laws whenever they should transfer their domicile from one country to another.

To eulogize the common law is no part of our present 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; aud 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.2 The system was the opposite of servile; 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, therefore, needed to be authoritatively announced, that king and sub

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.

2 See post, p. 425, 426.

ject 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,3 cach 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 became important; and the Habeas Corpus Act 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.

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.8 They also

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.

31 William and Mary, sess. 2, c. 2. 432 Henry VIII. c. 7, and 34 & 35 Henry VIII. c. 5.

5 29 Charles II. c. 3.

6 31 Charles II. c. 2.

7 "I dare not advise to cast the laws into a new mould. The work which I 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.

8 "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 Ness v. Pacard, 2 Pet. 137. "The settlers of colonies in America did not carry with them the laws of the land as being bound by them wher ever 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

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.1 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 not only was right, 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 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 colonists 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 com

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.

2 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.

mon 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.1 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 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. 268; Miners' Bank v. Iowa, 12 How. 1. Thus the Territory of Oregon had power to grant a legislative divorce. Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. Rep. 723. A territorial legislature may empower a probate court to grant a divorce. Whitmore v. Harden, 3 Utah, 121, 1 Pac. 465. 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 be supposed approved by that body, if suffered to remain without disapproval for a series of years after being duly reported to it. Englebrect, 13 Wall. 434, 446. See Williams v. Bank of Michigan, 7 Wend. 539; Swan v. Williams, 2 Mich. 427; Stout v. Hyatt, 13 Kan. 232; Himman v. Warren, 6 Oreg. 408. As to the complete control of Congress over the Territories, see United States v. Reynolds, 98 U. S. 145; National Bank v. Yankton, 101 U. S. 129. It may exclude polygamists from the right to vote. [It may declare void the charter of a church granted by the legislature of the Territory. Church of Jesus Christ of Latter Day Saints v. United States, 136 U. S. 1, 10 Sup. Ct. Rep. 792;] Murphy v. Ramsey, 114 U. S. 15, 5 Sup. Ct. Rep. 747. In Treadway v. Schnauber, 1 Dak. 236, it was decided that without express authority a territorial legislature could not vote aid to a railroad company.

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. Others named a date or event, and provided by law that English statutes passed subsequently should not be of force within their limits. In some of the new States there were also other laws in force than those to which we have above alluded, as for example, the ordinance of 1787, in the Northwest Territory. There has been much discussion of the question whether that ordinance was superseded in each of the States formed out of that Territory by the adoption of a State constitution, and admission to the Union. 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 obligation, and could not be altered without the consent both of the Clinton v. 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." Justice McLean and Judge 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 like 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 United States v. New Bedford Bridge, 1 Wood. & M. 401; 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; Wisconsin River

2 A few of the States, to get rid of confusion in the law, deemed it desirable