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habits became modified, and as civilization advanced, and new inventions introduced new wants and conveniences, and new modes of business. Springing from the very nature of the people themselves, and developed in their own experience, it was obviously the body of laws best adapted to their needs, and as they took with . them their nature, so also they would take with them these laws whenever they should transfer their domicile from one country to another.
* To eulogize the common law is no part of our pres- [* 22] ent purpose. Many of its features were exceedingly harsh and repulsive, and gave unmistakable proofs that they had their origin in times of profound ignorance, superstition, and barbarism. The feudal system, which was essentially a system of violence, disorder, and rapine, gave birth to many of the maxims of the common law; and some of these, long after that system has passed away, may still be traced in our law, especially in the rules which govern the acquisition, control, and enjoyment of real estate. The criminal code was also marked by cruel and absurd features, some of which have clung to it with wonderful tenacity, even after the most stupid could perceive their inconsistency with justice and civilization. But, on the whole, the system was the best foundation on which to erect an enduring structure of civil liberty which the world has ever known. It was the peculiar excellence of the common law of England that it recognized the worth, and sought especially to protect the rights and privileges of the individual man. Its maxims were those of a sturdy and independent race, accustomed in an unusual degree to freedom of thought and action, and to a share in the administration of public affairs; and arbitrary power and uncontrolled authority were not recognized in its principles. Awe surrounded, and majesty clothed the king, but the humblest subject might shut the door of his cottage against him, and defend from intrusion that privacy which was as sacred as the kingly prerogatives.? The system was the opposite of servile ; its
1 “A feudal kingdom was a confederacy of a numerous body, who lived in a state of war against each other, and of rapine towards all mankind, in which the king, according to his ability and vigor, was either a cipher or a tyrant, and a great portion of the people were reduced to personal slavery." Mackintosh, History of England, c. 3. % See post, p. 299.
features implied boldness, and independent self-reliance on the part of the people ; and if the criminal code was harsh, it at least escaped the inquisitorial features which fastened themselves upon criminal procedure in other civilized countries, and have ever been fruitful of injustice, oppression, and terror.
For several hundred years, however, changes had from time to time been made in the common law by means of statutes. Originally the purpose of general statutes was mainly to declare and re-affirm such common-law principles as, by reason of usurpations
and abuses, had come to be of doubtful force, and which, [* 23] therefore, * needed to be authoritatively announced, that
king and subject alike might understand and observe them. Such was the purpose of the first great statute, promulgated at a time when the legislative power was exercised by the king alone, and which is still known as the Magna Charta of King John. Such also was the purpose of the several confirmations of that charter, as well as of the Petition of Right, and the Bill of Rights, each of which became necessary by reason of usurpations. But further statutes also became needful because old customs and modes of business were unsuited to new conditions of things, when property had become more valuable, wealth greater, commerce more extended, and when all these changes had brought with them new desires and necessities, and also new dangers against which society as well as the individual subject needed protection. For this reason the Statute of Wills, and the Statute of Frauds and Perjuries 5 became important; and the Habeas Corpus Act 6 was also found necessary, not so much to change the law, as to secure existing principles of the common law against being habitually set aside and violated by those in power.
It is justly observed by Sidney that “ Magna Charta was not made to restrain the absolute authority, for no such thing was in being or pretended (the folly of such visions seeming to have been reserved to complete the misfortunes and ignominy of our age), but it was to assert the native and original liberties of our nation by the confession of the king then being, that neither he nor his successors should any way encroach upon them.” Sidney on Government, c. 3, sec. 27.
2 1 Charles I. c. 1.
I dare not advise to cast the laws into a new mould. The work which I
From the first the colonists in America claimed the benefit and protection of the common law. In some particulars, however, the common law as then existing in England was not suited to their condition and circumstances in the new country, and those particulars they omitted as it was put in practice by them. They 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
propound tendeth to the pruning and grafting of the law, and not the plowing up and planting it again, for such a remove I should hold for a perilous innovation." Bacon's Works, Vol. II. p. 231, Phil. Ed. 1852.
1 “ The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that 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 tủeir 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 ;
1 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.
2 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
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 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, 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 con
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.
1 “ 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.
tinued, - 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 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.
Every colony had also its charter, emanating from the [* 26]
The like condition of things is found to exist in the new States formed and admitted to the Union since the Constitution was adopted. Congress creates territorial governments of different grades, but generally with plenary legislative power either in the governor and judges, a territorial council, or a territorial legislature chosen by the people, and the authority of this body extends to all rightful subjects of legislation, subject, however, to the disapproval of Congress. Vincennes University v. Indiana, 14 How. 273 ; Miners' Bank v. Iowa, 12 How. 1. The legislation, of course, must not be in conflict with the law of Congress conferring the power to legislate, but a variance from it
may posed approved by that body, if suffered to remain without disapproval for a series of years after being duly reported to it. Clinton v. Englebrect, 13 Wall. 446.
? 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 statue, 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