the law, should not be left so very loose; besides, it might so happen that a majority of the proprietors met might be a single person.

If the business requires the solemnity of a judge or justice's warrant, it must be to ground some further legal proceedings upon; these should be specified, and not left to deduction or implication. The proviso would give an undue advantage to resident proprietors over those who are not resident, for it is most probable that the first meeting would be composed of those who are residents only, and it is proposed to give them power to appoint future meetings in any other mode they may agree upon, and as the proceedings are to have all the legal force of those held in the manner prescribed by law, a very improper use might be made of them to burden the proportions of non-residents and ease their own. In this view, the law is at variance with the spirit of the compact with the original States declared in the Ordinance. If any benefit would accrue to the owners of the estates in common by this law, it ought to extend to all; but it will not reach any where such estate is not held by more than ten persons; an estate, however, may be held in common by any number of persons above one. Where a law creates a benefit, or removes an inconvenience, it should extend, or be capable of being extended to every case of the same nature; where it neither creates a benefit nor removes an inconvenience, or in a partial manner only, it is either nugatory or mischievous. If the Ohio Company has been in contemplation, the law, I think, would not reach their case, and if it did, it would be an improper legislative interference. By their articles of association, the proprietors seem to have put the management of their affairs entirely out of their own hands so long as the property is held in common; they have appointed agents to manage them for them, have provided for the continuation of those agents, and have given them power to appoint another set of officers under the name of directors. The agents are responsible to the individuals that they shall receive a just dividend of the common property, and have, I suppose, given bonds accordingly, and the directors to them for the performance of certain specified duties. These are fundamental stipulations, and can not be departed from, in my judgment, but by common consent. Were the mode of transacting their business to be altered by law, it must, I conceive, go to annulling the obligations of those bonds. If one individual only were opposed to it, the interference of the Legislature would be improper; if every individual were content to make an alteration, it would be unnecessary. Was the company even incorporated, which, it seems, was designed, all their proceedings must be guided by, and be in conformity to,

the original articles, to have any validity. Upon the application of the whole of the proprietors, a law specially regulating their property, in order to rescue it from the caprice of individuals, might, with propriety, be made; but whether the present Legislature of the Territory would be competent, may well admit of doubt. They have power to adopt laws only.

I am extremely sorry to differ in sentiments from you, gentlemen, upon any point; but in those where your professional knowledge and experience give you so decided a superiority over me, I can not but doubt exceedingly my own judgment. I have, however, weighed the operation of this law as carefully as I could, and the result has been that I can not give my assent to it.

GOVERNOR ST. CLAIR TO JUDGES PARSONS AND VARNUM. FORT HARMAR, July 30th, 1788. Gentlemen:--The establishment of probate offices in the Territory is a matter that requires the most deliberate consideration, as the whole property of the people is eventually involved in their being duly executed. The powers and duties of the officers should be defined with the greatest precision, and, in my opinion, their jurisdic tion laid under some limitations and restrictions, which the law you have been pleased to frame does not contain, whilst, in one instance, if I have rightly understood it, it is confined too much-I mean-in limiting the jurisdiction to the counties respectively.

When you reflect, gentlemen, that the power of appointment is wholly in the Governor, the necessity of defining the powers and duties of the officers will appear in a striking light, for it is not impossible, from a variety of causes, that it may not always fall upon the persons who are best qualified to discharge them, and that, from existing circumstances, few of the officers will be possessed of legal knowledge. I think it will, therefore, be necessary that the judges should give bond for the due execution of the office and the delivery of the records undefaced to their successors; that in some office or other these bonds should be entered of record-perhaps, in the prothonotary or clerk of the common pleas for the counties, should it be thought proper to establish such a judiciary; that they should provide seals, the devices to be the same as such county, but distinguished by the label or inscription; that in deciding upon caveats against, or objections to the proving of wills, they should call to their assistance two justices of common pleas, as also in taking

final accounts and making distributions; that an appeal be given from their sentence to the judges; that they take bonds from administrators according to a certain form; that persons to whom administration may be granted and the order of them be pointed out; that there should be some regulations respecting nuncupative wills; that letters of administration without bond be void, and the judges granting them liable to damages; that it should be declared that wills made and duly proved, where letters of administration, with the will annexed, shall be granted and certified in any of the United States, shall be sufficient to pass estates without new proof there; that letters of administration granted in one county shall be valid in all others where the intestate had property.

I am of opinion that these, and, no doubt, others which will occur to you, are proper for the regulation of the office, and necessary for the case and safety of the people, and that for several reasons, which will present themselves to you, they should be detailed in the law establishing the office. But you will pardon me, gentlemen, for mentioning one more. I suspect we are overpassing the line of our duty in forming new laws in any case; and when we do, the necessity of the case only can be our justification. The Ordinance of Congress empowers us to adopt and publish such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the district. In departing from that rule, we certainly expose ourselves to censure from Congress, and besides, there may be some doubt of the validity of such laws as we adopt and publish under any other; and it may not be unworthy your consideration whether, upon such an exception being taken before you in your judicial capacity, you would not be obliged to decide against the law, and declare it a nullity.

I agree to the militia law fully, under the impression of these sentiments, because the necessity of self-defense must supersede other considerations.

In the Code of Pennsylvania, under the titles Register of Wills, Intestates' Estates, and Orphans' Courts, there are many excellent regulations; by striking out such parts as do not apply to the circumstances of the district, and adopting the rest, I believe we 'might publish a very excellent law upon the case before us that would be within our powers. One thing more in the law I have been considering. It appears a little incongruous that the writs to be issued by the judge of probate for carrying his sentence into execution should be returned into the Court of Quarter-Sessions.

The Court of Probate is a court of record, and the proper depository of every thing relative to the proceedings in it.

I have taken the liberty to send you the Pennsylvania volume that you may examine the laws referred to above, if you should think proper, at your leisure. You will find them in the folios 30 to 33, and 70 to 73.

JUDGES PARSONS AND VARNUM TO GOVERNOR ST. CLAIR.

MARIETTA, 31st July, 1788.

Sir:-We have received the letter which your Excellency did us the honor to write to us of yesterday's date. The many important observations it contains have received from us all the attention of which, under the present circumstances, we are capable. Three questions of serious magnitude seem to be presented for consideration: Whether in the adoption and publication of laws, we were literally confined to the laws of the old States?

Whether in the forming or transcribing of laws we should connect, with general subjects, all the particulars that may have relation to those general subjects?

And, how far the particulars suggested respecting a probate law should have influence?

The Ordinance of Congress empowers us to adopt such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district. Admitting a strict and literal construction should be given to this clause, the purposes of the Ordinance in general would be defeated. In the settlement of a new colony, and, indeed, we may add, of a new world, a variety of prospects and objects arise, to which old countries must be strangers. Perhaps in their infancy their laws might have been suited to our situation, making allowance, however, for the progress of civil society; but the original States have revised their laws, and conformed their present codes to their present situation. Hence, it will be found that it would be out of our power to make the absolutely necessary regulations for protecting the persons and securing the property of the natives, and for preventing those unwarrantable intercourses, which might perpetuate their jeal-. ousies instead of conciliating their affections. There are ties, connections and subordinations in the nature of a colonial government, which did not exist in sovereign States. Laws must be applied to these, or the very existence of the government may be endangered. We are sensible these observations rather tend to evince what the

powers should have been than what they are. But we conclude they could not have escaped the notice of so wise a body of men as the framers of the Ordinance. If the clause in question admits of dif ferent constructions, we ought to adopt that which will best promote the purposes of the settlement. It was made pro bono publico, and therefore ought to be liberally expounded. We think it will admit of two constructions. One, that we can adopt entire laws of any of the old States literatim et verbatim, mutatis et mutandis for their State only. The other that we may admit such parts of any particular law as will be necessary, etc. If so, why will it not admit of another construction, that we may adopt a law, consisting of different parts of laws of any two or more States upon the same subject? And if this be granted, surely the diction ought to be rendered uniform. The intention, sir, of the legislature in framing a statute or ordinance will greatly assist us in the legal construction. The intention of Congress was undoubtedly to give every possible kind of encouragement to the growth and prosperity of the colony here, that it might rise into a State or States, and take an equal station in the general confederacy. To this end there must be laws, and laws conformable to the Constitution of the United States, and consistent with republican principles. These precautions were necessary during the temporary government, to prevent the adoption of laws that might support the principles of a monarchy, and, in the end, cause a separation between the old and new countries.

We presume, therefore, with great deference to your Excellency's opinion, that the following is the legal construction of the Ordinance: To adopt such laws as may be necessary and best suited to the circumstances of the district; provided, however, that such laws be not repugnant, but as conformable as may be to those of the original States, or of some one or more of them. This construction, it is true, admits the exercise of a legal discretion. But the exercise is checked by the tenures of our commissions, the necessity that the governor and two of the judges, or that all the judges, must agree, and the final negative of Congress. If this construction be not admitted, we feel ourselves involved in difficulties that may prove insurmountable. For a time, we must confine our legal operations to the principles of the Constitution, and the common law only. For to extract from the laws of some of the States, and not to have the power of extracting from the laws of all of them, would confine us to narrow bounds. Nor, in our apprehension, upon the literal construction, would necessity justify, or even excuse us in publishing a law not conformable, in all its parts, to some law of an original