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its 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 were apparent in criminal procedure of other civilized countries, and which 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 reaffirm 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,2 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 4 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

1 It is justly observed by Sidney 8 1 William & Mary, sess. 2, c. 2. that Magna Charta was not made 4 32 Henry VIII. c. 7, and 31 & to restrain the absolute authority, for 35 Henry VIII. c. 5. no such thing was in being or pre

5 29 Charles II. c. 3. tended (the folly of such visions 6 31 Charles II. c. 2. seeming to have been reserved to 7 " I dare not advise to cast the complete the misfortunes and igno- laws into a new mould. The work miny of our age), but it was to assert which I propound tendeth to the the native and original liberties of pruning and grafting of the law, and our nation by the confession of the not the plowing up and planting it king then being; that neither he nor again, for such a remove I should his successors should any way en hold for a perilous innovation.” Bacroach upon them.” Sidney on Gov- con's Works, Vol. II. p. 231, Phil. ernment, c. 3, sec. 27.

ed. 1852. 2 1 Charles I. c. 1.

secure existing principles of the common law against being habitually set aside and violated by those in power.

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.

1 - The common law of England 534; Commonwealth v. Hunt, 4 Met. is not to be taken, in all respects, to 122 ; Pearce 0. Atwood, 13 Mass. be that of America. Our ancestors 354; Sackett v. Sackett, 8 Pick. 309; brought with them its general princi- Marks v. Morris, 4 Hen & M. 463 ; ples, and claimed it as their birth- Mayo v. Wilson, 1 N. H. 58; Houghton right; but they brought with them v. Page, 2 N. H. 44; State v. Rollins, and adopted only that portion which 8 N. H. 550; State v. Buchanan, 5 was applicable to their condition.” H. & J. 356; Sibley v. Williams, 3 Story, J., in Van Ness v. Pacard, 2 G. & J. 62; State v. Cummings, 33 Pet. 144. "The settlers of colonies Conn. 260; Martin v. Bigelow, 2 in America did not carry with them Aiken, 187; Lindsley v. Coats, 1 Ohio, the laws of the land as being bound 245; Bloom v. Richards, 2 Ohio, n. 8. by them wherever they should settle. 390; Lyle v. Richards, 9 S. & R. They left the realm to avoid the incon- 330; State v. Campbell, T. U. P. venieuces and hardships they were Charlt. 167; Craft v. State Bank, 7 under, where some of these laws were Ind. 219; Dawson r. Coffman, 28 Ind. in force; particularly ecclesiastical 220; Bogardus v. Trinity Church, 4 laws, those for payment of tithes, and Sandf. Ch. 757; Morgan v. King, 30 others. Had it been understood that Barb. 9; Lansing v. Stone, 37 Barb. they were to carry these laws with 15; Simpson v. State, 5 Yerg. 356 ; them, they had better have stayed at Crouch v. Hall, 15 Ill. 263; Brown v. home among their friends, unexposed Pratt, 3 Jones (N. C.) Eq. 202 ; to the risks and toils of a new settle- Stout v. Keyes, 2 Doug. (Mich.) 184; ment. They carried with them a right Lorman v. Benson, 8 Mich. 18; Pierto such parts of laws of the land as son v. State, 12 Cal. 149; Norris v. they should judge advantageous or Harris, 15 Cal. 226; Powell v. Sims, useful to them; a right to be free 5 W. Va. 1; Colley v. Merrill, 6 Me. from those they thought hurtful, and 55; State v. Cawood, 2 Stew. 362 ; a right to make such others as they Carter v. Balfour, 19 Ala. 814; Barshould think necessary, not infringing low v. Lambert, 28 Ala. 704; Goodthe general rights of Englishmen; and win v. Thompson, 2 Greene (Iowa), such new laws they were to form as 329; Wagner v. Bissell, 3 lowa, 396; agreeable as might be to the laws Noonan v. State, 9 Miss. 562 ; Powof England.” Franklin, Works by ell v. Brandon, 24 Miss. 343; Coburn Sparks, Vol. IV. p. 271. See also v. Harvey, 18 Wis 147; Reaume v. ('hisholm v. Georgia, 2 Dall. 435; Chambers, 22 Mo. 30; Hamilton v. Patterson 0. Winn, 5 Pet. 241; Kneeland, 1 Nev. 40. The courts of Wheaton v. Peters, 8 Pet. 659; Pol one State will presume the common lard v. Hagan, 3 How. 212; Com- law of a sister State to be the same as monwealth v. Leach, 1 Mass. 59; their own, in the absence of evidence Commonwealth o. Knowlton, 2 Mass. to the contrary. Abell v. Douglass,

(* 24] They also claimed the benefit of * such statutes as from

time to 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 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 4 Denio, 305; Kermott v. Ayer, 11 Issachar will never meet; that the Mich. 181; Schurman v. Marley, 29 same people or nation should be both Ind. 458.

the lion's whelp and the ass between 1 The acts of Parliament passed burdens; neither will it be that a after the settlement of a colony were people overlaid with taxes should ever not in force therein, unless made so become valiant and martial. It is by express words, or by adoption. true that taxes levied by consent of Commonwealth v. Lodge, 2 Grat. the State do abate men's courage less, 579 ; Pemble v. Clifford, 2 McCord, as it hath been seen notably in the 31. See Swift v. Tousey, 5 Ind. 196; exercise of the Low Countries, and in Baker v. Mattocks, Quincy, 72 ; Cath some degree in the subsidies of Engcart v. Robinson, 5 Pet. 280. Those land, for you must note that we speak amendatory of the common law, if now of the heart and not of the suited to the condition of things in purse; so that although the America, were generally adopted by tribute or tax laid by consent or by tacit consent. For the differing views imposing be all one to the purse, yet taken by English and American it works diversely upon the courage. statesmen upon the general questions So that you may conclude that no here discussed, see the observations people overcharged with tribute is fit by Governor Pownall, and the comi for empire.' Lord Bacon on the ments of Franklin thereon, 4 Works True Greatness of Kingdoms. of Franklin, by Sparks, 271.

8 These statutes upon the points 2 « The blessing of Judah and which are covered by them are the


of such men learned in the law as had been accepted as authority, but mainly in the decisions of the courts applying the

law to actual controversies. While colonization con- [* 25) 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 best evidence possible. They are the islature chosen by the people; and living charters of English liberty, to the authority of this body extends to the present day; and as the forerun- all rightful subjects of legislation, ners of the American constitutions subject, however, to the disapproval and the source from which have been of Congress. Vincennes University derived many of the most important v. Indiana, 14 How. 273; Miners' articles in their bills of rights, they Bank v. Iowa, 12 How. 1. The legisare constantly appealed to when per- lation, of course, must not be in sonal liberty or private rights are conflict with the law of Congress conplaced in apparent antagonism to the ferring the power to legislate, but a claims of government.

variance from it may be supposed · The like condition of things is approved by that body, if suffered to found to exist in the new States remain without disapproval for a formed and admitted to the Union series of years after being duly resince the Constitution was adopted. ported to it. Clinton v. Englebrect, Congress creates territorial govern- 13 Wall. 434, 446. See Williams v. ments of different grades, but gener- Bank of Michigan, 7 Wend. 539; ally with plenary legislative power Swan v. Williams, 2 Mich. 427; Stout either in the governor and judges, a v. Hyatt, 13 Kan. 232. territorial council, or a territorial leg

great part are rights adjudged and wrongs redressed in the American States to this day.

1 A few of the States, to get rid designed temporarily to regulate the of confusion in the law, deemed it government of the Territory were desirable to repeal the acts of Parlia- abolished by the change from a terriment, and to re-enact such portions of torial to a State government, while them as were regarded important the other parts, which were designed here. See the Michigan repealing to be permanent, are unalterable exstatute, copied from that of Virginia, cept by common consent. Some of in Code of 1820, p. 459. Others these, however, being guaranteed by named a date or event, and provided the federal Constitution, afterwards by law that English statutes passed adopted, may be regarded as practisubsequently should not be of force cally annulled, while any others which within their limits. In some of the are opposed to the constitution of any new States there were also other laws State formed out of the Territory in force than those to which we have must also be considered as annulled above alluded. Although it has been by common consent; the people of said in La Plaisance Bay Harbor Co. the State assenting in forming their v. The City of Monroe, Walk. Ch. 155, constitution, and Congress in admitand Depew v. Trustees of Wabash & ting the State into the Union under Erie Canal, 5 Ind. 8, that the ordi- it. The article in regard to naviganance of 1787 was superseded in each ble waters is therefore still in force. of the States formed out of the The same was also said in regard to North-West Territory by the adop- the article prohibiting slavery, though tion of a State constitution, and ad- that also may now be regarded as mission to the Union, yet the weight practically annulled by the amendment of judicial authority is probably the to the federal Constitution covering other way. In Hogg v. The Zanes- the same ground. The like opinion was ville Canal Manufacturing Co., 5 subsequently expressed in Palmer v. Ohio, 410, it was held that the provi. Commissioners of Cuyahoga Co., 3 sion of the ordinance that the naviga- McLean, 226, and in Jolly v. Terre ble waters of the Territory and the Haute Drawbridge Co., 6 McLean, carrying-places between should be 237. See also Strader v. Graham, 10 cominon highways, and for ever free, How. 82; Doe v. Douglass, 8 Blackf. was permanent in its obligation, and 12; Connecticut Mutual Life Ins. Co. could not be altered without the con v. Cross, 18 Wis. 109; Milwaukee sent both of the people of the State Gaslight Co. v. Schooner Gamecock, and of the United States, given 23 Wis. 144; Wisconsin River Imthrough their representatives. “ It provement Co. v. Lyons, 30 Wis. 61. is an article of compact; and until Compare Woodburn Kilbourn we assume the principle that the sov Manuf. Co., 1 Abb. U. S. 158; s. c. ereign power of a State is not bound 1 Biss. 546. In the cases in the first by compact, this clause must be con and third McLean, however, the opinsidered obligatory.Justice McLean ion was expressed that the States and Judge Leavitt, in Spooner v. Mc- might lawfully improve the navigable Connell, 1 McLean, 337, examine waters and the carrying-places bethis subject at considerable length, tween, and charge tolls upon the use and both arrive at the same conclu- of the inprovement to obtain reimsion with the Ohio court. The view bursement of their expenditures. taken of the ordinance in that case In some of the States formed out was, that such parts of it as were of the territory acquired by the

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