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narrow; and why drink out of the neck of a gourd, rather than out of an open goblet; more especially if the fountain was muddy, out of which the gourd was filled; the stream of law in that country, now runs more clear in particular cases than centuries ago; and it will always remain so, the law being an improvable science. I like exceedingly when a dictum of a judge, or an adjudication of a court, or tract writer of a semi-barbarous period, is cited, to have it shewn that a more enlightened, and liberal Mansfield; or Kenyon, or Ellenborough, has overruled, or scouted that doctrine. It is shewing from themselves, that they have been wrong; and why should not counsel have this privilege, when old decisions are cited on a point of common, or statute law?

To use a phrase, not meaning disrespect to the learned lords of England, when an old case is cited, contrary to all reason, or good sense, and a new one can be shewn contrary, in the modern decision of another judge, it is like curing according to the vulgar phrase, and vulgar notion, a bite in the case of madness, with a hair of the same dog.

ON THE JUDICIARY SYSTEM OF THE STATE.

I have said that I consider this system the first in the Union. I speak as to the foundation that has been laid; and improvements that have so far taken place. But some filling up is required to do it justice. What is that filling up? I shall not undertake to say what would in all things complete the building. I shall only go so far as to point out what I would conceive to be more immediately necessary to be done. This I do, not confident that it will be well taken, though confident that it is well intended; and meant for the best. And why should I undertake to point out what might be done, who am not of the legislative body; nor of the mass of the people, from amongst whom the representatives are eligible? But has not the legislature a right to the information, and suggestion of the different functionaries in their re

spective stations? For every individual must be supposed, to understand something of that department in which he is more particularly engaged. I shall venture to suggest, therefore, the expediency of what might be done, in the first instance, andfat the present time, in carrying on the improvement of the system; though not without fear that coming from a judge, it may defeat the object: for it may be supposed that those immediately concerned in the discharge of duties, will be projecting something that will suit their own convenience. But as I take it, this will not appear to be the case in all the improvement that I shall suggest at present; I will venture it; and, it may go, for as much as it is worth. It will require a president or two more of the common pleas to be added, and that is all the additional expence that my propositions would involve.

The first is, a second president of the district court of common pleas of the city of Philadelphia, to sit alternately with the first. Nine months in the year is a length of sitting greater than any one president can long sustain; and it would require a constant sitting of that court to transact the business which comes before it. It is a court which gives great satisfaction, and ought to be made perpetual.

In the second place, I would propose another district of the common pleas to be added, in that part of the mountainous country, where the districts consist of more than three counties, while those of the less western, and in the level country do not consist of more than three. It is monstrous that the duty should be so unequal; both as to riding, and the weight of business, while the salaries are the same. Advance of salary, or diminution of duty, can alone, bring to an equality, or something like it, in this instance.

In the third place, I would propose the consolidating the two middle districts of the supreme court, into one at the seat of government; and the judges to hold two terms for this district, at an interval of six months; and on the first days of each sitting to deliver opinions on cases which had been argued at the other districts west of that, and which cases had been holden over under advisement. Cases of

difficulty will be argued, upon which it will be impossible for the judges to make up their minds without time to examine, and reflect; and a postponement of delivering their opinions on the case for a whole year, gives great delay, and is a grievance. If a judgment is to be reversed, the sooner the better; that the party, if a plaintiff, may begin again, if the error appears to have been in the proceedings, or the trial; and if the judgment is affirmed, the sooner known, the plaintiff can the sooner go on to recover his right.

I say nothing of taking away the original jurisdiction of the supreme court, in the county of Philadelphia, as it has been done, in the other counties; nor of what has been sometimes suggested, an addition to the number of the judges of the supreme court, because that might look like over-stepping the limits proposed by myself, in saying nothing that might have the appearance of consulting my own convenience. The taking away the original jurisdiction of the supreme court in the county of Philadelphia, might lessen my riding, or sitting somewhat; or the appointment of an additional number, the original jurisdiction remaining, might contribute to lessen, as the thirty-three weeks sitting alternately, would, in that case, be divided amongst more; but as to the Terms, the sitting there would be the same.

Individuals, and even professional men, from our sister states are at a loss to conceive how we can go on without a court of chancery. I have referred them to the history of that court in England, that a necessity for it never could have existed, as a court distinct from common law jurisdiction, but for the narrowness of the common law judges. "Extending rather than narrowing the remedial effects of the writ (case); they might have effectually answered all the purposes of a court of equity; except that of obtaining discovery by the oath of the defendant." They could have done that as we do here, by damages in actions. on agreements for the sale of lands, compel, in most cases, a specific

execution.

It was this contractedness of the minds of common law judges, that explains the maxim, boni judicis est, ampliar

jurisdictionem, which some would amend by saying, ampliare justitiam. But this would be an inconsistency; because justice cannot be enlarged or diminished, without ceasing to be justice.

A court of chancery must sit at some one place in a state, and this is irreconcilable with the principle adopted, in Pennsylvania; and which ought to be adopted, of bringing home justice, as much as it is possible, to every man's door.

HINTS TOWARDS A GENERAL LAW ON THE SUBJECT OF

WRITS OF ERROR.

IN England a writ of error is not grantable ex debito jus titiæ, or of right, in treason and felony. Application must be made to a judge of the superior court, or to the superior court itself, to allow it; which may, or may not be done, according to the idea of the judge, or court, as to the probability of there being error. With us, by act of assembly, 13 April, 1791, no writ or certiorari, or writ of error, shall be ayailable to remove an indictment, or stay execution of the judg ment, in any criminal case; unless the same shall be specially allowed by the supreme court, or one of the justices thereof, upon sufficient cause to him shewn; or shall have been sued out with the consent of the attorney general. Some time must intervene before application can be made to a justice of the supreme court; or, to that court; and before the writ of error can be heard; and in the mean time the sentence must go into part execution, which is a little like a person, so far as this goes, being hanged, or whipped first, as the phrase is, and tried afterwards. For where there was error, there can not be said in strictness, to have been a trial. The expence to the county in keeping in confinement, until the application can be made to a judge, or to the court, and the writ of error, if allowed, heard, is in the way. But might not bail be taken in the mean time, with condition to surren

der after hearing; this at least, in case of misdemeanors. and offences short of felony?

A writ of error lies where a party is aggrieved by any er ror in the foundation, proceeding, judgment, or execution of a suit. But might it not be provided that no error shall be assigned in the foundation, as for instance, want of jurisdiction before a justice; or of a court, unless exception taken, or pleaded to the jurisdiction, at the proper stage for taking the exception, or entering the plea; and the judgment of the justice, or court given expressly upon the point. The same in the case of exception to proceeding, judgment, or execution? This is an amendment which would seem to be absolutely necessary, both for the sake of the justice, the court, and the party. It is not uncommon to have a judg ment reversed from error upon the face of the proceedings, though the court below could, but constructively, be said to have passed upon that, in which error is assigned. This is a matter of which the judges of the court below complain, and have great reason to complain. But, the court above have thought, that, it is competent only for the legislature to make an alteration of what the judges of the supreme court have conceived to be the law, as to this particular. It is a matter of surprise to me, that for the sake of their own reputations, the presidents of the district courts, have not before this, suggested an alteration of the law on this head. It is unfair that they should be supposed to have decided a point that was never made to them. And yet, constructively, they are in contemplation of law, supposed to have sanctioned errors, which were never noticed by the party, or the counsel. For it is the law, that, for errors of form, or substance, appearing on the face of the proceedings, error may be assigned after the record comes up; notwithstanding, they had not been objected to, or noticed before.

In civil cases, writs of error are of course, subject only to the party" making oath or affirmation, that the same is not intended for delay." This is a temptation to perjury, and ought to be abolished. The oath, or affirmation, is, almost of course, made. For, a very slight matter, will satisfy the

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