needed to be authoritatively pronounced, 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 Right1 and the Bill of Rights,2 each of which became necessary by reason of usurpations. But statutes also became important 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 all these changes had brought with them new dangers against which society as well as the individual subject was to be guarded. For this purpose the Statute of Wills and the Statute of Frauds and Perjuries became important; and the Habeas Corpus Act 5 was also 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.

3

From the first the Colonists in America claimed the benefit and protection of the common law. In some particulars, however, the common law was not suited to their condition and circumstances in this country, and those particulars they omitted as it was put in practice by them.6 They also claimed the benefit of

1 1 Charles I. c. 1.

• 2 1 William & Mary, sess. 2, c. 2.

* 32 Hen. VIII. c. 7, and 34 & 35 Hen. VIII. c. 5.

4

29 Charles II. c. 3.

31 Charles II. c. 2.

"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 situation." Story, J. in Van Nest v. Pacard, 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 lawswith 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

such statutes as from time to time had been enacted in modification of this body of rules. And when the difficulties sprung up with the home government, 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 or the Parliament was seeking to deprive them of the common birthright of Englishmen. Did Parliament attempt to levy taxes in America; its people demanded the benefit of that maxim with which for many generations every English child 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,2 in part of the commentaries of such men learned in the law as had been accepted as authority, but mainly of the decisions of the courts applying the

laws of England." Franklin, Works by Sparks, vol. 4, p. 275. See Morgan v. King, 30 Barb. 9; Mayo v. Wilson, 1 N. H. 58; Houghton v. Page, 2 N. H. 44 State v. Rollins, 8 N. H. 550.

"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 estate do abate men's courage less, as it hath been seen notably in the exercises 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 of their bills of rights, they are constantly appealed to where personal liberty or private rights are placed in apparent antagonism to the government.

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 to be still 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.1

1 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 these 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. The Trustees of the Wabash and Erie Canal, 5 Ind. 8, that the Ordinance of 1787 was superseded in each of the States formed out of the Northwest 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 forever free, was permanent in its character, and could not be altered without the assent, 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, exam

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 by the people themselves, through the agency of conventions which they had chosen. The exceptions were of 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 New States have since from time

ine 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 considered 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, so that the prohibition of involuntary servitude does not rest merely upon State constitutions, inasmuch as the subject is taken beyond their control by the compact, except with the assent of Congress. The same opinion was subsequently expressed in Palmer v. Commissioners of Cuyahoga Co. 3 McLean, 226, and in Jolly v. Terre Haute Drawbridge Co. 6 McLean, 237. See also Doe v. Douglass, 8 Blackf. 12; Connecticut Mutual Life Insurance Co. v. Cross, 18 Wis. 109. In the cases in 1st and 3d 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 territory acquired by the United States from foreign countries, 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 in regard to 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 connection with the Canadian provinces, including the contumé 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.

1 It is worthy of note that the first case in which a legislative enactment was declared unconstitutional and void by the courts of a State, on the ground of incompatibility with the State constitution, was that of Trevett v. Weeden, decided

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 plausible reasons for insisting that such admission by the Superior Court of Rhode Island in 1786. In the spring of that year a paper-money bank of £ 100,000 was created by the State legislature, whose bills were to be loaned to the people of the State according to the apportionment of the last tax, upon a pledge of real estate of double their value, and to be paid into the treasury at the end of fourteen years. As the bills immediately began to depreciate, a forcing act was passed, which subjected any person who should refuse to receive them on the same terms as specie, or in any way discourage their circulation, to a penalty of £ 100 on the first conviction, and the loss of the rights of a freeman on the second. A subsequent act moderated the penalty, but provided for a summary trial without jury, and prohibited any appeal. Under these acts Trevett entered complaint before the chief justice against Weedon, a butcher of Newport, for refusing to receive paper money at par in payment for meat. The case was heard before a full bench, and was argued by the ablest counsel of the State, amidst intense excitement. The court unanimously held the forcing acts void, because depriving the accused of the right to trial by jury, which was secured by the Colonial charter. A great outcry followed. The Assembly was immediately convened in special session, and by resolution reciting that whereas the said court had "declared and adjudged an act of the Supreme legislature of this State to be unconstitutional and so absolutely void; and whereas it is suggested that the aforesaid judgment is unprecedented in this State, and may tend to abolish the legislative authority thereof," it was ordered that the judges be cited to give their immediate attendance on the Assembly to assign the reasons and grounds of their judgment. The judges obeyed the summons, and one of the number defended the opinion of the bench in an able argument upon the unconstitutionality of the bill, and asserted the independence of the court; contending that the supreme judiciary of the State were not accountable to the General Assembly, or to any other power on earth for their judgments. The Assembly resolved that no satisfactory reasons had been rendered by the judges for their judgment, and when their terms expired at the end of the year, supplanted four of the five members of the court with more pliant instruments, with whose aid the public and private debts of the State were extinguished on the pretence of payment, or tender of payment in the paper money, which had fallen to one sixth of its nominal value, while debtors out of the State to creditors within it were not allowed the same privilege. See Arnold's History of Rhode Island, vol. 2, ch. 24. The printed argument for the defence in the case is now before us, and is able and conclusive. A citizen of the State can now look back with satisfaction to the upright, fearless, and dignified deportment of the prosecuted judges, even if no other feature of the case is calculated to excite emotions of pleasure.