LECTURE XXI. OF REPORTS OF JUDICIAL DECISIONS. HAVING Considered the nature and force of written law, and the general rules which are applied to the interpretation of statutes, we are next to consider the character of unwritten, or common law, and the evidence by which its existence is duly ascertained. The common law includes those principles, usages, and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. According to the observation of an eminent English judge, (a) a statute law is the will of the legislature in writing, and the common law is nothing but statutes worn out by time; and all the law began by the consent of the legislature.1 Source of law. This is laying down the origin of the common law the common too strictly. A great proportion of the rules and maxims which constitute the immense code of the common law, grew into use by gradual adoption, and received, from time to time, the sanction of the courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases. In the just language of Sir Matthew Hale, (b) the common law of England is "not the product of the wisdom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience, and observation of many ages of wise and observing men." And his further remarks on this (a) Lord Chief Justice Wilmot, 2 Wils. Rep. 348, 351. 1 See Webster v. Reid, 11 How. U. S. 455. subject would be well worthy the consideration of those bold projectors, who can think of striking off a perfect code of law at a single essay. "Where the subject of any law is single, the prudence of one age may go far at one essay to provide a fit law; and yet, even in the wisest provisions of that kind, experience shows us, that new and unthought of emergencies often happen, that necessarily require new supplements, abatements, or explanations. But the body of laws that concern the common justice applicable to a great kingdom, is vast and comprehensive, consists of infinite particulars, and must meet with various emergencies, and therefore requires much time, and much experience, as well as much wisdom and prudence, successively to discover defects and inconveniences, and to apply apt supplements and remedies for them; and such are the common laws of England, namely, the productions of much wisdom, time, and experience." (a) But though the great body of the common law consists of a collection of principles, to be found in the opinions of sages, or deduced from universal and immemorial usage, and receiving progressively the sanction of the courts, it is, nevertheless, true, that the common law, so far as it is applicable to our situation and government, has been recognized and adopted, as one entire system, by the constitutions of Massachusetts, New York, New Jersey, and Maryland. It has been assumed by the courts of justice, or declared by statute, with the like modifications, as the law of the land in every state. It *473 was imported by our colonial ancestors, as far as it was applicable, and was sanctioned by royal charters and colonial statutes. (b) It is also the established doctrine, that English (a) Cicero, in like manner, ascribed the excellent Institutes of the Roman republic to the gradual and successive improvements of time and experience; and he held that no one mind was equal to the task. Nostra respublica non unius esset ingenio sed multorum; nec una hominis vita sed aliquot constituta sæculis et ætatibus-neque cuncta ingenia conlata in unum tantum posse uno tempore providere, ut omnia complecterentur sine rerum usu et vetustate. De Repub. lib. ii. 1. Nec temporis unius nec hominis esse constitutionem reipublicæ. Ib. 2, 21. The Roman system of law, says M. Valette, was not the result of philosophical theories conceived a priori, but slowly elaborated by every day experience, and conformed, under the influence of magistrates and jurisconsults, to all the necessities of society. (b) Vide supra, pp. 342, 343, and the opinions of Judge Chase, in the case of The United States v. Worrall, 2 Dallas, 394, and of M'Kean, Ch. J., in Morris v. Van statutes, passed before the emigration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country. (a) deren, and Respublica v. De Longchamps, 1 Dallas, 67, 111. Statutes of Pennsylvania, 1718, 1777. Laws of Vermont, c. 6, p. 57. Statute of North Carolina, 1778, c. 5. Revised Statutes of North Carolina, 1837, vol. i. p. 110. State v. Rollins, 8 N. Hamp. R. 550. Statute of South Carolina, 1712. Parsons, Ch. J., in Commonwealth v. Knowlton, 2 Mass. R. 534. Story, J., in Town of Pawlet v. Clark, 9 Cranch, 333. State v. Buchanan, 5 Harris & Johns. 355, 356. McLearn v. McLellan, 10 Peters's U. S. Rep. 631, 635. The constitution of New York, of 1777, declared, that such parts of the common law of England, and of the statute law of England and Great Britain, as, together with the acts of the colonial legislature, formed the law of the colony on the 19th of April, 1775, should continue to be the law of the state, subject, &c. So the common law and statute law of England were referred to in Missouri by the statute of 14th January, 1816, as part of the known and existing law of the territory, so far as the same was consistent with the law of the territory, and which, in a modified degree, was the Spanish law. The common and statute law of England, prior to the fourth year of James I., and of a general nature, were adopted by the convention of Virginia in 1776, and in 1795 and 1805, by the government of Ohio; and such is the substance of the statute law of Arkansas. 2 Arkansas R. 206. But the Ohio statute was repealed in 1806. In the Revised Statutes of Illinois, published in 1829, it was declared, that the common law of England, and the English statutes of a general nature made in aid of it, prior to the fourth year of James I., with the exception of those concerning usury, were to be rules of decision until repealed. In 1818, the common law was adopted by statute in the state of Indiana, and in 1835, in Missouri, under the same limitations; and it is understood that the common law and the statute law of England, down to the year 1776, and applicable to their constitution and circumstances, are the law in the states of Mississippi and Georgia. In the latter state the same was declared to be in force by the statute of February 25th, 1784. So the common law of England and the statute law of England, prior to 1760, were adopted by statute in Vermont, so far as they were not repugnant to the constitution or statute law of the state. (a) Patterson v. Winn, 5 Peters's U. S. Rep. 233. Sackett v. Sackett, 8 Pick. Rep. 309. Opinion of Cranch, Ch. J., in the case ex parte Watkins, 7 Peters's U. S. Rep. App. pp. 676, 677. Bogardus v. Trinity Church, 4 Paige's Rep. 198. The Heirs of Girard v. The City of Philadelphia, 4 Rawle, 333, Gibson, Ch. J. Statute of North Carolina, 1778, and see the preface to the 1st volume of the Revised Statutes of North Carolina, 1837. About the year 1750, the general assembly of Rhode Island adopted the principal statutes of England relative to property and to the colony, from the statute of Merton down to the 4th and 5th Anne, c. 16. In Georgia, the principal English statutes relative to the essential rights of person and property, from Magna Charta inclusive, down to the period of colonial legislation in this country, have been copied and adopted almost literally. It gives the appearance of stability, dignity, and certainty to their statutory jurisprudence. Hotchkiss's Codification of the Statute Law of Georgia, 1845. The Revised Statutes of New Jersey, published in 1847, constitute a plain, practical, and excellent code of statute law, incorporating all the essential parts of the English and colonial statutes prior to our Revolution, applicable to our circumstances, and leaving the settled principles of the common law undis Force of adjudged The best evidence of the common law is to be found in the decisions of the courts of justice, contained in cases. numerous volumes of reports, and in the treaties and digests of learned men, which have been multiplying from the earliest periods of the English history down to the present time. (a) turbed, or more accurately defined. This has been done in several of the other states, with great ability, and under the same enlightened and chastened spirit of moderation. It was the same policy that dictated the statute revisions of New York, in 1801 and 1829. The rage for bold, reckless, and presumptuous innovation, so prevalent at this day, acting in contempt of the usages and wisdom of the common law, does not seem to have reached those statesmen who adopted the statute codes to which I have alluded. A new and improved digest of the statute law is quite a practicable and salutary reform, and is to be wholly distinguished from the visionary scheme and attempt to disturb and remodel the long-established institutions and usages of the whole body of the common law, as is now directed to be done by the revised constitution of New York, in 1846. (See infra, p 475.) The Revised Statutes of Massachusetts, in 1836, furnish an instructive model of a revision of the statute law, with such arrangements and improvements as the reasonable spirit of reform dictated. Though I would rather prefer (perhaps from early prepossessions) the old and simple division of statutes into chapters and sections, with the title and date of each law, in historical and chronological order to the complex subdivisions into parts, and titles, and sections, with interminable numbers, on the plan of the continental civilians. The congress of 1774 claimed to be entitled to the benefit, not only of the common law of England, but of such of the English statutes as existed at the time of their colonization, and which they had by experience respectively found to be applicable to their several local and other circumstances. Journals of Congress, October 14, 1774. This was only declaratory of the principle in the English law, that English subjects going to a new and uninhabited country, carry with them, as their birthright, the laws of England, existing when the colonization takes place. Blankard v. Galdy, 2 Salk. Rep. 411. The decision of the lords of the privy council, 2 P. Wm. 75. Dutton v. Howell, Show. Parl. Ca. 31, 32. 1 Blacks. Com. 107. See, also, Commonwealth v. Leach, 1 Mass. Rep. 60. Same v. Knowlton, 2 Ibid. 534. The rule is different upon the conquest of the country; the conqueror may deal with the inhabitants, and give them what law he pleases, but until an alteration be made, the former laws continue. Calvin's case, 7 Co. 17. The civil code of Louisiana, art. 3521, and the statute of that state of 1828, repealed the Spanish, Roman, and French laws in force when Louisiana was ceded to the United States. But it was held, in Reynolds v. Swain, 13 Louisiana Rep. 193, that this repeal only extended to the positive, written, or statute laws of those nations, introductory of a new rule, and not to those which were merely declaratory, and that it was not intended to abrogate those principles of law which had been established or settled by the decisions of the courts of justice. It was therefore the daily practice, in the courts of Louisiana, to resort to the laws of Rome and France, and the commentaries on those laws, for the elucidation of principles applicable to analogous cases. (a) In 1840 the legislature of Connecticut declared, that the reports of the judicial decisions of other states and countries should be judicially noticed as evidence of the common law in such state or country. The reports of judicial decisions contain the most certain evidence, and the most authoritative and precise application of the rules of the common law. Adjudged cases become precedents for future cases resting upon analogous facts, and brought within the same reason; and the diligence of counsel, and the labor of judges, are constantly required, in the study of the reports, in order to understand accurately their import, and the principles they establish. But to attain a competent knowledge of the common law in all its branches, has now become a very serious undertaking, and it requires steady and lasting persever ance, in consequence of the number of books which beset * 474 and incumber the path of the student. (a) *The grievance is constantly growing, for the number of periodical law reports and treatises which issue from the English and American press is continually increasing; and if we wish to receive assistance from the commercial system of other nations, and to become acquainted with the principles of the Roman law, as received and adopted in continental Europe, we are still in greater danger of being confounded, and of having our fortitude subdued, by the immensity and variety of the labors of the civilians. (b) It is necessary that the student (a) The number of volumes of English reports, exclusive of reports relating to the courts of admiralty, elections, settlement cases, and Irish reports, amount (1826) to 364; and to render their contents accessible, the digested indexes of the modern reports amount to 33 volumes. The text books or treatises amount to 184 volumes, and the digests and abridgments to 67 volumes, making, in the whole, a copious library of 648 volumes, in addition to the statute law. See Humphrey on Real Property, p. 163. To these we may add upwards of 200 volumes of American reports, treatises, and digests. In 1839 there were 536 volumes of American reports. (b) M. Camus annexed to his Lettres sur la Profession d'Avocat, a catalogue of select books for a lawyer's library, which he deemed the most useful to possess and understand; and that catalogue, in the edition of 1772, included nearly 2,000 volumes, and many of them ponderous folios, and not one of them had any thing to do with the English statute or common law. It is now a complaint in France, that the crowd of reports of decisions incumber the law libraries; and M. Dupin, in his Jurispru dence des Arrêts, edit. 1822, alludes to the immensity of such collections, and the great abuses to which that species of jurisprudence is subject. His select law library, for the use of law students and young advocates, contained three hundred and fortythree volumes. One great abuse in the practice of reporting is, that there is no very careful selection of decisions which are only worthy to be reported, but every adjudication, though upon commonplace learning, and upon points which have been again and again decided, is usually given in one promiscuous mass. Lord Bacon, in his |