REGISTER OF PENNSYLVANIA.

THE

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

VOL. V.-NO. 18.

NO. 122.

DECISION RESPECTING MORTGAGES.

After the argument in the Supreme Court by Lewis

In the Supreme Court of Pennsylvania, for the Middle for the plaintiff's 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, plaintiffs in error.

vs.

EDITED BY SAMUEL HAZARD.

PHILADELPHIA, MAY 1, 1830.

Joseph P. Norris, who survived
David Lenox, defts. in error.

The judgment on the first sci. fac. was confessed by the defendant (Adams,) on the 17th of September, 1822. The amount of it was settled at $336 63. The mortgage produced was of the date already mentioned, to secure payment of a bond for $987 66, conditioned for the payment of 493 83; on what day or from time it was to be paid, does not appear. Thus it appears that the judgment upon which the land was sold by the sheriff, was subsequent to the recording of the mortgage of the plaintiff below. The judgment, towards satisfaction on which the money was applied by the sheriff, was prior to the mortgage. There was judg ment entered in the court long prior to the sale by the sheriff, and against that sheriff's sale there was no alle gation of fraud. But as to the distribution which has been made, depending upon the fact, that though the land was actually sold on a later judgment, yet that the money raised by the sale was appropriated to a judgment which had been entered up prior to the recording of the mortgage, that distinction appears to have been disregarded in the argument, and we shall not rely upon it in the decision. Then on this general demurer the question comes up directly, whether the title of a prior mortgagee and the lien of his mortgage are divested and extinguished by a sale of the land by the sheriff on a younger judgment. Perhaps it is a queswhich now comes before the court the first time for a direct decision. Yet I apprehend, that, incidentally and indirectly, it has often arisen and often been decided. I have endeavoured to make a collection of all the cases bearing upon this subject, from 1st Yeates and 1st Binney, 97, to Barnet vs. Washebaugh, 16, Serg. and R. 409. Most of these cases were cited in the argument. In Petry vs. Beauvarlet, 1 Binney, 97; rule upon sheriff to bring money into court; that with the money he had paid off several judgments and mortgages upon the premises sold, which being prior to the judgment, in this case, were entitled to prior satisfactionand that he had charged a poundage upon the different sums so paid. Per curiam. "The construction of that clause (namely, 9th fee bill) has uniformly allowed to the sheriff a poundage upon the payment of all prior Same day. The court allowed the Sci. Fac. to be judgments and mortgages. Ile 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 plaintiff's 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 demurred generally, and the plaintiffs joined in the de- were referred to two gentlemen, among the most practical and experienced of the profession. The sheriff had sold land under the act of 11th April, 1799, after the execution of a writ of partition on an item, charging $10 39 paid by the sheriff, "for searches of judgments and mortgages, &c." The referees approved the charge and gave their reasons. "It appears necessary," 1 Br. 98, to "plaintiff who sells," p. 190. This award was confirmed by the court with the approbation of all as far as appears. Even though this case should not be held as a precedent in law, yet it seems to me nothing can more clearly show how notorious is the rule, that in

murrer.

Writ of error to
Tioga county.

The case was as follows: 1815, December 22.-Elias Boudinot conveyed a tract of land to Lyman Adams.

Same day-Lyman Adams mortgaged the premises to Joseph P. Norris and David Lenox, to secure he payment of $

1819, Feb. 15.-Judgment entered in the C. P. of Tioga county, in favour of Robert Tabbs, against Lyman Adams and others, from a justice of the peace.

1819, April 28-Fi. Fa. issued on this judgment and levied on the mortgaged premises.

1819, June 25-Mortgage to Norris and Lenox re

corded.

1821, Dec. Term-Sci. Fac. jun. mortgage returned served.

1822, Sept. 17.-Judgment by consent for $336 63 1825, April 22.-Sci. Fac. post annum et diem issued upon the judgment upon the mortgage, returnable to May term 1825.

1826, Aug. 19.-Judgment obtained by Seely S. Adams and others, for $156 82 in C. P. of ioga.

1826, Dec. 19.—The mortgaged premises were sold by Sheriff under a fi. fa. on this judgment and others to William Willard, Jr. for $50.

1827, Feb. 17.-Sheriff's deed to Willard acknowl. edged.

1827, Sept. 21.-The Court of Common Pleas order ed the money arising from the sale to be paid over to the judgment of Tabbs and Adams.

1827, Dec. 21.—Judgment entered by default on Sci. Fac. post an. et diem, on the judgment sur mortgage, levari facias issued to February term, 1828.

1828-On the application of William Willard, Jr. to the Court of C. P. the default was set aside, and he was admitted a co-defendant.

1829, Feb. 18-Adams and Willard plead nul tiel record, and Willard pleads specially the fact of the judg. ment and sale, before stated.

May term, 1829.-The court of Common Pleas gave judgment on the plea and demurrer for the plaintiffs, upon which the defendant took a writ of error to the Supreme Court, and several errors were assigned, of which the following is the only one material.

2nd. "In deciding that the land sold by the Sheriff to Willard, under the circumstances disclosed in the plea, was liable to be sold again upon a mortgage not recorded within the period required by law, upon which the judgment had been obtained long prior to the sale." VOL. V.

35

every judicial sale in Pennsylvania, the land goes to the purchaser clear of all liens of judgments and mortgages, and that out of the purcha-e money, the sheriff, at his own risk, is to pay off all those liens according to their priority, insomuch, though the act of assembly about partition makes no mention of liens, yet by mere analogy drawn from the notorious usage of the commonwealth, an allowance was adjudged in this case to the sheriff for the fees paid for searches of judgments and mortgages, the owners of which might afterwards call upon him for their money. I refer also to Shoemaker vs. Houtford, 1 Browne, 251.

mortgage deed within six months. The latter cases on the subject are still more conclusive. In Commonwealth vs. Alexander, 14 S. and R. 257, it was decided (Tilghman, C. J. pronouncing the opinion) not only that a prior judgment was to be paid out of the purchase money accruing from a sheriff's sale, but that a judgment still older and against another person who had been the preceding owner shall also be paid. Then as to mort gages. In M'Call vs. Lenox, 9 S. and R. 302, the land was sold on a judgment without any question, as far as appears; the money was applied by the sheriff to the satisfaction of a mortgage, and the residue, as far as it would go, to a second mortgage-both mortgages be

AN ACT CONCERNING LIENS.

Section 1. Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylva nia, in General Assembly met, and it is hereby enacted by the authority of the same, That from and after the passage of this act, where the lien of a mortgage upon

In case of Bank of North America vs. Fitsimmons, 3 Bin. 358, Tilghman, C. J. says, "it has been a prac-ing 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 unneces the 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, but also of other judgments by which the land was bound"-and in the same case, Yeates, J. said, "this court has determined in Petry vs. Beanvarlet, that the construction of the act of April 25, 1795, uniformly has been to allow the sheriff poundage for all debts which 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 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- any writ of venditioni exponas. ney, which goes far beyond any payment of a prior 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 destroy, or in any way efpear to have been Bradford and Shippen; and Judge fect the prior lien of any other such mortgage as afore Yeates reported no decision made at a Circuit whereat 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 Tilghman, C. J. in the Commonwealth vs. Gurney's Of the Honorable EDWARD KING, President Judge of Ex'rs. vs. Alexander, 14 S. & R. 263, and by the whole court, in Barnet vs. Washabaugh, 16 S. and R. 413, in which the very same point was decided. It appears hard to name a reason why prior legacies shall be paid by monies raised out of a sheriff's sale, yet that prior judgments or prior mortgages shall not be paid.

said.

CHARGE

the

Court of Oyer & Terminer, for Philadelphia Co.

I am not aware of any decision of this court contradicting the usages which have been mentioned, and which I think there is reason to believe have existed beyond all memory of man. But the incidental dicta of the judges have varied very much indeed. Judge Yeates seems to have taken the lead in support of what he deemed the ancient usage, and his reason, which may be found in the case of Keen vs. Swain et al. 3 Yeates, 561, cannot in my opinion be easily and satisfactorily answered. Judge Brackenridge was foremost on the other side. On every occasion he seems to have declared his mind most unequivocally, that by a sheriff's sale of land all prior liens, whether by judgment or mortgage, are left wholly untouched, and he gives his reasons most fully in his miscellanies, p. 258, and from some dicta in his books from the judges incidentally, it seems probable that one or more of them were of the same opinion with Judge Brackenridge. But this it appears to me could not have lasted long. In the case of Patterson vs. Sample, 4 Yeates 308, there was a mortgage and the land sold under a subsequent judgment, There was an application by the mortgagee to receive his money from the sheriff. The case was tried before Smith, J. The only ground upon which that judge seems to have placed the case, was the recording of the

Gentlemen of the Grand Jury:

You are convened upon the present occasion to aid in the administration of the highest department of criminal jurisdiction known to the laws of this com monwealth. The offences which may be submitted to your scrutiny and adjudication, are those most danger ously affecting the peace of society, and justly visited with denunciations and punishments of the most impos ing character. Death itself-long protracted imprison ment at hard labour, and consequent infamy, may spee dily follow the accusations formally tendered from your body to this court; for those accusations once made, must in the discharge of an official duty be steadily car ried out to their consequences, however afflicting or awful, by us and all the other ministers of justice, to whom they are confided. What you initiate we must consummate and either release innocence from the tor ture of your suspicions, or impose upon proven guilt an appropriate measure of its prescribed penalty. The important results, however, that may follow your presen tations, only call for additional firmness and energy in the fulfilment of your duties. As you are the exclusive authority through which the sanction of the penal law can be directed against offenders, a failure on your part to exercise the high trust confided in you fearlessly and faithfully, would shake the foundations of social security.

But emerging from the mass of a community into which they must soon return, without prepossessions to indulge or 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 supplied by those of the Constitution acters they deliberate, the grand juries of Pennsylvania | of the United States, and acts of Congress, 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 constituted 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 hatred code of the state. It is defined with care; it is distinand 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 have 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 our 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 attended 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 which 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 deliberately 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 formed 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 grudges, and concerted schemes to do the party bodily harm. Within this class of cases are embraced those homicides that result from the detestable practice of Duelling. In these meetings of blood, each party comes with the formed design of taking away the life of his op ponent, and when death results to either, the survivor is, as well in the eye of the law as in that of religion and morals, a murderer of the most unequivocal character.

The successful labours of enlightened men of modern times, have happily established as axioms in criminal justice; that it is the certainty, not the amount of punishment, which tends to repress crime; that the punishment of death being the utmost limit of human power, ought to be reserved for a few cases of the deepest dye: And that the infliction of suffering upon the criminal ought to be subsidiary to the great end of effecting his reformation. It is a matter of just congratulation that the adoption of a system founded on these humane principles by our own commonwealth, at an early period after her emancipation from colonial subjection, has resulted in the demonstration of the practical correctness of these principles. For whether we compare the amount of crime with that of other nations or of our own state under the ancient system, we discern a striking amelioration; and are encouraged to persevere in the maintenance of the present one in its substantial features, exerting at the same time every mears to improve and bring it nearer to perfection.

As it is, gentlemen, made your duty to present all such matters as shall be given you in charge, it has been usual and it is proper for me to notice those crimes which come more peculiarly within your cognizance-I mean those which were capital offences at common law and punishable with death. It is true that you have jurisdiction in all cases of infraction of the criminal law, yet those of a minor character are left to the courts of ordinary criminal jurisdiction, and except in special cases rarely interfere with your graver duties.

He who in the fantastic language of this systematized murder, is termed the second of the party killing, is equally as obnoxious to the law as his principal. Our penal code sternly regarding homicides of this kind in their true character, only views the successfuel duellist as the hardened wretch who employs skill and deliberation in depriving his fellow man of life-as one who regardless that vengeance belongeth to the most High,'' tramples on all laws, divine and human, in vindication more frequently of a fancied than a real injury, or in the assertion of a principle of honour always fantastic, and never based on sound moral principle. If the public feeling, however, is outraged by crimes of this kind; if the peaceful, the virtuous, and the estimable, are ever shocked by their open perpetration, it is not because our laws are not sufficiently energetic to reach the offenders. Such a reproach does not rest on them. The comparative impunity which accompanies the duellist, is the consequence of a mistaken public sentiment, that admits the possible case in which one man is justified in imbruing his felon hands in human blood, and which supposes that there may be injuries where men are at liberty to seek redress by separating themselves from the pale of civil society, and by setting all public law at defiance. Every friend of social order, every friend of humanity, ought to unite in frowning down a sentiment

The offence of treason against the commonwealth, is fortunately become a crime unknown in our days. We have still in force acts on that subject, passed during the war of the Revolution, when Pennsylvania was an independent sovereignty, but most of their provisions may

so unjust and immoral in principle, so deleterious and which militate essentially against public security. Much
fatal in consequence. It is in the power of the execu-ingenious speculation has been spent on the subject,
tive authorities of our country essentially to aid in giv. and like all similar controversies, it has produced heat-
ing a correct direction to popular sentiment in questions ed partizans and amiable enthusiasts; but until the le-
of abstract morals, and in nothing can they more faith-gitimate authorities of the commonwealth interfere and
fully advance a principal object of the existence of gov- by prudential enactments provide for so important an
ernment, which is, or ought to be, to make men better alteration in our penal code, all theories here are false
and wiser, and consequently happier. To this elevated lights, which must confuse without illuminating, and
source, recent events gives us the gratifying assurance, which if pursued with pertinacity, must only result in
that the friends of law and order may look with as- giving impunity to the most desperate and abandoned
sured safety. If by any proper means the public mind offenders. Manslaughter is the killing any person on a
could be distinctly impressed with the conviction that sudden provocation, of such a nature as may be suppos
the successful duellist is but a successful murderer; if ed to transport a man with sudden resentment beyond
the victor, instead of meeting applause for his gallant the bounds of reason. In this crime, malice, which is
bearing and daring emprise was marked and shunned as the main ingredient and characteristic of murder, is con-
the unhallowed "shedder of man's blood," then would sidered to be wanting. And though manslanghter is in
this dreadful practice be confined to those who having itself felonious, yet it is imputed by the benignity of the
lost all hold on society, are ready for the commission of law, to human infirmity. He who would, however, shel-
every crime. The example necessary to produce such ter himself under the plea of provocation, must clearly
a wholesome condition of public feeling, if the holiest make out his case, for the presumption of law is, unless
precepts are flouted and the most solemn statutes con- the contrary appears, that all killing is malicious. Con-
temned, may press heavy on our sensibilities, but the nected with the crime of homicide, is an offence which
great moral victory to be achieved, ought to render the at one period of the law was considered of equal mag-
wise and the virtuous satisfied, that the laws of the land nitude, that of concealing by a mother, the death of her
should have their unimpeded course. The monster in illegitimate child. The existence of such a crime as in-
the guise of a man who prepares himself by a course of fanticide, is a shocking anomaly in the history of buman
systematized and diabolical education, to triumph in feeling and conduct. The indignation its atrocity is cal
conflicts of his own seeking over the deluded votary of culated to excite, led lawgivers into an opposite ex
false honour, may in such a state of corrected public treme, & by as great an anomaly in the administration of
sentiment, lose the opportunity of an appropriate vic- criminal justice, concealment of the death of the decea
tim, and his blood-stained laurels may wither for want sed offspring of illegitimacy was made prima facie evi-
of sustenance, but all that is virtuous and valuable in so dence that the unhappy parent was the destroyer of the
ciety would rejoice in safety, and repose in security un- fruit of her sin. Our milder code has abolished this
der the protecting shelter of laws expounded without barbarous feature, and while it makes concealment of
affection, and executed without favor.
the death of such a child a specific offence, punishable
in the first instance by an imprisonment not exceeding
five years in duration, and upon a second conviction by
imprisonment for life, it leaves child murder to be estab
lished by legal proof of the actual perpetration of the

unnatural crime.

"

Robbery is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. This offence is an aggravated species of larceny, and is more severely punished. To constitute the complete of fence, property of some value must be taken from the peaceable possession of the owner; it must be taken with a felonious intent; it must be from the person or in the presence of the injured party, and the taking must be accompanied with violence or putting him in fear. A taking in fact is not always required. If thieves attack a man to rob him, and finding nothing worth their spoliation, force him by menaces to promise to deliver the money, which he does accordingly, and delivers it to them while the fear of menace still continues upon him, and they receive it, this is a sufficient taking in law. The taking need not be immediately from the person of the owner. It will be sufficient if it be in his presence. Thus, if a man first assaults another, and having put him in fear, drives his cattle in his presence out of his pasture, he may be properly said to take such property from the person of the party assaulted and put in fear, for he takes it openly and before his face, while under his immediate personal care and attention. Ac tual violence is not the only means by which a robbing may be committed, but it may also be effected by fear, which the law considers a constructive violence. Again, in cases of actual violence, fear is presumed; as if a mau be knocked down without previous warning, and while prostrate and senseless is stripped of his property, he cannot with propriety be said to be put in fear, and yet that would unquestionably be robbery. In repeated instances, a threat to accuse the party spoiled of his property of an unnatural crime, has been deemed a sufficient putting in fear to involve the perpetrator in the guilt of robbery.

Burglary is the breaking and entering the mansion

Malice is implied by law from any deliberate cruel act committed by one person against another, however sudden. Thus where a man kills another without any or without a considerable provocation, the law implies malice. Such legal implication of malice exists even where in point of fact, the party had no actual malice towards the person killed; as where poison intended to be given to one person is by mistake administered to another, or where a stranger is killed by lying in wait, although the fatal blow was clearly not intended for him. And where one person is killed in consequence of such a wilful act as shows the person by whom it is committed to be an enemy to all mankind, the law will infer a general malice from such depraved inclination to mischief. (Malice implied may therefore be defined to be malice in a legal sense in contradistinction to its popular signification.) It is true that the law from a tender consideration of human infirmity, admits provocation and passion-for one without the other will not avail-to extenuate the homicide, yet the provocation and passion must be such as clearly rebut the conclu

sion of malice.

No breach of a man's word—no trespass on lands or goods-no affront by bare words and gestures, however false and malicious, and aggravated with the most provoking circumstances, will free the party killing from the guilt of murder. A provocation sought on the part of the slayer, only aggravates the offence; and in cases of slight provocations, if it may be reasonably collected from the weapons made use of, or from any other circumstances, that the party intended to kill or do some other great bodily harm, such homicide will be murder, so careful is the law of human life, so hostile is it to any man's being his own avenger. When the testimony in any case exhibits an homicide to have been committed accompanied by any of the characteristics of malice as defined, it is a sacred duty you owe to Society to adjudge that the offender should be placed upon his trial. Neither in your body nor in any other branch of the judiciary, can there exist any propriety in entering into the discussion of the abstract question as to the right of government to forfeit the life of a citizen for crimes

PETITION OF SHIP BUILDERS.

1830.1

house of another in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not. The precision of the legal definition of the crime renders it unnecessary to occupy any of your time by entering into details.

Arson is the malicious and voluntary burning of the dwelling house of another, or his barn, stable, or outhouse, having corn or hay therein. By our act of assembly, the crime of arson may likewise be committed by the voluntarily and maliciously burning of the State House or any of the adjoining offices or buildings, or any church, meeting house, or other building for public worship, or any academy, school house, or library belonging to any body politic or corporate. By another, the wilful setting fire to any barn, stable, or out-house, or to any barrack, rick, or stack of hay, with intent to destroy the same, or being accessary thereto before the fact, is made an indictable offence, and punishable at hard labour for any term not less than five nor more than twelve years, and by fine not exceeding 3000 dol

lars, at the discretion of the Court.

277

its the strongest evidence that the labours of benevo lence and philanthropy have not been uselessly em ployed.

PETITION OF THE

MECHANICS ENGAGED IN SHIP BUILDING.

To the Honorable Senate, and House of Representatives in
Congress assembled.

Your memorialists respectfully represent, that they are ship-carpenters, smiths, rope-makers, coppersmiths, riggers, sail-makers, plumbers, mast-makers, block-makers, stevidores, lumber merchants, ship joiners, painters, dray and cart men, and others, employed or connected in ship building, navigation interest, and the coasting trade of the port of Philadelphia, and are citizens of Pennsylvania; and, in their respective employments, are now suffering under the pressure of the present high rate of duties on the raw materials used in building and equipping ships or vessels; which high rate of duties they firmly believe to be also burdensome and injurious to the interests of the whole nation, and for the following reasons, which they most respectfully submit to the consideration of Congress.

1st. Because it requires a greater amount of capital in the construction of a ship in this country than it does

ried away. Thus where a guest had taken the sheets from his bed, and carried them into the hall, but was apprehended before he could get out of the house, it was holden that he was guilty of larceny. Lifting plate from a trunk, and laying it on the floor, it being taken with a felonious intent, is a sufficient taking to make the crime complete. I have noticed this offence which though properly triable in the session, is often requisite to be considered by the grand jurors in this court, in those cases where property is feloniously taken, and where the testimony fails in establishing the legal requisite to constitute a higher grade of crime.

Larceny is the feloniously taking and carrying away the personal property of another without his consent, and against his will, with intent to convert it to the use of the taker. The least removal of the thing taken from the place where it was before, with intent to steal it, is a sufficient transportation, although it be not quite car-in foreign countries, and thereby enables foreign shipping to undercarry our own country ships, and thereby causing less demand for American shipping, to the great detriment and injury of your memorialists. This more particularly applies to British shipping, as the British Government, since the peace, has paid particular attention in modifying the duties on all the materials used in ship building, imported from abroad, or their colonies, as will be seen by the following statement.— About 35 tons of iron is necessary for a ship of 500tons, if not copper fastened, (and if copper fastened, the duty on bolts and spikes of that material will amount to as much, if not more, than on the iron,) as follows: two chains, 90 fathoms each, 14 inch diameter, 120 lbs. to the fathom, 21,600 lbs.; one chain, inch, to make fast at the wharf, 75 fathoms, 50 lbs. to the fathom, 2,250 lbs. ; two anchors, 2200 and 2000 lbs., a stream do. 1400 lbs., kage do. 500 lbs. ; and 20 tons for hull and rigging -making 35 tons, (allowing for waste in working,) $37 $1295 per ton duty,

During your session it is proper you should visit the different prisons of the county, in order to satisfy your selves that they are regulated and conducted according to the laws of the commonwealth, and in unison with the humane principles of our penitentiary system. Your stated visits cannot but stimulate the subordinate officers of these establishments so to regulate their police as to merit the meed of your approbation. By an act of assembly passed at a recent session of the legislature, you are empowered to administer oaths and affirmations to the commonwealth's witnesses. It has been supposed that qualifications solemnly and deliberately administered to witnesses in your presence, would produce a more decided impression that can be received from the hurry in which they are unavoidably administered by the prosecuting officer preparatory to sending up bills for your consideration and decision. It is sincerely to be hoped that such a result may be produced, since there is nothing in which the absolute existence of society is so essentially involved as the inculcation of a proper sense of the obligation of an oath taken in a court of justice. All that is valuable to us, our lives, our liberties, our property, every thing that renders existence valuable, rest on this solemn pledge. And of all subjects for the lash of justice, none are so fit as those who insulting Heaven and contemning social obligations, bear false witness against their neighbors.

If we suppose a ship of this class to cost 25,000 dollars, the iron work alone will form nearly one-fourth of the cost, the duty on the raw material of the ship smith, and chain and anchor manufactorer, alone, is as above stated, 1295 dollars. If we suppose 12 tons of hemp to be requisite, the duty, 60 dollars per ton, is 720-on sail cloth 300 dollars-making

1020-$2315 To say nothing of that on lead, used in paints and otherwise.

2dly. If we take into consideration the tear and wear of the running rigging, that will not last more than about one year-the standing rigging, say six yearsand the sails, on an average not longer than two years then it will require a new set of sails and rigging every three years, the duty on which is 1020 dolls., which in nine years will amount to 3060-with the duty on iron and the first set of sails and rigging, 2315-making a total of 5375 dollars.

It is a painful truth that since I had the honour of addressing your body on a similar occasion, the calendar 3dly. The British shipping interest has the advantage of offences triable in this court have increased seriously in every point of view. The iron they use is common in enormity. The dark offence of murder more than English, now selling at £6 per ton, or $26 66, for bolts, once blurs the catalogue, and ere we rise, the tempo- spikes, and other work for the hull and rigging; and ral fate of more than one human being may be decided their refined iron, now selling at £10 per ton, or $44 44 upon. I do not, however, consider these circumstan--this latter kind is unequalled for chain cables, and ces, painful as they are, as manifesting any thing like bolts and chains for the standing rigging, as combining progressive deterioration in the morals on society; on great strength, toughness, and less liable to rust, than the contrary an extended experience has enabled me to any other, and being cheaper than that of any other nasay that the catalogue of crime within late years, exhib- tion; of course it is free. If copper fastened, that also