take up the time of the court, by a cock and a bull story, as the phrase is, but come to the point at once. A man of con- science or of honour would not wish to drill them farther than this, even were they disposed to go farther. But his ob- ject would be to get the truth from them, and let them un- derstand v/hat circumstances are irrelevant, and to be thrown out of the case, and which a court itself would exclude if the testimony of a witness could be got at without such unneces^ sary appendages. As to an adversary's witnesses a man of delicacy would scorn to interfere with them lest he should bo supposed to have tampered with them, or to have misled. Of the moyens de parvenir, or means of -getting forward in the practice, I have already said something; viz. the qua- lifying for a discharge of the trust of an advocate by previous legal studies, and still more by diligence, and attention in iuisiness. It is impossible but the capable counsel will al- rvays have the ear of the court, unless something offensive in •vis n^ann'-rs, sliould occasion hitn to be frowned upon, aji^ Law Miscellanies. 5.6 j prejudice even against his reasons ; for it is not in human nature, but that a judge will be repelled even though in a de- gree imperceptible to himself, from a patient hearing to an ill-behaved person of the bar. And there will be petulant advocates at all times, as well as impatient, or perhaps arro- gant judges. But it is impossible for a judge however well disposed personally to the counsel, to bear with him, in the unskilful management of a cause, or a desultory, and still more, a tedious harangue. The decies repetita, is not a motto for a Serjeant's ring. Knock down your argument on that point of law, or fact, I have thought sometimes, while vm advocate has had it a long time under the hammer, like an auctioneer ; it will fetch no more, Tediousness, is gencr rally the effect, not so much of a want of talents to be brief, as of a want of previous study of his case, and due prepara- tion. The firstlings of all men's thoughts ought to be dou- ble distilled in the alembic of the brain, to make full proof. I come now to give a hint, that is worth a Jew's eye, ae the phrase is, to the young practitioner of law : this is to endeavour to recommend himself to the older, and abler of the profession, by shewing that he can be serviceable in a cause into which he may have had the good fortune to be introduced. It cannot be expected of him to do much in the higher department of conducting a suit, or arguing the cause, xipon a point of law. And perhaps not much in convincing a jury as to the conclusion of fact which his client's interest requires to be drawn. For it requires an intimate knowledge of the human heart, from reflecting upon the operations of our own passions, or from our experience, and observation of those of others, to enable to persuade the mind ; and to this, in the nature of the case, the young cur of the profes- sion cannot but be greatly incompetent. But, it mav be ex- pected, and ought to be expected of him, that he will do, what he can do, and to which, until he acquires experience, he may be competent. And this is the taking care of the pocket J watching the entries of rules ; searching the dock- et ; copying a declaration, or statement ; or a notice ; or a ^aper book for a court of error, &c. Giving audience to a o66 • Law IMiscLLLANiES. client, and keeping- him off from the leading counsel who ib otherwise engaged in his behalf, and tb better purpose than listening to him, though the client may not be able to com- prehend this. Nevertheless, it is what the younger practition- er can do. For as to the client, he measures your attention to his cause, and the interest you take in it, by the hearing you give him. The younger in the practice, may take all, or some of these matters on himself. For, it is the maxim, and ought to be, " Juniores ad labores." Matters of mere labour let the junior take. In the course of all this business, the younger counsel will find himself well rewarded by the information he will acquire of the practice, from the corrections, and directions, of the older in the profession. But it is oftentimes the case, that the younger will be for doing what they are not capable of doing ; and, from a false sense of honour, and obstinacy of silly pride, they will not do what it may be in their pow- er to do. The consequence is, the elder counsel will not fmd his account in being coupled with them, and therefore will neither take the pains to instruct, nor exert himself to get them employed, and brought forward in a cause. The false pride of the younger counsel may take the alarm at being thought to act a subordinate part in all these inferior matters ; and especially the being thrown as a tub to the whale, to keep the client off; but he will find his account in it; for, by his hearing patiently, and seeming to understand, he will gain the good will, and confidence of the client, who will very probably attribute to him his suc- cess in the cause, if he shoidci happen to succeed. In the petit^gnerre of the trial, there will be occasions when a judi- cious leading counsel may safely suffer him to speak. For the discharge of artillery even where there is but flash and smoke, may do something by the sound j it may check the pro- gress of an enemy, until the column is formed in another quarter. At the same time, by managing the piece, the voung artillerist will acquire a facility, though he has but powder ; and may be the better able to direct it, when he comes to have ball. Law Miscellanies. 567 It is the county and circuit courts chiefly, that I have in my eye in giving these prescriptions, where, in the country a great deal of business presses all at once upon the counsel, and it is of moment to have some person in the cause, that will do the hearing business, without which a client will not be satisfied. He will sit by you even in court, and injure himself by disturbing you. I once was out of humour by one who interupted me in this manner at an important point, an exception to evidence. He jogged me, and I gave him a pretty smart jog in return. He was what is called a back- woods man, and a hunter; I had him, the opponent, in my eye, said I, his defeat in my eye ; my rifle raised ; and now by that jog on the elbow I have lost my shot. But I have another hint to give which will avail the young practitioner when he has got into business; and that is to try to keep it* For be assured it is much more easy to get into business, than to keep it. Assiduity, is the se- cret of this, in illustrating which, the bargeman rowing up the stream presents himself to me as a similitude. For, if he loses a single stroke, the boat is carried back by the cur- rent proportionably to the loss of that stroke ; for, sa)'s the the poet, " Non aliter quam qui adverse vix fiumine lembum Remigiis subigit: si brachia forte remittit, Atque ilium in prseceps prono rapit alveus amni/' Nor is it so difficult to keep, as to recover professional practice when once lost. The idea of a new lawyer has some charm with it ; but having lost business by neglect, the charm is worn off, and the presumption arises, that he will neglect it again. The going into the legislature may perhaps not injure before a young lawyer gets much into practice. It may be a means of increasing it after a short absence and return to the bar. But it is dangerous unless managed solely with this intent, and with a view to this. As to the moyens de parvcnir, or coming forward at the bar when you have got practice, so far as respects public sneaking in a cause, you must speak when then; is an occa- 568 Law Miscellanies. slon, or necessity for it, and perhaps sometimes when there is not ; and this with a view to improve the faculty. It is only by frequent speaking that a habit is acquired ; and without some habit, it is impossible to have a facility. It need be no discouragement that you make out badly the first time. I would consider hesitation as a presage of future eminence ; at least I would consider it as no evidence to the contrary. I would not object to the writing, and re- ducing thoughts on the case to notes ; but no prooemium, or common place introduction to declaim from ; for you will soon come to the edge of the bank from which you must step down, and every one will discover the tumble you mu^t make. The tones of a declaimer are usually unnatu- ral ; nor can the diction be sustained, when you come to the expression of your sentiments as they occur, extempore. It is better to begin without any set speech, even though your confusion should be as great as that of the mayor delivering the address of his corporation to Charles II. who made his apology, and had occasion for it, that he had begun at the ivrong end. As shewing the natural progress of the eloquence of him who thinks, I give the model of Ulysses, according to Homer : When Atreus' son harangued the listening train. Just was his sense, and his expression plain, His words succinct, yet full, without a fault ; He spoke no more than just the thing he ought. But when Ulysses rose in thought profound, His modest eyes he fix'd upon the grouncl. As one unskill'd or dumb he seem'd to stand, Nor rais'd his head, nor stretch'd his sceptcr'd haiid . But when he speaks, what elocution flows 1 Soft as the fleeces of descending snows The copious accents fall, with easy art ; Melting they fall, and sink into the heart ! Wondering we hear, and fix'd in deep surprize ; Our ears refute the censure of our eyes. I would rather hear a young lawyer faulter and stammer Law Miscellanies. 569 {and without habit, it will be the case with every mind of sensibility) than to hear him run on with a flippancy in the first instance, that argues the having committed a speech to memory, or the having little depth of thought to embarrass the current of his diction. The. exercise of extempore speak- ing is every thing; but no committing to memor}', or de- claiming is of any use at the bar, but the contrary. Deba- ting societies of students of the law, with a view to this, is of great use, when the point proposed, is studied with atten- tion, and a just eloquence cultivated, grounded on a know- Jedge of the subject. It may be seen that Ulysses did noteome forward with a set speech, but had the images in his mind, and a perfect understanding of his subject. It was not until his mind heated by the assaying to nxxtr^ that feeling gave htm action, and ajlaw of elocution. Coming warm from the heart; it is this kind of eloquence that reaches the heart. All else is but the recitation of an unimpressed person. I set no store therefore by the gestures taught in the schools, or declaiming' with attitudes of raising hand and lifting foot; I would rather have a dancing master, that would confine himself alone to teaching the postures of the limbs, and the bearing of the body. A drill seargeant would not be amiss as to all this. Extempore speaking with the gestures that the feelings excite, is alone the language, and the eloquence of nature. Coming from a breast full of the subject it is irresistible. A speech condensed and written, and committed wholly to memory, is another matter ; Ijut this can have no place in the eloquence of the bar. Be- cause,' except as to a common place introduction, it cannot be known what to say, but as the occasion of the evidence, or argument calls for the oratory. On being applied to, for the purpose of advice as to the bringing a suit/or a client, you will doubtless advise accord- ing to the best of your judgment. But take it to be the case that you have been consulted, and the evidence fairly disclosed to you, and you have approved the bringing suit, the plaintiff in your opinion, having the law clearly in his fa- vour. But, upon tri^ij-, though he proves all that he harl un 4 C 57b Law MiscellAwils. dertaken to prove, and the defendant nothing to overthrow it, so as to change the law, which you had pronounced to be in his favour, yet the decision of the court has been against you, what are you then to do. I will not say what you are to do, but I will state to you the address of a young practi- tioner whom I once knew, not overburthened with legal knowledge, at least not the greatest lawyer in Christendom, who happened to be in the predicament of which I speak, and being upbraided by his client with the usual language, " did you not tell me, I had the law on my side ?" Apd did I not tell the court so too, says the advocate ; did you say* the client. Ay, did I ; to their faces ; I told them you had the law on your side. The governor can give commis- sions, but nature only can give sense. What could a client have more to say ? In such a case the instinctive impulse of self-preserva- tion will lead the advocate to lay the blame upon the judge, or upon the whole court if the decision should have been unanimous. Where a single judge decides for him, he is safe enough, but where the whole court is against him, what can he do, but insist upon them being wrong; and it is not impossible but that they may have erred. When at the bar, I have been as much shocked at the decision of a court, on a point of law, as I have ever been at the verdict of a jury on a matter of fact. In contemplation of law, the court are always right, but in contemplation of reason and common sense, they may have erred. But though a counsel has a right in self-defence with his client, or to others, to assert his own judgment against a judicial opinion, it is a matter of extreme delicacy as to the mode and manner of arraigning the decisions, and as to the language used. Insinuations against the integrity of a judge, or court, may lead to the penal consequence of being struck off the roll ; and at all events is a great imprudence ; for, coming to the ear of a court or judge, it is not in human nature, that he can be so well disposed to listen to you arid take atx interest in your success at the bar. It is always of great moment to a prac- tising attorney to be thought to stand well with a jtidge or Lwv Miscellanies. 371 court. For in general it is an evidence that he deserves to stand well ; and this from hh Icg-al knoivleilge and attenlion ^0 business. But I come now to say a little, on perhaps, a more im- portant point ; that of self-preservation from bad habits. These are frequently acquired from mere imitation, or the idea of being a fashionable fellow ; such as smoaking se- gars, which is detestable in a young person, and never fails to exhibit to me the evidence of a bad family education, or indulgence. Or, if not proceeding from that source, the effect of puppyism, which bespeaks a mind naturally little, and of the petit maitre kind. Imitators are contemptible every where ; such as at London, or Paris, your opera-glass coxcombs. The wearing spectacles, some years ago, was common in Philadelphia, among the young men, because there happened to be a few great men there, In the profes- sion of the law, that wore spectacles ; Wilson, Lewis, Coxe, and Wilcox. They wore thein because they needed them ; on account of the convexity of the visual orb. But the use of glasses by their imitators, when they walked the streets, was from an affectation of being thought learned men, 1>€- cause they resembled such in a nearness of vision, and the necessity of using lenses on the nose. It was more pardon- able in a blind man whom I once knew, who wore spectacles to make people believe that he could see. But the segar excites thirst and leads to intemperance. When the mouth is parched, you must wet the whistle; re- course must be had to something to moisten it. That which Vr'as at first unnecessary, and mere vv^antonuess of in- dulgence, becomes a habit, and cannot be got rid of, but in- creases vmlil the individual becomes the slave of tobaccft, and of spirituous liquor. I never see a youn^ person with a segar in his teeth, but I give him up, as oiie that will ne- ver come to much. In early life there can be no necessity for narcotics, or use in them, as a sedative ; nor is there any necessity for' the use of stimulants, when the animal spirits are of themselves, gay, and sufficiently volatile. These 'Jiings ought all to be reserved for a more advanced ag", il 572 > Law Miscellanies. used at all, and the beginning too soon with the use of thera is unnatural, and destructive. The situation of the greatest danger to a young practi- tioner of law is a remote county town, where amusements are few, and a literary society is wanting. The attending the courts is to all, a scene of inducement to intemperance, it being the lawyer*s harvest, and as on that occasion, as with agricultural men, so on this with the lawyer, there is a lati- tude of mirth, and convivial indulgence, to which those are the most exposed, whose society, from wit or song, or other talent is the most courted. There can be no profession where it behooves to be so much upon guard, in these respects, as the practitioner of the law. Intemperance of living at the county courts, and sitting up, perhaps at cards, " hath cast down manij wounded ; mariy strong men have been slain by it.''^ It is owing to these causes, and circumstances, in a great degree, that so ftw succeed in the profession of the law, which, I will admit, will, in a republic, where the law governs, always have the first place as an order or rank of men. Political science constitutes no order or rank, for the standing, to an individual is but occasional, not perma- nent. Nor do I speak of agriculture, for that does not comt under the denomination of a profession. That of arms doesj and, inter arma silent leges f in time of war the soldier occupies the whole attention of the public ; but a standing army, on a great scale, has never been favoured in a repub- lic. It is contrary to the genius of it, and will be certainly depressed, and frowned upon, perhaps more than it ought to be. For though a militia is a proper organization for a time of peace, and the preservation of civil liberty ; yet, for the purposes of actual service in a war with a foreign ene- my, whether of offence, or defence, an army enlisted for, and during such war^ is the only efficient force. It must be piade a man's business, to be in camp, to make it his home; and it must be made his home, to keep him contented in it, riiat subordination is necessary in a stated body of troops, vhich cannot he foimd In a militia. Law -Miscellanies. 57t The 7iavi/ unquestionably, in a republic, will always oc- tupy the next grade in rank to the civil authority, and those connected with it ; the one supporting the laws, and the administration of justice in the interior ; the other protect- ing from without. For, commerce, to a people that live up* on the water, will be sought; and to protect commerce a navy, a permanent navy, is essentially necessary. I do not know to whom to attribute the depression of ours, at an ear- ly period after it had begun to be cultivated ; but to that source I attribute all our national humiliation for a length of time, and, all the calamities of the present war. If we had gone on as we had begun, to build seventy-fours, and fri- gates, we should have had no tribute to paj^ to Barbary pow- ers; no constructive blockades from the English govern- ment, which was the earliest aggression ; no Berlin decree, or orders of council ; or Milan decree following these ; no British captures, nor French spoliations ; no necessity for embargo, a measure which it was expected to relieve us from the necessity of war. But what is more, we should have had no impressment of American seamen, under a pretence of being British seamen ; nor would Britain, witli all her wave-ruling boasts, have dared to question our right of impatriaPion, which she herself exercises, in its fullest latitude, and protects in her employment^ naturalized or not^ as she ivouldher own subjects^ without asking questions as to the service in which they had before been; or the countty to whom they might have before belonged. The means of de- fence, and the spirit to defend, is the only preservative of peace to a nation, as it is of safety to an individual. With such a force upon the ocean, as we might have had before the present war, to protect our own trade, and annoy that of Britainyshe would have been cautious with regard to the Indian in our neighbourhood, or the suffering trading companies, for the sake of gain, and a monopoly of fur, and peltry, to excite men to hostilities with our frontier settle- tlements. For I will not charge her with more, in the first instance^ than suffering these traders to excite an Indian war against us ; however she may have come, in the next in- stance^ to acknowledgfi them as allies ; and to close the ell- 5/4 Law Miscellanies. max by the ne plus ultra of degradation^ arid national barba- rity^ to place the scalp with the speaker^s mace, in the capitai of Upper Canada, But now to conclude what I have to say to the student. You will not understand me as at all conceiving that what I have suggested in the preceding notes, and observations, is, in all respects correct. For even the great Lyttleton, concludes his treatise upon tenures with a caution which must much more become such a jurist as I can pretend to be, even though writing upon matters less profound than those upon which he wrote, viz. to use his own language, *' Know my son, th^t I would not have thee believe that all which I have said in thes€ books is law ; for I will not pre- sume to take this upon me. But, of those things that are not law, enquire, and learn of my wise masters learned in the law. Notwithstanding, albeit that certain things which are moved and specified in the said books, are not altogether law, yet such things shall make thee more apt, and able to understand, and apprehend the arguments and the reasons of the law, &c. For by the arguments, and reasons in the law, a man more sooner, shall come to the certainty, and know- ledge of the law." The first thing I would recommend you to do, when this tiook shall have been published, and you obtain a copy, is to have it bound up with blank leaves, and in them enter your remarks, as to the errors, that may seem to exist after due examination, and your practice which may suggest them ; but much more the remarks which the learn- ed in the law may make upon them, whether coming from a judge upon the bench, or a counsellor at the bar, whose opinions are as much to be regarded, so far as respects what is extra-judicial, and out of court. The profession form a a body like a general council of the church, but, with this difference, that what the council determine is, eo instante, to be accounted orthodox j but, in the opinions of the pro- fession, make their way, progressively; nevertheless, never fail to control all judges, just as the vox populi in a com- monwealth must ultimately prevail. It is immaterial, whe- ther what is contrary, is put down by general sentiment, and public.opiniori in one case, or the other. THE CONCLUSION. THIS book has been written raptim, et carptim ; at snatches of time in the intervals of business ; and these intervals have been short, never exceeding ten days at a ^me. For, though I have been two or tliree times in a year, near three weeks at home, yet the gi-eater part of that interval has been taken up in making out statements of causes tried at nisi prms, for the sake of the court in Term, where there were motions for a new trial, on ^"ound of misdirection ; or on reserved points ; or, Xm the ground of the \'erdict being against evidence. But, «till more, my time has been occupied, when at home, hi considering cases holden over under advisement from the Term, and examining the authorities cited by the coun- sel in the argument. For it is only at the intervals of which I speak, from these occupations, that there can be leisure to make notes or observations upon collateral sub jects, and abstract matters of la\v. Nor would there "be leisure for this, at these intervals, ^vere it not that I ab- stract myself wholly from compan}-, and neither visit, nor receive visits of ceremony, and, see no one, but upon business ; except a literary cliaracter, or professional man, to whom I am always at home, and perpetually dis- engaged. Because from them I may derive something ; information, or instruction. Drawing near the end of my pilgrimage, I consider all time lost that is not em- ployed in leaving some memorandum of my existence, and that may be useful to men, either by contributing tp mental enjoyment, or to instruct. I state this with a \\t\v to exclude the conclusion that this publication can be c\i- dence of my having little to do, in my immediate official 576 Law Misclllames; occupations. For, it is rather an argument to the contra- ry ; and that I must have been industrious and attentive to the discharge of my trust, since the whole subject of the book, has a relation to the study and the practice of the law. I will acknowledge, as I have already hinted, that I have intended it, a good deal, for tlie legislature, with a view to assist them in the amendment of the Pennsylva- nia code ; and, this, by giving, as far as my understanding would lead me ; a broad view of the state of their law as improved, from that of England, or variant from it ; or, how far still defective in our provisions by acts of assem- bly, or in the fiUing up, and completing our excellent judi^ ciaiy establishment. It will \^e seen also, that I have given a glance at the encroachments of the national government, whether by acts of congress, or judicial construction, upon state rights. Not that I mean, in the most distant degree, to shake the confidence of the state in the national govern- ment ; on the contrary, my object is to preserve it by con- fining legislative acts, and construction, to the constitution- al orbit. " Esto perpetua," may it last forever, would be my wish. But this, in the nature of things, cannot be ex- pected. I look for its dissolution, I am afraid at no dis- tant day. The late symptoms of schism in the nortlieni states, seem to bespeak an approaching catastrophe. I consider tl^ opinion of the Massachusetts judges, in an- swer to the questions of governor Strong ; together with the order from Martin Chittenden, governor of Vermont, to withdraw the militia from under the command of the United States, as fraught -with the seeds of death, and destruction. It behooves every good man to endeavour upon great and enlarged principles, to conciliate and re- concile rather than to oppose, and enter into a contest. If the northern states will have the administration oftli'^ sijcneral government, in God's name let them take a tum Law Miscellanies. 57T at the helm ; for my own part I have approved of all the measures of the present administration of the general government, so far as respects foreign powers., but I do not chuse to go farther, because, if I did, I would have to make exceptions. But I have approved of the war with Britain ; I say notliing as to the time., or the preparation for it. For I am not about to write a chapter upon po- litics. But I had no idea of a war with any power but that of Britain, at the present time. Because France had ei- ther been drov/ned in the ocean like a rat, or had been driven from it ; and it would be unworthy of our spirit to be pursuing a dead animal ; and dead she is as to the sea, and external commerce. Unless we go upon the land, (the continent of Europe) what spoliation can she make ? Britain is our rival on the seas ; and, for that rea- son, our natural enemy. Take John Bull by the horns, however much we may be injured in the first instance, b ovLv policy, as well as an adversary Avorthy of our prowess, and our arms. I would fight her for a thousand years, rather than surrender to her injustice, and abominable claims of the dominion of the sea. It is upon the sea, only, that wt come in contact with any nation worth re- garding. It is there, the \vheel of our government rubs with tliut of any other ; and France has no wheel there for hubs to touch ; she is worthy making war with until we can Snd time to attend to the depredation of Biirbary powers, or French depredations. But if it would reconcile us amongst ourselves, to make war with France, make it and put an end of the difference. For the dispute actu- ally lias been, so far as I have been able to discover, which adversary uc should take; or, whether or not vv-e should not take both. For all seemed to agree prior to the de- ';kiration of Av.ir, that we v/ere a humiliated and degraded race, devoted to the love of gain, and having no spirit to resent our injuries. And certain it is, as I have been as- 4 D 578 Law Miscellanies. siired frequentl} % that Americans abroad were ashamed to acknowledge that they belonged to the United States. I believe it will not I^e the case now, and that even in Britain, some respect has began to be entertained for us. There is no animal in the system of nature, but can make itself respectable, provided it has the spirit to resent in- juries. What injuries have we sustained from Britain ? The "very insults of her negociations in our endeavours to con- ciliate peace, is a cause of war. For a nation that will treat with contempt our allegation of wrongs, is come to that height that it behooves to resent. I say this because I do not enter into tlie question of her injuries ; these, a fortiore, will justify our declaring war ; and unless she is brought to terms — interminable war. But the cry is with those who think otherwise, where shall we be, if Britain should go down ? Where are we 710W, if she stands up ? And where will we be, if her do- minion of the sea is not reduced ? That is our present concern ; and when it comes to be reduced below an equality upon the ocean, what hinders us to throw our- selves into the scale in her favour. If Bonaparte takes her island, which God avert, and of which I have not the least apprehension, he cannot, at the same time take her fleet ; and without a fleet he cannot come to us. The truth is, all apprehension of France, is absurd, ex- cept, as to the spoliations of our trade that comes into her ports ; and having combatted the Leviathan, we can no- tice France as a Shark, that will be scarcely worthy of our harpoon. As to all external commerce, or power up- on the sea, she is a dead fish already. She has not a boat to swim upon the ocean, that can be worth mentioning. But I arrest myself. There are those who think differ- ently, both upon the policy, and the justice of the war A\ ith England ; and respect is due to the opirtions of men, "But while Law Miscellanies. 579 The good, the brave, The brave, the good, are actiiig in the cause, may not I be allowed to use words ? This I will only say to the student, that I have examined the causes of the present ^\■ar, and I think it justifiable, and, on ground of policy absolutely necessary, as much so as was the war of the revolution, which gave us independence ; and I can have no doubt, but that the heroes of this war will add their names to those of seven- ty-six ; and, in future time be equally regarded ; The ever green shall flourish where they ly. And everlasting be their memory. As to the merits of this publication itself, in a literary point of view, or as a didactic work, so far as respects legal investigation, and comment, it is submitted, to the legitimate judges, the constituted authorities, the people, and particularly the profession, who may be led more im- mediately to examine, and to form an opinion. " Discite justitiam moniti, et temnere Divos." The people are the gods in a republic. All are ame- nable to this tribunal ; and, as the gallery is the Olympus of the Theatre, so it belongs to the high and low to ap- prove, or disapprove, in this greater Theatre, and it is not always the best judges that make the most noise in the first instance. But, ultimately, it must be the opinion of men of sense that will fix a decision, and determine whether what has been executed, is a thing of utility or of small amount towards the attainment of legal science, or the improvement of any part of the legal code of this state, or that of the United States, or any hint thrown out which may contribute to the administration of justice in the decisions of courts, who are constituted, and intrusted for that purpose. FINIS. Memorandum as to the errata of this publication. IT has bven in my fioiver to revise very little of it after bein^ printed off., and,, doubtless,, errors from the cofiy of my notesj not the most legible hand-writing- ; or from my dictation, which was a con- siderable part,, must have occurred. These, in addition to errors of the press, might require a table. But this I cannot attend to, and must leave it to the reader to supply and correct. I notice two, which struck me in apart which I had an opportunity of casting my eye upon. The one occurs in page 167, Cottom Mathew, for Cotton Mather ; the other in page 216, per capita, which should be per stirpes ; which, currente calamo, was a lapsus in my language^ a great blunder, and more especially requires to be noted. In page ^02, I have spoken of an act prohibiting the eligibility of a deputy slieriff to the office of sheriff, isfc. The act of lith Feb. 1729-30, sec. 20, isnot what I mean. By this it is provided, ^'^ that no sheriff within this province shall continue in his office of sheriff, or occupy the said office above three years ; and that no man who hath been sheriff or under-sheriff of any county by the space of three years, shall be chosen sheriff of that county again within three years next ensuing." I mean an act, and such I think did exist, which provides, aJid goes more to the root of the evil, that no 07ie who has acted as deputy within the space of one yGi\.v,^hall be eligible. In page 389, for observations, read aberrations. In page 413, for true Englishmun recrf true-born Englishman. In page 414, for free Englishman n-ud free-born Englishman. In page 448, for recover read remove. } / ^"ip"* .^J>' I > ./'*^ •If '.IT ** ■^