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so, or, as supplanted by our statute of 1705, can not be a restraining statute, not an enabling one; and this plainpositively known. They were most probably thoughtly shows what, in his opinion, was the law before. It

to be repealed and supplied, as they were entirely with- was therefore to remove a doubt of the interpretation, in the rule laid down by Lord Holt in Blankard v. Gal- or to repeal the law taking the interpretation of the dy, 2 Salk. 411, and repeated by the Privy Council, as Chief Justice to have been established-in any event appears from the relation of the Master of the Rolls in 2 to restore the law to its former footing-that the act of P. Wms. 75; that an emigrant colony carries with it the which he speaks, was passed in 1693. Of the legisla laws of the parent to an uninhabited country; or even tion which took place in relation to proof of the instruto one acquired by conquest. so far as regards matters ment, I shall have occasion to speak again. It seems in respect to which the existing laws are silent, or en- pretty clear, then, that the English statutes of wills join what is immoral, or are contrary to the religion of were originally in force with us, and not reported as the conqueror. It is plain that a country whose entire being so still, only because the judges thought that our population has been displaced to make room for the own statute was designed to supersede them in their new comers, is an uninhabited country for the purpose whole extent. Judging of the substitute by its proviof receiving their laws; and it therefore seems singular sions, it might perhaps as easily have been deemed but that the distinguished judge who ruled Blankard v. Gal- ancillary to them as performing the same office in re dy, should shortly afterwards have held, in a case which gard to them here, by exacting in addition to their re involved the legality of slavery, that the laws of Eng-quirements the observance of particular solemnities as land did not extend to Virginia, being a conquered matter of proof, that is performed by statute of frauds country; and the more so as the laws of the aborigines, in England. But even as an enabling statute,our act of if they had any, could not be supposed to have provided 1705 was not a new law, but an act of legislation on the for the subject. Be that as it may, our courts have al- basis of an old one, which is therefore to be taken into ways held that the laws which were in force at the foun- consideration in the interpretation of inexplicit clauses, dation of the colony, and not positively unsuitable to because it is reasonable to presume that no departure the condition of the colonists, were brought by them from the existing law was intended further than is exhither; and it can not be thought that laws which pressed. For this reason it is, perhaps, that the act has enabled them to dispose of real estate, were unsuitable. always been understood by the profession, in accordance During the twenty-four years that elapsed between the with the British statutes. Had a variance been suspectcharter and our statute, they could not have been with-ed, it must long ago have been put to the test of judicial out provision on the subject, and I know of none that decision; but no trace of such suspicion is to be found in was competent to satisfy their necessities but these very our judicial record. It is argued, that whatever the gestatutes; for it will appear in the sequel, that the inter-neral rule may be, the clauses in the codicils of this will vening legislation on the subject of wills, had regard to which require real estate acquired subsequently to pass the proof of the instrument and not the power of the as if it were then the estate of the testator, make the case testator, with perhaps the single exception of the act to an exeption to it; and the question therefore is not one of direct "how the estate of any person shall be disposed intention but of power. But even in the case of a general of at his death," passed the 10th of March, 1683. By residuary devise, the intention to pass the estate is taken that act, which may be seen in the Appendix to Hall for granted; and what is there in the specific expression and Seller's edition of the laws, page 9, it was provided: of such an intention here, but a greater degree of cer"That whatsoever estate any person hath in this pro-tainty in respect to what is in other cases taken for vince or territories thereof, at the time of his death, un-granted? Nothing in the books but the dictum in Brett less it appear that an equal provision be made else. v. Rigden, Plowd. 344, gives color of authority to the where, shall be thus disposed of; that is to say, one-supposed distinction. There it is said to have been dethird to the wife of the party deceased, one-third to the children equally, and the other third as he pleaseth; and in case his wife be deceased before him, two-thirds shall go to the children equally, and the other third to be disposed of as he shall think fit, his debts being first paid." In the margin we have these observations by Chief Justice Kinsey: "1. This act seems to restrain the power of devising more than one-third of the lands of which a man died seized. 2. This law, for aught I find to the contrary, continued till the first of the fourth month, 1683, when a law passed authorizing a man to devise all his real estate." This repealing law I have been unable to find. But it is observable that the act of 1683, included land, if at all, only by force of the word "estate" and not of any more specific term; so that it is by no means clear that the inclination of Judge Kinsey's opinion, for he spoke doubtingly, accorded with the true construction or actual understanding of the times. He could not have known by experience the construction put on the act in practice, for his notes were written probably forty years after the repeal of it; and if he had been a member of the profession during that period, he was not till 1730, an inhabitant of Pennsylvania. Granting his opinion to be that land was included, it is pretty evident the crown thought other wise; for judging from the jealousy evinced by it in the case of much less important innovations. It is scarce to be believed, that it would have tolerated for ten years so violent an infraction of the spirit of the charter which required a conformity of the laws to those of the mother country, as a restriction of the dower of devising to a third of the testator's land, or the dower of his widow to be turned to a fee. But if it were even applicable to land, still it was viewed by the Chief Justice but as

termined in the 39 H. 6. 18, that if a man devise a certain estate and have nothing in it at the time, but purchase it afterwards, it shall pass; because, as it is said, it must be taken that his intent was to purchase it, and were it not to pass, the will would be void. All this was repudiated by Lord Holt in Bunker v. Cook, 11 Mod. 278, as being not even the dictum of a judge, but an assertion of counsel and unwarranted by the book cited for it; in which he is supported by Chief Justice Treby in Archer v. Bokenham, 11 Mod. 163. In truth the matter never depended on the actual intent; nor yet, as it was at one time supposed, on the restrictive words of the English statutes, and it is therefore of no importance to the question that those statutes were not report ed as in force here. It is true that in Cutler and Baker's case, Lord Coke laid great stress on those words; but in Bunker v. Cook, or Broncker v. Coke, as it is reported in Holt's Rep. 247, it was asserted by Lord Holt that Chief Justice Bridgeman had differed from Lord Coke in attaching importance to those words, in a case determined in the Common Pleas the 16 Car. 2. and that the judges in the Exchequer Chamber were of the same opinion: this too on the relation of Chief Justice Bridge man himself. But what puts the matter at rest is, that in this case of Bunker v. Cook, the rule was applied in all its rigor to lands which were devisable, not by force of the statute at all, but by custom; and the judgment was affirmed in the House of Lords. The doctrine was vigorously maintained in that case as well as in Buckenham v. Cook (Holt's Rep 248) by Lord Holt; and in Archer v. Bokenham, by Chief Justice Treby; who together rested it on these propositions: That a will is a species of conveyance, not strictly subject to the rules of conveyances at the common law, it is true, the vesting

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of the estate being postponed till the death of the testa- is the very act under consideration; and it seems clear tor; yet operating, as regards his disposing power and therefore that he considered the act of 1682, as the law capacity, by relation to the making of it, insomuch as of his day, except so far as it was amended by the Act to require his power over the estate to be perfect at the of 1705. His notes were written certainly after 1713, time, just as his capacity must be perfect at the time, it as they contain a reference to acts passed in the close being settled that the want of a disposing mind and me of that year, and probably after 1730, when he removed mory at the performance of the act of disposition, is not from New Jersey to Pennsylvania. He was appointed supplied by the restoration of it before the death, Chief Justice about the year 1743, and died in that for the same reason that an intervening loss of it will office, according to Proud, in 1750. The Act of 1682, not prejudice a disposition unexceptionable at the time however, was amended only as to the time of proof and -in other words, that the act of disposition must be the manner of authenticating it, the requisition of two complete in every respect at the performance of it: witnesses being preserved. But this is not all. An Act That a testator, like any other granter, can not give had been passed at New Castle in 1700, (Append. to what he has not; and that the same principle prevails Prov. Laws, 7,) which expressly following the analogy in conveyances to uses though construed liberally like of conveyances as to the effect of the instrument, rewills, to favor the intention, as in Yelverton v. Yelver-quired no more than legal proof without specifying the ton, Cro. Eliz. 401, where a father covenanted to stand number of the witnesses. It therefore had, or might be seized of land which he should purchase: That the form supposed to have, the effect of putting wills of lands of pleading a devise, the testator always being described upon a lower footing as to proof than wills of chattels, as seized at the time of making his will, is strong though about which it said nothing, and consequently left them not conclusive evidence of the necessity that it shall be on the footing of the general law. To say the least, it so in fact: That the reason why land differs in this rewas open to an argument that one witness was sufficient spect from personal estate, is that the common law has for a will of land as in the case of any other conveyance provided in the event of intestacy, a fixed successor to of land. This Act having been repealed by the Queen the one and not to the other, even the statute of distri-in Council, as may be seen in Weis and Miller's edition bution being but a direction to the executor how to ad- of the laws, page 18, our present act was passed in the minister the assets; by reason of which, and the fluctuat same year, and the requisition of proof by two witnesses ing nature of personal estate, which is changing every restored, with new provisions added as to the mode of day, a different rule would require a new will to be authenticating it; and thus the reduction in the quantity made every day: That a subsequent purchase giving of proof made by the Act of 1700, was taken away, and the land to the testator, is repugnant to the import of wills of land were again put, as to proof, on the footing the devise which would give it to the devisee; of testaments of chattels. It is needless to ask why. It and therefore not to be intended to have been was an express condition of the charter that the laws made in subservience to the object of the will: And for the regulation of property should conform, as nearly finally, that there is no case or authority to warrant the as might be, to the laws of England, till altered by the opposite doctrine. To the argument of such men as provincial legislature; and the same jealousy of innova these, it would be presumptuous in me to attempt an ad- tion which prompted the crown to repeal the act for the dition, and I therefore refer the student to their reasons abolition of survivorship between joint tenants, passed as stated in the report. The alleged dependence, then, in 1700, as well as the two acts for barring entails by a of the doctrine, on the restrictive words of the British deed acknowledged and recorded-the one passed in statutes being disposed of, it results that the question 1705, and the other in 1710, (Hall and Seller's edition stands here exactly as it did in England, unless the spe- of the laws, Append. 18, 19,)-might on a question of cific provisions of our own statute be thought to make further departure from the statute of frauds, induce it a difference. to stickle about a witness more or less. The clause in our statute of wills, to which I have particularly advert

The clause which has been supposed to make this difference, is in the first section. After requiring proofed, seems therefore to have reference to the proof and by two witnesses, and establishing a mode for its authen- not the effect of the instrument. The first was all that tication, it is declared that wills so proved, "shall be was in contest between the province and the crown. good and available in law for the granting, conveying, The fifteenth law agreed upon in England, or rather the and assuring, of the lands or hereditaments thereby Act of 1682, remained in force twenty-three years withgiven or devised, as well as of the goods and chattels out opposition; and during that time, wills of lands and thereby bequeathed;" and from the parity of provision testaments of chattels stood on the same footing. But thus expressed is inferred an intention to create a parity no sooner did the act of 1700 reduce the proof of the of operation and effect. That such was not the object, | former, or bring it into doubt, than it was repealed by seems manifest from the legislation which preceded it. the Privy Council; and when the present act of 1705 By the fifteenth law agreed upon in England, it was raised it again to the level of the act of 1682, the crown declared that "all wills and writings attested by two acquiesced. At no time does there appear to have been witnesses, shall be of the same force as to lands as other a disposition to change the effect of a will of lands as conveyances, being legally proved within forty days, understood in England; indeed the very suspicion that either within or without the said province." This wa such a design was harbored, would have defeated it. evidently designed to preclude that provision of the sta-On the contrary, the language of all our laws is incomtute of frauds which requires three witnesses, and is worthy of special notice beside, not only for treating wills of land as conveyances, but for putting them on the footing, as to proof, of testaments of chattels, which, by the Canon, and consequently by the English law, require but two. Lea v. Libb. 3 Salk. 396. This fundamental law received a regular statutory form from the first Assembly, convened at Upland in 1682, by whom it was enacted as the forty-fifth section of the Great Law, and in the terms in which it had been expressed in England, with the exception of two immaterial words introduced, the last of them evidently by inadvertence. Chief Justice Kinsey's note in the margin is, "This Act as amended in the fourth of Queen Anne, remains to this day." Prov. Laws, App. 7. Now the fourth of Queen Anne, which he pronounces but an amendment,

parably more emphatic than that of any Act of Parlia ment, to show that a will of lands was esteemed a conveyance and no more. This sketch of the legislation, which preceded the act of 1705, and which is here given in the order and nearly in the words of a distinguished counsel, to whose research I am indebted for it, seems to put the intention of the legislature beyond the reach of doubt. The magnitude of the interest in contest, amounting as it does in value to more than sixty thousand dollars, as well as a respect for the doubt suggested by my brother Huston, has induced me to examine the foundations of this part of our law with peculiar care; and the result is a firm conviction, that the real estate acquired subsequently to the two codicils, did not pass by Mr. Girard's will: consequently the plaintiffs are entitled to the succession under the intestate laws.

Judgment for the plaintiffs accordingly. On the 9th April 1833, the Board of Commissioners of the Girard estate, "directed the Treasurer to settle the account of the intestate property, with the next of kin of Mr. Girard, and pay over to them the balance in his hands, on account of that estate. Instructions were also given to the agents to deliver to them possession of said property."

The pamphlet then contains, some "remarks signed 'R."" which appeared in the American Sentinel of the 9th July 1833, "upon the above decision; also another article in reply to the preceding by "K,'" which appeared in the same paper, on the 22d of July; and "a rejoinder by 'R,'" published on the 25th of July. The object of "R." is to show that by the "doctrine of election," the legatees could not claim both the intestate estate and the legacies, and that if they received the latter, the former belongs to the mayor and aldermen of the city as residuary legatees; and that the decision of the court only settled the question "whether real estate purchased subsequently to the date of his will by a testator, passed by that instrument;" and it left open all other questions "relative to the title of the heirs to this real estate for future discussion and decision," As our object is, to preserve a history of this matter, we deem it sufficient merely to refer to those articles if they should be hereafter required. Presuming that if there be any serious determination to try the question, it will be judicially decided, and we shall of course then publish the result,

From the Wheeling Gazette.

BY-GONE DAYS." I remember when there was no such thing to be seen as a keel boat plying on the beautiful river Ohio; great unwieldy "arks" were used by traders to New Orleans, and for the purpose of conveying emigrants on their pilgrimage to Kentucky. In 1793, when James McLuny of Washington, Pa. and John Halsted from near West Middletown, arrived at our landing in a Barge from Orleans, it was thought by our citizens to be one of the greatest exploits ever performed; it certainly was so, as it respected the navigation of the two great rivers.

I remember when there was no glass of any description made west of the mountains. Col. James O'Harra was the first to establish a green glass manufactory at Pittsburg. It is not forty years since we got all our paper from the east side of the Allegheny; Jackson and Sharpless were the first to commence this branch of business near Brownsville."

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A STATISTICAL TABLE,

Containing the accounts for the names, residence, &c. only of such Students as have been in the Institution six months or more, and who are expected to continue. Day scholars are marked (d.) Club boarders (e.) Those marked (*) worked at trades or otherwise irregularly, which accounts for the disparity between the product and the time set down to them. A weeks work is twenty hours.

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$1,545 43 240 00 87 00 Petna and Madress goat skins, 587 00 225 morocco skins, 191 00 Manufactured Articles.-610 dry good boxes-151 book boxes-80 quill boxes for cotton factory-132 hat boxes-970 trunk boxes-84 candle boxes-total of boxes, 2037.

An inventory of the principal materials wrought up by | A navigation can thus be opened to Lake Ontario and the Students within the year, namely:the river St. Lawrence, and by the Welland canal, to 117,639 feet of lumber which cost Lakes Erie, Huron, Michigan, and Superior-to the 640 trunk locks, handles, &c. wilderness of the northwestern territory. A canal has 145 pounds of nails, been already projected from Chicago near the south western point of Lake Michigan to the Illinois river, which is navigable by steamboats about 6 or 7 months of the year to within 19 or 20 miles of that place. By cutting a canal between these points, a steamboat communication would be opened to the Illinois, Mississippi, Missouri, Yellowstone, Ohio, Cumberland, and Tennes see rivers, to every navigable stream of the west; to New Orleans and the Gulf of Mexico. It would be a perfect and complete inland communication to al most every important place in our country. Every town on the banks of the Susquehanna would become a place of commerce, with her steamboats freighted to almost every part of the country. Every citizen would participate in the benefits of such a magnificent enterprize. The villages of the Susquehanna, in which buFarm.-One hundred loads of manure hauled andsiness is dull during the summer, would be filled with spread, and also 2400 bushels of lime-25 tons of hay bustle and activity-they would soon grow to the towns cut, cured and taken in-320 bushels of potatoes raised of wealth and consequence-they would become marand taken off one and three-quarter acres-8 acres of kets for all the produce of every description raised by corn cut-six acres of oats raised and housed-25 acres the farmers in their neighborhood and thus extend the of wheat and rye harvested and housed. advantages of the project to every citizen in the interior of Pennsylvania.

640 trunks finished (these are included in the above boxes) 740 lights of sash-10 cultivators-2 wheel barrows-1 cutting box-1 horse rake-10 bedsteads 5 long dining tables—25 study and kitchen tables-2 wash stands—1 kneading trough-1 large writing table-15 benches.

Garden Labor-About ten acres have been cultivated in vegetable, potatoe and corn lots, besides the small gardens at the mansion house.

A SPLENDID PROJECT.

We have made these few hasty remarks to call public attention to the project; and shall resume the subject again when we shall treat it more critically, and at greater length. Editors of papers, in towns on the Sus quehanna, and at Elmira, N. Y., are requested to notice the subject.-Pa. Telegraph.

From the Harrisburg Intelligencer.

We insert to-day, a communication which appeared in the Pennsylvania Intelligencer, on the subject of Steamboat Navigation of the Susquehannu, to which we invite the attention of our citizens. The reasons urged in favor of this project must strike the mind of every one forcibly at once, while it cannot be urged against it, that it will involve the state still deeper in debt, as it is a project for the consideration of Congress, It was truly as well as eloquently observed, by John and one that should enlist the support of the members Sergeant, in our Canal Convention, that "The spirit of of Congress from New York, Ohio, Michigan, Indiana, improvement was abroad on the earth." It is manifestand Illinois, and all the states bordering on the Missising itself in every section of our country, and in a few sippi and Ohio rivers, as well as Maryland and Penn-years it will indissolubly connect the immense territory sylvania.

of this Union. The period is rapidly approaching when The practicability of making the Susquehanna navi- the national debt will be extinguished, and when the gable for steamboats, has long been known. Several revenue of the nation may be applied to the execution of years ago a company in Baltimore proposed to the le- works of internal improvement. It is, therefore, time gislature of this state to make the Susquehanna naviga- for the public to reflect upon the most proper objects ble for steamboats from tide water to the New York to which the national funds may be most beneficially state line, for the trifling sum of two thousand dollars applied. As Pennsylvanians, we are interested in no per mile, about twelve hundred thousand dollars. But other project half so much as in the steamboat navigation supposing that it would cost five times that sum, the pro- of the Susquehanna. The advantages of such an imject would be one of the most splendid that could be provement to the country bordering upon the river, conceived of, when its extent and consequences are would be incalculable. If the Pennsylvania canal be taken into view. It would not be a local, nor sectional, as useful as its friends anticipate, its advantages will be, but national improvement. It would extend trade and in a great degree, limited to the one side of the river. But commerce into the very heart of Pennsylvania, N. York, a steamboat navigation will benefit both. It may, how and Ohio, and carry the products of thoses states to the ever, be objected, that this improvement is not a nation"great west," while it would bring to our own doors al work, to which only the funds of the general governthe products of those states in return. Every village ment are to be applied. But let it be considered in its on the banks of the Susquehanna, and every village on extension beyond the limits of Pennsylvania. A canal the Cayuga lake, the Oswego river and its vicinity, now exists from the Tioga river to the head of Seneca would burst forth with the hum of business-they would Lake—and the outlet from that Lake to Lake Ontario, become almost seaports in the very interior of our coun- has been already opened out by the state of New York. try. Harrisburg, from its location and natural advan- It will require but an inconsiderable expenditure, to tages would soon vie with Pittsburg, in wealth and en- render both communications navigable for steamboats. terprise-the immense mines of anthracite and bitu- When on Lake Ontario, the Welland canal, now in suc minous coal bordering on the banks of the Susquehan-cessful operation, affords the means of communication na would find a new market in the colder regions of the with Lake Erie, and thence the extent of navigation can north and northwest. Not only our own country, but scarcely be conceived. But a connexion can readily be the cities of Montreal, Quebec, and the whole Canada made between Michigan Lake and the Illinois river. The line would become consumers of the anthracite of Penn-liinois is already navigable for steamboats, several hunsylvania. Should the reader doubt, he need only cast dred miles, and in the spring floods, a navigation exists, for his eye over the map of the state of New York. A canal river boats, between the river and lake. This channel is already made from Elmira, N. Y. to the head of Sene-opened, or a connexion effected between the Maumee ca Lake, from which issues the Oswego river. This and Wabash, and Mississippi, the course of communica may easily be made navigable to Lake Ontario. This tion for steamboats, between the Chesapeake, the short canal might be enlarged and the river made Lakes, and New Orleans, is complete. The immensity navigable at a small expense to admit steamboats. of the project and the facility of its execution is sufficien

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