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beautiful object, which increases in magnitude on his the cost for the whole distance of 46 miles is 37 cents a riveted view, as be approaches its wide spreading base, ton. till his ears are delighted by the harmonious sound of The ark costs $135, and being made rough, will last, well regulated machinery, cianking to the tune of pub- say 20 trips only, is a trip, 11-to which add 37, is 381 lic utility.

5 46 miles=8 mills } a ton per mile--being less than This factory is built of brick, and in its structure, du- one-sixth the cost per ton per mile of the transportation ration and utility are visibly combined. It measures on the rail road. 1531 feet in length, and is 48} feet wide. It was built in the summer of 1828, and put in operation on the 4th

Navr DeFanTMENT, March, 301h, 1830. of March, 1829.

Sir-It has been proved to my satisfaction, that LieuThere are now in operation in this establishment, 2, tenants Edmund Byrne and Hampton Westcott, pas200 spindles and 20 power looms, weaving 37 inch sed Midshipman Charles H. Duryee, and Midshipman sheeting, in 800 reeds. We were highly gratified in ob- Charles G. Hunter, of the Navy of the United serving the improvements in some of the power looms; States, were recently concerned in a duel, which and if experience can justify an assertion, we can safely took place between the last named officer and William say they have not been surpassed in any of the eastern Miller, Jr. of Philadelphia, which resulted fatally to the manufactories we have ever visited.

latter. I respectfully recommend to you, that the names This establishment is calculated to run 10,000 spin- of the said officers, Edmund Byrne, Hampton Westcott, dles, and 100 power looms. The steam engine was es- Charles H. Duryee, and Charles G. Hunter, be erased timated, by Mr. Evans, at 100 horse power.

form the list of officers of the Navy of the United States, It must be highly gratifying to every lover of his coun

I am very respectfully, &c. try, to witness the progress of improvement, necessary

JOHN BRANCH. for the comfort and convenience of its inhabitants. To the President of the U.S. Where history, well authenticated by living witnesses, informs the inquirer, that the appalling yells of Indian Let the above named officers of the Navy be stricken ferocity were heard, to disturb the timid settler who da from the Roll.

ANDREW JACKSON. red to encroach upon their boundaries, he views, in March 31st, 1830. grateful silence, the splendid and magnificent buildings Immediately on the receipt of the foregoing commuerected for the benefit of an increasing community, the nication and order, the following resolutions were offercontrast is calculated to give rise to pleasing emotions. ed in the Senate and

House of Representatives of Pa. When he beholds the beautlful faces of the fair opera In the Senate on Friday, Mr. Fullerton offered the tors upon elegantly polished and well constructed ma- following resolutions, which were adopted: viz: chinery, he is irresistibly led to desire continuance of Resolved, that the President of the United States, their happiness, and that success may crown the gener- and the Secretary of the Navy, deserve the thanks of ous efforts of their enterprising and useful employers.-- | the friends of good order and civil liberty for the Pittsburg Manufacturer.

promptness with which Lieutenants Byrne and West

cott, passed Midshipman Charles H. Duryee, and MidMAUCH CHUNK RAIL-ROAD.

shipman Charles G. Hunter, have been stricken from

the list of naval officers for being concerned in a duel, As the Mauch Chunk Company have been in practi- in which a citizen was unfortunately deprived of his cal operation with their rail road nearly three seasons, life. and have bad every facility attending a Company's op Resolved, that the Speaker be requested to transerations on a rail road, and also, in making and repair- mit a copy of the above resolution to the President of ing wagons and road every advantage which could be the United States and the Secretary of the Navy. naturally expected has been possessed, there being a In the House, Mr. Moore, of Erie, offered the followfoundry on the ground belonging to the Company, and king resolution, viz: fuel cheap and water power in abundance for all those “Resolved, that the conduct of ANDREW JACKSON, operations. All these facilities combined would we ap- President of the United States, in striking from the roll, prehend result in producing the minimum average of the officers of the Navy, concerned in the late duel bethe cost of using said road. We have therefore sought tween Charles G. Hunter and William Miller, jr. meets and procured an average statement of the work done with the entire approbation of the House of Represenduring the said three seasons, It is as follows:

tatives of Pennsylvania." On a transportation of 87,089 tons of coal.

Which was read a second time, when Mr. Petriken

Cost per ton-Cents. moved to amend the same by striking there from all that Wear and tear, and repairing rail road wagons, 8.9434 follows the word Resolved, and inserting in lieu thereof Oil for wagons,

2,2908 the following words, viz: Break ropes for do.

0.1406 "That the President of the U. States, and the Secre

tary of the Navy, deserve the thanks of the friends of Total expense of wagons,

· 11.3748 good order and civil liberty for the promptitude with Hauling up to summit-hands and teams, 7.4873 which Lieutenants Byrne and Westcott, passed MidshipDo. down from do. do. do.

17.5113 man Charles H. Duryee and Midshipman Charles G.

Hunter, have been stricken from the list of Naval offi36.3734 cers for being concerned in a duel in which a citizen

was unfortunately deprived of his life," which was

1.0000 agreed to, & the resolution was adopted, yeas 67, nays7. The distance from the Mines to the Summit is three fourths of a mile, and ascent 46 feet; distance from the A boat arrived from Middletown on the SusquehanSummit to the end of road 84 miles, and descent 767 na, by way of the Union canal and the Schuylkill, in feet-making the total distance 9 miles: I 36 cents, is four days and three hours. Her cargo consisted of 263 4 cents a ton per mile. The wear and tear of the road barrels of flour. This is the shortest passage ever peris estimated at one cent a ton per mile-thus making formed between Middletown and Philadelphia.-Phila. the total cost of transportation on this rail road (exclu- | Gazette. sive of interest account) five cents a ton per mile. A friend has presented us with a quill, 204 inches in

At this time the same company are now paying $24 length, taken from the wing of an Eagle, caught in a wolf A trip (and find the boats) from Mauch Chunk to East- trap in Conneat township, a few days since, which meas, on. It is taken at present in rough arks, composed of 4 ured seven feet four inches between the points of the or 5 sections, carrying altogether 65 tons of coal, and wings.-Crawford Messenger.

272

MISCELLANEOUS.

(APRIL

EXPENSES OF THE
EXECUTIVE DEPARTMENT
OF THE GOVERNMENT OF PENNSYLVANIA'-FROM 1791 To 1829 INCLUSIVE.

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847 18
699 24
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1791 1792 1793 1794 1795 1796 1797 1798 1799 1800 1801 1802 1803 1804 1805 1806 1807 1808 1809 1810 1811 1812 1813 1814 1815 1816 1817 1818 1819 1820 1821 1822 1823 1824 1825 1826 1827 1828 1829

4000 00 4162 95 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 5333 32 4312 81 4000 00 4000 00 4000 00 4000 00 3000 00 5000 00 4000 00 3000 00

1000 00
1270 36
1333 32
1333 32
1333 32
1661 09
2000 00
2000 00
2000 00
2000 00
2000 00
2000 00
2000 00
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2000 00
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1505 54
2494 46
2000 00
1684 82
1600 00
1600 00
1600 00
1600 00
1600 00
1858 63
1341 37
1600 00

645 81
666 64
778 78
900 00
1047 50
1200 00
1200 00
1200 00
1200 00
1200 00
1200 00
1200 00
1200 00
1200 00
1200 00
1200 00
1200 00
1200 00
1200 00
. 1200 00
1200 00
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1200 00
1200 00
1200 00
1200 00
1200 00
1060 00
1000 00
1000 00
1000 00
1000 00
1000 00
1120 00
1000 00
1000 00

461 53 1166 66 4025 00 2200 00 4400 00 2400 00 3500 00 3500 00 2830 00 2172 87 2641 60 2767 66 2702 19 3136 96 2909 88 3011 44 2470 76 2608 88 2661 10 2671 80 2775 11 1195 72 2400 19 2531 35 1471 57 1077 71 2736 28 1586 85 1975 98 2344 14 1945 76 1424 52 2169 78 1665 95 1614 80 2033 72 1815 57 1870 42

5847 18 7239 89 8999 94 11470 42

97 66 64 12441 91 10933 32 12033 32 12033 32 11363 32 10706 19 11174 92 11300 98 11235 51 11670 28 11443 20 11544 76 11004 08 11142 20 11194 42 11205 12 11308 43 11556 82 12941 84 13361 80 12845 43 11911 03 13076 80 12739 63 12856 78 11363 82 10720 76 10024 52 10769 78 10261 28

9214 80 12659 01 11004 15 10520 42

1827 78 2008 33 2297 13 2840 54 2300 00 2301 66 2125 00 2347 48 1962 05 2175 00 2000 00 2000 00 1995 33 2000 00 2646 66 28+7 21 3050 00

Dr. John Godman, who died in this city, on Satur, on and was argued by Wall and Wood for the plainday last, (April 17th,) at the early age of thirty-two, tiffs and Croxall and Southard, the Attorney General, was one of the most eminent members of our medical for the defendants. and scientific circles. In the brancbes of anatomy and The action was brought to recover penalties for a viphysiology, he was particularly distinguished, and the olation of a late act of the Legislature of New Jersey, lectures on those subjects, which he delivered to pri- prohibiting the use of gilling seines in the River Dela vate classes in this city, and from a chair in the princi- ware by individuals not owning fisheries attached to the pal medical college of New York, were deservedly pop. adjacent shores. It was objected on the part of the de. ular for their excellence, and never failed to endear him fendants that this act was unconstitutional, in as much as to his pupils.

it gave a preference to the Riparian Proprietors, who it His beautiful volumes on Natural History, written un was contended, bad :ot an exclusive right of fishing in der great disadvantages, are sufficient to attest his zeal the pools or fishing places, fronting their respective and talents in that department of knowledge, whilst his shores. The Couri, Judge Baldwin presiding, decided literary and scientific contributions to various societies in favour of the Constitutionality of the law, and awardand journals, evince a mind of the most extensive ac- ed judgment to the plaintiff. quirements and persevering industry. The hand of sick å similar act to the one existing in New Jersey relaness arrested him in the midst of his useful activity; and tive to gilling nets, bas been passed by the Legislature rarely has a career of more brilliant promise been pre- of Pennsylvania. maturely terminated. Among his last labours were the translation of Levasseur's Tour of Lafayette, and some papers in the American Journal of Medical Sciences,

Printed every SATURDAY MORNING by WILLIAM F but his strength was not equal to his ardent ambition.

GEDDES, No. 59 Lucust Street, Philadelphia; where, and at Morn. Journ. the PUBLICATION OFFICE, IN FRANKLIN PLACE, seeond

door back of the Post Ofice, (back room) subscriptions will be LAW CASE.

thankfully received. Price FIVE DOLLARS per annum, payable

annually by subscribers residing in or near the city, or where At the late Circuit Court of the United States holden there is an agent. Other subscribers pay in advance. at Trenton, the cause of Bennet against Boggs, came

THE

REGISTER OF PENNSYLVANIA.

DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.

EDITED BY SAMUEL HAZARD.

VOL. V.-NO. 18.

PHILADELPHIA, MAY 1, 1830.

NO. 122.

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DECISION RESPECTING MORTGAGES. After the argument in the Supreme Court by Lewis In the Supreme Court of Pennsylvania, for the Middle for the plaintiffs in error, and by Williston for the deDistrict: Sunbury, July 3, 1829.

fendant in error, the opinion of the court was delivered William Willard, Jr. and Lyman)

by Ton, J. who after the facts and pleadings proceed.

ed as follows: Adams, plaintiff's in error.

Writ of error to

The judgment on the first sci. fac. was confessed by Joseph P. Norris, who survived

Tioga county.

the defendant (Adams,) on the 17th of September, David Lenox, defts. in error.

1822. The amount of it was settled at $336 63. The

mortgage produced was of the date already mentioned, Tlie case was as follows:

to secure payment of a bond for $987 66, conditioned 1815, December 22.- Elias Boudinot conveyed a for the payment of 493 83; on what day or from time it tract of land to Lyman Adams.

was to be paid, does not appear. Thus it appears that Same day-Lyman Adams mortgaged the premises to the judgment upon which the land was sold by the Joseph P. Norris and David Lenox, to secure he pay sheriff, was subsequent to the recording of the mort. ment of $

gage of the plaintiff below. The judgment, towards 1819, Feb. 15.-- Judgment entered in the C. P. of satisfaction on which the money was applied by the Tioga county, in favour of Robert Tabbs, against Lyman sheriff, was prior to the mortgage. There was judge Adams and others, from a justice of the peace.

ment entered in the court long prior to the sale by the 1819, April 28-Fi. Fa. issued on this judgment and sheriff, and against that sheriff's sale there was no alle. levied on the mortgaged premises.

gation of fraud. But as to the distribution which, has 1819, June 25 - Mortgage to Norris and Lenox re- been made, depending upon the fact, that though the corded.

land was actually sold on a later judgment, yet that 1821, Dec. Term-Sci. Fac. jun. mortgage returned the money raised by the sale was appropriated to a served.

judgment which had been entered up prior to the re1822, Sept. 17.-Judgment by consent for $336 63. cording of the mortgage, that distinction appears to

1825, April 22.-Sci. Fac. post annum et diem issued have been disregarded in the argument, and we shall upon the judgment upon the mortgage, returnable to not rely upon it in the decision. Then on this general May term 1825.

demurer the question comes up directly, whether the 1826, Aug. 19. - Judgment obtained by Seely S. Ad title of a prior mortgagee and the lien of his mortgage ams and others, for $:56 82 in C: P. of Tioga. are divested and extinguished by a sale of the land by

1826, Dec. 19.-The mortgaged premises were sold the sheriff on a younger judgment. Perhaps it is a quesby Sheriff under a fi. fa. on this judgment and others to which now omes before the court the first time for a William Willard, Jr. for $50.

direct decision. Yet I apprehend, that, incidentally 1827, Feb. 17.-Sheriff's deed to Willard acknowl. and indirectly, it has often arisen and often been decidedged.

ed. I have endeavoured to make a collection of all the 1827, Sept. 21.-The Court of Common Pleas order cases bearing upon this subject, from 1st Yeates and 1st ed the money arising from the sale to be paid over to Binney, 97, to Barnet vs. Washebaugh, 16, Serg, and the judgment of Tabbs and Adams.

R. 409. Most of these cases were cited in the argu1827, Dec. 21.-- Judgment entered by default on Sci. ment. In Petry vs. Beauvarlet, 1 Binney, 97; rule upFac. post an. et diem, on the judgment sur mortgage, on sheriff to bring money into court; that with the molevari facias issued to February term, 1828.

ney he had paid off several judgments and mortgages 1828-On the application of William Willard, Jr. to upon the premises sold, which being prior to the judgthe Court of C. P. the default was set aside, and he was ment, in this case, were entitled to prior satisfaction admitted a co-defendant.

and that he had charged a poundage aspon the different 1829, Feb. 18— Adams and Willard plead nul tiel re sums so paid. Per curiam. “The construction of that cord, and Willard pleads specially the fact of the judg. clause (namely, 9th fee bill) has uniformly allowed to ment and sale, before stated.

the sheriff'a poundage upon the payment of all prior Same day. The court allowed the Sci. Fac. to be judgments and mortgages. He must therefore take his amended by reciting the judgment on the mortgage of costs. That this decision was accordant with the September term, 1822, instead of December, 1821.- sense of the community and of the bar, is strongly shown The plaintiffs replied, in substance, that the mortgage by the case of Brown vs. Brown, (1 Browne's Rep. 97,) was still out standing, to which the defendant, Willard, where some contested items in the sheriff's bill of costs semurred gerterally, and the plaintiffs joined in the de- were referred to two gentlemen, among the most practimurrer.

cal and experienced of the profession. The sheriff had May term, 1829.-The court of Common Pleas gave sold land under the act of 11th April, 1799, after the judgment on the plea and demurrer for the plaintiffs, execution of a writ of partition on an item, charging upon which the defendant took a writ of error to the $10 39 paid by the sheriff, "for searches of judgments Supreme Court, and several errors were assigned, of and mortgages, &c.” The referees approved the charge which the following is the only one material.

and gave their reasons. “It appears necessary,” i Br. 2nd. "In deciding that the land sold by the Sheriff to 98, to "plaintiff who sells,” p. 190. This award was Willard, under the circumstances disclosed in the plea, confirmed by the court with the approbation of all as was liable to be sold again upon a mortgage not record far as appears. Even though this case should not be ed within the period required by law, upon which the held as a precedent in law, yet it seems to me nothing judgment had been obtained long prior to the sale." can more clearly slıow how notorious is the rule, that in

Vol. V. 95

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274

CHARGE TO GRAND JURY.

Mar

every judicial sale in Pennsylvania, the land goes to the mortgage deed within six months. The latter cases on purchaser clear of all liens of judgments and mortgages, the subject are still more conclusive. In Commonand that out of the purcha-e money, the sheriff, at his wealth vs. Alexander, 14 S, and R. 257, it was decided own risk, is to pay off all those liens according to their (Tilghman, C. J. pronouncing the opinion) not only that priority, insomuch, though the act of assembly about a prior judgment was to be paid out of the purchase mopartition makes no mention of liens, yet by mere analo- ney accruing from a sheriff's sale, but that a judgment gy drawn from the notorious usage of the common- still older and against another person who had been the wealth, an allowance was adjudged in this case to the preceding owner shall also be paid. Then as to mort. sheriff' for the fees paid for searches of judgments and gages. In M'Call vs. Lenox, 9 S. and R. 302, the land mortgages, the owners of which might afterwards call was sold on a judgment without any question, as far as upon him for their money. I refer also to Shoemaker vs. appears; the money was applied by the sheriff to the Houtford, 1 Browne, 251.

satisfaction of a mortgage, and the residue, as far as it In case of Bank of North America vs. Fitsimmons, 3 would go, to a second mortgages-both mortgages be. Bin. 358, Tilghman, C. J. says, “it has been a pracing prior to the judgment. The last two cases are full tice of long standing in this state, where the sheriff of other matter, leading as it seems to me to the same sells land by virtue of an execution, to sell it for conclusion, that a mortgage is but a record evidence of its full value, and apply the money to the discharge of a debt, and entitled on this question to no prerogative those liens."

The consequence was, that the sheriff whatever above a judgment. Independent of the exretained the money in his hands till he could ascertain press authorities cited, I refer to Wentz vs. Dehaven, 1 the amount of old judgments. In Wall vs. Loyd's Ex’rs S, and R. 312; Porter vs. Hoft, 11 S. and R. 223; other 1 S. & R. 320, Tilghman, C. J. said, "I know that by cases might be cited, but it would seem to be unnecesthe practice of this court, sheriff's have been allowed sary.-Judgment reversed. poundage out of the money they pay, not only for the satisfaction of the debt of the plaintiff in the execution,

AN ACT CONCERNING LIENS. but also of other judgments by which the land was bound”-and in the same case, Yeales, J. said, “this

Section 1. Be it enacted by the Senate and House court has determined in Petry vs. Beanvarlet, that the of Representatives of the Commonwealth of Pennsylvaconstruction of the act of April 25, 1795, uniformly, has nia, in General Assembly met, and it is hereby enacted been to allow the sheriff poundige for all debts which by the authority of the same, That from and after the he has paid on sales.” The case in 2 Dall. 131, Nichols vs. Postlewhaite, would, I apprehend, if any, ques- real estate is, or shall be prior to all other liens upon the

passage of this act, where the lien of a mortgage upon tion was yet remaining as to the usage of Pennsylvania, same property, except other mortgages, ground rents, requiring all liens to be paid on sheriff's sales, end the and the purchase money due to the commonwealth, the doubt. There it was expressly decided, that legacies lien of such mortgages shall not be destroyed, or in any charged by will on land sold by the sheriff on a subse-way effected, by any sale made by virtue or authority of quent judgment should be paid out of the purchase mo. ney, which goes far beyond any payment of a prior

any writ of venditioni exponas.

Section 2. And be it further enacted by the author. mortgage. It is argued that this is but a nisi prius deci

. ity aforesaid, That no sale made by virtue or authority sion, and that the same case is not at all mentioned in of any writ of levari facias, issued upon a judgment in a Yeates's Reports. As to the authority, the judges ap- suit upon a mortgage, shall destrov, or in any way ef pear to bave been Bradford and Shippen; and Judge fect the prior lien of any other such mortgage as aforeYeates reported no decision made at a Circuit whereat said. he did not attend; besides the decision in Nichols vs. Postlewhaite, is cited with express approbation by Duncan, J. in Gauze vs. Wiley, 4 S. and R. 535; by

CHARGE Tilghman, C. J. in the Commonwealth vs, Gurney's Of the Honorable EDWARD KING, President Judge of the Ex'rs, vs. Alexander, 14 S. & R. 263, and by the whole Court of Oyer & Terminer, for Philadelphia Co. court, in Barnet vs. Washabaugh, 16 S. and R. 413, in which the yery same point was decided. It appears hard Gentlemen of the Grand Jury: to name a reason why prior legacies shall be paid by You are convened upon the present occasion monies raised out of a sheriff's sale, yet that prior judg- to aid in the administration of the highest department ments or prior mortgages shall not be paid.

of criminal jurisdiction known to the laws of this comI am not aware of any decision of this court contra- monwealth. The offences which may be submitted to dicting the usages which have been mentioned, and your scrutiny and adjudication, are those most danger. which I think there is reason to believe have existed ously affecting the peace of society, and justly visited beyond all memory of man. But the incidental dicta of with denunciations and punishments of the most imposthe judges have varied very much indeed. Judge ing character. Death itself-long protracted imprison. Yeates seems to have taken the lead in support of what ment at hard labour, and consequent infamy, may speehe deemed the ancient usage, and his reason, which dily follow the accusations formally tendered from your may be found in the case of Keen vs. Swain et al. 3 body to this court; for those accusations once made, Yeates, 561, cannot in my opinion be easily and satisfac- must in the discharge of an official duty be steadily car. torily answered. Judge Brackenridge was foremost on ried out to their consequences, however afflicting or the other side. On every occasion he seems to have awful, by us and all the other ministers of justice, to declared his mind most unequivocally, that by a sheriff's whom they are confided. What you initiate we must sale of land all prior liens, whether by judgment or mort- consummate and either release innocence from the tor, gage, are left wbolly untouched, and he gives his rea ture of your suspicions, or impose upon proven guilt an sons most fully in his miscellanies, p. 258, and from appropriate measure of its prescribed penalty. The some dicta in his books from the judges incidentally, it important results, however, that may follow your presen seems probable that one or more of them were of the tations, only call for additional firmness and energy in same opinion with Judge Brackenridge. But this it ap- the fulfilinent of your duties. As you are the exclusive pears to me could not have lasted long. In the case of authority through which the sanction of the penal law Patterson vs. Sample, 4 Yeates 308, there was a mort. can be directed against offenders, a failure on your part gage and the land sold under a subsequent judgment to exercise the high trust confided in you fearlessly and There was an application by the mortgagee to receive faithfully, would shake the foundations of social security, his money from the sheriff. The case was tried before But emerging from the mass of a community into Smith, J. The only ground upon which that judge which they must soon return, without prepossessions to seems to have placed the case, was the recording of the lindulge er enmities to prompt, ignorant in general of

1830.)

CHARGE TO GRAND JURY.

275

the unhappy persons over whose future fates and char- be considered as suppliesl by those of the Constitution acters they deliberate, the grand juries of Pennsylvania of the United States, and acts of Congresy, and such as can only be actuated by a desire to maintain the laws, remain unaffected by these causes, are so unlikely to be vindicate the public peace and confirm the common called into operation, that the recapitulation of their safety. Their intelligence has always been distinguish- provisions is on this occasion uncecessary. The highed; their independence unsuspected; their integrity un- est offence known to our law is the crime of murder, assailable. In a preparatory tribunal thus constiiuted and the only one now punishable with death. No of and thus characterized, the community have every rea- fence seems to have attracted more the consideration son to place an unbounded confidence. While it exists, and care of the legislature which reformed the penal conscious virtue may scorn the machinations of batred code of the state. It is defined with care; it is distin. and the intemperance of prejudice; while it exists, guished into degrees and the appropriate punishment courts of trial are sanctuaries against malice and oppres- awarded according to its comparative atrocity. The sion; while it exists, crime in vain seeks shelter behind discrimination, however, of the two degrees of murder, the glitter of wealth, the pride of connection, or the namely of the first and second degrees, is the task of the mask of hypocrisy,&the great objects of social organiza-jury which tries the indictment, not the grand jury.tion guarded by the criminal code must remain inviolable. The grand jury decide on the question of murder gen

I am aware, gentlemen, that in this remarking upon erally as it stood at the common law, and are therefore the excellence and dignity of your office, I only repeat relieved in some respects from the solemn responsibility what others bave more ably enforced. But I believe it which rests on the court and traverse jury by whom this to be useful, commencing as we do now the fulfilment important discrimination is made. of painful though necessary duties, briefly to advert to Murder, then, as defined by the common law, is, the solemnities of our undertaking; to withdraw ours when a person of sound memory and discretion unlawselves for a while from ordinary feelings and pursuits, fully killeth any reasonable creature in being, and in the and to fix our minds on the importance of the task we peace of the commonwealth, with malice prepense or have actually in hand. Let us go to it with a full and aforethought, either expressed or implied. Each branch fresh impression, that it calls for an exercise of our best of this definition must be carefully aitended to in decifaculties, as well of the understanding as of the heart.- ding on the application of the crime to an act of hoiniIn this manner only, shall we reach its termination, sat- cide, but the last requiring that it be done with malice isfied with ourselves and approved by our country. aforethought demands peculiar consideration Malice,

The real demerits of crime are varied by the degrees in the legal acceptation of the word, does not, as in the of intention, of temptation, of age and of circumstances popular one, denote a spite or malevolence, against the in vvhich individuals are placed as well as by its perni- deceased in particular, but that the fact has been attencious consequences to society. Yet to assign to each ded with such circumstances as are the ordinary sympits exact proportion of punishment is not within the toms of a wicked, depraved, and malignant spirit; a power of the law. But no system of criminal jurispru. heart regardless of social duty, and deliberatuty bent on dence is just or salutary that does not aim as far as prac mischief. Every act which apparently must do harm, ticable to proportion the measure of punishment to the and without provocation, and of which death is the congrade of offence. In this particular, many governments sequence, is murder. Express malice is where one perin other respects highly intelligent, have lamentably er son kills another, with a sedate deliberate mind, and red, some assigning to almost every serious infraction of formed design; such forined design being evinced by social duty the extreme of punishment, others commut- external circumstances, manifesting the inward intening flagrant crimes for a pecuniary mulct.

tion, as lying in wait,antecedent menaces, former grudThe successful labours of enlightened men of modern ges, and concerted schemes to do the party bodily times, have happily established as axioms in criminal harm. Within this class of cases are embraced those justice; that it is the certainty, not the amount of pun- homicides that result from the detestable practice of ishment, which tends to repress crime; that the punish- Duelling. In these meetings of blood, each party comes ment of death being the utmost limit of buman power, with the formed design of taking away the life of his opvught to be reserved for a few cases of the deepest dye: ponent, and when death results to either, the surviAnd that the infliction of suffering upon the criminal vor is, as well in the eye of the law as in that of reliought to be subsidiary to the great end of effecting his gion and morals, a murderer of the most unequivocal reformation. It is a matter of just congratulation that character. the adoption of a system founded on these humane prin. He who in the fantastic language of this systematized ciples by our own commonwealtli, at an early period af murder, is termed the second of the party killing, is ter her emancipation from colonial subjection, has re- equally as obnoxious to the law as his principal. Our sulted in the demonstration of the practical correctness penal code sternly regarding homicides of this kind in of these principles. For whether we compare the a. ibeir true character, only views the successfuel duellist mount of crime with that of other nations or of our own as the hardened wretch who employs skill and delibestate under the ancient system, we discern a striking ration in depriving his fellow man of life-as one who amelioration; and are encouraged to persevere in the regardless that vengeance belongeth to the most High,' maintenance of the present one in its substantial fea-tramples on all laws, divine and human, in vindication tures, exerting at the same time every means to improve more frequently of a fancied than a real injury, or in the and bring it nearer to perfection.

assertion of a principle of honour always fantastic, and As it is, gentlemen, made your duty to present all never based on sound moral principle. If the public such matters as shall be given you in charge, it has feeling, however, is outraged by crimes of this kind; if been usual and it is proper for me to notice those crimes the peaceful, the virtuous, and the estimable, are ever which come more peculiarly within your cognizance-Ishocked by their open perpetration, it is not because mean those which were capital offences at common law our laws are not sufficiently energetic to reach the of. and punishable with death. It is true that you have ju- fenders. Such a reproach does not rest on them. The risdiction in all cases of infraction of the criminal law, comparative impunity which accompanies the duellist, yet those of a minor character are left to the courts of is the consequence of a mistaken public sentiment, that ordinary criminal jurisdiction, and except in special ca- admits the possible case in which one man is justified in ses rarely interfere with your graver duties.

imbruing his felon hands in human blood, and which The offence of treason against the commonwealth, is supposes that there may be injuries where men are at fortunately become a crime unknown in our days. We liberty to seek redress by separating themselves from have still in force acts on that subject, passed during the the pale of civil society, and by setting all public law at war of the Revolution, when Pennsylvania was an inde- defiance. Every friend of social order, every friend of pendent sovereignty, but most of their provisions may | humanity, ought to unite in frowning down a sentiment

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