« PreviousContinue »
'hence several great titles in the law 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 abrogated by statute. Nevertheless it will be of use to the student 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in order the better to understand the reason of those statutes which have come in their place; or usages which have superseded.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 abolished, some sensible publications appeared in the newspapers, 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 step 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 decisions of the courts of Pennsylvania, or of the United States, which have been given upon the construction thereof; the work 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 examination and approbation must respect what of the work to be
examined and approved, was of such a nature, as to come within the province, more peculiarly, of the judges; and this must respect the notes of judicial decisions. Nor do I understand it that the approbation can be considered as going farther than to say, that, there had been reasonable industry used in collecting such notes. It could not be understood as undertaking to say that such decisions had taken place in 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 making these 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 information of decisions which had taken place under acts of Assembly with a view to supplement or alteration: some general knowledge of the construction which had been given by the judiciary branch, in order to such amendments by the legislature as such construction would seem to require. In subservience 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 law's 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 therefore 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
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 representatives 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 children 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 instances 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 legislature 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 attention to specify.
INTRODUCTORY TO THE REPORT OF THE JUDGES ON THE BRITISH STATUTES IN FORCE, &c.
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 commonwealth, &c. The following is my note to the chief justice (Tilghman) accompanying the whole of such acts as made out, on my investigation, and according to my judgment.
"Which of the English statutes are in force in this commonwealth (Pennsylvania) is the first part of the point which is to be examined. In order to ascertain this, it would be necessary 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 constitution. 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 the time of making 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 in force before the adopting 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 amended 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 Pennsylvania, as is judged necessary to be in force in this commonwealth." In this act it is provided that "the common law, the principle which it contained might be adopted in usage.
and such of the statute laws of England as have been heretofore in force in 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.
There is no law of the late province extending English statutes generally; though there are acts adopting the provisions of certain particular statutes. But were not the English 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. They are subject however to the controul of parliament, though not bound by any acts of parliament, unless particularly named." 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 expressly declares "that all his majesties colonies and plantations 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 colonies 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 particularly naming 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 in any way as an English statute, though