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ACTS OF ASSEMBLY THAT MAY BE REPEALED OR MODIFIED.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prevent the erecting any new and independent state within the limits of this commonwealth, 3d December, 1782, might be repealed; the occasion that gave rise to it having ceased to exist. It was a consequence of the cession made by Virginia to Pennsylvania of some part of the territory claimed, with a view to a compromise. The inhabitants of the territory 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 settlement 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 refuse submission to the Pennsylvania government.. But I thought otherwise at the time, and took a decided part in support 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 admitted 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

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 manner as Vermont had done of the states of Massachusetts and New York. It was suggested that a new state might be formed with a seat of government 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 of 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 independent 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 at my instance, and on my representation through the Pennsylvania 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 new and independent government; because what authority had states to cede, when in pursuance of the 9th article of the confederation then existing, a judicial tribunal was established, by which the controversy might have been determined, the principle settled, and the actual boun

*By a subsequent act, 31st August, 1785, the clause changing the venue is repealed as contrary to the constitution, that trials shall be by a jury of the vicinage. This would seem affirmatory of the principle that the venue cannot be changed in a criminal

case.

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 proprietary ownership of soil, and was pledged to pay a considerable 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 afterwards 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 history 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 expectations of the most sanguine, yet some improvement might grow out of it. I have considered the appeal as objectionable, so far as respects the party who calls for the rule of reference being 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 with him, on the affairs of the country, I found him dissatisfied with it.

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 unfavourable 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 wrong, there is a law enabling you to take depositions, 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 districts; 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 judges that come trotting up here; (circuit courts had not been then abolished ;) judges of the supreme court, they call them, what fault do you fad with these? Why, said he, I have been at some of their courts; and have heard their charges; and they seem to ⚫steer pretty clear a while, in the trial of a cause; but towards 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 first, when they take the oath of office. 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 arbitrations; 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. Ay, said he, but they have a trick of taking the cause back again; so that we are just where we were at first, with more costs to pay.

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 law ground of setting aside an award.

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 directions of the said acts, shall be strictly pursued, &c."

This is a section of an act entitled, "an act to regulate arbitrations 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 recommend 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 construed 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. While therefore, we are endeavouring to reach the sense of the act in this particular, we are transgressing the letter of the provision. 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 cannot be expressed; some will arise that will fall within the