general, upon any information made to him of any such marriage, shall and may exhibit a bill to the judge of the said court, against any person so unlawfully married, who shall be compelled upon oath to answer the same-and upon such bill and answer, and the depositions of witnesses, where the same shall be necessary, the said court shall, and may proceed to give judgment, and to declare the nullity of such marriage, and moreover may punish the parties by fine; and if the court see fit may cause the parties to give bond with sufficient security, that they will not cohabit hereafter, in such penalty as the said court shall judge reasonable: Provided always, that no punishment by fine shall be imposed on any person until the same, shall have been assessed by a jury, duly impannelled at the bar of the said court. And provided also, that nothing herein contained, shall be construed to render illegitimate the issue of any marriage so annulled.

To this information, the defendants, by counsel, filed their plea in these words: "These defendants by protestation not acknowledging or confessing all or any of the matters or things in the said bill contained to be true in the manner and form as the same are therein and thereby alleged, do plead in bar, and for plea say, that by the eighth section of the bill of rights, made and declared on the 6th day of May, 1776, entitled, "A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them, and their posterity, as the basis and foundation of government,” it is expressly declared: "That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land, or the judgment of his peers." That by an act of assembly, passed the 5th of December, 1785, entitled "An act declaring that

none shall be condemned without jury trial, and that justice shall not be sold or deferred:" the legislature explained its sense of the meaning of the above recited article of the bill of rights, by enacting: "That no freeman shall be taken or imprisoned, or dissiezed of his freehold, or liberties, or free customs, or be outlawed, or expelled, or otherwise destroyed, nor shall the commonwealth pass upon him, nor condemn him, but by lawful judgment of his peers, or by the laws of the land." That these defendants are advised and insist, that any act of assembly contrary to, or inconsistent with the said bill of rights or any part or article of the same, is unconstitutional, void, and of no effect; that the information of the attorney-general, in this behalf, is to all intents and purposes a criminal prosecution; founded upon the act of assembly referred to in the said information: and that the said act of assembly, is, so far as the same enacts and provides that any person who shall contract any marriage contrary thereto, "shall be separated by the definitive sentence or judgment of the high court of chancery; and the attorney-general, upon any information made to him of any such marriage, shall, and may exhibit a bill to the judge of the court, against any persons so unlawfully married, who shall be compelled upon oath to answer the same; and upon such bill and answer, and depositions of witnesses, where the same shall be necessary, the said court shall and may proceed to give judgment, and to declare the nullity of such marriage, and moreover, may punish the parties by fine, and if the said court see fit, may cause the parties to give bond with sufficient security, that they will not cohabit hereafter, in such penalty as the said court shall judge reasonable: Provided always, That no punishment by fine shall be imposed on any person until the same shall have been assessed by a jury, duly impannelled at the bar of the said court;"-a penal statute authorising a criminal prosecution in the mode therein prescribed, and is contrary to, and inconsistent with the above recited article of the said Bill of Rights, and is therefore unconstitutional, void, and of none effect; and therefore doth not vest in this

honourable court any lawful jurisdiction to hear and determine the matters in and by the said information of the attorney-general, alleged and charged against these defendants, do therefore humbly demand the judgment of this honourable court, whether they or either of them ought to be compelled to make any other or further answer to the said information.

To this plea there was a general replication; and the cause was argued with very great ability by the attorney. general for the commonwealth, and by Mr. Wirt and Mr. Leigh, for the defendants; and it being late in the term, the following decree was pronounced by the Chancellor.

This cause came on this day to be heard on the information of the attorney-general, on behalf of the commonwealth, and the plea of the defendants, which the parties agreed might be considered as a demurer to the information, and was argued by counsel; on consideration whereof, the court being of opinion with the attorney-general, that, if this be a criminal prosecution, this court should not entertain it; the court then hath only to inquire what is a crime, to come at the meaning of the prosecution, and the answer is, in the language of all the elementary writers upon the law, that a crime is an act committed or omitted, in violation of a public law, either forbidding or commanding it; the act, under consideration, is a public law, the violation of it then, is a crime; a prosecution for it, must of necessity be a criminal prosecution; hence, it was not competent to the legislature, to confer jurisdiction thereof upon this court, for reasons assigned in the demands; and therefore, this court, considering so much of the act in question, as contrary to the Bill of Rights, and for that reason void, doth adjudge, order, and decree, that the information be dismissed.

GOVERNOR'S VETO.

The following are the Governor's reasons for refusing his approbation to a bill which passed both houses of the Legislature of Pennsylvania in 1803.

To the Senate and House of Representatives of the General Assembly of the Commonwealth of Pennsylvania.

GENTLEMEN,The bill entitled "an act to revive the act entitled a supplement to the act entitled an act to extend the powers of justices of the peace of this state" was presented to me on Saturday the 2d day of April last; but as the legislature adjourned on the following Monday (when ten other bills were returned with the executive approbation) I had not an opportunity, during that session to bestow sufficient consideration upon its principles and provisions; particularly, as it was, in substance, the renewal of a legislative proposition to which I had formerly expressed my dissent; and I am always anxious, in a conflict of opinion, to pay a just deference to the wisdom of the general assembly. I must now, however, confess, that the ample time of deliberation, which I have enjoyed in the recess, has operated to confirm the convictions of my judgment in relation to the unconstitutionality, the impolicy, the oppressive and pernicious tendency of this bill, and therefore, disapproving it, I have directed the secretary to return it to the house of representatives, in which it originated, with my objections; being, indeed, little more than a recapitulation of the reasons that have been assigned on similar occasions, and are already exhibited on the records of the legislature. I object, then, to the bill passing into a law;

1. Because it appears to me to be unconstitutional. The constitution expressly guarantees to the citizens of Pennsylvania, "the trial by jury as heretofore." The trial by jury heretofore existed in civil as well as in criminal cases; and on the exercise of an original, as well as of an appellate jurisdiction; except in mere matter of debt and contract, not ex

ceeding the sum of ten pounds. But the bill under conside ration, contemplates the perpetuation of legislative provisions, by which trial of issues, in a great variety of transactions, as well of the nature of torts, as of contracts, is in the first instance withdrawn from a jury.

An attack upon the trial by jury, in civil cases, will af ford to bad men, in worse times, a ready pretext for undermining the trial by jury in criminal cases; and nothing can more forcibly demonstrate the sense of the union, in favour of establishing the trial by jury, as well in controversies between individuals, as in public prosecutions, than the opinion of the several states (even including the state of Pennsylvania) that upon principle, independent of authority, it was a wise, and necessary amendment to the federal constitution, to provide "that in suits at common law, where the value in controver sy should exceed twenty dollars, the right of trial by jury shall be preserved." Amendments, article 9. But with respect to the objection to the constitutionality of the bill, it is incum. bent on me to speak with diffidence (a diffidence which I am persuaded you, gentlemen, will partake) when I recollect that the same question has been in part debated in the Supreme Court, and will probably soon receive a judicial and authoritative determination.

2. Because the bill is impolitic. In the judicial department of government, every avenue to corruption should be closed; every disposition to tyranny should be controlled, every infirmity of ignorance or folly should be corrected, and in short, every step in the administration of justice should be taken in the public view, and liable to the public animadver. sion, and uniformity in decisions should be preserved. But the bill under consideration would perpetuate and countenance the enlargement of the jurisdiction of individual magistrates, scattered over the territory of the state, without any useful publicity, or real responsibility attached to their situation or their conduct. The inevitable effect must be a scene of par tiality on the one hand, and of oppression on the other; until, by the inducements of favour, or the impulse of fear, every