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AND
GEORGIA
BY T. S. HANNON.
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XT In this paper the Laws of the United States
(fe published.
!■ hii«iwi mmmmm——m
An Englishman’s idea of America.
From the Philadelphia National Gazette.
“Two Years, Residence in the Settlement of the
English Prairie in the Illinois Country, United
States. With an Account of Us Animal and Veee
taole Productions, Agriculture, Ac. Ac. A descrip
tion of the principal’Towns, Villages, Ac. with the
Habits and Customs of the Back Woodsmen. By
John iVo odi.”
At the conclusion of our second article respecting
the book of honest John Woods, we left him In the
English prairie in Illinois, where hchad just arrived.
After looking about him for some days with the in
tention of buying land, he bought a considerable
■ farm at Birks prairie, four miles south west of
Wauborough, Mr- Birkbeck’s settlement with much
live stock slock, ami a great quantity of produce in
the ground. Mr. Woods appears from the extent
dfhis purchases, to be a man of substance. He
describes, in detail, Mr. Birkbeck’s and Mr. Flow
er's sett'ements, and treats fully of the character of
the soil and climate of those settlements and the
adjacent country. The construction and internal
arrangement of the log cabins are minutely explain
ed. “IBooks to doors,” he remarks, “are nearly
unknown; but wooden bolts are common with the
English: many of the American houses have only a
latch, and some have not even that.” In this ac
count of the live stock of the farms, the following
paragraph may be noted:
“Beasts, sheep, are all marked in their ears, by
Cutting or notching them in all possible directions
and forms, to the greatest disfigurement of many
of *'i-ui; vet these marks are absolutely necessary
in tni. wild country, where every person’s stock
run at large; and they arc not sometimes seen by
their owners for several months, so that without
tome lasting mark it would bo utterly Impossible to
know them again. Most people enter their marks
wi,i the clerk of the county in which they reside,
stmt no person is then allowed to use the same
marks, if living in the same county, and within five
miles of the person who has previously entered the
same marks. The county e'erk’s fee for entering
the mu: kis twelve cents and a half. And no person
is allowed to dispute his marks with another of the
sane marks, unless his ure also entered at some
county office.”
Mr. Woods adverts to the prejudice of the Ame
rican against mutton as an article of food.—“ Many
of them, who in the summer are sometimes short of
meat, when their bacon is exhausted, would live on
coca bread for a month, rather than eat an ounce of
mutton, veal, rabbit, goose, or duck.” This anti
pathy does not appear to prevail on this side of the
mountains.
“ A hog,” he says, “ of 20011)«. weight is here call
od * fine* chunk of a fellow. Many of the Ameri
can' tie a bell round the neck of one of their old
ho s, to keep the gtinj as they cull it, together.—
V\h are generally killed by the seller, ma after
thev are scalded they are carried to the buyer, as
it is very difficult to drive wild pips l« a country
• like this —And as to Ibe fattening bestowed on them,
it oulv en titles them 10 run much taster than they
ever could before.”
Wild beasts and reptiles, according to .Mr.
are but little more thought of or dreaded, where lie
is, than in England; game of every kind is in the
utmost abundance, and, as to gome-laws —under
which thousand of cases of imprisonment and
transportation occur annually in England—the con
dition of tilings may be known from the following
quotation,
••Sapt. Ist No bustle to-day as in England, as
we have no game laws, and tho lime 'll sporting
la.*s from the first of January to the last day of
December; as every person has a right of sporting,
on all uniuclosed land, for all sous of wild annuals
and game, without any license or qualification
as to property. 'The only qualifiications re
quired here, are a good rille, and a steady hand and
eye. Many of the Americans will hardly credit
you, if.vou inform them there is any country infhe
world where one order of men are allowed to kill
and eat game, to tnc exclusion of all others. But
xvhcu you toll them that the occupiers of land are
frequently among this number, they lose all pa
tience, ■ nd declare they w ould not submit to be so
imposed on Here if game do a former any mis
chief, he may destiny it by night or day in any
manner lie may choose, without fear of fines or
penalties; and he is in no danger of offending his
neighbor by so nomg. And it lie should kill any
gn me, he may dispose of it at public or private sale,
li . i inclined. Norare there here any excise laws;
a person may make beer, leather, spirits soap, can
dles, Itc. and not be troubled with excisemen; he
juav likewise turn auctioneer, or any other culling,
Without a license.”
The must valuable grasses grow spontaneously,
and wheat has been begun to he cultivated largely.
*, The Americans usually halp eachother to cut their
wneal, us they are fend of company when at work.
this they return at some future time in the same
way.”
Extract from the above work.
“ With regard to the language of
this country, 1 have found no difficul
ty to understand any of the Ameri
cans, 1 have met with a few words
o ily excepted. I have seen several
from England, that came from a dis
tant part from that in which I resided,
that 1 have had far more trouble to
Understand. Yet the manner of dis
course among the true back-woods
inen is rather uncouth to an English
ear. I will attempt to give a speci
men of it, in a conversation between
two of them who met each other on
the road ; one an Esquire, the other
ajudge.
Esq.—Well, Judge, how do you
do ? I hope you are well.
Juoge.—Well Squire, I am tole
rably bad. How do you do ?
Esq.-— I Well lam a heap better
than I was ; but I have been power
fully sick lately.
Judge.— But, Squire, you have a
powerful chance of plunder on your
creature, what are you going to do
with it ?
Esq.— Well, I am going to town
with a tolerable chance of plunder to
get it carded at the mill.
Judge. —Well, so you have got
your wool to be carded ; I could not
calculate what truck you had got.
Esq.— Well, I fancy you have
been to town. How goes times
there ? .
Judge. —Time are dull; I calcu
lated to sell my creature there and
then when I got home, to turn in and
i earn some money to get me another.
E sa . —Well, as you could not
r trade away your creature you must
turn in and work as well as you can.
s I also must turn in and build a cabin
s or two, to raise a little cash.
. Ja.OE.-WeU, Jaskf, I b SfeS
- I* -~-d •• vvmc (iIiJC.
Esq.— Well, Judge, I also have
' hunted steadily ; and I calculated to
make a heap of money of my truck,
but I have got none.
Judge. — Well, what truck have
you got, to trade away to make mo
ney ?
Esq. —l have got a few beefs; and
a tolerable chance of corn.
Judge. —Well, I have also got
some beefs, and a chance of corn,
and some wool, that I must toat to
town and trade away.
Esq. —Well, Judge, I must go on
and toat my truck to the mill and
flien get right strait home.
Judge. —Well, I must also get on,
ai my woman is powerfully sick and
tfeak, and I am fetching her some
' whiskey.
Esq.—Well, but Judge, where did
you get your creature ? It is a pow
erful fine looking one.
Judge. —Well, Squire, mine is a
great little horse, I bought him of our
general; but I must be going; fare
well.
Well, begins most sentences. Plun
der and truck include almost every
thing. 4 horse is general called a
creature. Beefs are cows Toat
means to carry any thing. Strait
and turn in, are words they frequent
ly use. Woman, —they always call
their wives their women. Many of
them, instead of saying yes, make a
sort of noise, like 44 him, him,” oi
rather like pronouncing, “m, m,”
with the mouth shut;
In this remote part of America,
judges, generals of militia, colonels,
captain?, nuU cstjuiit's, are not gene
rally men of property or education ;
and it is usual to see them employed
in any common kind of labour. Yet
I have seen men among them that
possess very good abilities; far from
ignorant, and much better informed
than could be expected from their ap
pearance.”
PROM HOLMESES ANNALS.
4 Selected far the Democratic Press.]
n 16G5 the governor of Rhode
Island passed an order to outlaw all ,
Quakers, and to seize their estates,
because they would not bear arms.
The order was resisted by the People
so successfully that it was never car
ried into effect.
In 1669, the Legislature of Caroli
na passed a law, entitled 44 An act 1
concerning marriage” which de
clared that, “ as people might wish to j
marry, and there being no ministers,!
in order that none might be hindered j
from so necessary a work, for the 1
preservation of mankind, any two,
persons, carrying before the governor
! and council a few of their neighbors,
, and declaring their mutual assent,
shall be deemed man and wife.”—
Chalmers observes that, 44 during al
most twenty years, we can trace no
thing of clergymen in the history or
laws of Carolina.”
In 1681, Charles 11. gave to Wil
liam Penn thy charter of Pennsylva
nia ; he invited purchasers, and that
year the first colony from England
arrived in Pennsylvania, and “ com
menced a settlement above the con
fluence of the Schuylkill with the
Delaware.” The next year, Penn
himself, with more settlers, chiefly
Quakers, arrived in Pennsylvania.
The first assembly of Pennsylva
nia was holdcn in Philadelphia March
12, 1683. A number of German
Quakers this year arrived, and settled
seven miles north of Philadelphia,
and called their settlement German
town.
Lord Efllnglunn was this year
(1683) appointed governor of Vir
ginia, and expressly ordered to allow
no person to use a printing press on
any occasion whatever.
The governor of Massachusetts,
(1690) having no money to pay their
troops, there was danger of a mutiny, j
to avert which, they issued bills of
credit.—This was the first paper
money issued in the colonies.
The imputation oi witchcraft, ac
companied with a belief of its reality,
was this year, (1(592) very preva
lent in Massachusetts. The conta
gion was principally confined within
the county of Essex. Before the
close of September, nineteen prison
ers were executed , and one pressed
to death, all of whom asserted their
innocence.
In 1692, the Legislature of Massa
chusetts passed an act prohibiting any
of the French nation to reside, or be
in any of the seaports or frontier
i towns within the province, without
license from the governor & touncil.
FROM A LONDON PjPKR.
Mr. Mathews. —This! celebrated
, comic genius, having bjen many
years before the public aid devoted
himself to the highest rani in his pro
| session, in the year 1818, it the sug
i gestion of Mr. Arnold, tl: proprie
tor of the English Ope i House,
' bade adieu to the dramatic tage, and
, resolved to travel singly , lit in a so
ciable (not sulky) as the Jtader well
’ knows. Dibdin of sans hud me
mory George Alexaudd Stevens,
and U ~ J “ M inct w/th success
1 in the same mode previa^r.-,
» uhout detracting from tb* ability of
. those gentlemen, there '* B a * act — a
, close observation or character—a
fund of whim aboi/'^ r> Mathews,
which mast have insured him still
greater popular#.
Mr. Mathew* started with his Mail
Coach Advejdures, a selection of his
own, the sebgs written principally by
Mr. Jajaes Smith. The entertain
ment immediately became what is
technically termed a hit —the fashion
flocked to laugh, and an immense
sum was received, during forty nights,
in which it had an uninterrupted run.
The following season, 1819, Mr.
Mathews introduced the Trip to Pa
ris, and La Diligence. These en
tertainments immediately gained the
favour of the town, and 40 nights
more of crowded houses, magnificent
ly paid proprietor, actor and authors.
The Trip to Paris, &c. were written
by Mr. J. Smith, assisted by Mr.
John Poole, the author of Hamlet
Travestie.
In the interval between the sea
sons, Mr. Mathew’s, time is plea
surably and profitably passed in vis
iting the principal provincial theatres,
where his success keeps pace with his
London popularity.
In 1820 the new entertainment
was called “ Country Cousins,” in
which Mr. Mathews undertook to
shew some relatives the sight of Lon
don. This season’s production,
though highly attractive, was not so
fully attended as in tiie former years.
This piece was written also by Mr.
James Smith.
Mr. Mathews’s season coming on
again I Ow I j <1 w its 3lcin>
ed in the choice of a subject, for the
exhibition of his extraordinary tal
ents. His author hit upon the pro
ject of sending him up in a balloon—
and Mr. Smith furnishing the gas,
Mr. Mathews found no difficulty in
raising the wind.
Being carried from home, & thro ’
a great variety of whimsical adven
tures, it was found necessary to bring
him back again. The a Polly pack
et” was constructed for that purpose,
in which Mr. Mathews represented
himself and all the passengers;—his
personations of the sea-sick French
man and his little dogs. Major
Longbow, Daniel O'Rourke, Theo
philus Tulip and his mamma, can
never be forgotten by the lovers of
i genuine humour and laughter. This
I last piece was the production of Mr.
R. B. Peake, the treasurer of the En
; glish Opera House, and the author of
i several successful dramas performed
j there.
i In the present year 1822, (the
i fifth of Mr. Mathews’ appearance)
it was supposed by the theatrical
world impossible that the interest
could be kept up, to induce Mr. Bull
and his family again lo find them
selves happy AT HOME ; —But the
ingenious and judicious choice of the
subject “ the Youth ful days of Mr.
Mathews,” related by himself, has
again attracted all London. Mr.
Mathews’ patrons had hitherto been
drawn together by, fictitious adven
tures —but the matter of fact of his
own history, the way it has been put
together, the excellence of its delive
ry, the whimsicality of the songs,
with the neatly contrived acting
piece ‘ STORIES’ with which he
concludes his entertainment, have
rendered this, the fifth year, the most
productive that has yet occurred.
The entertainment of ‘ the Youth
ful Days of Mr. Mathews’ is the
joint production of Mr. R. B. Peake
and a literary friend—and the after
piece ‘ Stories,’ was invented, writ
ten, and solely contrived by Mr.
Peake.
Mr. Mathews purposes to sail for
the United States of America, in the
month of July; and with his vast
power of multi formation, being like
St. Paul, all things to all men, there
| is little doubt that he will be at home,
and all that sort of thing, and every
thing else in the world, to our trans
atlantic kinsman. If it was lawful
and fitting to jest on so grave a sub
ject, we might express our confidence,
or say, in the American phrase, “ we
gmss” that Ills gaiety will have a
strong tendency to relieve them from
the weight of a .great many Dolours.
. From the Kew-Yorh Daily Adcertiser.
} No more just or mor<Ustriking de
scription of the disease that now a
. harms and distresses the inhabitants
of this city could be given, than that
’ contained in the language of Scrip
ture “ The pestilence that walketh
[ in darkness.” Whether it was in
tended by the sacred writer to apply it
to any particular malady known to the
Eastern world, or to the pestilential
diseases at large, this peculiar chrac
-1 teristic is equally applicable to both,
f and to none probably more than to
1 that which exists in our immediate
- neighborhood.
- In the year 1793, the city of Phi
- ladelphia was visited in a most awful
, manner with this desolating evil—in
1 1795 and 1798, this city experienced
- the same afflicting calamity. The
I origin and nature of the distemper
■ immediately became subjects ofdis
, cussion among the faculty and others,
i and us often as it has appeared in
. nnsiji! CHIPS, and in r l **".
f same questions have been agitated
i with much earnestness and labour,
i and still, as far as we have been able
, to ascertain, nothing has been satis
l factorily settled between the parties,
the origin of the disease is just as
I much a subject of dispute as it was
> five and twenty years ago—the same
’ zeal, the same warmth, is manifested
• in support of different theories, and it
i is now just as much a matter of un
i certainty whether it be of foreign or
■ domestic origin as it was in 1795. —
, In this point of view, this t( pestilence
. walketh in darkness,” and probably
will continue to do so for years to
■ come.
The nature and character of the
: disease appear to be but little better
; understood. Mankind have learned
• but little more, after so long and of
ten repeated experience, than to shun
i its approach, to flee when it draws
near them. But whether it be con
! tagious, or infectious, or neither, are
still points of controversy, and as far
■ as we can discern, are likely to remain
■ so. And whatever the more wise and
■ learned may imagine with regard to
i their own attainments, it may truly
■ be said, as it respects the great body
of the people who rely upon their
own common sense, judgment, obser
vation, and experience, in the above
-1 mentioned particulars, this “pesti
■ lence walketh in darkness.”
< The progress of disease is another
• point altogether inscrutable to human
• intellects.—Heretofore it has usually
. made its appearance in the filthy
parts of the city, near the docks,
i where the otmosnhere hi ,rl k "~—
■ previously impure, and predisposed
; to the reception and propagation of
■ such a disease. This year, as a gen
■ eral remark, it has been otherwise.
■ Unless there was some specific local
, I cause near the foot of Rector street,
i that street, and the adjoining ones
where it first prevailed, are among the
• cleanest in the lotver parts of the city.
■ And if the particular nuisance that
lias been said to exist in the early par
■ of the season in the neighbourhood of
, Rector-street was actually there, it
i j still remains a mystery how so small
5 a number of cases as at first occurred
■ in that region, could have contami
’ nated the atmosphere there, and in
- the open streets adjoining, to such a
• degree as to have rendered it unsafe
f for a person even to pass through
• them. Much more extraordinary is
• it, that when once thus contaminated,
• no change of weather short of a se
f vere frost is sufficient to purify it.
I Neither rain, nor wind, nor thunder
and lightning, appear to have any
! tendency to produce a salutary effect,
) but the whole region is so impure,
I that though deserted by the inhabit
l ants, and likely for weeks to come to
I remain in that situation, no person
■ can without great hazard visit “ the
1 infected district,” before it shall be
- purified by frost. This may for aught
• we know, be explained to the satis
> faction of individuals, but to the pco
• pie at large it is, we believe, involved
1 in profound darkness.
Os the effects of this dreadful
> scourge to our city, we have evidence
- enough—they are strictly in conform
■ ity with die remainder of the scrip
> tural description—“ It wasteth at
noonday.” As a judgment, it must
! be acknowledged by all to be of the
■ most distressing and afflicting charac
: ter, one that must be ranked among
those which are universally consider
• ed as of the heaviest kind—such as
1 famine, earthquakes, and an invading
! enemy. The minds of the inhabit
■ ants that are left in the city, cannot
• fail, in the silence and solemnity of
the Sabbath, to be deeply impressed
with this general subject. Their al
most deserted streets, their closed
1 churches, and their anxious forebod
■ ings of the future, all combine to bring
• it home to their bosoms with peculiar
■ emphasis. The more they reflect the
, more they reason, and the more ex
tensive their experience, we are per
■ suaded the more certainly they will
1 conclude, that (l The Pestilence walk
■ cth in darkness.”
i An article in an Alabama paper,
after allowing to General Jackson all
the credit awarded to him by his
country, for lus military services, but
declaring him not so well qualified to
act in a civil capacity, concludes
with expressing a hope that u if he
he made President, he will hang ever
J ry scoundrel in Washington within ,
fve mihutes after his inauguration.”
■ [Nat. Intelligencer.
1 [He would hardly do this, as it is j
■ presumed he would not like to live j
t in a deserted city.]
>1 J
- gHUPMitA*
! THURSDAY, SEPTEMBER 26, 1822.
* -
. Mr. Hannon,
I The following opinion was pro-
I nounced by Judge Charlton, at the
J i late term of Columbia Superior
r ! Court, and is published at the request
-1 of some of the gentlemen of the bar.
} i It is proper to remark that, by con
| i sent of parties the cause was continu-
I I ed after the Judge Han given a pretty
, 1 clear Intimation of what his decision
: I would be, if forced to make one.
'! The opinion was therefore pronouno
’; ed merely as an exposition of the
i law upon the points submitted.
It,
t vs, > Mai; Pros :
B. )
• By Thos. U. P. Charlton, Judge,
This action is founded on an acquittal
, for the charged offence of perjury, and
' the introduction of the exemplification of
the indictment and verdict as evidence is
> objected to, because there is no order of
the Judge, before whom the case was tri
. ed for such copy.
The reasons assigned for the objection
. is, that in every case of felony, the party
who intends to sue for the malicious pro
■ seculion, most obtain leave from the
I Court, lor a copy of the indictment. Two
i questions then present themselves fur
consideration ;
Ist. Is a judge’s order for a Copy of
' the indictment, in a case of f'lony, ne
cessary to the support, or rather main
-1 tenance of an action of Mai; Pros:
1 founded on an acquittal of that felony ?
) And 2dly. Is perjury a felony, under
the jurisprudence of Georgia ?
' 1. It is declared by the authorities, to
' which counsel in this case, have referred,
• —that the records of the British Courts
. are accessible to the inspection of any
subject for his “ necessary use and be
nefit”—and this inspection, would seem
to mean a right to demand copies of
them, if copies should be required for
• the “ necessary use and convenience “of
! the subject. The inspection allowed by
r the Parliament of Edward 3rd. involves
the correlative right of a copy of the Ju
' dicial record.—Phill : Ev : P. 322. 3
. inst. 71. Pref: to 3 Rep: P. 3, 4—as
. l.„ PKiJljps
1 This genera/ ngnl however of obtain-'
I* ing a copy of the record is restrained
says the authority “ in the case of an ac
quittal on a prosecution for felony,”—in
• which case, if the trial is at the old Bai
-1 ley, a copy cannot regularly be obtained
without an order from the Court.”—Di
! ructions prefixed to, Kelyng’s Rep : P :
3, order 7.
f Some of the Judges in the reign of
Charles 2nd, legislated on the subject,
t and required, that such an order should
. be obtained.—And it is laid down, “ as a
- general rule of law,” by C. J. Holt,
that “on an indictment and acquittal for
t felony, the party who intends to sue for
I a mal: pros: must obtain leave of the
1 Court for a copy of the record.”—l. La
. Rayne : 253. Phillips says that the rule
of the Judges (that 1 presume, adopted
at the old Hailey,) states, “ that an ac
-1 tion against a prosecutor cannot be main
i tained, without a copy of the indictment,
1 and that a copy is not to be given, with
s out an order of the Court.
We have it then as established law,
’ down to the epochas of the rule at the
' Old Bailey, and the reiteration of that
. rule, by Holt, Ch : J ; of the Court of
r King’s Bench, as announcing “ the geue
r ral rule of law,” that au action against
the prosecutor cannot be maintained,
’ without a copy of the indictment, obtain
> ed under leave of the Court.
It was also adjudged by Lord Mans
j field : “ that where a person was indict
j ed for felony, it was necessary, that a co
n py of the record should be granted by
the Court, before which the acquittal was
e had, in order to ground au action for a
1 mal; pros :
If it is said, that the Reports of Black
. stone are ofinferior authority to his Com
j menlaries, it will be found, that the re
ported adjudication of Lord Mansfield,
and the text of the Commentaries, are
1 perfectly reconcilable—for the commen
-3 taries declare, “ that where there is the
, least probable cause, the judge will de
ny a copy of the record and if it is de
’ nied, according to the dccidon es Lord
• Mansfield, there is no basis for the action
tof mal: prosecution. In opposition to
? these authorities, the counsel for the
. plaintiff' referred to the case of Legatt.
r rs. Follervy, hi* which, a copy of the in
> dictment was not allowed to be read, be
' cause there was no order of the court,
> and therefore a nonsuit was entered.—
r But the Court of King’s Bench, through
. the medium of its C. J. Ellenborough,
. set aside the nonsuit, not upon the ground
J. that the rule at the Old Bailey was notin
' force;—not, that the decisions of Holt
I and Mansfield had not truly announced
. that rule as general law; but that a co
| py of the record ought to be read, be
came it torn offered in evidence, and if the
order of the court had not been previ
> ously obtained, why, the officer of the
r court furnishing a copy, had been guilty
; of a contempt, in doing that, which he
. ought not to have done—and for which
of course be subjected himself to punish
" meat; —yet, that this contempt and offi
• cial transgression, ought not to deprive
- the plaintiff of its benefits as testimony,
14 East. 302.
Upon this adjudication, iff am not mis
taken, the counsel for the plaintiff rested
I his chief hopes for the admissibility of the
copy of the record, as evidence. He
5 might have gone further and ostensibly
1 supported tills esue by other authorities.
In Brangam’s case, Willis C, J - Rh
ported to have said, that by tb c
the realm, every prisoner, up ott l/HSI
quittal, has an undoubted right UHS
to a copy of the record, for any use wH
he may think proper to make of it ■VB
that after a demand, the proper
might bo punished for refusin'*- to nHI
out a copy. This case is however
authority, for subsequent to it tve iSkI
las J ustice Noll has said in the r c , 0|
the constitutional court of our
1 State, “ the Old Daily rule was re HE
lished by order of the Court.” ‘■H
We have then only to contend withflEl
case of Jordan vs. Lewis—Lord
borough’s decision in East, and the oHB
ion of Phillips, (the compiler of the [flfl
of Evidence) “ that the rule laid dolß
(in Jordan vs. Lewis) is the corral
rule.” In that case, “ the order
at the Old Bailey was there read by
of objection to the evidence offered ; «H|
the Ld : Ch: J ustice Lee in that
said, that he could not refuse to let tjHf
plaintiff read the copy of the indichm-uH
though obtained without auy order H
the court for that purpose.” S
From the authorities thus collated, fl
would appear, that the rule at the (Jifl
Bailey is only assailed by the casts J
Jordan vs. Lewis, and the very modern
decision of Lord Ellenborough.
counsel for the plaintiff in another case
almost immediately preceding it, had tul
deavored, or was about to endeavor to
shake a Nisi Trios decision of the same
Chief Justice Ellenborough, upon the
ground, that it was modern law— no t iu
corporated into our jurisprudence, and
therefore repudiated from our judicial
system. I willingly assent to this doc
trine, whenever the modern adjudica,
tion subverts the antient common law of
adopted statuary principles, instead’of
explaining it. This decision in East does
subvert the antient principle—ackucw.
ledges too, its violation of allegiance, and
only justifies the treason by a sort of
commisseration for the plaintiff, who is
permitted to give that in evidence, which
he has obtained through a punishable
breach of duty, of the officer affording it.
This case bows to the authority of Jor
dan vs. Lewis, and as Jordon vs. Lewis
is in hostility with the rule at the Old
Bailey and other anterior cases, it must
also be rejected as the incorporated law
of Georgia.
Policy and justice are too, on the side
of the rule at the Old Daily, and are
sensibly assigned in the reason for the
adoption of the rule thus consecrated by
the opinions of Holt and Mansfield; ‘-for
the late frequency of actions against prose
cutors (which cannot be without copies
of the indictment) deterreth people from
prosecuting for the King (and we may
here say the Republic) upon just occa
sions.
2ndly.—lf for pilure of land or goods,
as urged by plaintiff’s counsel is the cri
terion for the ascertainment of felony,
then it is admitted, at least by me, that
there is no felony in this Stale, ' Black
stoue says that the true criterion of felony
is forfeiture. The punishments of perjury
(continues this author) was anciently,
death ; afterwards banishment, or cut
ting out the tongue; then forfeiture of
goods, and now it is fine and imprison
ivw-flt d- ' -S’ —* livhp f9l*»We of
bearing testimony. By IheStat.ofjthEliz.
imprisonment—perpetual infamy—a fine
and both ears nailed to the pillory. The
Stat. of Goo. 2, superadds a power for
the court to order transportation for 7
years; and makes it felony, without benefit
of clergy, to return or escape within the
lime. By salutary punishments of
England, perjury therefore could only be
considered felony, upon a return from
transportation : But forfeiture is not, and
never has been since the o»;a»ization of
our government, a component p*rt oft
punishment for felony. What. tu„ j,
our notion of felony f—lt is, as has bt,,
adjudicated, the commission of a.crimes
which subjects to infamous punishment.
This definition pursues the genius of the
English law, as adopted in this State,
without its gothic appendage of forfei
ture—equally applicable to a capital pun
ishment and petit larceny. The punish
ment inflicted for perjury by the Penal
Code of Georgia, is as infamous and may
be protracted te the periods prescribed
for acknowledged felonies, such as burg
lary, one species of arson, robbery, and
the higher grades of larceny- What can
he found then in our legal or political
ethics to exempt this atrocious crime of
perjury, striking with inveterate hatred,
as it necessarily must, at the very ro«t
and foundation of all our sacred rights ot
life, liberty and property, —what 1 re
peat can exempt it from the appelation ot
felony ? Law, reason, justice, the moral
sentiment of my countrymen believe it
felony, and 1 take leave through this de
partment of the Government so to pro
claim it,—l mean perjury, as contained
and defined by the Penal Code of C*eor*
gia, and when prosecuted by indictment
under that system. The perjury howe
ver of the record before us though al
ledged to have been committed posterior
to the passing and operation of the * eua *
Code, has no technical or other reference
to it except in the conclusion, which pru
suesthe form prescribed by the Pen _
Code, and as that cannot be deviate*!
from—it is questionable, whether any
other conclusion explanatory of the ol
fence, that is, whether it is charged as au
offence at common law, under the sys
tem of the Penal Code, or against a pair*
titular Statute, need appear upon the
face of the indictment. 1 presume how
ever if the offence is Statutory, that Mr.
Attorney General would prefix to e
conclusion as prescribed, or has been m
the habit of prefixing the terms “ con *
ry to the form of the Statute (or the ac /
in that case made and provided. - ut *
terms would technically and definitive y
designate the basis of the indictmen ,
whether the prosecution was mten
under the Penal Code, or any particJ
Statute. But these additional terms
come unnecessary as explanatory 0
offence, intended to be prosecuted, w
the indictment adopts the words au u
fiuitiou contained in the Fenal Code,
least such is the exposition given
Penal Code, and such is the P ractic ®
impression which prevail in the sec
the State, where I have the honor to pr*
side.—The better opinion probably*
that in order to bring the offence
the Penal Code or a Statute one of tb
two courses must be adopted, P
to the general conclusion “ceM&V
the form of the act of Assembly w
tute in that case made and provide". »
to recite the tenor or unbalance