also claimed the benefit of such statutes as from time to [* 24] time had been enacted in modification of this body of rules. And when the difficulties with the home government sprung up, it was a source of immense moral power to the colonists that they were able to show that the rights they claimed were conferred by the common law, and that the king and Parliament were seeking to deprive them of the common birthright of Englishmen. Did Parliament attempt to levy taxes in America, the people demanded the benefit of that maxim with which for many generations every intelligent subject had been familiar, that those must vote the tax

portion which was applicable to their condition." Story, J., in Van Nest v. Packard, 2 Pet. 144. The settlers of colonies in America did not carry with them the laws of the land as being bound by them wherever they should settle. They left the realm to avoid the inconveniences and hardships they were under, where some of these laws were in force; particularly ecclesiastical laws, those for payment of tithes and others. Had it been understood that they were to carry these laws with them, they had better have stayed at home among their friends, unexposed to the risks and toils of a new settlement. They carried with them a right to such parts of laws of the land as they should judge advantageous or useful to them; a right to be free from those they thought hurtful, and a right to make such others as they should think necessary, not infringing the general rights of Englishmen; and such new laws they were to form as agreeable as might be to the laws of England." Franklin, Works by Sparks, Vol. IV. p. 271. See, also, Chisholm v. Georgia, 2 Dall. 435; Commonwealth v. Knowlton, 2 Mass. 534; Commonwealth v. Hunt, 4 Met. 122; Mayo v. Wilson, 1 N. H. 58; Houghton v. Page, 2 N. H. 44; State v. Rollins, 8 N. H. 550; State v. Buchanan, 5 H. & J. 356; Lindsey v. Coats, 1 Ohio, 245; Bloom v. Richards, 2 Ohio, N. s. 390; Lyle v. Richards, 9 S. & R. 330; Craft v. State Bank, 7 Ind. 219; Dawson v. Coffman, 28 Ind. 220; Bogardus v. Trinity Church, 4 Sandf. Ch. 757; Morgan v. King, 30 Barb. 9; Lansing v. Stone, 37 Barb. 15; Simpson v. State, 5 Yerg. 356; Stout v. Keyes, 2 Doug. Mich. 184; Lorman v. Benson, 8 Mich. 18; Pierson v. State, 12 Cal. 149; Norris v. Harris, 15 Cal. 226; Hamilton v. Kneeland, 1 Nev. 40. The courts of one State will presume the common law of a sister State to be the same as their own in the absence of evidence to the contrary. Abell v. Douglass, 4 Denio, 305; Kermott v. Ayer, 11 Mich. 181; Schurman v. Marley, 29 Ind. 458.

1 The acts of Parliament passed after the settlement of a colony were not in force therein, unless made so by express words, or by adoption. Commonwealth v. Lodge, 2 Grat. 579; Pemble v. Clifford, 2 McCord, 31. See Swift v. Tousey, 5 Ind. 196; Baker v. Mattocks, Quincy, 72; Cathcart v. Robinson, 5 Pet. 280. Those amendatory of the common law, if suited to the condition of things in America, were generally adopted by tacit consent. For the differing views taken by English and American statesmen upon the general questions here discussed, see the observations by Governor Pownall, and the comments of Franklin thereon, 4 Works of Franklin, by Sparks, 271.

who are to pay it. Did Parliament order offenders against the laws in America to be sent to England for trial, every American was roused to indignation, and protested against the trampling under foot of that time-honored principle that trials for crime must be by a jury of the vicinage. Contending thus behind the bulwarks of the common law, Englishmen would appreciate and sympathize with their position, and Americans would feel doubly strong in a cause that was right not only, but the justice of which must be confirmed by an appeal to the consciousness of their enemies themselves.

*

The evidence of the common law consisted in part of the declaratory statutes we have mentioned,2 in part of the commentaries of such men learned in the law as had been accepted as authority, but mainly in the decisions of the courts applying the [*25] law to actual controversies. While colonization continued, that is to say, until the war of the Revolution actually commenced, these decisions were authority in the colonies, and the changes made in the common law up to the same period were operative in America also if suited to the condition of things here. The opening of the war of the Revolution is the point of time at which the continuous stream of the common law became divided, and that portion which had been adopted in America flowed on by itself, no longer subject to changes from across the ocean, but liable still to be gradually modified through changes in the modes of thought and of business among the people, as well as through statutory enactments.

"The blessing of Judah and Issachar will never meet; that the same people or nation should be both the lion's whelp and the ass between burdens; neither will it be that a people overlaid with taxes should ever become valiant and martial. It is true that taxes levied by consent of the State do abate men's courage less, as it hath been seen notably in the exercise of the Low Countries, and in some degree in the subsidies of England, for you must note that we speak now of the heart and not of the purse; so that although the same tribute or tax laid by consent or by imposing be all one to the purse, yet it works diversely upon the courage. So that you may conclude that no people overcharged with tribute is fit for empire." Lord Bacon on the True Greatness of Kingdoms.

These statutes upon the points which are covered by them, are the best evidence possible. They are the living charters of English liberty to the present day; and as the forerunners of the American constitutions and the source from which have been derived many of the most important articles in their bills of rights, they are constantly appealed to when personal liberty or private rights are placed in apparent antagonism to the claims of government.

The colonies also had legislatures of their own, by which laws had been passed which were in force at the time of the separation, and which remained unaffected thereby. When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted, first, of the common law of England, so far as they had tacitly adopted it as suited to their condition; second, of the statutes of England, or of Great Britain, amendatory of the common law, which they had in like manner adopted; and third, of the colonial statutes. The first and second constituted the American common law, and by this in great part are rights adjudged and wrongs redressed in the American States to this day.1

66

'A few of the States, to get rid of confusion in the law, deemed it desirable to repeal the acts of Parliament, and to re-enact such portions of them as were regarded important here. See the Michigan repealing statute, copied from that of Virginia, in Code of 1820, p. 459. In some of the new States there were also other laws in force than those to which we have above alluded. Although it has been said in La Plaisance Bay Harbor Co. v. The City of Monroe, Wal. Ch. 155, and Depew v. Trustees of Wabash & Erie Canal, 5 Ind. 8, that the ordinance of 1787 was superseded in each of the States formed out of the North-West Territory by the adoption of a State constitution, and admission to the Union, yet the weight of judicial authority is probably the other way. In Hogg v. The Zanesville Canal Manufacturing Co. 5 Ohio, 410, it was held that the provision of the ordinance that the navigable waters of the territory, and the carrying-places between should be common highways and for ever free, was permanent in its obligation, and could not be altered without the consent both of the people of the State, and of the United States, given through their representatives. It is an article of compact; and until we assume the principle that the sovereign power of a State is not bound by compact, this clause must be considered obligatory." Justices McLean and Leavitt, in Spooner v. McConnell, 1 McLean, 337, examine this subject at considerable length, and both arrive at the same conclusion with the Ohio court. The view taken of the ordinance in that case was, that such parts of it as were designed temporarily to regulate the government of the territory, were abolished by the change from a territorial to a State government, while the other parts, which were designed to be permanent, are unalterable except by common consent. Some of these, however, being guaranteed by the Federal Constitution, afterwards adopted, may be regarded as practically annulled, while any others which are opposed to the constitution of any State formed out of the territory, must also be considered as annulled by common consent; the people of the State assenting in forming their constitution, and Congress in admitting the State into the Union under it. The article in regard to navigable waters is therefore still in force. The same was also said in regard to the article prohibiting slavery, though that also may now be regarded as practically annulled by the amendment to the Federal Constitution covering the same ground. The like opinion was subsequently expressed in Palmer v. Commissioners of Cuyahoga

[*26]

Every colony had also its charter, emanating from the Crown, and constituting its colonial constitution. All but two of these were swept away by the whirlwind of revolution, and others substituted which had been framed by the people themselves, through the agency of conventions which they had chosen. The exceptions were the States of Connecticut and Rhode Island, each of which had continued its government as a State under the colonial charter, finding it sufficient and satisfactory for the time being, and accepting it as the constitution for the State.1

[* 27]

*

New States have since from time to time, formed constitutions either regularly in pursuance of enabling acts passed by Congress, or irregularly by the spontaneous action of the people, or under the direction of the legislative or executive authority of the Territory to which the State succeeded. Where irregularities existed, they must be regarded as having been cured by the subsequent admission of the State into the Union by Congress;

and there were not wanting in the case of some States plau[* 28] sible reasons for insisting that such admission * had become a matter of right, and that the necessity for an

Co. 3 McLean, 226, and in Jolly v. Terre Haute Drawbridge Co. 6 McLean, 237. See also Strader v. Graham, 10 How. 82; Doe v. Douglass, 8 Blackf. 12; Connecticut Mutual Life Ins. Co. v. Cross, 18 Wis. 109; Milwaukee Gaslight Co. v. Schooner Gamecock, 23 Wis. 144. In the cases in the first and third McLean, however, the opinion was expressed that the States might lawfully improve the navigable waters and the carrying-places between, and charge tolls upon the use of the improvement to obtain reimbursement of their expenditures. In some of the States formed out of the territory acquired by the United States from foreign powers, traces will be found of the laws existing before the change of government. Louisiana has a code peculiar to itself, based upon the civil law. Much of Mexican law, and especially as regards lands and land titles, is retained in the systems of Texas and California. In Michigan, when the acts of Parliament were repealed, it was also deemed important to repeal all laws derived from France, through the connection with the Canadian provinces, including the Coutume de Paris, or ancient French common law. In the mining States and Territories a peculiar species of common law, relating to mining rights and titles, has sprung up, having its origin among the miners, but recognized and enforced by the courts.

It is worthy of note, that the first case in which a legislative enactment was declared unconstitutional and void, on the ground of incompatibility with the constitution of the State, was decided under one of these royal charters. The case was that of Trevett v. Weeden, decided by the Superior Court of Rhode Island in 1786. See Arnold's History of Rhode Island, Vol. II. c. 24. The case is further referred to, post, p. 160, n.

enabling act by Congress, was dispensed with by the previous stipulations of the national government in acquiring the Territory from which such States were formed.1 Some of these constitutions pointed out the mode for their own modification; others were silent on that subject; but it has been assumed that in such cases the power to originate proceedings for that purpose, rested with the legislature of the State, as the department most nearly representing its general sovereignty; and this is doubtless the correct view to take of this subject.2

The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority.3 The people of the Union created a national constitution, and conferred upon it powers of sovereignty over certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well, and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law. But in every State, although all persons are under the protection of the government, and obliged to conform their action to its laws, there are always some who are altogether excluded from participation in the government, and are compelled to submit to be ruled by an authority in the creation of which they have no choice. The political maxim, that government rests upon the consent of the governed, appears, therefore, to be practically subject to many exceptions; and when we say the sovereignty of the State is vested in the people, the question very nat

This was the claim made on behalf of Michigan; it being insisted that the citizens, under the provisions of the ordinance of 1787, whenever the Territory acquired the requisite population, had an absolute right to form a constitution and be admitted to the Union under it. See Scott v. Detroit Young Men's Society's Lessee, 1 Doug. Mich. 119, and the contrary opinion in Myers v. Manhattan Bank, 20 Ohio, 283. The debates in the Senate of the United States on the admission of Michigan to the Union go fully into this question. See Benton's Abridgment of Congressional Debates, Vol. XIII. pp. 69-72. And as to the right of the people of a Territory to originate measures looking to an application for admission to the Union, see Opinions of Attorneys-General, Vol. II. p. 726. * See Jameson on Constitutional Conventions, c. 8.

3 McLean, J., in Spooner v. McConnell, 1 McLean, 347.