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ther name for the legacy that is left; and this want of motive entails listlessness, and lounging, and recourse to clubs followed by intemperance. Such are to be pitied when under the necessity of amusing themselves by invitations to convivial entertainments; and compliments for the company 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 watering 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 deemed unnecessary. Tucker has given an edition, in which he has taken a view of the outline of the constitution and government of the United States which has taken place of that of England; and at the same time of the constitution of Virginia, and the laws under it. Might not the same thing be necessary as to the constitution and laws of each state in the union; shewing what principles of the common law have been introduced as applicable to our situation; what statutes, or construction of statutes; or, in what particulars, the common law has been changed by our acts of Assembly; or by the decisions 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. Nevertheless it may lead the way for some other person of more talents and 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 lawyer as for the service of the student.
SOME VIEW OF THE ENDEAVOURS TO IMPROVE 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 which he had begun to add notes, under 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 respective heads, as it stood upon our introduction of the common law; or, as it has been varied since, by acts of assembly or otherwise, in the 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 afterwards to the state convention which adopted it, and the subsequent judiciary appointment to the bench of the supreme court of the United States, that interfered with the going on 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 professor of law in the university of Pennsylvania, at the same time that he filled his judicial station. From the continuance 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 ascertain and determine how far any British statutes extended
to it, and to prepare bills containing such alterations, additions and improvements, as the code, laws, and the principles 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 provision 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 supreme 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 constitution, cannot be. The report of the judges, and any sanction 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 infor
mation on the subject. It had been indeed questioned whether an obligation could be imposed upon the judges to make such a report, it being extra-judicial wholly; but approving the object, the judges cheerfully undertook it; but considering 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 introduced, 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 individual judge, the Chief Justice. But these reports, even though imperfect 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 admissions 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 profession in these particulars, even those of them that were within 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 was, in part, a matter of tradition, and depended upon the usage. Unwritten 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 as final or conclusive. It could not be
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; in which case evidence could be called for, oral or written, to assist the information which the judges might have of their own knowledge. 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, additions and improvements as the code of laws and this constitution, 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 lawyers 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 statutes by the English courts; and what 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 obsolete, and by the people unintelligible. A translation, as it might be called, into modern and popular expression, would be necessary; for it can be but of little use to the legislature, in examining these statutes, to have them presented to them