But in that case it could not be said that an English statute was in force, but a principle derived from it. This may be said to amount to the same thing with the statute being in force, and to be equally recognized by the act of January 28th, 1777, which provides "that such of the statute laws of England as have been heretofore in force, shall be in force except as herein excepted."

But I do not see that it can be admitted that an English statute could be said to be in force by its own enacting, even though the colonies are particularly named in it; notwithstanding as late as 1782, an expression is attributed to the court in the case of the lessee of Morris vs. Vanderen, which would seem to imply that the idea was then entertained that it would be in force. "It is the opinion of the court that the common law of England has always been in force in Pennsylvania; that all statutes made in Great Britain before the settlement of Pennsylvania, have no force here unless they are convenient and adapted to the circumstances of the country; and that all statutes made since the settlement of Pennsylvania, have no force here unless the colonies are particularly named."

But if it be admitted that an English statute would be in force by particularly naming the colonies, so as to establish a rule of property, or a principle of municipal regulation, I do not see how we can justify the opposition to an English statute imposing a direct tax; much less to a statute which went indirectly to collect a revenue by duties on internal or external commerce.

Nor am I able to conceive that by an adjudication of the courts any principle could be legally derived from a statute passed subsequent to the settlement of the province, unless within that sphere where the judiciary have a power to adopt rules, independent of the legislature, and which must be confined to the rules of pleading and the forms of justice. Unless it be that the idea may at first have been entertained in the province, which prevailed in England, that a statute was in force in the plantations, where they were particularly named; and that from thence there was an acquiescence in

F

the application of them by judicial determinations; until the statute of 6 Geo. III. c. 12. and onward, presented this principle in so full a view, as to put an end to all acquiescence, in the most distant exertions of it. How far the principle, or provisions of a statute may have been adopted, and may have got a footing in our jurisprudence in this way, and how sanctioned by the 28th of January, 1777, becomes a matter of no easy ascertainment, if the duty assigned can be thought at all to embrace it.

Virginia has expressed herself, as to statutes before, and since the settlement of the colony, with precision on this point. "The same convention which established the constitution judged it expedient to pass an ordinance, declaring that all statutes or bills made in aid of the common law, prior to the 4th year of James the 1st, and which are of a general nature not local to that kingdom, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force, until the same be altered by the legislative power of the colony." Tuck. Black. Appendix 444.

I take it that our legislature in the act of Jan. 28, 1777, could not have meant more; it is observable that the legislature of the province in many acts from time to time, have adopted the English statutes in the same words or to the same effect; which would seem to shew their sense to be, that without a legislative sanction no English statute, passed subsequent to the settlement of the province could be in force. This I think is the point of view in which it ought to be considered, and that we cannot undertake to say that any English statute is in force which passed subsequent to the settlement of the province. But if a statute should occur to our examination, which though since the settlement of the province has been passed by the English legislature, and adopted by the adjudications of the courts, it may come under the head of “such statutes as ought to be incorporated into the statute laws of this commonwealth ;" and may be reported as such.

With respect to such of the English statute laws as were in force, at the settlement of the province, a great part have

been suspended by acts of the legislature of the late province; or by our constitutions since the revolution; or, by acts of the legislature of the state. The question therefore will be narrowed, in the first instance, to what English statutes were in force at the settlement of the province.

By the charter of the province to William Penn, sec. 6, it is stipulated, "that the laws for regulating and governing of property within the said province, as well for the descent and enjoyment of lands, as likewise for the enjoyment and succession of goods and chattels, and likewise as to felonies, shall be and continue the same as they shall be for the time being, by the general course of the law in our kingdom of England, until the said laws shall be altered by the said William Penn, his heirs or assigns, and by the freemen of the said province, their delegates, or deputies, or the greater part of them." But this general extension of the laws of England cannot be taken without exception; and that exception must be taken from the general law, to which every stipulation must be subject, and which law is founded in the nature of colonization, which cannot carry with it all the regulations of the parent country, but such only as have subjects to attach upon and are not excluded by the change of situation. "If there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so wherever they go they carry their laws with them, and therefore such new found country is to be governed by the laws of England." Peere Will. 75. Salk. 411, 666. "But this must be understood with very many and very great restrictions. Such colonies carry with them only so much of the English law as is applicable to their own situation, and the condition of an infant colony." Black. Com. 107, and Tuck. ap. 443, “our forefathers migrating to this new country, brought with them all the laws of the parent state which were applicable to their own condition, and circumstances, and this extended not only to the common and unwritten law, but also to the written laws of the kingdom from whence they emigrated. But this principle extends only to the existing laws of the parent

state, at the time of the colony being settled, and not to such as should be thereafter made."

In the case of the commonwealth vs. Mesca and others, 1 Dal. 74, 75, the chief justice makes a query, whether it was intended by the act, meaning that of 28th Jan. 1777 to include only such acts as were in force by an express extension of the legislature or to comprehend likewise such statutes as had been extended by the judgment of the supreme court, or received there in usage, which seemed to him to be in some degree uncertain. 1 Dal. 74. A statute expressly extended by the legislature, became an act of the colony, under the proprietary government, and had been comprehended under the preceding part of sec. 2. of the act of 28th Jan. 1777; "each and every one of the laws, or acts of general assembly that were in force and binding on the inhabitants of the said province shall be in force and binding on the inhabitants of this state." Whence it appears to me that the sentence of the section which follows, and provides for the statute laws of England can mean only such of the sta tute laws, as were in force by their own operation as applicable to the situation of the colony under the proprietary government.

Here opens the field which is now to be traversed; which of the statute laws of England were applicable to the infant colony settled under the charter to William Penn; and, were this left to the exercise of judgment as a question to be determined for the first time, by any one, the mind would be free to draw the conclusions as to what statutes were applicable, to the situation, and in force in the new colony. But it has been a subject of judicial consideration even since the first establishment of the courts, as a case arrived which would come under a statute of the present state, to say whether that statute or any part of it, was applicable, and could be adopted here. Hence it becomes a matter of evidence what statutes have been in force by the adjudications of the supreme court, and to be collected amongst other means of information, even from oral testimony, as would appear from the case aforementioned of the commonwealth vs Mes

ca and others, where the chief justice in addition to what was before stated, goes on to observe that "if this was a new case the judgment of the court would be different, on the ground however of the precedent we hold ourselves bound. 1 Dal. 75." This depended on the oral testimony, given in court, of a trial where the statute in question was held to be in force and the privilege of it extended to the accused. It may be easily conceived that when a statute comes in question in the first instance, it cannot always be a matter of easy determination whether it comes under the predicament of a statute which applies to the situation and circumstances of the new government. For being a matter of reason and judgment, requiring information, and sound discernment, the mind of a discreet man must deliberate carefully and decide cautiously. Hence the researches and argument of counsel learned in the laws, and policy of the respective governments, is useful to assist; and it is oftentimes a discussion of much length, to enable a conscientious, and prudent court, to make up an opinion, whether the point has been decided, in a particular case. To consider it as subject to a new discussion when the same statute comes again in question, would be an endless task, and involve continual uncertainty. Evidence therefore of a preceding determination, will be received, and bind, where the same principle again presents itself. This evidence must be the recollection of those present at the adjudication: or in a remote case, some memorandum, preserved in the notes of the judge; or the practitioners of the law; or introduced in practice, and communicated like the rules of a legislative body, or the laws of a game at school; the preceding decision being a guide to the next, until it grows into usage, and is known and considered as an established principle. "We know that many English statutes for near a century have been practised under in the late province, which were never adopted by the legislature, and that they might be admitted by usage and so become in force." 1. Dall. 75. This last must be the principal source of our knowledge on this head; for during the century which elapsed under the judicature of the province, scarcely a ves