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SUNDAY. — Although a contract of sale on Sun- (3 Col. Doc. 623.) This grant, the Crown had afterward day is void, yet the seller cannot recover the chat- 110 power to either retract or annul. (Chitty's Prerog.
33.) As thus established the constituents of the protels sold nor damages for their value. Otherwise,
vincial government were as follows: the governorif he had been intoxicated by the purchaser for the deriving his power from the King's commission under purpose of defrauding him. Block v. McMurry, 56 the great seal, and his rules of conduct from the King's Miss. 217, p. 357.
instructions under the sign manual—was the immediate Where one walking on the Lord's day for exercise
representative of the Crown; the provincial councilwent into a beer shop and drank a glass of beer and
deriving their authority, both legislative and execu
tive, from the King's instructions — constituted the on resuming his walk was injured solely by a defect
upper legislative house; while the representative asin the highway, held, that he might recover. Da
sembly, chosen by the provincial electors, comprised vidson v. City of Portland, 69 Me. 116, p. 253. the lower house, representing the commons of the TRIAL. -A separation of the jurors in a civil
Tho formation of the provincial government of New case, after the jury has retired to consider of the
York remains a subject of interest, for even nowverdict, induced by a sudden alarm of fire in the
quito asido from the source from which the powers of vicinity of the jury-room, is not of itself such mis- | government emanate - its structure is but slightly conduct as will vitiate the verdict made on reassem- modified. bling. Armleder v. Lieberman, 33 Ohio St. 77, p. 530.
The limitation on the legislative powers of the pro
vincial government that the laws made by their WATER AND WATER-COURSES, — A railroad com
authority should not be repugnant to the laws of Eugpany constructed an embankment on its own land,
land - long remained a fruitful theme of controversy. whereby the surface-water was thrown upon the Tho Anglo-American inhabitants contended that the land of an adjoining owner. Held, that no action English Constitution, as it was exhibited in the great would lie therefor, although the company could fundamental acts, was the paramount law of their new
situation. The qualified denial of this last principle have prevented the injury by a culvert. Atchison,
furnishes the key to the future differences with the Topeka & Santa Fe Railroad Co. v. Hammer, 22
parent land. By the colonists' assertion, that the planKans. 763, p. 216.
tations and provinces of America were entitled to the The owner of land planted a row of trees on his common law of England, the Constitution of England own land, and along the division line between his was meant; for the common law was conceived to be
a limitation, within well-established bounds, of the land and that of an adjoining proprietor, the effect of which was to obstruct the passage of drift-wood lation, judicial and otherwise, which flowed from the
prerogative and of those powers of subordinate legiscarried upon the land of the adjoining proprietor, prerogative. It is important that this general assertion by the overflow of a water-course adjacent to the on the part of the colonists should not be confounded lands of both proprietors, to the injury of such ad
with their right to the purely juridical rules concerning jacent land. Held, that no action would lie there
the extra-territorial operation of particular parts of the
statute and judiciary law of England - a question, in for. Taylor v. Fickas, 64 Ind. 107, p. 114.
tho main, of minor moment. Notwithstauding the WITNESS. An accomplice who is introduced as
fact that tho municipal laws of the original colonies a witness and testifies to the facts within his knowl- exbibited differences at the time of the American edge, withholding nothing because of its tendency revolution - differences which have continued to effect to self-crimination, has an equitable claim to execu
their jurisprudence - there was a unanimous assertion
of their right to the English Constitution in so far as tive clemency, or the solicitor may enter a nolle
it related to political and civil rights, and their respectprosequi, but the fact does not constitute a legal de- ive guaranties. fense to a prosecution against him for the same Tho distinguishing feature of the government of offense. State v. Lyon, 81 N. C. 600, p. 518.
Englishmen had thitherto from the earliest periods been its entire subordination to the law of the land, tho folk law, or jus commune. The American Revo
lution was a vindication of this principle and the OBSERVATIONS ON THE PARTICULAR
subordination of the present government, State and JURISPRUDENCE OF NEW YORK.
Federal, to the fundamental law of the land—but a
protean form of the common law exhibited in conV.
stitutional codes — is perhaps but the evolution of
certain rugged principles of the common law. The THE
laws of New York, enacted in the proprietary permanence of established institutions may be said, in
and the succeeding periods of government, were somo respects, to depend on the closest adherence to not abrogated either by the flight of James II. or by the race principles of legislation, and any wido departure English Revolution. The legal effect of the revolution from them, to jeopardize institutions of a normal was analogous to the demise of the Crown; the pre- growth. It is doubtless for this reason that many rogatives remain substantially the same as before, Americans instinctively distrust any arbitrary atbut the right of the house of Brunswick to exer- tempt at a codification, fearing that it aims at engraftcise them was deduced from the convention of 1688. ing tho subtler elements of the Roman juridical (3 Hal. Const. Hist. 95.) This principle, though as- system which has never permanently coalesced with cribed to England, applied equally to the trans-atlan- free institutions. In this connection, the legislation of tio dependences of the Crown,
the province of New York is interesting to present The government of the Province of New York was, conditions. by the new sovereigns, William and Mary, placed on a The era of regular legislation in New York is said to permanent footing through the definitive grant of a begin with the year 1691, doubtless because the revisrepresentative assembly. The royal commission to ers of the provincial laws were directed to begin with Colonel Sloughter the first governor after the change the acts of the assembly of that year. But, as has of succession — authorized him, with the advice of the already been pointed out, the Assemblies of 1683-4 and council, to summon assemblies as need should require. '05 must not be disregarded, for they at least indicate the condition which the provincial law had attained not an index to the laws included in the various when the assemblies of the more regularly organized bound volumes now extant, as the original subscribprovincial establishments began. (924 Wend. 6:25.) The ers have, for their own convenience, caused the laws New York Civil List (ed. of 1867) contains an inter- of sessions of a date later than the title page to be inesting account of tho early Assemblies. But in cluded by the binders. The least known of the regureading it, we should notice that it is now esteemed lar editions of Bradford's imprints are those of 1094 an error to designate the convention of the dele- and 1710. That of 1710 may be considered a revision gates from the Long Island towns in 1665 a legisla- of the laws between 1091 and 1709, for it was published tire assembly, for it was convened for a special purpose in one volume, in obedience to an order of the Assemonly - the settlement of towu boundaries, and it pos- bly, that Mr. Bradford do print all the acts of the Assessed no legislative powers. (Dawson's Sons of Lib- sembly “now in force." A copy of the 1710 edition erty, p. 16; 2 Brodhead's N.Y., 67-9.) The first regular is in the New York Historical Society collection. In legislative assembly of New York was that of 1653-4; 1713 Bradford struck off another title-page edition, an instructive and able account of its proceedings, as which includes the acts passed between 1709 and well as of those of the second Assembly, held in 1685, 1713 ; a copy of the latter is in the State Library appears in the late Dr. O'Callaghan's Historical Intro- at Albany. The New York Historical Society has duction to the Journal of the Legislative Council, also a title-page edition of 1719, which includes the published by the State in 1861. The Civil List contains laws enacted between 1713 and 1719. A copy of Bradalso references to the Leisler Assemblies (p. 28), but it ford's title-page edition of 17:26, containing the laws is doubtful whether these may properly be deemed passed between 1719 and 1725, is in the libraries of the legislatures. During the troublesome times in England New York Law Institute and the Historical Society. attending the downfall of the house of Stuart, Captain The latter society possesses also a copy of Bradford, Jacob Leisler, who had seized the government of New which contains the acts from 1726 to 1735, in addiYork in the name of William, issued writs requiring the tion to those printed in the edition of 1726. The several counties to send representatives to New York. Bradford editions of a date later than 1710 are not For want of legal authority the Leisler delegates may trustworthy guides to the Assembly laws. hardly be considered an Assembly of the Province. The Assembly, having in several former sessions, as
From 1691 until 1716 new assemblies were elected well as in that held in 1741, observed, “how incorrectly erery two years. The Assembly chosen in 1716 con- the laws were printed and the irregular manner in which tinued over ten years, but from 17:26 until 1737 there they were bound up” were of the opinion that a new rewere four assemblies elected. An act was passed in vision was necessary. (Assem. Jour., 13th Nov., 1741.) 1737 providing for triennial elections, but it was re- Daniel Horsmanden, who afterward became chief juspealed by the King. In December, 1743, another act tice of the Supreme Court, was thereupon designated was passed limiting an Assembly to seven years, unless the reviser, but he never proceeded under the act. (2 previously prorogued. After an existence of ninety- | Smith's History N. Y. 67.) In 1750 another act
to retwo years the provincial legislative assembly ad- vise, digest, and print the laws of the Colony," was journed to the 3d of April, 1775, and was never again passed (1 L. & S., p. 443); it recites, that the laws of conrened. A continuous journal of both the upper New York had from timo to time been very incorrectly and lower houses have been published at a large out- printed and irregularly bound up. William Smith, lay by the public authorities.
Jr., and William Livingston were appointed revisers In view of the fact that many editions of the by this act, and wero directed to begin with the laws New York provincial laws have now become raro enacted by the Assembly held in 1691. Smith and even among bibliomanists, an account of the vari- Livingston's revision, though it is generally esteemed ous imprints may be of some use to those who complete, contained none of the acts of the Ashave given the subject little or no attention. The semblies of 1683-4 and '65. The revisors, indeed, in statutes enacted by provincial authority prior to the
the introduction to the first volume, announce that Year 1001 have been already noticed. (Vol. 21 L. J., p. they omitted also many later acts which they were 208.) The first domestic imprint of the Assembly laws unable to find after diligent search. They censure the is known as Bradford's edition of 1694, and it contains later Bradford editions for containing acts which the acts promulgated between the years 1691-4. This have been practised upon that were never passed by volume, highly prized by collectors, was unquestion- the whole Legislature," and for omitting others which ably the first book printed in New York;* but few were duly enacted. The first volume of Livingston & copies of it are extant and these fetch extremely high Smith's revision was published in 1752; the second, prices on the rare occasions of a sale. One copy of tho containing the later acts and a complete index, in 1702. 1094 edition is in the Lenox collection; another, the The revisors proceeded upon the plan originally reVan Schaak copy, the property of Mr. A. J. Vander- ported by Mr. Horsmanden. (Assembly Journal, poel, of New York, is perhaps the most perfect Nov. 13, 1741.) in existence. Imperfect copies are possessed by the In 1753 Governor Clinton, by instructions from the Society Library and the Secretary of State at Albany. lords justices of England, recommended a codification A reputed perfect specimen was lately sold at the of the New York laws, which was, on the first of June Brinley sale, to the New York State Library for of that year, declined by tho Assembly on account of $1,600.
the very considerable expense lately incurred in the Shortly after Bradford's appointment as King's revision of Smith and Livingston. (Assembly Journal, printer in New York, he seems to have begun print- | May 30 and June 1, 1753.) ing the acts of Assembly, session by session, but he The last revision of the laws of the Province was preserved a continuous pagination. From time to time undertaken by Peter Van Schaak, pursuant to an act he struck off title pages, and doubtless issued bound of Assembly passed in 1772. (Chap. 1543 Van Schaak's volumes of the laws. In many cases the title pages are Laws, p. 676.) It contains, in addition to the laws in
cluded in Smith & Livingston's Revision, the acts
passed between 1753 and the 8th of March (13 Geo. 3), * The first printing press in New York was set up by William Bradford in 1693. The 1694 edition of the New York
1773. The remaining acts of the Assembly, passed in laws was its first regular work. Bradford received his first
1774 and 1775, wero published in one volume by the Warrant as King's printer in 1693, and it was probably for
public printer, Hugh Gaines. In addition to the varithe major part of the 1694 edition. Wallace's Com. Address
ous imprints already mentioned there is a London on the woth Birthday of Bradford, p. 63; Vol. I Thomas's edition of those New York laws enacted between the History of Printing in America, p. 291.
year 1091 and 1718. It is known as the Baskett edition, from the printer's name. It was probably pub- declared that those laws not ratified or confirmed by lished for the use of the authorities in England.“ the proprietary were void, but this was a mere repe
It not unfrequently happens that the courts aud tho tition of the Duke's instructions. (3 Col. Doc. 332.) legal profession have need to consult the statutory law The laws of the proprietary which were approved by of the Province of New York, and it is a subject of re- the lord proprietor were not impugned by the resogret that the various editions (though much more lution; and, therefore, clearly those laws not rebeautifully priuted than the State session laws) are of jected by him remained operative as before the resso incomplete and untrustworthy a character. Mr. olution. Indeed, Mr. Smith himself, later on in George H. Moore, the accomplished superintendent of his history, states that in 1741, when Mr. Horsmanden tho Lenox Library, who has given the subject the most was directed by tlie Assembly to compile the laws, it valuable attention, estimates that of nearly two thou- was discovered that several acts passed prior to 1691 Band statutes enacted between 1691 and 1775, not one- were still in force, and an act was then proposed to rethird have been printed in the various collected and peal all such, but it was not passed. (2 Smith's Hist'y revised editions - all of which are long since out of N. Y., p. 66.) Mr. Butler has stated the reasons which, print.
in his opinion, probably prompted the resolution of A republication of the provincial laws of New York the lower house. (Butler's Const. Hist'y, 41.) Judge is unquestionably desirable, not only for the use of the Hoffman thought one of the acts of the Assembly of legal profession but for the benefit of the public author- 1683, founding the Court of Chancery, to be in force ities and the historical student. If such an undertaking as late as the year 1834. (1 Hoffman's Ch. Pr. 15-18.) be too long delayed, it may be wholly prevented by the In so far as this resolution under consideration condestruction of either the private repositories or the cerned the ordinances of the governors and council charter rooms of the public archives, containing the prior to 1691, it was also declaratory of the rule of law, necessary but scattered materials. Yet those who are that such ordinances must not be contrary to the Confamiliar with the Kent and Radcliffe, and the Van stitution of England, by which was meant the comNess and Wood worth revisions of the State laws, must mon law; it could not affect those ordinances which appreciate the important relations which the pro- were valid at common law. (Op. Atty.-Gen. Kemp. vincial laws bear to our present statute law, and Kemp papers MS. N.Y. Hist. So. Col.) The reason why to the actual and contemplated statutory codification. the provincial revisors were directed to begin with the Such provincial laws are the very foundation stone of acts of the Assembly first held after the Revolution of our juridical superstructure. An intelligently an- 1688, undoubtedly was that most of the laws of the pronotated revision of these laws would of itself complete prietary were not in print, so that they were little the legal history of the State. Massachusetts has be- known even in the eighteenth century. (24 Wend. 625.) stowed on her early statutes much more attention But the omission of the revisors does not affect the than New York; yet the early laws of New York are validity of the earlier laws. quite as interesting and important.
One of tho first acts of the Assembly of 1691 was The question, how far the flaws of the Province that, declaring what are the rights and privileges of which were enacted before the year 1691, remained in their majesties subjects inhabiting within their Provforce after that year, has been the subject of judicial | ince of New York." The purpose of this act was inquiry at a comparatively recent date. Doubts on similar to that of the “Charter of Libertys," disal. the subject were occasioned by the statements of the lowed by King James II., (Vol. 21, Alb. L. J., p. 268.) early historian, Smith, * that those acts which were - a limitation of the prerogative and an additional made in 1683 and after the Duke's accession to the guaranty of political rights. The act of 1631 suffered throne, when the people were admitted to a participa- the fate of its prototype, being repealed in the year tion of the legislative power, are for the most part 1697, and thus the inhabitants were remitted to their rotten, defaced or lost; and that all laws antecedent original status as English subjects, resident in a royal to the Assembly of 1691, were disregarded both by the Province of the Crown. Legislature and the court." (Smith's Hist'y N. Y., The commission to Colonel Sloughter, as has been Lond. ed., 1757, p. 73; 2 Graham’s Hist'y of U. S., p. before 'stated, formally granted the rights of the in255.)
habitants of New York to a representative Assembly The lower house of the provincial Assembly, on the - a right of which they could not afterward be law24th of April, 1691, resolved, that all the laws consented fully deprived. (Chitty's Prerog. 33.) This particular to by the General Assembly under James, Duke of commission is important, as it was a distinct recogniYork, and the liberties and privileges therein con- tion by the new sovereigns of the bicameral legistaived, granted to the people and declared to be their lativo system, or the principle of two legislative rights, uot being observed and not ratified and ap- houses. Thus, this essentially Anglican institution -proved by his Royal Highness, are null and void and dev ped in England, and like the common law acof none effect; and also, the several ordinances made companying the Anglican race in all its migrationsby the late governor and council, being contrary to the was permanently established in New York to continuo Constitutions of England and the practice of the gov- with but minor modifications until the preseut time. ernment of their majesties other plantations in Our juridical plan is not the only debt that we owe to America, are null, void and of none effect or force the progress of the common law, for the very theory within this Province. (1 Assembly Jour. 1, 8, 9.) This and practice of a bicameral Legislature, is itself a comresolution never ripened into a law. It is said to have mon-law development. been simply declaratory of the existing rule on the The commission to Governor Sloughter also empow. subject, and, in reality, not to have had the effect of ered him, with the advice and consent of the council, abrogating any of the valid enactinents of a date prior to erect and establish courts of judicature for the trial to 1691. (Van Winkle v. Constantine, 10 N. Y. 428; of all causes, legal and equitable, civil and criminal. Blumbert v. Trinity Church, 24 Wend. 625. See, also, This clause relates to a species of prerogativo legislaJackson v. Gilchrist, 15 Johns. 112.) A close examina- tion which has by tradition been vested in the (rown, tion of the resolution in question shows that it only independent of the Legislature. The right of the
Crowu to erect courts of law without the concurrent
action of Parliament seems to have been admitted in * Attention was called to this edition by Mr. Winters, the assistant librarian of the New York Law Institute, who has
England. Whether such power extended to courts of made the session laws of the different States a special
equity has been questioned and denied, but in the study, to the great benefit of his library. The N. Y. list. colonies this prerogative clearly extended to the estabSociety possess a copy of the Baskett edition.
lishment of courts both of law and equity. (Chalmers' Col. Op., p. 194.) In the colonies, however, the Crown quit-rents -- always greatly in arrears. (Lond. Doc. rarely claimed the exclusive right; and at times the xxiv, 880.) colonial and provincial Legislatures seem to have been The proceedings of the Court of Chancery in New allowed a share in the establishment of the judicato- York were, doubtless, somewhat intermittent; Blake ries, while at others, when the Crown asserted its pre- (Int'd to Ch. Pr.), and Johnson, (Int'd to Johns. Ch. rogntive, they were excluded.
Rep.) have thought that this tribunal transacted but The permanent judicial establishment of the Prov- little business prior to the Revolution of 1775-6, but it ince of New York owed its origin to the Assembly of is more than probable that the opinion of these gen1091. A Supreme Court of judicature, possessing the tlemen was founded on the statement of the historian jurisdiction of the English Courts of King's Bench, Smith, “that the wheels of chancery have ever since Common Pleas and Exchequer, was then created. (1727) rusted upon their axis" -"the practice being (Bradford, 1694 ed., N. Y. Laws, p. 2.) This tribunal contemned by all gentlemen of eminence in their prowas, in the main, a court of law, possessing jurisdic- |fessiou.” (1 Smith's N. Y. 280.) It must be rememtion of causes involving upward of twenty pounds, bered, in this connection, that Mr. Smith, though livand also an extended supervisory and appellate juris- ing at the time of which he wrote, was far from an diction over the inferior judicatories. In the year impartial witness. His father had been engaged profes1753 it was asserted, that it had likewise the equity sionally in the hostile attack on the court of equity in jurisdiction of the court of equity in the Exchequer Governor Cosby's administration, and had thus become Chamber; and this pretension was decided in the af- a leader of the popular party. The historian Smith firmative. The Judiciary Act of 1691 was continued followed the political bias of his father, though at the by an act of Asseinbly, passed November 9th or 11th, beginning of the Revolution he abandoned the popu1602 (Bradford's ed., N. Y. Laws, 1694, p. 64); and the lar party and became a judge under the Crown, in latter was again renewed in October, 1695, for two Canada. The late Judge Hoffman, who, years afteryears. In 1697 this act was finally extended for one ward, gave the subject the closest attention, seems to year; but, on its expiration, differences having arisen have had a very different estimate of the volume of between the Assembly and the governor, it was allowed chancery business in the Province, as well as of comto expire by limitation. Finally Lord Bellomont, as parative importance. (Hoffman's Ch. Pr. pp. 11-14.) the royal governor of the Province, in 1699, resorted to Doubtless the Albany records of the Provincial Court the prerogative and continued the courts by an ordi- of Chancery confirm the latter's view. nance, in which the Assembly had no part. (Appendix The early establishment of a Court of Chancery in No. v., 2 R. L. 1813.) This ordinance was confirmed New York was, in several aspects, important; it conby Lord Cornbury in 1704. (Appendix No. vi, 2 R. L. tributed to its jurisprudence the symmetry which that 1813.) On this footing, the Supremo Court continued of many of the other colonies lacked, and it finally led down to the establishment of the State government, to the constitutional recognition of the office of chanwhen it was further continued as part of the existing cellor, possessing almost the powers of the lord chanorder of things.
cellor in England. (Camp. & Cambreliug's Ch. Dig., The Court of Chancery of the Province, originally p. xi, Pref.) It is now difficult to estimate the influerected by the act of 1683, was remodelled by the “Act ence exercised for over half a century by the chancelfor establishing courts of judicature," passed in 1691. lors of the State of New York, not only within their This act, continued from time to time, as described in own proper sphere, but as well in the formation of the preceding paragraph, finally expired. On the 28th equity jurisprudence in its American phase. Without of August, 1701, an ordinance was issued reestablish- tho chancery reports of this State, it is needless to say ing the chancery and authorizing the governor and that the New York contributions to practical adminiscouncil, or any three of them, to hold the court. In trative jurisprudence would be greatly diminished in June, 1702, its operatious were suspended until a fee value. True it is, that Justice Story has said that equity bill should be settled, and it was not again revived was scarcely felt in New York until about tho time of until the 7th day of November, 1704, when it was Caine's and Johnson's reports ($ 56, Story's Eq. Jur.) directed to proceed. (2 R. L. 1813, Appendix vii.) But it is not strange that the influence of equity jurisAt various times the lower house of Assembly pro- prudence was greatly augmented by the efforts of the tested against the establishment of a court of equity reporters. That their influence was at once so extensivo by the governor without their concurrence; but not. depended, however, on the highly developed condition withstanding this fact the Court of Chancery, until of tho equity administration at the time the reports bethe year 1711, continued to be held by the governor gan in New York. Taking into consideration the fact, and council, by virtue of the ordinanco mentioned. that equity jurisprudence was greatly neglected in many Subsequent to the year 1711, the governor alone sat as of the Anglo-American colonies, and that until Lord chancellor. (Council Min.)
Hardwick's time the administration of equity, even in The very early establishment of a Chancery Court in England, presented many uncertainties, it is a remarkaNew York was one of several causes contributing to ble fact that tho ameliorating tendency of equity was the relative preeminence of its particular jurispru- recognized in New York in the very beginning of its dence. In many of the American colonies equity political life. It must be considered a very fortunato jurisprudence had, prior to the War of Independence, circumstance that it was so recognized, for when the no distinct existence in any large and appropriate equity powers of the chancery were distributed sense. In the Province of New York there was, how- under the Constitution of 1846, throughout the courts ever, a tendency to more closely conform to English of record of New York, a well-understood jurisdiction precedents. (2 Smith's Hist'y N. Y. 320.) Matters of was thus engrafted on the law courts and the process equity, as distinct from cases cognizable at law, were of assimilation was rendered more facile and certain. recognized by the “Duke's Lawes" of 1665, while a One of the first duties of the English authorities, Court of Chaucery was eo nomine established by the after the conquest, was to make suitable provision for act of 1683. It must be conceded, that there was a the probate of wills and the administration of estates. strong popular prejudice against the discretionary (The Duke's Lawes, Tit. Administration.) The clerks power of the chancellor, which was thought to be of the courts of session which had cognizance of probounded by no very defined limit, and to conceal the bate in the English parts of tho Provinco were directed undefined prerogative with which colonial principles to certify the names of the decedents and their execuwere ever at war. But it has been said that the true tors or administrators, with their security, to the regrounds of the hostility of the people of New York to corder's office at New York city. This led to the the equity courts was their jurisdiction of the king's establishment of a prerogative court (Bradford's ed.
N. Y. Laws, ed. 1694, p. 72), from which letters testamentary and of administration issued under its peculiar seal. The delegates appointed to take charge of the estates of intestates, in the distant counties, pursuant to the act of 1692 finally took the name of surrogates, which then signified deputies of the prerogative court. This name is now retained in our probate courts, although the surrogate has become chief judge of the probate court. In the year 1754 a judge of probate was appointed; he shared with the prerogative office the duties of ordinary and surrogategeneral. There was very little that was either original or peculiar in the courts appointed for the cognizance of wills and administration.
The judicial organization of the Province may be regarded as having been established by the Judicature Act of 1691 (Bradford's N. Y. Laws, ed. 1694), and the jurisdiction and tribunals established by it, have remained essentially the same to the present day. This act defined the courts of justices of the peace, the courts of sessions of the peace, the county courts of Common Pleas, the mayor's courts of cities, the Supreme Court and the Court of Chancery. It also regulated the Provincial Court of Appeals, which was almost identical with the old Court of Errors, if not its progenitor. From the provincial Court of Appeals, appeals lay to the King in council.
It may be proper, in a survey of the judicial organization of the Province, to refer to the Court of Admiralty established for New York, although it possessed but a limited jurisdiction within the Province. Under the Duke of York, special commissions, issued for the determination of admiralty causes, but in 1678 a regular court was established under the governor's commission. In the year 1999 the lords of trade recommended that the chief justice of the Supreme Court of New York be empowered to act as judge in admiralty. Accordingly William Smith, then chief justice, was made admiralty judge, and fulfilled the duties of that station from 1699 to 1702. Ultimately a vice-admiralty court was established by commissions issuing from the High Court of Admiralty in England. Appeals from the Vice Admiralty Courts for some time lay to the Court of Admiralty in England, but shortly before the American Revolution a superior court of admiralty was established in North America, and thenceforth all appeals from the vice-admiralty were directed to be made to it.
Jurisdictions have since been shifted and interchanged; and yet, after all, but few novelties have been engrafted on the ancient foundations.
bill was found, and the indictment and record show upon the face of the proceedings that the offense charged was for embezzling, abstracting and misapplying the funds of the First National Bank of Ashland, created under the National Banking Act.
Relator was arrested and lodged in the county prison, then took out this writ of habeas corpus, and in obedience to its command, Ketner, the warden of the prison, produced the body, and made return that he held the prisoner by virtue of above-named proceedings.
By virtue of article V, section 3, of the Constitution of 1874, the Supreme Court of Pennsylvania, in cases of hubeas corpus, has original jurisdiction.
William A. Marr, James Ryon, William B. Mann and John W. Ryon, for relators. The State court has no jurisdiction, embezzlement not being a commonlaw offense. 2 Russell on Crimes, 103; 4 BI. Com. 230; United States v. Clew, 4 Wash. C. C. Rep. 700. Congress has power to give the Federal courts exclusive jurisdiction. Houston v. Moore, 5 Wheat. 1--24; 1 Kent's Com. 393; Curtis' Com. 176; Claflin v. Hlouseman, 3 Otto, 141. Where an act of Congress creating a corporation provides a punishment to be inflicted upon any officer of the corporation who embezzles its property, it is not competent for the State Legislature to make the same act an offense against the laws of the State. Commonwealth v. Fuller, 8 Metc. (Mass.) 313; Commonwealth v. Felton, 101 Mass. 204; Commonwealth v. Barry, 116 id. 1; State v. Tuller, 34 Conn. 280. By section 711 of the Judiciary Act of 1789 (U. S. R. 8. 134), the jurisdiction vested in the United States courts is exclusive of the State courts. Section 5.209, et seq., of the National Banking Act provides for punishing embezzlement by officers.
A. W. Schalck, district attorney, and Hughes & Farquhar, for respondent. Jurisdiction of State courts has been sustained in Buckwalter v. United States, 11 Serg. & R. 196; White v. Commonwealth, 4 Binn. 418; Commonwealth v. Shaeffer, 4 Dall. 27; United States v. Ilutchinson, 4 Clark, 211; Jett v. Commonwealth of Virginia, 7 Am. Law Reg. (N. S.) 265; Claflin v. Houseman, 3 Otto, 130; Colemun v. State of Tennessee, 7 id. 509, especially the dissenting opinion of Clifford, J., not differing in this respect from the majority of tho court.
Paxson, J. It appears by the return to this writ that the relator is held to answer an indictment in the court of quarter sessions of Schuylkill county, charging him, as cashier of the First National Bank of Ashland, with having embezzled the funds and property of said bank. There are three counts in the indictment, each varying the form of the charge, but not essentially changing its substance.
It is almost needless to say that a habeas corpus is ot a writ of error. Hence, if the court below had jurisdiction of the offense, we cannot correct its rulings in this proceeding, however erroneous they may be. On the other hand, it is equally clear that if the relator is being prosecuted for a matter which is not an indictable offense by the law of Pennsylvania, or one over which the court below has no jurisdiction, it would be our right, as well as our plain duty, to discharge him. No authority is needed for so obvious a proposition.
Embezzlement by the cashier of a bank is not a common-law offense. This indictment must rest upon some statute of this State or it cannot be sustained. Ilas it such support? As preliminary to this question, it is proper to say that section 5209 of the United States statutes provides specifically for the punishment of cashiers and other officers of National banks who shall be guilty of embezzling the moneys, funds or credits of such institutious. The relator was not indicted under this section, and could not have been in a State court. Our own legislation upon this subject