The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX, Part 54

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440

USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX > Part 54

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192

SPECIFIC GRAVITY OF ROCKS NEAR THE DELAWARE. 1

[MARCH

rocks of acknowledged volcanic origin, although horn- blende is also found in them. The term disbase, is ap- plicable to any rock having a double base, and we, therefore, prefer a name that expresses at once the mi- neral to which the rock owes its distinctive character. We trust that this subject will receive proper attention from Messrs. Conybeare and Sedgewick, in the contin- uation of that admirable work, The Geology of Eng- land and Wales, of which the first volume has already given so much distinction to the name of Mr.Conybeare. Since the history of the primary rocks can receive no assistance from organic remains, we have nothing left to determine with accuracy the character of those rocks but their constituent minerals. And as the English language on this continent and in Europe, is destined to be spoken by the most important family of civilized society, we trust those gentlemen will give appropriate scientific names cognate to the English tongue. We despair of a universal nomenclature, and the sooner we have a well considered one, accommodated to our own overspreading language, the better.

We now proceed to give the table of specific gravi- ties of the rocks used in constructing the Delaware Breakwater, for which, together with the preliminary information, we are indebted to that intelligent officer, Major BENDER, of the United States Army.

EDITOR.

SPECIFIC GRAVITIES OF THE ROCKS USED IN THE CONSTRUCTION OF THE DELA- WARE BREAKWATER.

Communicated by Major GEORGE BENDER, United States Army.

" The two straight insulated stone dikes which form the work, are constructing on a clayey anchorage ground, in a depth of water from twenty-seven to thir- ty-four feet below the lowest spring tides. The prin- · cipal one is to be twelve hundred yards in length, mea- suring from a point five hundred yards distant from the line of twenty-four foot water, near the extreme point of Cape Henlopen, and running in a W. N. W. direc- tion from said point. At the distance of three hundred and fifty yards from the westernmost end of this, the other has also been commenced, and is to run W. by S. five hundred yards. These dikes, or islets of stone, are both to have a height of five and one-third feet above the highest spring tides, with a breadth at bottom of one hundred and sixty-seven feet, and at top, twenty- two feet. The inner slope is made to assume an an- gle of forty-five degrees, while the outer has one hundred and six feet base to thirty-nine altitude, and be- ing covered with blocks of stone weighing from three to five tons, and upwards, from six feet below low water, to the summit, is such as experience as has shown that the sea will break upon, without disturbing the materials. These dikes will in no part be more than about one mile distant from the shore, and when completed, will afford a shelter from the waves over seven-tenths of a square mile, having a depth of water of eighteen feet at lowest spring- tides. That portion of the compass from E. to W. round by the south, is protected by the formation of the shore.

The whole work will constitute an aggregate mass of about nine hundred thousand cubic yards of stone, the largest portion of which is to be in pieces exceeding a ton weight each, and although a smaller work than those of either Cherburg or Plymouth, yet from the comparatively great distance from whence the material is obtained, it is one of necessarily slow execution.

The country for many miles around being a sandy al- luvion, the contractors for supplying the stone commenc- ed with bringing it from the Palisade rocks on the Hud- son river; but the tediousness of the navigation, which consumed upon an average, ten days for each trip, re- tarded the first season's operations very much. Since then, the largest portion has been obtained from quarries

on the Delaware, between Wilmington and Crum creek, a mile or two above Chester. Upwards of two hun- dred and seventy nine thousand tons have been already deposited, of which eighty-one thousand were from the Hudson, and one hundred and ninety-eight thousand from the Delaware, and the same having been principally used in forming the upper end of the first mentioned dike, it has afforded a shelter which was used by the pilots, and by vessels engaged in the work, for protec- tion against the N. and N. E. gales, during the last two or three months of the late working season ..

Specific Gravities of the Rocks.

1 From Christiana creek be- 2 Hornblende or

low Wilmington, 3,020 3-4 S Greenstone.

2 Brandywine, below

the lowest mills, 2,990 1-2 do.

3 Quarryville, north of

road to Wilmington, 2,668 do.

4 do. near the river,

south * do. 2,980 do.

5 Naaman's Creek,

do. north do. 2,680 1-2 do.

Vicinity of Marcus

Hook, north, do. 2.751 1-2 do.

8 do. do. do. do. 2,618 - do.

9 Young's Quarry, Chester creek, do. do. 2,700 Gneiss. -

10 Clark's do. do. do. 2,764 1-2 do.

11 Hennis' do. do. do. 2,649 do.

12 Hennis' Q. on Ches-

ter creek, n. Wilm. ro. 2,752 3-4 do.

13 Worral's do. do. 2,672

do.

14 Smith's do. do. 2,717 do.

15 Murray's on Ridley

creek, do. do. 2,713 1-4 do.

66 Burk's do. do. do. 2,700

do.

17 Shoemaker's do. do. 2,713 1-4

do.

18 Clyde's do. do. do. 2,664

do. ( Hornblende or

19 M'Ilvaine's do. do. 3,130

Greenstone.

20 66 do. do. do. do. 2.726

Gneiss,

21 do. do. south do. 2,654 1-2 do.

22 "Churchman's do. do. 2,638 1-2 do.

23 "J.L. Crosby's do. north 2,664 do.

24 do. do. do. do. 2,618 do.

25 "R. P. Crosby's do. do. 2,649

do.

" Leiper's, Crum creek, south do. 2,649

do.

27 " Hill's do. do. do. 2,786 1-4 2 Hornblende or 5 Greenstone.

28 " do. (Island Field) do. 2,805 1-4 do.

29 " Palisades at Fort Lee, Hudson river, 2,990 1-2 Trap.

30 do. Claster do. 2,968 3-4

do.

31 66

Nyack do. 2,955 1-4 do.

WEST CHESTER, March 21.

A western paper speaks of a visiter who breakfasted at the table of Mr. JOHN M'INTYRE, Indiana, where was present a healthy Scotch lady, 120 years old. Her sight was better than it was at 90-30 years ago. She came to Philadelphia, in 1727.

On Saturday morning going through our market, at sun-rise, the veteran soldier WALLACE was there, moving about quite alert. He is a Scotchman too, now 102 .years old .- Village Record.

Printed every SATURDAY MORNING by WILLIAM F. GED- DES, No. 9 Library Street. Philadelphia; where, and at the PUB- LICATION OFFICE, IN FRANKLIN PLACE, second door back of the Post Office,(front room) subscriptions will be thankfully re- ceived. Price FIVE DOLLARS per annum, payable annually by subscribers residing in or near the city, or where there is an agent. " Other subscribes pay in advancer.

south do.

2,688 do.

HAZARD'S

DEVOTED TO THE PRESERVATION OP EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.

EDITED BY SAMUEL HAZARD.

VOL: IX .- NO. 13. PHILADELPHIA, MARCH 31, 1832. NO. 222.

SECOND REPORT

OF THE COMMISSIONENS APPOINTED TO REVISE THE

CODE OF PENNSYLVANIA.

To the Senate and House of Representatives of the Com- monwealth of Pennsylvania.

GENTLEMEN-The commissioners appointed in pur- suance of certain resolutions adopted by the legislature, on the 23d March, 1830, "relative to a revised code of Pennsylvania, " have transmitted to me their second re- port, which I hasten to lay before the two houses for their consideration and approval.

GEO. WOLF.

Harrisburg, March 5th, 1832.

Sin-We have the honor to transmit to your excel- lency a second report-prepared in pursuance of the reolution of the legislature of the 23d of March, 1830 -comprising two copies of cach of the following do- cuments, viz:

1. A report, in part, on the subjects of the statute law generally, and the administration of justice.

2. A bill " relating to last wills and testaments," with accompanying remarks.

3. A bill "relating to the descent and distribution of the estates of intestates," with accompanying re- marks.

4. A bill " relating to executors, administrators and col- lectors," with accompanying remarks.

We beg to assure your excellency that we shall con- tinuc to give to the important subjects of our commis- sion our earnest and united attention.

And we remain with great respect, your obd't. ser'rts,

W. RAWLE, T. J. WHARTON, JOEL JONES.

To his Excellency, GOVERNOn WOLF.

Philadelphia, March 1, 1832.

NO. I.

Report, in part, on the Statute Law generally, and the administration of justice, &c.

To the Senate and House of Representatives of the Com- monwealth of Pennsylvania, in General .Issembly met:

We the undersigned commissioners appointed to re- vise the Civil Code, respectfully submit herewith our second report.

In the communication which we made in this behalf to the Legislature at the last session, we took occasion to say that it had been our intention, if time should al- low, to prepare and submit with the bills then reported, other bills containing a revision of all those acts of As- sembly which are commonly considered a part of the system of law relating to the Orphans' court. We also stated in explanation of what might seem omissions, that such a course was necessary to a full development of our views of arrangement: some of the omitted acts were specified and the titles to which it was intended an act in respect to the arrangement of its provisions

VOL. IX. 25

to refer them were indicated. We were at that time fully sensible that convenience to ourselves as well as a satisfactory exceution of the duties with which we were charged would have been promoted by a connected consideration and simultancous report of the entire sub- ject of the law of decedents. But our earnest desire speedily to accomplish, as far as was practicable, the views of the legislature in respect to this branch of the law, induced us to report only such parts of it as we had then prepared, leaving to a future report those portions of it, which we had not then sufficiently considered. In reference to the bills then presented and the subject with which they are coonected, we took occasion fur- ther to remark, that had it not been for the express di- rections of the legislature to report at that time, we should probably have reserved the subject to the last and have given it the utmost deliberation that our limits would allow. This sentiment (expressed in reference to the difficulties attending this part of the revision) we have seen no occasion to change. No portion of our law presents more obstacles to the successful execution of the intentions of the legislature in respect to the re- vision. It would be casy to show the causes to which they are to be ascribed; but we pass to observe that in addition to the inherent difficulties, it was impossible by reporting that part only of the subject which was thus expressly required, to exhibit fully in every instance the scope of the new provisions which were suggested, nor the manner in which it was intended they should in all respects operate. We were obliged also to depart in some degree from that strictness in classification which we deem it important to observe. To obviate this in- convenience, however, we have taken care so to frame these several bills as to admit of recompilation without any material alteration of the text and with a strict re- gard to systematic connexion and dependance. The three bills now reported are entitled:

An act relating to last wills and testaments.

An act relating to the descent and distribution of the estates of intestates.

An act relating to executors, administrators and col- lectors.

These bills, together with those before reported, con- tain all the provisions of the acts of Assembly and Brit- ish statutes in foree, which relate to the disposition and settlements of the estates of deceased persons, with the exception of a small number, which may be advanta- geously referred to other titles, with which they are al- so connected. We have compiled them from about sixty different acts and statutes. We have bestowed much time and careful consideration in preparing them, and although we do not flatter ourselves that they will be found in practice frec from imperfections, we cannot but hope that they will be thought to contain some im- provements, not only in the form, but in the substance of the acts, which they are intended to supply. In the recompilation of statutes, the value of method in the distribution of the subject matter and of precision and conciseness in expression, is, as we have intimated, too great to be overlooked. We have endeavored constant. ly to keep these objects in view. It should be remark- cd, however, that it is impossible in all cases, unless we adopt the method of a code, to render the scheme of

194

SECOND REPORT ON THE CODE OF PENNSYLVANIA.

[MARGE

perfectly obvious. Many of the English statutes relat- ing to the same subject, have been enacted at long inter- vals for the purpose of amending the common law or supplying particular defects, and must be considered in connexion with it, to discover the just medium of de- pendance. As we do not suppose it our duty to reduce the common law to the text of statutes, we have been content in such cases to collect and collate all concur- rent statutory provisions, and to reduce them according to such method as seemed to us most obvious to one clear and uniform act. In the phraseology of statutes there are difficulties of serious import. Language is not adapted to the expression of thought with rigorous exactness, and in many cases the connecting link be- tween the expression and the intent, must be left to be supplied from the general scope of the provisions. Yet much and perhaps most of the verbiage of statutes and acts of Assembly owes its origin to an attempt at abso- Inte precision. Conciseness in expression and brevity in the enactment have been lost sight of or designedly sacrificed to this important but unattainable quality. Yet it may be doubted whether the verbose and parti- cularizing style of modern statutes has not contributed rather to obscurity than to clearness, and much more whether the most verbose of our laws are the most clear. We have, however, retained substantially, the style of former legislation, believing it preferable to the senten- tious method of some modern codes. In this particular we conceive, we had not entire discretion, yet we have not hesitated to omit whatever did not appear requisite to precision, according to the ordinary and approved usages of language. This operation is often connected with a more difficult and responsible one, viz: that of blending the provisions of the different acts into new expressions, retaining as far as possible the very text, and the entire body and substance, with such alterations only as are essential to its new form and arrangement.' It has been said that the exposition of a statute is one of the most difficult efforts of the mind. This is to us a constantly recurring duty. No statute or act can be recompiled in the method directed by the legislature, until we have performed in relation to it a duty not very dissimilar from judicial exposition, when it is re- collected that the revision proposed, comprizes English statutes from the reign of Henry III, to George Il, as well as the whole extent of our own legislation, that many of the statutes relate to subjects, not now entire- ly familiar to the profession of the law in this country or in England. That many of our own early acts of Assembly have not, so far as the reports of the judicial decisions show, received a construction. It will be easi- ly conceived that this part of our duties is not incon- siderable. In regard to the English statutes, there is besides this, a previous duty to be performed, viz: to The changing relations, customs, and intelligence of communities, exert an irresistible force in operating a change upon their laws: the change therefore is in the substance-the names and theories remain by a force equivalent to the force of language. We might speci- fy many examples, but we choose rather to close this portion of our remarks, with expressing in general terms a doubt of the expediency of disturbing matters of theory, or any of those deeply laid principles of the law upon which the modern as well as the ancient struc- ture was reposed. The bills now reported do not in- deed bear so intimate a connexion with the portion of law just alluded to, as some which remain, and the al- terations proposed in them, relate rather to the adminis- trative portions of the law than to primary or abstract principles. In these, the public at large have not the same kind or degree of interest; yet it is due to those who are principally concerned in the administration of justice, to make no change without sufficient motive, nor then, except in such method as shall produce least inconvenience. The alterations suggested, it is believ- ed, are in accordance with these views. We beg leave to add one other remark: extensive alterations in the decide which of them are actually in force in this com- monwealth. Here it is true, we have a useful guide, in the very valuable report of the judges of the su- preme court, made in obedience to a resolution of the legislature adopted on the 7th day of April, 1807. This report, however, has not been considered as conclusive, and indeed was not so considered by the learned judges, who made it. In the progress of our duties, it will, how- ever, be incumbent on us to act definitively, and with the expectation that the report which we may ultimate- ly make upon the subject, will be followed by a repeal of all statutes of a foreign origin, we beg leave to refer to that report, for some observations relative to this branch of our duty. It would be comparatively easy to recompile the statutes in the very words, or, if it were compatible with the intention of the legislature, and the due execution of the trust reposed in us, to di- gest the subject matter of them without a very scrupu- lous regard to their precise import and bearing: This would be an effort of a different kind, hoth in respect of the performance and of the result. The injunctions of the legislature, are however, explicit. The due exe- cution of them requires us to consider each act and law, although such alterations consist merely in the ex-

statute in relation to the general system of legislation and the jurisprudence of the courts. The whole is one texture, one frame work, in which apparently small mat- ters must not be unwarily altered. Not only must the import of isolated expressions be considered, but their import also in the connexion from which it is proposed to remove them and the effect which may be expected to result from the new combination. It has not unfre- quently occurred to us in the compilation of bills to va- ry expressions or transpose clauses in one bill or one section of a bill, for the purpose of controlling the ef- fect of provisions contained in another.

This method is not new, nor are its results impercep- tible or even obscure. It is essential, not only to ex- actness, but also to perspicuity and brevity, and is one of the most effective means of dispensing with qualify- ing clauses in the form of provisos. This last remark is submitted with a view to suggest the principles upon which many clauses in the bills now reported have been adjusted. We beg leave most respectfully to add that the substitution of clauses apparently synonymous, may not in all cases, be in their general bearing and effect ex- act equivalents. We do not wish to be understood how- ever, that this remark is referrible to every portion of these bills, nor that every section or provision is essen- tial to the integrity of the system. Many of the new provisions may be expunged without impediment to the successful operation of the residue; in short, we have endeavoured so to combine, whatever may be newly proposed with the existing provisions of the law, that the former may be extracted, without marring the latter: we intend by the remark, merely to suggest the general views by which we have been guided, as a just rule or medium of interpretation. In the remarks annexed to these bills, we have been careful to point out such por- tions of them as are new and briefly to assign the mo- tives upon which they are grounded. In this place we will say, however, that it has been our intention to avoid material alteration in the principles of the law. It is an extraordinary case, we think, in which a radical al- teration in a rule of property would be expedient. "These are very sound and ought not to be touched." We do not say that such cases may not exist, "for there are some things that are really and truly parts of the law which are as necessary to be reformed as the errors and abuses of it." We do not think that such parts will generally be found to concern the rules of proper- ty or the theory of the law as a science. We can see no advantage which will be likely to result from recast- ing the law upon different conceptions of first princi- ples, or from abolishing theories, because they owe their origin and principal significancy to a different con- dition of society.

195

SECOND REPORT ON THE CODE OF PENNSYLVANIA.

1832.]

ternal form and arrangement, cause least inconvenience when gradually and successively promulgated. The re- mark is more emphatically true, when alterations in sub- stance or in the forms of proceedings, however slight, have been made. In regard to the revision generally, we have to state that considerable progress has been made. Many draughts of bills have been prepared for joint consideration, in pursuance of the distribution of subjects made by his excellency the Governor. It was believed that the whole of this portion of our duties, might have been performed by us in the time limited by the resolution. Experience has taught us, however, that our separate efforts are far less arduous than those which must be performed jointly. Many of our duties cannot well be attempted until after a careful examina- tion and full debate. We beg leave to mention some of them. The judges of the supreme court in the report before alluded to, have specified nearly twenty statutes relating to disseizin, and the remedies by assize. In re- peated instances have the judges of the same court de- `clared this ancient remedy to be in force. We will refer only to the emphatic language of the late Chief Justice, in the case of Witherow v. Keller, 11. S. & R. 271;) Are these statutes then to be revised? Are they to be revised without amendment ?. Or with such explanatory and supplemental provisions as shall render them simple and convenient? And if so, what method or expedients for simplification shall be adopted? This is not a pro- blem for extemporaneous solution, nor one that can be decided upon separate examination or research. Or, are these statutes to be rejected, and the whole of this portion of the remedial law to be expunged from our system? The authority of the supreme court is an impediment to the adoption of this course :-- At all events, before we could adopt it consistently with fideli- ty to the public, it would be incumbent upon us accu- rately to survey the space which it fills and to provide the means of supplying any chasm which might be thus created by more simple and convenient equivalents. It is not our object at present to intimate which course in our opinion would be judicious and proper. We are concerned merely to say, that the question must be met, and that no method of disposing of it will afford a way of escape from arduous and responsible effort. We might specify others of these statutes and apply to them similar remarks. We will only add that very early in our operations we took a general survey of all these statutes for the purpose of ascertaining their bearing upon our appropriate legislation, and the importance which they sustain to the whole body of our laws. They appear to us to form an important and a very in- teresting, though by no means the least difficult portion of the subject committed to us. The resolutions di- rect our attention to the contradictions, omissions and imperfections which may exist in the law, and require us to suggest the mode in which they may be reconcil- ed, supplied and amended. We are required also to report, whether it would be expedient to introduce any, and if any, what change in the forms and mode of pro- ceeding in the administration of the laws. These inves- tigations form a distinet class of duties. They require a - minute survey of the whole law and accurate com- parison of its correlative parts.

It is impossible from the nature of things, and of lan- guage, to pen a body of laws, which will speak unam- biguously their intent under all combinations of circum- stances. The courts must be called in as interpreters, even if there were no other occasion for their interpo- sition. But add to this the ceaseless activity of socie- ty; its multiform relations and ever varying emergencies bid defiance to the tardy progress of legislation. Mul- tiply positive rules to any extent, it is also to multiply . occasions for judicial interpretation; and to whatever limit legislation may be carried, beyond will be found an undefined region, which must remain open to the oc- cupancy of the courts. However large the sphere which may be filled by positive laws, the common law is an exterior and circumambient medium: it also per- vades the very body of them, and is the agent which gives vitality, activity, and energy'to their provisions. It is equally essential to the life and spirit of the consti- tution as to an act of assembly. The stat. 13 Ed. I, Chap. 24, concerning writs in consimili casu, was a le- gislative acknowledgment of this doctrine. That sta- tute forms the very basis of no inconsiderable portion of the jurisprudence of the common law courts. Before this enactment, the case of any known writ was a legal cause of action, and this was conclusively evinced by the mere existence ofthe writ. But in the action on the case, (the principal fruit of that statute, ) the suffi- ciency of the case alleged has always been a subject ex- clusively for judicial consideration, to be decided as well upon principles of natural equity, and considerations touching the well being of society, as upon rules of an- tecedent institution by legislative authority. Hence this action has been denominated an equitable action and we need not say how large a portion of modern liti- gation is carried on in that form. "We might vouch al- so the very existence of a court of chancery, in proof of our position, and many interesting considerations occur to connect it with the purpose named. But to resume: we do not suppose the statute law to be imperfect, be- cause its wants the completeness of a perfect code, for such completeness is not a part of its design; nor do we consider the reposing of large discretionary powers in the courts an evil, (if it be one, ) that can be perfectly remedied. Judicious reform must lin all cases, we think, assume these conditions, (however they may be denom- inated) to be characteristics, if not essential attributes of every system.

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The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX, Part 54

Author: Hazard, Samuel, 1784-1870 Publication date: 1828 Publisher: Philadelphia : Printed by W.F. Geddes ; Number of Pages: 440

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440