« PreviousContinue »
conveyance shall be good and valid in law. This, from an early period, would seem to have been considered directory to the officer; and however these requisites might have been observed in taking the acknowledgment, yet in the certificate of the officer endorsed upon the deed, they were not always set forth as having been complied with. The question was whether in such certificate it must be set forth that the requisites had been complied with. It is the presumption of law that an officer will do what he was directed to do. Omnia recte et solemniter acta presumuntur. I had so ruled it in a case on the circuit; chief J. Tilghman had ruled it otherwise, on his circuit, about the same time. The point came before the court in bank; and it was ruled that so far as respected the substantial requisites, the examining a part &c. it must appear on the certificate, that these had been complied with; a substantial adherence to the manner of acknowledgment prescribed by law, was indispensable; and that it must appear upon the certificate. 2 Binn. 480.
A distinction was taken by the judges who ruled it, (Yates and Smith) between a conveyance by the femme of land in her own right, and of lands in which she might have a right of dower; but this distinction was overruled by the chief justice and myself, in Kirk v. Dean. 2 Binn. 341.
Ex post facto. 1 Bl. Com. 46.
No ex post facto law, nor any law impairing contracts, shall be made. C. S. P. art. 9. sec. 7.
No ex post facto law shall be passed. C. U. S. art. 1.
Fx post facto; ex jure post facto; or ex post facto law. This embraces criminal as well as civil law. The impairing contracts is but a species of the ex jure post facto. Retrospective acts are not always ex jure post facto; nor does the term mean this, though it may be so applied.
EVERY individual of the community, is in contemplation of law, supposed to be present at the making of the law; and in fact it was the case in the ancient republics. When representation came to take place it ceased to be the case; and yet the idea is still retained in some measure. For though means are used to promulgate a law to those represented, who are supposed to be at a distance, yet the maxim still holds that they are supposed to know the existence of a law from the date. It is thus that in all affairs of men when a change takes place, all things are not immediately accommodated to that change. In England there is nothing to relieve an individual from the penalty of the law even where death is the penalty; and where there was even a moral or natural impossibility that he could be informed of it, but the interposition of the executive pardon. The same thing here. Why not have provided by the constitution that no law should take effect but in a certain time after the enactment. Or, as it is, why not always provide in the law itself, as is done in some cases, that not until after a certain time, and that sufficient to enable the citizens at the greatest distance to hear of it, should it take effect. The means provided of publication in the gazettes, forwarding to prothonotaries, sending copies to officers, &c. leaves still a space during which there is no moral, or perhaps, natural possibility of hearing of it.
By the act of 3 Cong. C. 115, the secretary of state is required to furnish the executives of the several states and of the territories north, west, and south of the river Ohio, with 4500 copies of the edition of the laws of the United States, by that act directed to be printed, and the like number of the acts passed at each succeeding session, to be divided among them according to the rule for apportioning representatives, and distributed as the executive shall deem most conducive to the general information of the people; and by the act of 5 Cong. C. 136, 5000 copies are directed to be printed and distributed in like manner. The act further
directs, that every order, resolution, or law passed by congress, shall be published by the secretary of state in at least one, and not more than three, of the newspapers in each state. We may see from hence that it is still considered the principle that these laws take effect from the date.
"But farther; municipal law is a rule of civil conduct prescri bed by the supreme power in a state." 1 Bl. Com. 46.
Judge Tucker takes exception to this definition; he prefers that of Justinian; jus civile est quod quisque sibi populus constituit; which he considers as comprehending the whole body of national institutions, from whatever source or authority derived; whether the immediate act of the people, or that of the ordinary legislature or founded on long and immemorial usage; whereas the former definition presupposes an act of the legislature in every case whatsoever; which he presumes was not the fact; or that all unwritten rules of law, are founded upon some positive statute, the memory of which has been lost. But cannot the law making power, act or enact without committing to writing? The word "prescribe" doubtless, signifies to write out. But it is used in common parlance to mean no more than to direct or order; and no more here. If we consult Tacitus on the manners of the Germans, which is the earliest monument of our Saxon ancestors; for these were Germans; we shall find that the manner of passing laws, or deliberating on any subject, was without writing; at least there is no mention made of it. He depicts minutely; but we hear of no clerk; nor does it appear that they had the use of letters. For Cæsar contrasts them with the Gauls, who had letters. Publicis privatisque rationibus litteris utuntur. Germani multum ab hac consuetudine differunt. Nam neque Druides habent.* It appears that their learning was from Britain; disciplini in Brittania reputa, atque inde in Galliam translata esse existimatur. There can be no doubt, therefore, but that the early Britons had the use of letters before the
* Cæs. Com. lib. 6.
Romans came amongst them; and the Romans had the use of letters from the earliest period; and might have introdu ced writing amongst the Britons had it not been known before. But it is not very probable that the Saxons coming in after the Romans, could be such apt scholars as in a short time to acquire the use of letters and to be in the habit of recording their public transactions. There remains no monument of a parliamentary record of the Saxon times; nor until a considerable time after the Norman conquest. "We possess acts of parliament," says Reeves, "from Magna Chart. 9, Hen. III. to the time of Ed. III. and from thence in a regular series to the present time. The statutes, except some very few enacted by the legislature before that period, are lost."*
When we talk of a custom we must remount to some convention; or gathering of the people to originate the rule. Even supposing but two persons in a community, there must be such assent, and so of more; so that I can see nothing in a distinction to be taken between the origin of an unwritten custom and a written law. They are both equally the act of a legislature.
The term Constitution is familiar to the English lawyer and civilian. This is chiefly common or unwritten law. consists of the lex and consuetudines. It respects the system of government in all its parts, from the right of suffrage in the lowest frank-tenant, to the hereditary right of the monarch; embracing all the intermediate officers and offices, legislative, judicial, or executive. The sphere of each is known and the duties assigned; no encroachment to be made by one upon the other; the orbit of every power defined; moving in its proper groove. There is a multitude of instances where an interference is resisted; in the case of the king for instance in an attempt to give a proclamation the force of a law. It would be called unconstitutional for the lords or commons to vote themselves permanent, taking away the power of the king to prorogue or dissolve. We hear a great deal on the subject of preserving the consti
*Reeves b. 1. c. 1.
tution; bringing it back to its original principles, &c. The saying, therefore, that in England there is no constitution, means only that there has not been a convention of the people within our memory, framing a constitution, uno ictu, and making a record in writing of the provisions therein contained; but it has grown up, and has been formed by time, until it has become, in some degree, fixed and understood. But in these states we have the frame of government reduced to writing with the provisions; and in all or most of them certain things stated which the legislative body shall not have the power of doing. In England the power of parliament is said to be omnipotent. It extends to every thing that does not contain an actual impossibility; and yet Coke (Sir Edward) has said somewhere, my recollection does not serve me, that a law against reason is void. If void the judges would be justifiable in declaring it a nullity. It is in my recollection that Cambden some where says that the judges have in contemplation of law, the power to declare an act of the legislature void; but they could not be expected to do it while those remained in power at whose instance the law had been obtained. Whether he respects an impeachment, or the power of the king to remove, may be a question. Under the constitution of the United States, there have been instances of the supreme court declaring a law void; but no instance that I know of in Pennsylvania under the present constitution though many arguments to the court on the subject of the constitutionality of laws, which would seem to imply the idea that the judiciary had the power to determine, which will probably come to a point at no distant day, and receive a decision. But it may be said of it at present, to be questio vexata, et adhuc sub judice lis est.
I have said, under the present constitution. For there are said to have been cases under that of '76 when there was but one branch in the legislature, and the Governor had no negative. But under the present constitution, there is less reason for the exercise of such a power, when there is a check of one upon another branch; and the veto of the Governor upon both. But it is stated, in the argument in Bonhams case, 8 Coke, 118, that, in many cases, the common law will