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; 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 committees of succesive legislatures with the assistance of professional 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 condition, 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 examine 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

charter to William Penn; or have been superceded by the laws of the province; or of the since state. "Colonists carry with them only so much of the English law, as is applicable 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 refinements 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 maintainance for the established clergy, the jurisdiction of spiritual 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 incorporation, of the settlement; or in addition to this by the conditions on the part of the proprietary with the first settlers; concessions, or charter of privileges granted them; but still more by the acts of the legislature under the province. 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; notwithstanding it may adopt, but a part of the provisions of the English statute in lieu of which it would seem to be introduced.

Nevertheless, though the statutes will be found to be few in number, that can be said to be in force; yet in the application 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 within the equity of them. As for instance, the statute of 1 Rich. II. c. 12. under which an action of debt is given against the warden of the fleet, for an escape; this statute is extended by equity to all sailors and officers; and here as in other instances, whether depending on the express words of the statute, er considered as within the equitable construction of it. A duty is assigned of much delicacy, and requiring great deliberation. For though it may be presumed that the exi

gency of the occasion, taught the necessity, or policy of applying 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 demand, 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 genera! 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, embracing matter of fact in a great measure, may be of more labour, yet the last, the determining what ought to be incorporated, will require equal thought, and reflection. Hence it will be comprehended how much time the duty assigned must necessarily call for, and where that time can be taken but by intervals, to what length the completing the task must be protracted. 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 satisfaction to himself; it will be understood why it is that a compliance more prompt has not been made with the fulfilment of what has been enjoined. I say fulfilment, because the mo

ment the notification was made of the act of assembly under 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 has 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 the question still open to further investigation when any particular statute comes in question. Some may be found to have been 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 attention 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 lawful to read or quote any British precedent or adjudication, which may have been given or made subsequent to 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 would 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 afterwards passed, was in agitation.

"A distinction is taken between a decision of the English courts prior to our entire separation from that govern ment, by the declaration of independence on the 4th July, 1776, 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 nothing. For all admit that though the decision posterior to

our independence will not govern as precedent, it will guida 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 determining 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 carry 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 principle 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 correctness of decisions; and to this is owing much improvement of the law. Did we dare to follow 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 was the law, but the late decisions are otherwise. For, from the acquiescence there, and the prosecuting no writ of error, to the court in the last resort, the presumption was that it was the law; and that should a contrary decision be made here, and an appeal prosecuted 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? All the difference is that in the one case we could not use our own reason without knowing that it might be pronounced erroneous in the court of the last resort there: