pounds, on county commissioners, is neither the trial by jury, nor is it the trial on impeachment, directed by the constitution. It is a deviation from the constitution. See act of assembly, vol. 2, chapter 6, section 36, extended to the act for the federal supplies for 1783, vol. 2, chapter 66, section 7.

The acts for settling the public accounts of this state, as well by the late auditors, as that which constitutes the office of comptroller general of this state, do not give trial by jury upon the disputes concerning fact or law, which may arise in adjusting the public accounts, and are therefore unconstitutional.

Trial by jury is taken away, in the case of harboring deserters from the armies of the United States, and the offenders subjected to sum mary conviction and to whipping. Vol, 1, chapter 9, section 3.

The same is done in case of harboring deserters from the ships of war, of his most Christian Majesty. The offenders are liable to a fine of thirty pounds, on the summary judgment of two justices of the peace, and the certiorari denied vol. 2, chapter 59, section 2.

The jurisdiction of the court of admiralty. which proceeds without a jury, is brought upon the land, and extended to the demands of artificers who build or repair ships and vessels. Besides, it may with justice be apprehended, that this new embarrassment upon this kind of movable property, will deter foreigners from trusting their vessels into our port. Vol. 2. chapter 134.

Jury trial is denied in case of ships running foul of each other; and yet an action of debt, for the damages awarded, is supposed to be necessary, vol, 2, chapter 143, section 8.

Section 28, "All prisoner shall be bailable, by sufficient sureties, unless for capital offences, when the proof is evident and the presumption great."

It is the opinion of this committee, that the acts of assembly, which restrained, for a time, the full operation of the writ of habeas corpus, are infringements of the constitution.

These laws were intended to secure the persons, and restrain the traitorous practices of the disaffected, when legal evidence could not be obtained against them. See vol. 1, chapter 130 section 2 and 3, chapter 137, of the same vol. section 3.

Section 28. "The persons of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison, after delivering up, bona fide all his estate real and personal for the use of his creditors, in such manner as shall be hereafter regulated by law."

The frequent interpositions of the legislature in behalf of particular persons, held in execution for debt, may all of them be justly branded with the appellation of laws after the fact; whereas this section calls for general regulations by a general law, which may be known before the contracts be made. These acts of mercy to individuals, too often dependent upon favor or prejudice, before large bodies of men, will probably bring us into discredit, if not into debates, with foreign nations. They ought to be abandoned immediately and a general law provided.

Section 30. "Justices of the peace, shall be elected by the freehol"ders of each city and county respectively; that is to say, two or "more persons shall be chosen for each ward, township or district, as "the laws shall hereafter direct; and their names shall be returned to "the president in council, who shall commission one or more of them,

"for each ward &c. so returning, for seven years; but if any city, "County, district &c. shall hereafter incline to change the manner of "appointing their justices of the peace, as settled by this article, the "general assembly may make laws to regulate the same, agreeable to "the desire of the majority &c. so applying."

It is the opinion of this committee that justices of the peace, otherwise constituted, than is set forth above, are not according to the constitu tion, unless the major number of the freeholders of the county, dis trict or place, apply for another mode of appointing these magistrates, and the general assembly allow thereof by law.

The Burgesses of Bristol, Chester and Lancaster, have been declared justices of the peace, without such application. Vol. 1, chapter 4,

section 7.

By chapter 14, section 7, 8, 9, of vol. 1, the council were enabled, on the application of twenty inhabitants of Chester, or other district, to appoint justices of the peace. Chapter 19th, authorised the president and council, to appoint five persons, not justices of the peace, to hold the court of quarter sessions, of the peace of the city of Philadelphia.

It the freeholders of Reading, or a majority of them, did apply for another mode of appointing justices of the peace, yet the term of seven years could not be altered. Such transitory magistrates, as the Burgesses of the borough of Reading, who are elected yearly, are too dependent to be the justices of the peace required by the constitution. See the act for incorporating the town of Reading, chapter 76, vol. 2, section 6, 7.

Section 30. "Justices of the peace shall be removable for misconduct, by the general assembly."

It is the opinion of this committee that the misconduct of justices of the peace, ought to be established elsewhere, before the general assembly can proceed to remove them.

According to the principles already stated, the legislative branch can exercise no judicial authority, that is not expressly given to it. These words can be fully satisfied, without supposing that the general assembly is vested with power to try justices of the peace. This enables us to say, that the house has no right to determine concern. ing their misconduct. Such authority would contradict the first principles of the constitution, and assign to the general assembly a jurisdiction, for which they are wholly incompetent, and would soon dishonor the house. For large bodies of men are so liable to be tainted by prejudice, favor and party, when employed in personal discussions, that justice is rarely attained by them. Resting therefore, on our principle that this is an executive power, put out of its proper place, we construe it literally, and carry it not beyond the wordsThe solicitude shewn by the framers of the constitution, to render these magistrates permanent for seven years, will not admit that their misbehaviour be committed to a trial by sixty or seventy persons. See journals of assembly, Nov. 27, 1779. Feb. 26, 1783, and March 1, 1783.-But the 22d section has been adduced to support this claim of the general assembly, to try justices of the peace, as well as to remove them. This section is as followeth viz. Every officer of "government whether judicial or executive, shall be liable to be im"peached, either when in office, or after his resignation, or removal "for mal-administration."

It has been contended from the words, "or removal for mal-administration," that the general assembly may remove justices of the peace, in order to impeach them, not considering that there is nothing in this section to give any power to the house. If such power were indeed designed at all, the council would take it, because it is executive business. But the difficulty here arises from the omission of a comma before mal-administration. Restore this, and the impeachment will be restrained, as it ought, to officers in their public capacity; and removal will apply to such civil officers as hold at pleasure, and who may be superseded; and also to others, whose times expire; as councillors and sheriffs, who, upon the erroneous construction which we reprobate, would not be liable to impeachment, if the malfeasances charged upon them should happen not to be prosecuted till after they were out of place.

Section 40. "Every officer whether judicial, executive or military, in authority, under this commonwealth, shall take the following oath or affirmation of allegiance, and general oath of office, before he enter on the execution of his office."

The oath or affirmation of allegiance.

66 I, do swear (or affirm) that I will be true and faithful to the commonwealth of Pennsylvania; and that I will not directly or indirectly do any act or thing prejudicial or injurious to the constitution or government thereof, as established by the convention." The oath or affirmation of office.

I,

do swear (or affirm) that I will faithfully execute the office of for the of and I will do equal right and justice to all men, to the best of my judgment and abilities, according to law."

It is the opinion of this committee, that the act of 17th of March, 1777, entitled "An act to regulate the militia of the commonwealth of Pennsylvania," is a deviation from the 40th section of the constitution, as it dispenses with the oath therein prescribed.

Section 47." The council of censors shall have power to call a convention to meet within two years after their sitting, if there appear to them an absolute necessity of amending any article in the constitution, which may be defective, explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preservation of the rights and happiness of the people." But two thirds of the whole number of censors elected must agree to this call.

The resolves of assembly of 17th June 1777, for taking the sense of the people; and those for the like purpose of 28th November 1778, were violations of the constitution, yet we have no difficulty in declaring, that according to the 5th section of the bill of rights, the community have an indubitable, unalienable and indefeasible right to reform, alter or abolish government, in such manner as shall be by the community judged most conducive to the public weal.*

*By the resolve of 17th June 1777, it was directed that the freemen of every township, ward, &c. should at their elections of inspectors for the ensuing election, choose a respectable freeholder to be called a commissioner, whose duty it should be to go to the residence of every person entitled to vote for member of assembly, or take some other opportnity of meeting with them, and ask each and every of thesaid freemen whether he desired that a convention should be called. The answer was to be given in writing and put into a box or bag, to be provided for thrat

It is the opinion of this committee, that the general assembly of this state, in divers other instances, besides those already cited, have not acted as faithful guardians of the rights of the people. We give the following as examples thereof, viz.

It appears by the journals of the general assembly (December 29, 1777) that a committee was authorised by resolve, to open the chest of the loan office, wherein were deposited the bills of credit, brought in to

purpose, which box or bag the commissioner was to keep shut, and in his own possession, and return the same to the sheriff of the proper county, on or before the 10th day of November, then next. The sheriff and commissioners were to cast up the number of votes, an account of which, under their hands and seals, was to be returned to the next general assembly, at their first sitting. The resolve also prɔ vided a particular form of oath to be taken by the commissioners and the sheriffs.

The resolve of the 28th November 1778, states that certain resolutions which had theretofore been passed, for obtaining the sense and judgment of the people, in relation to the defects of the constitution, had not been carried into effect, because of the invasion of the state and other circumstances. And then resolves unanimously, that the people qualified to vote, should meet at the usual places of holding elections, on the 25th of March, then next, and choose judges and inspectors, who should provide two boxes, &c. and that on the first Tuesday in April, the votes of the freemen should be received for and against a convention, which should be put in one of the boxes, in the other box the votes for members of the convention should be placed. The boxes were to be delivered to the assembly by the proper officers. The house was to count the votes, and if there should be a majority against a convention, then no further proceedings were to be had; but if a majority of votes should be for a convention, then the assembly was to proceed and open the boxes containing the names of the members of the convention voted for, and declare the six highest from each city and county to be the members to represent the same in the convention, and that the assembly should direct the convention to meet at Lancaster, on the 1st June, then next. The resolve then proceeds in the following words, viz.

"And the said convention having so met, shall judge of the qualifications of its members, and then proceed to determine on these points, viz.

1. Whether the legislative power of the state shall be vested, as at the present, in a single branch.

2. If the convention should be for a second branch of legislation, then how the same. and the executive powers, for the administration of government, shall be constructed.

3. If the convention shall determine against a second branch of legislation, whether any provision shall be made for the revisal of laws (without any negative) before they receive their final sanction.

4. Whether the appointment of judges and field officers of the militia shall be vested in the executive powers of government.

5. Whether the council of censors shall be abolished.

6. Whether the president and vice president may not be eligible into council, so as to be capable of said offices after the expiration of three years, if their con-. duct shall render them worthy.

7. Whether the judges should not be made more independent by having their sala ries fixed and certain.

8. Whether, agreeable to the articles of confederation of the United States, the delegates in congress may not be eligible, three years successively.

9. In case any alteration shall be made by the convention in the above parts, how. the several oaths prescribed by the constitution, shall be adapted thereunto. And the said convention having finished, they shall publish their proceedings. and determinations, which shall be received and adopted by the inhabitants of this state, at and after the next general election, as part of the constitution by which they are in future to be governed.

Upon the petitions of upwards of 13,000 inhabitants of the state, the resolve of 28th November 1778, was rescinded by the assembly on the 27th February 1779Yeas 47, Nays 7.

be cancelled according to law, to take thereout thirteen thousand pounds, and to deliver the same to the treasurer of the state, that they might be re-issued on order of the president and council. And by a subsequent entry of 27th February 1778, it appears that this resolve was executed. We consider this as a violation of public faith and confidence, that scarcely any necessity can excuse.

pas

Another is taken from the laws. By the "act for funding and redeeming the bills of credit of the United States of America, &c." chap. 177, sect. 12, passed on the 1st June 1780, upon suspending the first tender law, it was enacted and declared “that from and after the sing of this act, all contracts hereafter to be made, shall take effect, and be payable according to the special nature of such contract, any law heretofore to the contrary notwithstanding." Yet the next house of assembly, in breach of this solemn assurance, made other bills of credit "a legal tender to all intents and purposes whatsoever, and in satisfaction of all debts, dues and demands." See chapters 186, 189 and 204, vol. 1.

By the first section of the act of assembly to incorporate the bank of North America, passed the 1st of April 1782, the claim of congress to erect incorporations, is acknowledged. Yet there is no countenance given to this assumed authority, by the confederation. If it be necessary that the states severally, should yield further powers to congress, they should do it professedly and in concert, not by such an indirect and dangerous implication as this. Vol. 2, chap 9, sect. 1.

The act for an additional impost of one and an half per centum, chap. 122, vol. 2, passed on the 15th of March 1784, has erected a new and as we apprehend, unnecessary and burthensome office, of great emolument. This business has been hitherto executed by the naval officer, without any complaint, as far as appears; but he is by the act in question, so completely divested of all attention to these duties on goods imported, that he is not suffered even to check the large sums which come to the hands of the new collector. But if a check in this case were necessary, surely it might be provided at a much cheaper rate than the erecting of this office, which loads so heavily the commerce of the common wealth.

Here is a striking example of mischiefs, which would probably follow from the appointing to offices by the assembly, in other cases than those expressly assigned to the house by the constitution. The bill for this purpose, as published, consisted of twenty-six lines only. It was read a second time on the 21st of February last; read a third time on the 11th of March, when sundry new paragraphs were proposed. These were published as usual, on the 13th, and on the same day the bill was ordered to be engrossed, and it was enacted the 15th March. By these additional paragraphs, the collectorship of the port of Philadelphia, was first brought into view. They have swelled the act to more than two folio pages of the printed law books.

On the question, will the council adopt the report? the yeas and nays were as follow: