Nevertheless, though on my part it was considered, and as it appears would seem to have been considered by the other judges, as extending to nothing more than as I have stated; yet I did not consider my self as precluded from giving an opinion, if I chose to do it, on any decision that had been made. And I cannot say that there are not some of which I do not approve. From some of them indeed, I have dissented in a judicial capacity; and in most if not in all of these I stick to my opinion. But not in any case, where I think it wrong. Because I am more covetous of the praise of candour in retracting error, than even of correct judgment, in the first instance.

A few of the notes which I made in reviewing this publication, which deserves not a little credit, for its labour of industry, and collection of decisions, I take the liberty of subjoining here they will be but few of which I shall take notice. These chiefly which respect the law of legal tenure in Pennsylvania.

SINCE writing the above it occurs to me to subjoin a few observations more particularly upon the task enjoined upon the judges of the supreme court, in examining and approving the edition of the laws, with notes of decisions as prescribed by the act 28 Feb. 1810. It would be a reflection upon the understanding of the legislature, and an indecency to suppose for a moment, that they could mean that the judges were to approve of the decisions reported, but only of the report of the decisions. For it could not but be considered as much within the view of the legislature to have erroneous decisions reported as those which the judges might think. correct. For the object of the legislature must have been, to see what the decisions were; whether erroneous or correct ; with a view to interpose, where it might appear to them, their own acts required explanation, or amendment. Declaratory laws settle the intention of the legislature. These decisions so reported will be read in court, but no greater

weight will be attached to them, than their own intrinsic reason will seem to justify. Chief justice Shippen, expressed the idea to me that decisions merely nisi prius, and these constitute a great part, had better be burnt; because they might mislead. But as the legislature have called for them they could not consistent with duty be omitted, and the judges could not with delicacy but approve the reporting, because the keeping any of them back, would be contrary to duty in the reporter, and the giving countenance to this by the judges, would be a participation in the fraud. So far from approv ing these decisions in any other view of the matter, I do entirely disapprove of many of them; in other words dissent from them; and especially such as have a relation to the lands within the purchase of 1768; and those lying west of the Allegheny river under the act of 3 April, 1792.

In contemplation of law a nisi prius decision not appealed from by a motion for a new trial, acquires in some degree the force of a decision of the court above; but it can only be in a degree; for the court sitting above is at a distance; and it becomes a matter of expence to appeal. In Pennsylvania, where until of a late period, the court in bank sat in the city of Philadelphia at the distance of many hundred miles from the county in which the nisi prius trial was, it was a matter of increased expence to prosecute an appeal; because fresh counsel must be employed in that case, the counsel at nisi prius not attending, as they could not with any possible convenience at such a distance. And even the fresh counsel that might be employed at the then seat of government could not always be well acquainted with the local laws of the interior, so as to do the case equal justice with those even of inferior talents that had more knowledge of the acts of assembly applying to rights in a particular quarter; and this, from a more careful study of them. I have known the poverty of a defendant, in many cases, to operate as a bar against an appeal; so that whatever might be the effect of not appealing from a nisi prius decision in contemplation of law, it in fact amounted to nothing, so far as respected the decisions in the counties remote from the sitting in Bank.

But, it was discouraging in any case to appeal where two of the judges sitting at nisi prius, left but two others in the supreme court to whom the appeal could be made; and the two sitting at nisi prius, had in their turns the revision of the decisions of the two behind, who in the mean time were on the circuit elsewhere, and thence could not be supposed in fact, whatever it might be in contemplation of law, to have a leaning to support what the other two had done; not to judge severely "lest they themselves should be judged." In a court so constituted, an appeal was a mockery.

It was an appeal, I will not say from Philip drunk to Philip sober, for I mean no such reflection; but it was almost the same thing as an appeal from Philip to Philip.

I admit that during a period there was what was called a court of appeals, not independent of the supreme court, but with a simul cum of other characters. But this court was holden at the seat of government, and it was a matter of still greater expence after a decision on the appeal, in the supreme court, to pursue it farther to a hearing in the last resort. The terms holden as they now are in districts, and by judges who have not sat at nisi prius, or have to review the decisions of each other, with regard to causes in the counties, is a great improvement on the system.

Thus much I have thought is necessary to say, with regard to the extent of that approbation which the judges of the supreme court may be considered as having given to the notes of decisions, as reported in pursuance of the act of the legislature.

UNDER the act of the 1st Ap. 1784, in the edition of the laws which the judges were to examine and approve, we have a note of much utility tracing the history of land titles in Pennsylvania. In this note a concise and clear view is given of the controversy of Penn with Lord Baltimore, respecting the boundaries of their respective grants.

But I have overlooked, or there is not comprehended in it, an account of the controversy of Penn with Virginia, to which dispute the commonwealth succeeded in the place; for it had not been compromised under the proprietary government. The ground of controversy with Baltimore whose grant was called Maryland, respected a degree of latitude; of which under the agreement with Penn half a degree was given up; but the Maryland boundary running west, terminated before the extent of five degrees of longitude to which Penn was entitled to go. He had a right therefore to run south at the extremity of the Maryland boundary, a degree. Then a line due west to the extremity of the fifth degree of longitude from the river Delaware. There was therefore in dispute with Virginia, a degree of latitude, for the distance of 23 miles due west, after passing the charter boundary of Maryland.

But independent of this, Pennsylvania claimed a line north parallel with the Delaware, but not according to the curves of that river. Virginia claimed according to the curves, the sinuosities of which river would throw considerable bays in many parts into Virginia. Office rights had been issued both from Virginia and Pennsylvania, and had been laid upon this ground, that according to the claims of each respectively, settlements also had been made under the laws, or usages of both.

By an act of first April, 1784, an agreement previously made, containing a compromise of the respective claims, is ratified and confirmed by the state of Pennsylvania, viz. "that the line commonly called Mason and Dixon's, be extended due west five degrees longitude, to be computed from the river Delaware, for the southern boundary of Pennsylvania, and that a meridian drawn from the western extremity thereof to the northern limits of the said states respectively, be the western boundary of Pennsylvania, for ever, on condition that the private property and rights of all persons acquired under, founded on, or recognized by, the laws of either country previous to the date hereof, be saved and confirmed to them, although they should be found to fall

within the other, and that in the decision of disputes thereon, preference shall be given to the elder or prior right, whichever of the said states the same shall have been acquired under, such persons paying within whose boundary their lands shall be included, the same purchase, or consideration money which would have been due from the state under which they claimed the rights." Such are the material conditions of the agreement, and ratification. It will be seen from the annexed diagram what was the nature of the dispute, and the term of the compromise as it respects boundary.