Page:United States Reports, Volume 1.djvu/86

 Rh  know, however, that many tatutes for near a century, have been practied under in the late province, which were never adopted by the Legilature; and that they might be admitted by uage, and o become in force, was the opinion of the Britih parliament, declared in a tatute paed in the year 1754, enabling legatees to be witnees to wills and tetaments. If, therefore, the tatue in quetion has been, by any means, legally in force: a neceity is, eemingly, impoed upon us, to grant the challenge to the array, which has been made on the behalf of the prioners.

But if this was a new cae, the judgment of the court would be different; for, the reaons which gave rie to the 28 Edw. 3. do not apply to the preent government, nor to the general circumtances of the country. Prioners have here a right to the tetimony of their witnees upon oath, and to the aitance of counel, as well in matters of fact, as of law; which was not the cae in England in the year 1353, when that tatute was enacted. We do not think, indeed, that granting a , will, at all contribute to the advancement of jutice; and we know it is a privilege which the Citizens of Pennylvania cannot reciprocally enjoy, as, at this day, there are no juries in any part of Europe, except in the Britih dominions.

On the ground, however, of the precedent which has been hewn, we hold ourelves bound, on this occaion, to allow the challenge, and to grant a trial . The