State. Necessity may, in law contemplation, excuse an act which otherwise would be unlawful. But such act, so to be excused, must result from individual exertion upon a pressing and inevitable occasion, or from the intervention of the executive branch of government under similar circumstances. Then the maxim might apply, "Necessitas non habet ligem."

But, admitting the position, that necessity may justify the adoption of a law not within the literal construction of the Ordinance, then it goes to all cases; for the adopters and publishers can have the only legal power of judging of the necessity, and as their judg ment may extend to all cases, they might enter into the principles of despotism. Were we to be confined for any length of time to the principles of common law, we are fearful of very precarious consequences. The common law, as adopted in the States, while colonies, entered essentially into the principles of monarchical government, and therefore can not, with propriety, be applied here.

But upon the present view of the subject, the common law must be

applied, or the actions of men be left to the direction of natural licentiousness. There are many cases of evident utility to which the common law doth not extend. The cases of last wills and testaments; intestacies in cases of personal property, and all the consequent distributions of estates. Neither do we conceive that the matter can be varied by Congress, by a new ordinance, or by a declaratory act. As to the first, the Constitution must be considered in the light of a compact between the United States and all the settlers. Without the express consent, therefore, of both parties, it can not be altered, and, as to the second, a declaratory act can not vary the legal construction of a pre-existing law. Nor, indeed, can we perceive how it can be applied at all in the case of charters or national compacts.

When your Excellency shall have made up your mind upon this part of the subject, we will enter into a discussion upon the second question; and as that may be decided, animadversions may, or may not become proper upon the third.

We are fully impressed with the delicacy of your Excellency's situation, and are not unmindful of our own. We should be unhappy indeed to subject ourselves, in matters of such importance, to the censure of the sovereign power, but as our opinion in this instance results from legal information, so far as we possess it, we feel ourselves, as law judges, above the reach of reprehension. Our gratification will be great indeed, if by conference, or otherwise, we

can, with your Excellency, surmount the present embarrassment. Our duty, as well as our warmest personal attachments, prompts us to concur, in every practicable legal measure, to promote the public good, and render to your Excellency entire satisfaction.

GOVERNOR ST. CLAIR TO JUDGES PARSONS AND VARNUM.
FORT HARMAR, August 1, 1788.

Gentlemen:-I have received the letter of yesterday's date which you did me the honor to write. If your honors will inform me of the precise meaning you affix to the word "law," as expressed in the clause of the Ordinance of Congress, referred to in your letter, I shall be better able to explain my sentiments upon the different matters you have opened, which I shall do with the utmost freedom, but not to each other, which is a kind of correspondence that could not be agreeable to either.1

GOVERNOR ST. CLAIR TO JUDGES PARSONS AND VARNUM.

FORT HARMAR, August 7, 1788. Gentlemen:-I was in hopes that my being informed of the precise meaning you had affixed to the word laws, as used in the Ordinance of Congress, which empowers the Governor and judges to adopt and publish such of those of the original States as may be necessary and suited to the circumstances of the district, and, as it is used in your letter of the 31st of July, would have thrown some light upon that letter and shortened the answer I should be obliged to make to it. I must have been very unfortunate in the manner in which I expressed my wish to know what that meaning was; for the word in the Ordinance is clearly distinguished from the codes or bodies of laws of the original States, indefinitely as they refer, in their general nature and spirit, to the vast variety of subjects about which they are conversant. I can not find how this explanation applies. I will not, however, trouble you any further about it, but proceed to reply to the letter.

I observe you say it is one of the questions arising out of mine

1 The reply of the judges, dated August 2d, was:

“The ideas, sir, that we have adopted are that by law is meant the legal codes or systems of the original States, in their general nature and spirit, indefinitely as they refer to the vast variety of subjects about which they are conversant."

of the 30th, whether, in forming and transcribing laws, we should connect with general subjects all the particulars that may have relation to these general subjects. Another is, how far the particulars suggested respecting the probate law may have influence with you, gentlemen, I know not; they have very great with me.

In forming laws on general subjects, it may be difficult to connect all the particulars that may have relation to those general subjects. So far, however, as it is possible to recollect all the particulars, it should be done; and these particulars be inserted in and become parts of the same law; and after all the attention legislators can pay to the particulars, it will almost always be found, when the laws are put in operation, that many things have been omitted, and consequently must be supplied, and frequently from their taking a different direction from what was expected and designed, explained. Forming and transcribing laws I take to be two very different things. In transcribing laws (which expression, to give it meaning here, must be referred to the laws of some of the original States that may be thought proper to be adopted), I presume we must take them as we find them, so far as they apply to our circumstances. There is another circumstance besides which influences me not a little. It was hinted at only, and distantly; it may now be proper to mention it expressly.

When I have bound myself by law to the execution of an office, unless the powers and duties of that office are detailed in the law, a difference of opinion respecting those duties and powers may arise, and I run the risk of being obliged to be guided entirely by the rules of common law, should it be an office known to the common law; or if it is not known to the common law, by rules that I may think impose either too much or too little restraint. To this risk I am not willing, nor is it proper, to expose myself, because I should thereby lose the control which I think the Ordinance has given me in all cases. Here, again, I am afraid I have the misfortune to differ in opinion with your honors; for, from another part of your letter, it seems to be your opinion that, where three of the judges agree in adopting and publishing a law, it will acquire the requisite validity without the consent of the Governor. The passage in the Ordinance is in these words: "The Governor and judges, or a majority of them, shall adopt and publish," etc.

It is true the punctuation would favor the construction you seem inclined to put upon it; but I believe it is not the true sense, and that Congress intended the assent of the Governor should be necessary to all laws adopted during the existence of the stage of the

temporary government, as well as to all laws formed by the General Assembly after it shall have been organized. I conceive, gentlemen, Congress thought there would be an impropriety in leaving the adoption of laws by which the people of the district were for a time to be governed solely to the persons who were to expound them; much greater, however, would that impropriety be if the clause of the Ordinance goes not only to adoption, but to the formation of laws. The judges would in that case be complete legislators, which is the very definition of tyranny; and though that arrangement might in your hands, gentlemen, produce no evils, no man can tell how long this stage of the government will last, or who may be your successors; nor could it fail to produce much uneasiness in the minds of the people over whom so, possibly, oppressive an authority was established.

Your honors, in another part of your letter, have supplied a proviso to the Ordinance to elucidate the meaning of this clause in another point of view. Permit me to suggest one in the present. The Governor and the judges, or a majority of them, provided the Governor be one of that majority, shall, etc.

With this proviso I believe we shall have the true construction, and also the legal; for, if I mistake not, it is a legal rule of construction to give every part of an instrument such an explanation that one uniform sense may result. The assent of the Governor to laws formed by the Assembly is made unequivocally necessary. The reasons are at least equally strong why it should be necessary to those adopted by the judges. But without the proviso, only change the place of a single comma, and the same effect is produced; and it is not improbable that it may have been misplaced in transcribing the Ordinance. That "people in a new country have some different prospects and objects from those who inhabit an old one," is certainly true; but how the change of objects can affect the regulations that are necessary for preventing crimes and protecting property, I own I can not conceive. As to the natives, they are generally under the protection of the law of nations; but in the codes of more than one (of one I am certain) of the States, excellent laws may be found for "preventing unwarrantable intercourse," for "securing to them their property," and for "conciliating their affections." Though these laws, from a change of circumstances, may have gone into disuse, they have not, I believe, undergone a formal repeal, and, consequently, lie open for our use should the liberal construction of the clause prevail.

I acknowledge that I do not perfectly understand what is meant

by the "Ties, connections and subordinations" that are said to exist in colonial governments, and to which laws must be applied. I do not take these "ties," etc., whatever they are, to be at all the objects of laws; "the existence of government might indeed be endangered."

No law which would have a tendency to weaken or destroy the ties, connections and subordinations of this district in the United States could, consistent with our duty, be either formed or adopted, and laws that might have an express and declared purpose to strengthen those ties would, in effect, weaken them, because they. rest upon a different foundation, which every such law would tend to sap. It is unsafe ground, and ought not to be traveled upon. I presume not to say "what the powers ought to have been." As they are, and as I understand them, they seem calculated to answer all the purposes the "framers of the Ordinance" could have had in view-to provide for the safety and happiness of the people who might remove into this country, and to protect their property until they should be sufficiently numerous to legislate for themselves; and to preserve them in a due dependence upon the general government.

I agree with you, gentlemen, that the clause in question, and every other clause in the Ordinance, should receive a liberal construction, wherever they are in the least doubtful; and, as it in some measure partakes of the nature of a charter, is to be expounded favorably to the grantees; but it is one thing to construe a grant liberally, and another to add to the grant by construction that was never in the contemplation of the grantor; and this is precisely what I think would follow should your opinion on the clause be thought the best. That we may adopt entire "laws of any of the old States," if we think they suit our circumstances, there can be no doubt, for that is the genuine and liberal construction of the clause. That we may adopt such parts of any particular law" as may be necessary, is within the spirit of it. That we may make a law (for here the word "adopt" will not serve us) consisting of the different parts of laws of different States, and change the diction, I believe we have no power to do. I can not discover the least difference between this and legislating originally, which, so far from permitting us to do, in my opinion, it was the design of Congress to prevent.

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I am certain, gentlemen, that Congress had the best and kindest intentions towards the Colony, and, for that very reason, directed us to laws the usefulness of which had been stamped by experience, and to prevent the introduction of laws that might not be "con