níards, and Dutch, as well as the English, Irish, and Americans, who profess to be governed almost entirely by the provisions of the common law.

This common, or customary law, implies, in its very name, as springing from the customs and habits of the country where it exists, that it is in a state of perpetual change; since the customs and habits of a people, more especially if free to follow their own inclinations, are perpetually changing. A common law prevails in all nations, but most in free communities, because in them the greatest respect is paid to the feelings, habits, manners, and customs of the people. It is impossible, by statute, to provide for every particular case that may arise amidst the various modifications of which property is susceptible, the diversity of relations in civil life, the many possible combinations of events and circumstances, which elude the power of enumeration, and mock the reach of all human foresight.

But whatever is not written is common law; and accordingly, in every country pretending to any administration of justice, it has been found expedient to entrust the judges with the power of deducing from the more general propositions of law, and from the habits and customs, sanctioned by usage, such practical corollaries as may most conduce to the furtherance of justice. Deductions thus formed and established, in the adjudication of particular causes, become part of the text or body of the municipal law. Succeeding judges receive them as such, and generally consider themselves as much bound by them as by the provisions of statute law. Thus grows up, gradually, a body of common or customary law. Cicero, in his "Oratoriæ Partitiones," expressly asserts, that in every country two sorts of law prevail; one written, the other not written, but springing up, either from the rights of nations, or the municipal customs of their ancestors. Rome and England, under their mixed governments, the one inclining to democracy in its later stages, the other pretty equally poised by the conflicting forces of monarchy, aristocracy, and democracy, have been the greatest legisla

tors recorded in history. Rome has left the foundation, and great part of the superstructure, of her civil code, to the whole European continent-to Scotland, to the colonies of France, Spain, Holland, Sweden, and Denmark. England has, in her own island, carried the authority and government of law to a very high eminence of perfection; and has transmitted her municipal code to Ireland, to her European, African, Asiatic, and American colonies, and to these United States.

Under both the Roman and English establishments, the common law, or known customs, and the practice and decisions of courts, acquired equal authority with positive statutes. Effectual precautions were taken for the impartial application of general rules to particular cases; and a surprising coincidence exists in the modes of jurisdiction adopted by these two nations. In both countries the people reserved to themselves the office of judgment, and brought the decision of civil rights and criminal questions to the tribunal of peers, or a jury, who, in judging their fellow-citizens, prescribed a condition of life for themselves. Nay, the term common law, as well as the thing itself, is not confined to the law of England. Sir Heneage Finch, afterward Lord Nottingham, one of the ablest of a very long list of able English Chancellors, says, "that it is not a word new, nor strange, nor barbarous, nor proper only to England, but is common to other countries also." Euripides, more than once, makes mention of the common laws of Greece; and Plato, in his Treatise on a republic, defines the common law to be "that which is first taken up by the common consent and usage of a country, and afterward sanctioned by judicial decisions; he also calls it "the golden and sacred rule of reason;" a phrase borrowed by Lord Coke, when he said, "that common law was nothing else but right reason;" meaning, doubtless, that refined reason, the offspring of experience and wisdom, whose authority is generally obeyed by the consent of all.

The common law is peculiarly favourable to the growth and maintenance of liberty, both personal and

political, because it cherishes and establishes those usages and customs of the people, which experience has proved to be practically beneficial; whereas, written law is unfavourable to freedom, by fettering the movements of social action, and by leaving no room for the growth of popular habits and customs. Hence the common law prevails most in the freest countries, whose freedom it continually augments; for example, it bears greater sway in England, and in the United States, than in any other country; because they are the most essentially free, and substantially civilized, of all nations, ancient or modern. The distinguishing characteristic of the common law is its elastic energy, accommodated to all social exigencies; alike fitted to direct and regulate the tender infancy, the aspiring youth, the matured manhood, and the venerable age of nations. Whence, its limits are in continual progression; as new exigencies arise in the community, and consequently new combinations and applications of common law principles are necessary. And, as the English and American judges, following the light of Lord Mansfield's great example, embrace the general principles of jurisprudence, the common law will travel over the dominions of equity; and that which is merely equity now, will, in the lapse of half a century, be established common law decision and practice. Within the last fifty years, the common law has embraced a considerable portion of equity jurisdiction.

In England, the common law has grown with the growth of the nation, in arts, and arms, in religion, morals, science, literature, and civilization. The English common law was rude and scanty in its origin, containing a few imperfect regulations respecting person and property, under the Anglo-Saxon and Danish dynasties; at the Norman conquest it embraced the feudal law, in relation to real property; afterward it incorporated the civil law, with regard to personal property. In the progress of its growth, it received within its capacious bosom the commercial law; and lastly, has girded within its immeasurable belt the whole system of international

law, which connects together in the bonds of social intercourse all the inhabitants of the civilized world. The criminal law of England is in part Saxon, Danish, and Norman, much modified by subsequent statutes. The European codes, generally, are similar in their origin, and in much of their progress. Thus the English, Welsh, Scottish, French, Italian, Spanish, German, Danish, and Swedish codes, reflect mutual light upon each other, in all the essential points of their respective juridical systems. This is so much the case between those of France and England, that the best illustrations of the ancient French code are to be found in the earlier law writers of England; and the best commentary upon the old English law exists in the writings of the elder French jurists.

Some of the most distinguished of our American ju rists are divided in opinion respecting the introduction of the common law of England into, and its authority within, the United States. On one side, it is contended that the English common law is the unwritten law of the United States, in their national or federal capacity; and that the common law of the separate states remains the same as before the revolution. While on the other side it is urged, that no common law exists in the courts of the United States, but their whole range is confined to taking cognizance of, and expounding the American constitutions, the acts of Congress, and treaties between the United States and foreign powers. It is, however, admitted on all sides, that the common law of England, as it existed on the breaking out of the revolution, has been incorporated into all the separate states, as the basis of their municipal law; subject, of course, to the control and modification of legislative provisions.

Some of the principal differences, at present existing between the American and English law, are, that our municipal code tends to scatter real property, at the death of every head of a family, whereas that of England, by the common law of descent, the statute of entails, and the custom of strict marriage settlements, tends to accumulate and perpetuate family property,

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In the distribution of personal property, the American follows the English, which is derived from the civil law. Our criminal code is much milder than that of England, which is too severe, and encourages crime, by the uncertainty of punishment; while we augment crime by the inadequacy of punishment to such a degree, as to keep our state-prisons generally full, besides a continually increasing body of pardoned criminals, let loose to prey upon the public. The courts of the United States, although they disavow any binding authority in the English common law upon them, yet in fact expound their legal questions, whether civil or criminal, upon common law principles.

Upon the whole, then, the best groundwork for the earlier studies of the English and American jurists is to be found in the diligent perusal of Judge Blackstone's Commentaries, as containing an admirable outline of English law, both civil and criminal; and then the Institutes of Justinian, because the legal provisions respecting personal property, both here and in England, are almost entirely derived from the Roman code. The late General Hamilton used to say, that he had learned more of the elements and principles of jurisprudence, as a science, from the study of this than of any other work. Next in order, should be read the Book of Feuds, because the English law of real property is derived from the feudal system, and that of America (with some statute modifications), from the English law. Then Beawes's Lex Mercatoria will give an acquaintance with commercial law, as an essential part of the common law; and Vattel presents a brief outline of the law of nations, which also constitutes an integral portion of the common law. A work on national law, embracing the questions decided since the time of Vattel, is much wanted. At present, only a few miscellaneous observations can be made on some of the defects in our juridical system, which have been partly borrowed from England, and are in part weeds of our own growth.

In England, individual subjects, to whom the sovereign is indebted, have a remedy in the King's own