THE

WORKS

OF

THE HONOURABLE

JAMES WILSON, L. L. D.

LATE ONE OF THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES, AND PROFESSOR OF LAW IN THE COLLEGE OF PHILADELPHIA.

PUBLISHED UNDER THE DIRECTION

OF

BIRD WILSON, ESQUIRE.

LEX FUNDAMENTUM EST LIBERTATIS, QUA FRUIMUR. LEGUM OMNES SERVI SUMUS, UT LIBERI ESSE POSSIMUS. ― CIC.

VOL. II.

PHILADELPHIA:

AT THE LORENZO PRESS, PRINTED FOR BRONSON AND CHAUNCEY.

1804.

DISTRICT OF PENNSYLVANIA: ― TO WIT.

BE IT REMEMBERED, That on the fifth day of July, in the twenty ninth year of the independence of the United States of America, BIRD WILSON, Esquire, of the said district, hath deposited in this office the title of a book, the right whereof he claims as proprietor, in the words following, to wit:

"The Works of the Honourable James Wilson, L. L. D. late one of the Associate Justices of the Supreme Court of the United states, and Professor of Law in the College of Philadelphia. Published under the direction of Bird Wilson, Esquire. Lex fundamentum est libertatis, qua fruimur. Legum omnes servi sumus, ut liberi esse possimus." ― Cic.

In conformity to the act of the Congress of the United States entitled "An act for the encouragement of learning by securing the copies of maps, charts and books to the authors and proprietors of such copies during the times therein mentioned; and also to the act entitled "An act supplementary to an act entitled "An act for the encouragement of learning, by securing the copies of maps, charts, and books to the authors and proprietors of such copies during the times therein mentioned," and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints."

D. CALDWELL, Clerk of the

District of Pennsylvania.

CONTENTS

OF THE

SECOND VOLUME.

LECTURES ON LAW.

PART I.

PAGE.

CHAPTER XII.

Of the common law, 3

CHAPTER XIII.

Of the nature and philosophy of evidence, 65

PART II.

CHAPTER I.

Of the constitutions of the United States and of Pennsylvania ― Of the legislative department, 117

CHAPTER II.

Of the executive department, 183

CHAPTER III.

Of the judicial department, 201

CHAPTER IV.

Of the nature of courts, 287

CHAPTER V.

Of the constituent parts of courts. ― Of the judges, 299

CHAPTER VI.

The subject continued. ― Of juries, 305

CHAPTER VII.

The subject continued. ― Of sheriffs and coroners, 389

CHAPTER VIII.

The subject continued. ― Of counsellors and attornies, 399

CHAPTER IX.

The subject continued. ― Of constables, 421

CHAPTER X.

Of corporations, 425

CHAPTER XI.

Of citizens and aliens, 431

CHAPTER XII.

Of the natural rights of individuals, 453

LECTURES ON LAW,

DELIVERED IN THE

COLLEGE OF PHILADELPHIA,

IN THE YEARS ONE THOUSAND SEVEN HUNDRED AND NINETY,

AND ONE THOUSAND SEVEN HUNDRED AND NINETY ONE.

VOL. II.

PART I.

CHAPTER XII.

OF THE COMMON LAW.

"SAPIENTISSIMA res tempus," says the profound Lord Bacon,³¹⁰ in one of his aphorisms concerning the augmentation of the sciences ― Time is the wisest of things. If the qualities of the parent may, in any instance, be expected in the offspring; the common law, one of the noblest births of time, may be pronounced the wisest of laws.

This law has, at different times, and for different reasons, been denominated by different appellations. It is sometimes called, by way of eminence, the law of the land, "lex terræ." At other times, it is called the law of England. At other times again, it is called the law and custom of the kingdom. But its most general and best known appellation is, the common law. Various are the reasons, which have been assigned for this appellation: the best seems to be this ― that it is the common municipal law or rule of justice;³¹¹ the law which is described in the code of king Edward the elder, as expressing the same equal right, law, or justice, due to persons of all degrees.³¹²

The term common law is not confined to the law of England: It is not, says Sir Henry Finch, a word new and strange, or barbarous, and proper to ourselves, and the law, which we profess, as some unlearnedly would have it: it is the proper term for other laws also. Euripides mentions the common laws of Greece; and Plato defines common law in this manner: that which, being taken up by the common consent of a country, is called law. In another place, he names it, the golden and sacred rule of reason, which we call common law.

This place, continues the same author, in his discourse of law,³¹³ is very notable: it opens the original and first beginning of the common law: it shows the, antiquity of the name; it teaches common law to be nothing else but common reason ― that refined reason, which is generally received by the consent of all.

The antiquity of the common law of England is unquestionably very high. It is worth while to listen to what may be deemed the prejudices ― certainly the pardonable ones ― of its fond admirers, upon a point so interesting to their partiality.

The realm of England, says Lord Chancellor Fortescue,³¹⁴ was first inhabited by the Britons; it was afterwards ruled and civilized under the government of the Romans: then the Britons prevailed again: next it was possessed by the Saxons: afterwards the Danes lorded it over us: the Saxons were successful a second time at last, the Norman conquest took place. But, during all that time, England has been constantly governed by the same customs, by which it is governed at present. Neither the laws of the Romans, which are celebrated beyond all others for their antiquity; nor yet the laws of the Venetians; nor, in short, the laws of any other kingdom in the world are so venerable for their antiquity. So that there is no pretence to insinuate to the contrary, but that the laws and customs of England are not only good, but the very best. ― Thus far from the predilection of the chancellor.

But, in truth, it is extremely difficult, if not altogether impracticable, to trace the common law of England to the era of its commencement, or to the several springs, from which it has originally flowed. For this difficulty or impossibility, several reasons may be assigned. One may be drawn from the very nature of a system of common law. As it is accommodated to the situation and circumstances of the people, by whom it is appointed; and as that situation and those circumstances insensibly change; so, especially in a long series of time, a proportioned variation of the laws insensibly takes place; and it is often impossible to ascertain the precise period, when the change began, or to mark the different steps of its progress. Another reason may be drawn from the great number of different nations, which, at different successive periods, and sometimes even at the same period, possessed the government, or the divided governments of England. These added, undoubtedly, to the richness and variety of the common law; but they added likewise to the difficulty of investigating the origin of its different parts.

If this investigation is difficult, there is one consolation, that it is not of essential importance. For at whatever time the laws of England were introduced, from whatever person or country they were derived; their obligatory force arises not from any consideration of that kind, but from their free and voluntary reception in the kingdom.

Several writers, some of them very ingenious and learned, think they can discover, in the common law, features, which strongly indicate, that it is of a Grecian extraction. Without adopting implicitly the authenticity of this high descent, it may be well worth our while to examine the particulars, on which the opinion is founded. If they lead us not to this conclusion, they may, perhaps, lead us to something else, which will be, at least, equally valuable and instructive.

The similarity between the idiom of our language and that of the Grecians has persuaded some very sensible men to believe, that the inhabitants of Great Britain were, in a very remote age, connected, in some manner, with the inhabitants of Greece. This similarity is, indeed, very striking. No one, I believe, who is acquainted with the Greek, the Latin, and the English languages, will hesitate to declare, that there is a closer affinity of idiom between the Greek and the English, than between the English and the Latin, or between the Latin and the Greek.

The very idea of a traditionary law, transmitted from generation to generation merely by custom and memory, may be considered as derived, in part at least, from the practice of the Druids, who considered it as unlawful to commit their religious instructions to writing. But we are informed by the penetrating and intelligent Cæsar, that, in other business, whether of a publick or of a private nature, they used the Grecian letters ― "Græcis literis utuntur."³¹⁵

Pliny conjectures that the name of Druid was derived from the Greek word druj, quercus, an oak, because they performed their solemn ceremonies in the deep recesses of groves formed by oaks; and because, in their sacrifices, they used the leaves of those trees.³¹⁶ The missletoe, it is well known, was of sacred import in their religious mysteries.

Nathaniel Bacon, a gentleman of Gray's inn, wrote a historical and political discourse of the laws and government of England, particularly during the early periods of its history. This discourse, we are informed, was collected from manuscript notes of Mr. Selden, so famed for his various and extensive erudition. To the notes of an antiquarian, so celebrated and so profound, attention will be expected in an investigation of the present kind.

In that discourse we are told, that, though it be both needless and fruitless to enter the lists concerning the original of the Saxons; yet, about the time of Tiberius, their government was, in general, so suitable to that of the Grecians, as if not by the remains of Alexander's army, which was supposed to emigrate into the north, nevertheless, by the neighbourhood of Greece, much of the Grecian wisdom was disseminated among them, before the Roman glory was mounted up to the full pitch; and because this wisdom could never be thus imported but in vessels of men's flesh, rigged according to the Grecian guise, it may well be supposed that there is some consanguinity between the Saxons and the Grecians, although the degrees be not known.³¹⁷

Their country, continues he, they divided into counties or circuits, all under the government of twelve lords, like the Athenian territory under the archontes. These had the judicial power of distributive justice committed to them, together with one hundred of the commons out of each division. The election of these princes with their commission was concluded inter majora, by the general assembly, and they executed their commission in circuits, like unto the Athenian heliastick or subdial court, which was rural, and for the most part kept in the open air. In brief, their judicial proceedings were very suitable to the Athenian, but their military more like the Lacedæmonian, whom, above all others, in their manners, they most resembled.³¹⁸

Austin is generally considered as the apostle of the Saxons, who converted them to christianity: but our author suggests, that he was an apostle of another kind ― to reconcile them to the see of Rome. To prove this, he adduces a remarkable fact, that the Saxons kept Easter "more Asiatico;" and, against Austin's will, retained that custom fifty years after Austin began his mission among them.³¹⁹

In enumerating the different manners of trial among the Saxons, he says, that the last and most usual one was by witnesses, before the jurors, and their votes thereupon: this made the verdict, and it determined the matter in fact. In former time, questionless, it was a confused manner of trial, by votes of the whole multitude; which made the votes hard to be discerned. But time taught them better advice, to bring the voters to a certain number, according to the Grecian way, who determined controversies by the suffrages of four and thirty, or the major part of them."³²⁰

Speaking of a certain regulation concerning dower, which was derived from the Latins, he says; "but the Germans learned from the Greeks otherwise: for the laws both of Solon and Lycurgus forbade it, lest marriages should be made for reward, and not grounded on affection."³²¹

After having described, in detail, a number of particulars relative to the Saxon government and laws, he makes this general remark: "Nor did the fundamentals alter, either by the diversity and mixture of people of several nations in the first entrance, nor from the Danes or Normans in their survenue; not only because in their original they all breathed one air of the laws and government of Greece; but also they were no other than the common dictates of nature, refined by wise men, which challenge a kind of awe, in the sense of the most barbarous."³²²

He concludes his observations concerning the Saxon commonwealth in this expressive manner. "It was a beautiful composure; mutually dependent in every part from the crown to the clown; the magistrates being all choice men; and the king the choicest of the chosen election being the birth of esteem, and that of merit this bred love and mutual trust; which made them as corner stones, pointed forward to break the wave of danger.

"Lastly, it was a regular frame in every part, squared and made even by laws, which, in the people, ruled as lex loquens, and, in the magistrate, as lex intelligens; all of them being grounded on the wisdom of the Greeks, and the judicials of Moses."³²³

The history, says an inquisitive writer, of the constitutions of the different European nations may be much elucidated by institutions, ascertained to have existed in their sister countries, during the corresponding periods of their progress. The rise of the constitutions of the Greek and Italian states will derive light from what is known of the Gaulick, German, and Scandinavian tribes.³²⁴

Dr. Pettingal, in his very learned inquiry concerning the use and practice of juries, differs from Mr. Bacon with regard to the channel, through which the Grecian customs flowed into the Saxon commonwealths: but he admits that those customs were originally derived from Greece. "The likeness," says he, "of the Greek and Saxon government, supposed to be owing to the neighbourhood of Greece and Saxony, proceeded from a different cause. For, as the Romans took their laws and institutions from Greece, and particularly in the instance of the heliastick court, which was a court of trial by jury, and on which the Romans formed their judicium or jury; so when they sent their colonies into Germany, they sent also their laws and usages along with them, and by these means the wisdom of Greece and the practice of the heliastick court got among the Saxons in the shape of the Roman judicia; and the plan of the Greek government, through the channel of the Roman jurisprudence, laid the foundation of many customs that had a resemblance to the Greek, but in fact were no other than an imitation of the Roman polity, which originally was derived from Athens: so that the jury among the Saxons and northern nations was derived from the Roman judicia, as the causa proxima; but both of them drew their origin from the court of dikajai, or jury, among the Greeks. This was the manner, in which the resemblance between the Saxons and Greeks, spoken of by Bacon, was produced."³²⁵

With regard to the institution of juries, he afterwards observes; "where shall we go, with so much propriety, to look for its origin, as among those, who, of all mankind, were the depositaries and patrons of equal law and liberty, and which they themselves had learned from the wisdom and good government established in Athens by Solon? For nothing can be so absurd as to imagine, that such a noble political structure, as had distinguished the only two civilized nations of Europe, and whose legal limitations of power and obedience had done honour even to human nature, should, in times future, be the fortuitous result of a tumultuous deliberation, and that of Scythians and barbarians, rather than an imitation of the wisdom of those customs, which had been introduced among them by their conquerors."³²⁶

The particular history of juries will find its proper place elsewhere. Suffice it to mention them now among the group of institutions said to be derived from the Grecians to the Saxons either immediately, or through the intermediate channel of the Romans.

The laws and institutions of Greece flowed into Italy, and were conveyed to the many different states there, through a vast variety of channels.

The first inhabitants of this "terra potens virorum" were composed of Grecian tribes, the overflowings of their native habitations, who migrated, in early days, into the southern parts of the Italian continent; from this circumstance, it was denominated Magna Groecia. These colonists brought with them their own laws and Customs.³²⁷ These laws and customs were incorporated into one general body, and made a part of the unwritten or customary law of Rome. "The law of the ancient Romans," says Dr. Burn, in the preface to his book on ecclesiastical law,³²⁸ "had its foundation in the Grecian republicks."

It is well known, that the Roman system of jurisprudence was much indebted to the wise and peaceful institutions of Numa. There was one, which produced strong, and extensive, and lasting consequences in the Roman republick; and which seems to have furnished an example for later times ― the establishment of pagi or villages. The conquered and vacant lands he distributed among the citizens. These he divided into districts, and placed over each a superintendant, in order to induce them to improve in the arts of agriculture. The consequence of this wise regulation was, that the functions of war and peace were frequently discharged by one and the same person. The farmer, the soldier, and the magistrate were often united in the same character; and reflected on each other reciprocal ornament. The respected citizen stepped from the plough to the consulship without being elated; and, without being mortified, returned from the consulship to the plough. Thus the Cincinnati were formed.

Towards the latter end of the third century of Rome, a solemn deputation, consisting of three commissioners, was despatched to Athens, with instructions to obtain a transcript of the celebrated laws of Solon, and to make themselves fully acquainted with the regulations, the manners, and the institutions of the other states of Greece.³²⁹

The constitution of Athens had lately received great improvements under the administration of some of her most illustrious citizens, Aristides, Themistocles, and Cimon; and, at this very time, the splendid Pericles was at the head of her government.

After an absence of about two years, the commissioners returned, with copies of the Athenian laws. The decemvirs, of whom the commissioners were three, were then appointed, with full powers to form and propose a digest of laws for Rome. With much alacrity and zeal they entered upon the execution of the very important trust, with which they were invested by their confiding country. In the arduous business, they received the most valuable assistance from a wise Ephesian, who had been driven, by the hand of envy, from his native country; and who, during his exile, had opportunities of personally observing the principles and characters of men, and the establishments and forms of society. His accumulated treasures of observation and reflection were imparted liberally to the decemvirs. The name of Hermodorus was gratefully transmitted to posterity, by a statue erected to his honour in the forum.

The code, which the decemvirs composed, consisted partly of entire laws transcribed from the Grecian originals; partly of such as were altered and accommodated to the constitution and manners Of the Romans; and partly of the former laws received and approved in Rome. It was engraved on ten tables, and fixed up in the most conspicuous part of the forum; that the whole people might have an opportunity of perusing and examining it at their conveniency and leisure. When sufficient time had been allowed for those purposes, an assembly of the people was convened. In that assembly, after invocations that what might be done should prove happy and auspicious to the commonwealth, the proposed laws were read. The decemvirs declared, that they had provided, as far as their abilities could provide, that the laws should be equal and impartial to the high and to the low; but that on the counsels and deliberations of the citizens at large, more reliance could he placed; for that the Roman people should have no laws, but such as were ratified as well as ordered by the consent of all.³³⁰ The ten tables received the solemn ratification of the people. Two more were afterwards added in a second decemvirate. All these formed the celebrated code of the twelve tables; the fountain, as Livy honourably denominates them, of all publick and private law. They constituted the foundation of that immense fabrick of jurisprudence, which has extended the influence and the glory of Rome, far beyond the limits and existence of the Roman power.

To the twelve tables, after some time, the responsa prudntum began to be superadded. These were the commentaries of lawyers, who accommodated them to the successive practice and proceedings of the courts of justice. This part of the law was denominated, in contradistinction to the laws of the twelve tables, the jus non scriptum, or unwritten law; and having no other name, began then to be called the civil law. By Justinian, it is styled the jurisprudentia media; because it intervened between the laws of the twelve tables, and the imperial constitutions.³³¹

In the free and happy periods of the Roman commonwealth, great regard was paid to customary law. We have already seen,³³² on another occasion, that it was thought immaterial whether a law received the sanction of the people by their formal suffrage, or by the uniform course of their conduct and manners. Thus did Romans speak and reason while they enjoyed the blessings of liberty. Nor did the spirit of their law change immediately ― with the spirit of their government. Long after the impure air of despotism tainted the latter, the vital principles of freedom continued the former in a tolerable state of internal health and soundness. Even under the emperours, the opinions of the Roman lawyers, and the decisions of the Roman courts, with regard to property, and to the rights of private persons, seem not to have been vitiated by the principles of their government. The rules of justice among individuals could not prejudice, in the most remote degree, the power or the interest of the emperour, placed above the reach of all private regards; their rights were, therefore, investigated and enforced with a balanced impartiality.³³³

I have observed, that, in the free and happy periods of the Roman commonwealth, great regard was paid to customary law. Even so late as the time of Justinian, the unwritten law constituted one of the two great divisions, into which the system of Roman jurisprudence was thrown. "Constat,"³³⁴ says the emperour, "autem jus nostrum, quo utimur, aut scripto, aut sine scripto; ut apud Græcos twn nogwn o\e men eggarfej, o\i de agrafoj." "Our law, which we use, consists, like the law of the Grecians, of what is written, and of what is unwritten." This passage, by the by, strongly intimates, in the Institutes, a principle of attachment and imitation operating in favour of the Grecian system. This principle appears, in the most explicit manner, from what we find in the next section of the Institutes. "Et non ineleganter in duas species jus civile distributum essevidetur; nam origo ejus ab institutis duarum civitatum, Athenarum scilicet et Lacedæmoniorum, fluxisse videtur. In his enim civitatibus ita agi solitum erat, ut Lacedæmonii quidem ea, quæ pro legibus observabant, memoriæ mandarent: Athenienses vero ea quæ in legibus scripta comprehendissent, custodirent." "The civil or municipal law is divided, with some degree of elegance, into two kinds. For its origin seems to be derived from the institutions of two states ― that of the Athenians, and that of the Lacedæmonians. In those states, the manner of transacting their legislative business was such, that the Lacedoemonians trusted to memory for the preservation of their laws; whereas the laws of the Athenians were committed to writing."

Concerning unwritten or customary law, Justinian thus expresses himself. "Sine scripto jus venit, quod usus approbavit; nam diuturni mores, consensu utentium comprobati, legem imitantur." "The unwritten law supervenes upon the approbation of usage; for long customs, approved by the consent of those who use them, acquire the qualities of a law." By the way, it deserves to be remarked here, that the expression, which, on a former occasion,³³⁵ I cited from an act of parliament as characteristick of the common law of England, is the literal translation of the expression used by Justinian to characterize the unwritten law of the Roman empire ― diuturnus ― long. The epithet immemorial is used by neither of those very high authorities.

If unwritten law possessed such a dignified rank in the system of Roman jurisprudence so late as even the reign of Justinian; we may be well justified in supposing that this species of law was entitled to a still greater proportion of regard, four or five centuries before that time. Four or five centuries before that time, it was extended to the island of Great Britain.

The jurisprudence, which had been grossly adapted to the wants of the first Romans, was polished and improved, towards the latter years of the commonwealth, by the infusion and operation of the Grecian philosophy. The Scævolas had been taught by precedents and experience. But Servius Sulpicius was the first civilian, who established his art on certain and general principles. For the discernment of truth and falsehood, he applied, as an infallible rule, the logick of Aristotle and the Stoicks, reduced particular cases to general principles, and diffused, over the dark and shapeless mass, the light of order, and the graces of eloquence.

The jurisprudence of Rome was adorned and enriched by the exquisite genius of Cicero, which, like the touch of Midas, converts every object into gold. In imitation of Plato, he composed a republick: and for the use of his republick, formed a system of laws. In this system, he expatiates on the wisdom and excellency of the Roman constitution.³³⁶

Julius Cæsar was the first Roman who visited the island of Great Britain; and, perhaps, he had no great reason to exult in the success of his visit. His own account of his retreat is unfurnished with a decent apology. The poet, whose republican spirit was unbroke to the pliant arts of Battery, says in explicit terms,

Territa qutsitis ostendit terga Britannis.

The first foundations of an effective conquest and a permanent settlement, which were laid in Britain under the auspices of Rome, were those, which were begun in the reign of the emperour Claudius.

The character of his administration may be thus described. From the general tenour of his conduct it is plain, that he contemplated the senate as the sovereign power of the whole empire. He made many attempts to introduce an improvement of the constitution, by reviving or reforming antiquated laws, and by enacting salutary new ones: but these attempts lie meditated and prosecuted by the advice and with the concurrence of the senate. So far, therefore, as the establishments in Britain were carried on during the administration of Claudius, it is not likely that they were marked by circumstances of uncommon rigour or oppression. Indeed, the acquisitions made in the island during that and some succeeding reigns were both very limited and very precarious.

Julius Agricola, who governed it in the reign of Vespasian, Titus, and Domitian, was the first who formed a regular plan for completing the conquest, and rendering the acquisition useful to the conquerors. Among the Britons he introduced the Roman civility and laws; he reconciled them to the Roman manners and language; he instructed them in learning and the arts; he taught them to know and to covet all the conveniences and delicacies of life; he employed every soothing contrivance to render their fetters easy, and even fashionable. The inhabitants, taught, by direful experience, how disproportioned their military strength and military skill were to the military strength and military skill of the Romans, and lulled by the flattering scenes of ease and elegance, which were exhibited to their views and wishes, acquiesced in the splendid dominion of their masters, and were gradually incorporated as a portion of the mighty empire of Rome.³³⁷

Agricola disseminated the modes of Roman education among the sons of the British nobility; and improved them so well, that, in a short time, those who had most despised the Roman language, applied with ardour, to the study and the profession of Roman eloquence. An affectation of the Roman dress was the natural consequence; and the gown was considered in Britain as a splendid distinction. Luxury succeeded splendour and refinement; and the Britons were Romanised, without reflecting that the arts and accomplishments which were liberal in a Roman, were, in a Briton, servile; and that what they viewed as the accompaniments of politeness, were, in reality, nothing better or nobler than the instruments of subjection.³³⁸

The Romans held the possession and the government of the most considerable part of Britain near four hundred years. During that long period, a very frequent and intimate intercommunication of marriages, manners, customs, and laws must have taken place.

In the whole province there are said to have been about one hundred and fifty Roman stations.³³⁹ These were connected by inferiour fortresses, erected at proper distances, and garrisoned by regular troops. Each of those garrisons attracted the neighbouring inhabitants; a town or village was begun; and a settlement was formed indiscriminately by Roman and by native families. As military service was often rewarded with possessions in land, the example of the Roman officers and soldiers must have spread the knowledge and practice of agriculture, while their industry in the management of their estates contributed to beautify and improve the face of the country.

The connexion with Britain, which the soldiers of the Roman army formed by living in the country, was seldom dissolved, even when they were discharged from the service. They had gradually acquired an attachment to the places where they had long resided, and chose to continue that residence where their attachment was now formed. Their offspring became natural inhabitants; and Britain, in this manner, received fresh accessions of Romans, to supply the place of such natives as were drawn from it, in order to recruit the army in other provinces of the empire.

It was the policy of Rome to extend her jurisprudence wherever she had extended her dominion. This policy promoted her influence and her interest among the vanquished people; and, at the same time, established among them tranquillity and order. This policy was peculiarly necessary in Britain, to prevent the private wars, and restrain the mutual acts of violence and outrage, to which the inhabitants were remarkably addicted. The introduction and establishment of the Roman laws was unavoidably, however, a work of time. For a considerable period, the Roman magistrates confined their operations to the publick administration of the province; while the British chiefs were permitted to retain their ancient jurisdiction in matters of private property, and to determine the controversies of their tenants and dependents.

Some writers are of opinion, that this jurisdiction was gradually circumscribed, and, at last, entirely annihilated; and that, during the long government of the Romans, the original laws and customs of the Britons were disused and forgotten. Perhaps the more probable opinion is, that, during this extended succession of time, the two nations became blended together in their laws and customs, as well as by their intermarriages; so as to be neither wholly Roman, nor wholly British. Those laws, indeed, which related to government and the administration of publick affairs, were, it maybe presumed, altogether Roman.

Accordingly, when the exhausted empire was obliged to collect her last expiring efforts around the immediate seat of life and existence; the departure of the Romans from Britain was fatal to all the institutions of government which had been formed, ripened, and established during the long lapse of time, which we have already mentioned. The officers, who directed and managed the administration of the province, and the judges, who, at least in matters relating to publick law, had acquired a complete jurisdiction, retired from a country, abandoned by its master. The courts of justice were shut: government, and the order attendant on government, were dissolved. The rudder of the state knew no hand, which had a right to hold it: the vessel was, therefore, tossed at the pleasure of the winds and waves.

Time, however, and necessity gradually introduced some form of government, though a very simple one. The country was broken into districts, and placed under chiefs. A general of their united forces was appointed. Voltigern was the last, who was promoted to that high dignity.

From the foregoing deduction, it is highly probable, that, at the period to which we have now brought our remarks, the system of law in Britain, if, at that period, any kind of law deserved the name of a system, was a motley mixture of Roman and British institutions. The language, at that time used in Britain, was, as we have every reason to believe, a composition of the Roman and British tongues.

Sir William Blackstone mentions three instances,³⁴⁰ in which the British jurisprudence bears a great resemblance to some of the modern doctrines of the English law. One is, the very notion itself of an oral unwritten law, deliver ed down from age to age, by custom and tradition merely. This seems derived from the practice of the Druids, who never committed any of their instructions to writing. This observation suggests a claim, unquestionably, to the notion of a common law subsisting among the Britons. But it, by no means, authorizes an exclusive claim. We have seen that, in the pure times of the Roman commonwealth, a customary law was known and highly respected at Rome. At the time when the Roman law was translated to Britain, it retained its customary qualities in their full vigour and extent.

The second instance mentioned by Sir William Blackstone is, the partible quality of lands by the custom of gavelkind, which still obtains in many parts of England, and, till the reign of Henry the eighth, prevailed universally over Wales. This, says he, is undoubtedly of British original. But the partible quality of lands, if not entirely, yet nearly on the same principles, prevailed among the Romans, as well as among the Britons. Nor was it confined even to those two nations. The Greeks, the Romans, as we are informed in the Commentaries, the Britons, the Saxons, and even originally the feudists divided the lands equally; some among all the children at large, some among the males only.³⁴¹

The third instance, mentioned by Sir William Blackstone as of British original, is, the ancient division of the goods of an intestate between his widow and children, or next of kin; which has since been revived by the statute of distributions. But it is well known, that the statute of distributions is moulded in the form of Roman as well as of ancient British jurisprudence.³⁴²

Well known is the event of the invitation, which Voltigern gave to a body of the Saxons to aid him against his northern enemies.³⁴³ As it has happened on other occasions, the allies became the masters of those whom they engaged to assist.

We have no complete account of the circumstances which attended the settlement of the Saxons in Britain. From the doleful representations of some early and passionate annalists, our historians, in general, have been led to suppose, that all the Britons, who were not reduced to captivity, were massacred by their barbarous enemies, or, disdaining submission, retreated among the mountains of Wales, or withdrew into the country of Armorica in France; to which country, the name of Bretagne is said to have been derived from those unfortunate refugees. A bold and industrious antiquarian has lately shown, however, that this extraordinary supposition is without any solid foundation. It is, indeed, highly probable, that many of the Britons were subjected to very great hardships, and were obliged even to abandon their native soil. But it appears hard to believe, that the Saxons should be stimulated by barbarity to proceed so far as, contrary to their own interests, to exterminate the ancient inhabitants. There is even complete evidence, that, in some parts of the island, the Britons were so far from being destroyed or obliged to fly their country, that they were permitted to retain a certain proportion of their landed property. This proportion, a third part of the whole, was the same with that allotted to the ancient inhabitants, in some of those provinces on the continent of Europe, which were conquered by the other German tribes.

The language, which spread itself among the Saxons after their settlement in Britain, contained a great proportion of the Latin and British tongues. This large infusion of those different ingredients into the same language, is, of itself, a strong proof, that the inhabitants were compounded of the different nations, by whom those tongues were originally spoken.³⁴⁴

The victorious Saxons were less civilized than the conquered Britons. The latter gradually communicated to the former a portion of that refinement, which had not been entirely effaced from themselves. At last, after a lapse of near two centuries, the two nations, by habits, treaties, commerce, and intermarriages, were entirely blended together; and their union produced such a compound system of manners and customs, as might be expected to arise from the declining state of one, and the improving state of the other. This blending principle would have its effect upon the laws, as well as upon the manners and habits of both nations. The conquerors and the conquered would be incorporated into one people, and compose, as the antiquarian³⁴⁵ before mentioned expresses himself, a mingled mass of Saxon Britons and British Saxons.

We are told of three kinds of laws used in England during the government of the Saxons: the Mercian law, which contained the local constitutions of the kingdom of Mercia; the Dane law, which comprised the customs introduced by those, whose name it bore; and the West Saxon law, a system compiled by Alfred the Great; whose elevated and extensive talents were employed, in the most vigorous manner, for the improvement of the laws and constitution of his country.

These three systems of law were different, rather in unessential forms, than in important principles. For this we have the authority of the very learned Spelman. "Our Saxons, though divided into many kingdoms, yet were they all one, in effect, in manners, laws, and language: so that the breaking of their government into many kingdoms, or the reuniting of their kingdoms into a monarchy, wrought little or no change among them, touching laws. For though we talk of the West Saxon law, the Mercian law, and the Dane law, whereby the west parts of England, the middle parts, and those of Suffolk, Norfolk, and the north were severally governed; yet held they all a uniformity of substance, differing rather in their mulcts, than in their canon, that is, in the quantity of fines and amerciaments, than in the course and frame of justice."³⁴⁶

These distinct codes were afterwards reduced into one uniform digest, for the use and observance of the whole kingdom. This digest was undertaken and commenced by King Edgar; it was completed by his grandson, King Edward; and has been since well known and distinguished by the appellation of the Confessor's laws. It is conjectured to have been chiefly a revival of the code of the great Alfred, accompanied with such improvements as were suggested by subsequent experience.

We have now brought the history of the common law down to the period of the Norman conquest. We have seen its rise taking place, by slow degrees, in ages very remote, and in nations very different from one another. We have seen it, in its converging progress, run into one uniform system, mellowed by time and improved by experience. In every period of its existence, we find imprinted on it the most distinct and legible characters of a customary law ― a law produced, extended, translated, adopted, and moulded by practice and consent.

The period through which we have gone is, indeed, peculiarly interesting. "The whole period of our national history before the conquest," says an English writer, "is the most important and momentous in our annals. It most forcibly; lays hold upon the passions by the quick succession and active variety of incidents, and by the decisive greatness of its revolutions. And, what is much more, it is that period of our history, which gives the body and the form to all the succeeding centuries of it. It contains the actual commencement of every part of our publick and private economy."³⁴⁷

Here we make a pause in the history of the common law. To pursue it minutely from the Norman conquest to the accession of the Stuart line would be a tedious, a disagreeable, but, fortunately, it is an unnecessary task.

The common law, as now received in America, bears, in its principles, and in many of its more minute particulars, a stronger and a fairer resemblance to the common law as it was improved under the Saxon, than to that law, as it was disfigured under the Norman government. How much it was disfigured, and why we should not receive it in its disfigured state, will appear from the following very interesting part of Sir William Blackstone's Commentaries. "

The last and most important alteration, introduced by the Norman conquest, both in our civil and military polity, was the ingrafting on all landed estates, a few only excepted, the fiction of feodal tenure; which drew after it a numerous and oppressive train of servile fruits and appendages; aids, reliefs, primer seisins, wardships, marriages, escheats, and fines for alienation; the genuine consequences of the maxim then adopted, that all the lands in England were derived from, and holder, mediately or immediately, of the crown.

"The nation, at this period, seems to have groaned under as absolute a slavery, as it was in the power of a warlike, an ambitious, and a politick prince to create. The consciences of men were enslaved by sour ecclesiasticks, devoted to a foreign power, and unconnected with the civil state under which they lived; who now imported from Rome, for the first time, the whole farrago of superstitious novelties, which had been engendered by the blindness and corruption of the times, between the first mission of Augustin, the monk, and the Norman conquest.

"The ancient trial by jury gave way to the impious decision by battle. The forest laws totally restrained all rural pleasures and manly recreations. And in cities and towns, the case was no better; all company being obliged to disperse, and fire and candle to be extinguished, by eight at night, at the sound of the melancholy curfew.

"The ultimate property of all lands, and a considerable share of the present profits, were vested in the king, or by him granted out to his Norman favourites; who, by a gradual progression of slavery, were absolute vassals to the crown, and as absolute tyrants to the commons. Unheard of forfeitures, talliages, aids, and fines were arbitrarily extracted from the pillaged landholders, in pursuance of the new system of tenure. And, to crown all, as a consequence of the tenure by knight service, the king had always ready at his command an army of sixty thousand knights, or milites; who were bound, upon pain of confiscating their estates, to attend him in time of invasion, or to quell any domestick insurrection.

"Trade, or foreign merchandise, such as it then was, was carried on by the Jews and Lombards; and the very name of an English fleet, which king Edgar had rendered so formidable, was utterly unknown to Europe: the nation consisting wholly of the clergy, who were also the lawyers; the barons, or great lords of the land; the knights or soldiery, who were the subordinate landholders; and the burghers, or inferiour tradesmen, who, from their insignificancy, happily retained, in their socage and burgage tenure, some points of their ancient freedom. All the rest were villains or bond men.

"From so complete and well concerted a scheme of servility, it has been the work of generations for our ancestors, to redeem themselves and their posterity into that state of liberty, which we now enjoy: and which, therefore, is not to be looked upon as consisting of mere encroachments on the crown, and infringements of the prerogative, as some slavish and narrow minded writers in the last century endeavoured to maintain; but as, in general, a gradual restoration of that ancient constitution, whereof our Saxon forefathers had been unjustly deprived, partly by the policy, and partly by the force, of the Norman."³⁴⁸

From the deduction, which we have made, it appears, I think, in a satisfactory manner, that the rich composition of the common law is formed from all the different ingredients, which have been enumerated; yet, when we descend to particular principles and rules, it is very difficult, it is often impossible, to ascertain the particular source, from which such rules and principles have been drawn. That some of our customs have been derived from the Grecians, though probably through the intermediate channel of the Romans; that others of them have been derived immediately from the Romans, others from the Britons, others from the Saxons, and others, in fine, from the Normans, seems to be evinced by the reasonable rules of historical credibility. But to say that such or such a particular custom has descended to us from such and such a particular origin, would be often to hazard too much upon uncertain conjecture. It may, however, be done sometimes, upon facts and arguments, which are clear and convincing: and whenever it can be done, it will amply repay all the care and trouble of the investigation. As has been already mentioned, the most proper way to teach and to study the common law, is to teach and to study it as a historical science. Under many titles, we shall have an opportunity of pursuing this method.

Besides those particular instances; of which notice will be taken afterwards; there is one pretty general distribution of the common law, according to which, different parts of it may be referred to different nations, by whom, in all probability, they were introduced.

The original frame of the British constitution, different, indeed, in many important points, from what it now is, and bearing, to some of the constitutions which have lately been formed, and established in America, a degree of resemblance, which will strike and surprise those who compare them together ― this venerable frame may be considered as of Saxon architecture. To a Saxon origin may also be ascribed much of that part of the common law, which relates to crimes and punishments. One lovely feature, in particular, we have the pleasure to recognise. The ancient Germans, of whom the Saxons composed a part, discriminated punishments, as we are informed by Tacitus,³⁴⁹ according to the kind, and proportioned them according to the measure of the crime. "Liberty," says the celebrated Montesquieu,³⁵⁰ "is in its highest perfection, when criminal laws derive each punishment from the particular nature of the crime." With regard to this very interesting part of the law, very wide deviations from Saxon principles have been made in the English criminal code, since the period of the Norman conquest.

The common law, as it respects contracts and personal property, discovers evident traces of the Roman jurisprudence. It has been the opinion of some, that those parts of the common law have been borrowed from the civil law, subsequent to the great legislative era,³⁵¹ when the pandects of Justinian were discovered at Amalfi: I suggest, merely for consideration at present, a conjecture, that many of those parts were incorporated into the common law, during the long period of near four centuries, when the Roman jurisprudence predominated in England.

Much of the common law respecting real estates, as it has been received in England since the time of William the Conqueror; and a considerable part of it, as it is still received in that kingdom, particularly the feudal principles and policy, should be referred to a Norman extraction.

Concerning the period, at which the feudal system was introduced into England, there has been long and learned controversy among lawyers and antiquarians. "At the close of the first century," says Whitaker in his History of Manchester, "our tenures in Britain appear undeniably to have been purely military in their design, and absolutely feudal in their essence. The primary institution of feuds is unanimously deduced, by our historical and legal antiquarians, from the northern invaders of the Roman empire; and the primary introduction of them into this island is almost as unanimously referred to the much more recent epocha of the Norman conquest. But they certainly existed among us before, and even formed the primitive establishment of the Britons." "They must have existed coeval with the first plantation of the island. They were plainly the joint result of a colonizing and a military spirit. The former providentially animated the first ages of the Noachidæ, was constantly prosecuted under the discipline of regular order, and the control of regal authority, and had whole regions to partition among the members of the colony. The latter was excited by the frequent migrations of colonists and the numerous invasions of settlements in the same ages, and naturally provided for the security of the colony, by the institution of a military establishment."³⁵²

From Mr. Whitaker's own account, it appears that he is singular in his sentiments with regard to the antiquity of the feudal system. Indeed, if his sentiments are well founded, that system must have been coeval and coextensive with society itself. But from the account which we have already³⁵³ given of the origin and first principles of society, the inference, we apprehend, may be fairly made, that its first ages were ages of equality, perhaps of some culpable degree of license. The opinion is indeed singular ― that rule and subordination in the extreme, in other words, tyranny and slavery, should be necessarily extended with the extension of the human race.

It is remarkable, however, that this very writer makes, with regard to the Saxons, a peculiar exception from this general and almost universal system. "No traces," says he, "of the primitive feuds appear visible among the Saxons; and they seem to have been the only nation of Germany that did not plant them in their conquests."³⁵⁴ His conjecture, therefore, is, that the Saxons had adopted this improvement from the Britons. He represents the whole Saxon system, in consequence of this adoption, as informed with one strong principle of subordination, which diffused its influence through every part, and formed a scale of dependence from the sovereign to the villain. Thus, one continued chain of subordination was carried regularly from the villain to the monarch; the higher link of the whole being fastened to. the foot of the throne, and keeping the whole machine of national power steadily dependent from it.³⁵⁵

Others inform us, and apparently on better grounds, that in the early ages of society, estates in land were free; that they were held in propriety, and not by tenure; that they were hereditary as well as free; that such were the real estates of the Greeks, of the Romans, and particularly of the Saxons; that, among the latter, they were alienable likewise at the pleasure of the owner, and devisable by will. The Saxons were absolutely masters of their land; and were not obliged to transmit it to the blood which the donor intended to favour. It was still, however, considered as the property of a citizen; and, therefore, subjected its owner to the general obligation of taking arms in defence of his country.

The differences between estates in land under the Saxon government, and those which were held under that of the conqueror, will be plain and striking by a short enumeration and contrast. Before the conquest, land were the absolute proprieties of the owners; they could be devised and transferred at pleasure. No wardship or marriage was due or exacted. In all these things, an alteration was made on the introduction of the feudal tenures. Lands could not be alienated without the consent of the superiour: they could not be devised by will. The heir had no right to enter into the inheritance of his ancestor, until he had paid a relief, and had been admitted by his lord. As to landed estates, therefore, the law introduced by the conqueror might well be denominated a new, a Norman law.

At common law, too, all inheritances were estates in fee simple; of different kinds indeed, qualified and conditional, as well as absolute.³⁵⁶

"When all estates were fee simple," says my Lord Coke, "then were purchasers sure of their purchases, farmers of their leases, creditors of their debts: and for these, and other like causes, by the wisdom of the common law, all estates of inheritance were fee simple and what contentions and mischiefs have crept into the quiet of the law by these fettered inheritances, daily experience teacheth us."³⁵⁷

"Out of all the books and reports of the common law," says the same very experienced judge, "I have observed, that though sometimes by acts of parliament, and sometimes by invention and contrivance of men, some points of the ancient common law have been diverted from its proper channel; yet, in the revolutions of time, it has been, with much publick satisfaction, and to avoid many great inconveniences, been restored to its proper and ancient course. For example, the wisdom of the common law was, that all estates of inheritance should be fee simple, so that one man might safely alien, demise, and contract to and with another. But the statute of Westminster the second created an estate tail, and made a perpetuity by act of parliament, restraining tenant in tail from aliening or demising, but only for his own life. This, in process of time, introduced such trouble and mischief, that, after two hundred years, necessity discovered a method, by law, for a tenant in tail to alien.

"In like manner, by the ancient common law, freeholds could not pass from one to another but by matter of record, or solemn livery of seisin. Against this, however, uses were invented, and grew common and almost universal, in destruction of the ancient common law in that point. But, in time, the numerous inconveniences of this being found by experience, the statute of 27. H. VIII. c. 10. was made to restore the ancient common law, in this particular, as expressly appears by the preamble of the statute itself. Of the same truth, an infinity of other examples might be produced; but these shall, at present, suffice."³⁵⁸

We have mentioned the common law, as a law which is unwritten. When we assign to it this character, we mean not that it is merely oral, and transmitted from age to age merely by tradition. It has its monuments in writing; and its written monuments are accurate and authentick. But though, in many cases, its evidence rests, yet, in all cases, its authority rests not, on those written monuments. Its authority rests on reception, approbation, custom, long and established. The same principles, which establish it, change, enlarge, improve, and repeal it. These operations, however, are, for the most part, gradual and imperceptible, partial and successive in a long tract of time.

It is the characteristick of a system of common law, that it be accommodated to the circumstances, the exigencies, and the conveniencies of the people, by whom it is appointed. Now, as these circumstances, and exigencies, and conveniencies insensibly change; a proportioned change, in time and in degree, must take place in the accommodated system. But though the system suffer these partial and successive alterations, yet it continues materially and substantially the same. The ship of the Argonauts became not another vessel, though almost every part of her materials had been altered during the course of her voyage.

Again; we are taught both by observation and by experience, that the farther laws reach from their original institutions, the more extensive and the more numerous they become. In the first association of a community, their prospect is not enlarged, their wants are comparatively few: but as the society increases, their views expand, and their wishes multiply: what is the consequence? New laws and provisions, suited to the growing multitude of successive exigencies, must be made. The system, of course, becomes larger and more complex.

The same principle of accommodation in a system of common law, will adjust its improvement to every grade and species of improvement made by the people, in consequence of practice, commerce, observation, study, and refinement. As the science of legislation is the most noble, so it is the most slow and difficult of sciences. The jurisprudence of a state, willing to avail itself of experience, receives additional improvement from every new situation, to which it arrives; and, in this manner, attains, in the progress of time, higher and higher degrees of perfection, resulting from the accumulated wisdom of ages. The illustrious legislators, who have illuminated the political world, such as Solon, Numa, Lycurgus, collected the customs which they found already adopted, and disposed them regularly, with the necessary amendments and illustrations.

The same principle of accommodation, which we have already traced in so many directions, may be traced in still one direction more. It silently and gradually introduces; it silently and gradually withdraws its customary laws. Disuse may be justly considered as the repeal of custom. Laws, which are long unobserved in practice, become laws, which are antiquated in theory. "On strong grounds this rule is received, that laws may be abrogated, not only by the express declaration of the legislature, but, through desuetude, by the tacit consent of all."³⁵⁹ A law ought not, indeed, to be presumed obsolete upon slight pretences; but, on the other hand, a total disuse, for a long period of time, may be justly considered as a sufficient reason for not carrying into effect a disrespected and neglected ordinance.

"It has happened to the law, as to other productions of human invention, particularly those which are closely connected with the transactions of mankind, that the changes wrought by a series of years have been gradually rendering many parts of it obsolete; so that the systems of one age have become the objects of mere historick remembrance in the next. Of the numerous volumes that compose a lawyer's library, how many are consigned to oblivion by the revolutions in opinions and practice; and what a small part of those, which are still considered as in use, is necessary for the purposes of common business!"³⁶⁰

There are some great eras, when important and very perceptible alterations take place in the situation of men and things: at such eras, the accommodating principle, which we have so often mentioned, will introduce similar and adequate alterations in the rules and practice of the common law. Such considerable changes, together with their extensive influences, diffuse, over many parts of the system, a new air and appearance. At some of those eras, the improvement is as rapid as the change is great. Why should not the present age in America, form one of those happy eras?

During many ― very many revolving centuries, the. common law has been the peculiar and the deserved favourite of the people of England. It suffered much, as we have seen, from the violence of the Norman conquest; but it still continued the theme of their warmest praise, and the object of their fondest hopes. Its complete restoration was the burthen of every memorial, and the prayer of every petition. The knowledge of this law formed a considerable part of the little learning of the early and unenlightened ages.

Those, who had received the best education, says Selden, in his dissertation on Fleta,³⁶¹ applied themselves assiduously to the study of the ancient English laws and manners, which related to government and the administration of civil affairs. From such characters judges and licensed advocates were selected. These laws and manners were taught in the private families of the most illustrious characters of the kingdom, in monasteries, in colleges, in universities. They had no acquaintance with the Theodosian or Justinian codes. They taught only the manners of our ancestors, and that law, which, even before the period of which we speak, and down to our own times, is known by the name of the common law of England.

The affectionate manner, in which the great and good Lord Chief Justice Hale speaks of this law, recommends it and him with equal warmth. He introduces it ― as the common municipal law of the kingdom ― as the superintendent of all the particular laws known in any of the courts of justice ― as the common rule for the administration of publick affairs in that great kingdom ― as the object, of which that great kingdom had been always tender; and with great reason; not only because it is a very just and excellent law in itself; but also because it is singularly accommodated to the frame of the English government, and to the disposition of the English nation. As such, it is by a long experience, incorporated into their very temperament, and has become the constitution of the English commonwealth.³⁶²

In the natural body, diseases will happen; but a due temperament: and a sound constitution will, by degrees, work out those adventitious and accidental diseases, and will restore the body to its just state and situation. So is it in the body politick, whose constitution is animated and invigorated by the common law. When, through the errours, or distempers, or iniquities of men or times, the peace of the nation, or the right order of government have received interruption; the common law has wrought out those errours, distempers, and iniquities; and has reinstated the nation in its natural and peaceful state and temperament.

The best kings of England have been always jealous and vigilant to reform what has, at any time, been found defective in that law; to remove all obstacles, which could obstruct its free course; and to support, countenance, and encourage it, as the best, the safest, and the truest rule of justice in all matters, criminal as well as civil.³⁶³

We have seen how much the common law has been loved and revered by individuals, by families, and by the different seminaries of education throughout England: let us now see how much it has been respected by even the legislative power of the kingdom.

On a petition the parliament for redress, in the thirteenth year of Richard the second, the following remarkable judgment of parliament is entered ― It appears to the lords of parliament, that the petition is not a proper petition to parliament; since the matter contained in it ought to be determined by the common law: and, therefore, it was awarded, that the party petitioning should take nothing by his suit in parliament; because he might sue at common law, if he thought proper.³⁶⁴

We have viewed, in a number of instances, the accommodating spirit of the common law. In other instances its temper is decided and firm. The means are varied according to times and circumstances; but the great ends of liberty are kept steadily and constantly in view.

Its foundations, laid in the most remote antiquity, have not been overturned by the successive invasions, or migrations, or revolutions which have taken place. The reason has been already hinted at: it contains the common dictates of nature, refined by wisdom and experience, as occasions offer, and cases arise.

In all sciences, says my Lord Bacon,³⁶⁵ they are the soundest, that keep close to particulars. Indeed a science appears to be best formed into a system, by a number of instances drawn from observation and experience, and reduced gradually into general rules; still subject, however, to the successive improvements, which future observation or experience may suggest to be proper. The natural progress of the human mind, in the acquisition of knowledge, is from particular facts to general principles. This progress is familiar to all in the business of life; it is the only one, by which real discoveries have been made in philosophy; and it is the one, which has directed and superintended the instauration of the common law. In this view, common law, like natural philosophy, when properly studied, is a science founded on experiment. The latter is improved and established by carefully and wisely attending to the phenomena of the material world; the former, by attending, in the same manner, to those of man and society. Hence, in both, the most regular and undeviating principles will be found, on accurate investigation, to guide and control the most diversified and disjointed appearances.

How steadily and how effectually has the spirit of liberty animated the common law, in all the vicissitudes, revolutions, and dangers, to which that system has been exposed! In matters of a civil nature, that system works itself pure by rules drawn from the fountain of justice in matters of a political nature, it works itself pure by rules drawn from the fountain of freedom.

It was this spirit, which dictated the frequent and formidable demands on the Norman princes, for the complete restoration of the Saxon jurisprudence: it was this spirit, which, in magna charta, manifested a strict regard to the rights of the commons, as well as to those of the peerage: it was this spirit, which extracted sweetness from all the bitter contentions between the rival houses of Lancaster and York: it was this spirit, which preserved England from the haughtiness of the Tudors, and from the tyranny of the Stuarts: it was this spirit, which rescued the States of America from the oppressive claims, and from all the mighty efforts made to enforce the oppressive claims, of a British parliament.

The common law of England, says my Lord Coke,³⁶⁶ is a social system of jurisprudence: she receives other laws and systems into a friendly correspondence: she associates to herself those, who can communicate to her information, or give her advice and assistance. Does a question arise before her, which properly ought to be resolved by the law of nations? By the information received from that law, the question will be decided for the law of nations, is, in its full extent, adopted by the common law, and deemed and treated as a part of the law of the land. Does a mercantile question occur? It is determined by the law of merchants. By that law, controversies concerning bills of exchange, freight, bottomry, and ensurances receive their decision. That law is indeed a part of the law of nations; but it is peculiarly appropriated to the subjects before mentioned. Disputes concerning prizes, shipwrecks, hostages, and ransom-bills, are, under the auspices of the common law, settled and adjudged by the same universal rule of decision. Does a contract, in litigation, bear a peculiar reference to the local laws of any particular foreign country? By the local laws of that foreign country, the common law will direct the contract to be interpreted and adjusted. Does a cause arise within the jurisdiction of the admiralty? Within that jurisdiction the civil law is allowed its proper energy and extent.

But, while she knows and performs what is due to others, the common law knows also and demands what is due to herself. She receives her guests with hospitality; but she receives them with dignity. She liberally dispenses her kindness and indulgence; ― but, at the same time, she sustains, with becoming and unabating firmness, the preeminent character of gravior lex.

There is much truth and good sense, though there is some quaintness of expression, in the following encomium of the common law, which I take from my Lord Coke.³⁶⁷ "If all the reason, that is dispersed into so many several heads, were united into one, yet could he not make such a law as the law of England is; because by many successions of ages it has been fined and refined by an infinite number of grave and learned men, and by long experience grown to such a perfection for the government of this realm, as the old rule may be justly verified of it, neminem oportet esse sapientiorem legibus: no man ought to be wiser than the law, which is the perfection of reason." Indeed, what we call human reason, in general, is not so much the knowledge, or experience, or information of any one man, as the knowledge, and experience, and information of many, arising from lights mutually and successively communicated and improved.

To those, who enjoy the advantages of such a law as has been described, I may well address myself in the words of Cicero,³⁶⁸ " Believe me, a more inestimable inheritance descends to you from the law, than from those who have left, or may leave you fortunes. A farm may be transmitted to me by the will of any one: but it is by the law alone that I can peacefully hold what is already my own. You ought, therefore, to retain the publick patrimony of the law, which you have received from your ancestors, with no less assiduity than you retain your private estates; not only because these are fenced and protected by the law; but for this further reason, because the loss of a private fortune affects only an individual, whereas the loss of the law would be deeply detrimental to the whole commonwealth."

Does this inestimable inheritance follow the person of the citizen; or is it fixed to the spot, on which the citizen first happened to draw the breath of life? On this great question, it will be proper to consider what the law of England, and, also, what the law of reason says. Perhaps both will speak substantially the same language.

By the common law, every man may go out of the realm to carry on trade, or on any other occasion, which he thinks a proper one, without the leave of the king; and for so doing no man shall be punished.³⁶⁹

We are told, however, that if the king, by a writ of ne exeat regnum, under his great or privy seal, thinks proper to prohibit any one from going abroad; or sends a writ to any man, when abroad, commanding his return; and, in either case, the subject disobeys; it is a high contempt of the king's prerogative, for which the offender's lands shall be seized, till he return; and then he is liable to fine and imprisonment.³⁷⁰

The discussion of this prerogative, and the cases, in which it may be justly and usefully exerted, it is unnecessary, for my present purpose, to undertake or enumerate; because if this prerogative was admitted in the fullest extent, in which it has ever been claimed, it would weaken neither the principles nor the facts, on which my observations shall be grounded.

A citizen may leave the kingdom: an alien may enter it. Does the former lose? ― does the latter acquire the rights of citizenship? No. Neither climate, nor soil, nor time entitle one to those rights: neither climate, nor soil, nor time can deprive him of them. Citizens, who emigrate, carry with them, in their emigration, their best and noblest birthright.³⁷¹

It is remarkable, however, that, in the charters of several of the American colonies, there is this declaration, "that the emigrants and their posterity shall still be considered as English subjects." Whether the solicitude of the colonists obtained, or the distrust of the reigning sovereigns imposed this clause, it would be superfluous to inquire; for the clause itself was equally unnecessary and inefficient. It was unnecessary, because, by the common law, they carried with them the rights of Englishmen; it was inefficient; because, if such had not been the operation of the common law, the right of citizenship could not have resulted from any declaration from the crown. A king of England can neither confer nor take away the rights of his subjects. Accordingly, the charter of Pennsylvania, perhaps the most accurate of all the charters, contains no such declaration. When the charter of Massachusetts, soon after the revolution of 1688, was renewed by King William, he was advised by his law council, that such a declaration would be nugatory.³⁷²

As citizens, who emigrate, carry with them their laws, their best birthright; so, as might be expected, they transmit this best birthright to their posterity. By the statute 25. Edw. III. says my lord Bacon, which, if you believe Hussey, is but a declaration of the common law, all children, born in any part of the world, if they be of English parents, continuing, at that time, as liege subjects to the king, and having done no act to forfeit the benefit of their allegiance, are, ipso facto, naturalized. If divers families of English men and women plant themselves at Lisbon, and have issue, and their descendants intermarry among themselves, without any intermixture of foreign blood; such descendants are naturalized to all generations; for every generation is still of liege parents, and therefore naturalized; so as you may have whole tribes and lineages of English in foreign countries And therefore it is utterly untrue that the law of England cannot operate, but only within the bounds of, the dominions of England.³⁷³

This great man, whose keen and comprehensive genius saw and understood so much, seems to have viewed the principles of colonization and the situation of colonists, with his usual penetration and sagacity. It was his sentiment, that the American colonies should he guided and governed by the common, law of England.³⁷⁴

It has been already observed, that there are some great eras, when important and very perceptible alterations take place in the situation of men and things; and that, at such eras, the accommodating spirit of the common law will introduce, into its practice and rules, corresponding and adequate alterations. To the situation of the American colonists, this observation may be applied with singular propriety and force. The situation, in which they found themselves in America, was, in many important particulars, very different from that, in which they had been before their departure from England. The principles of that law, under whose guidance the emigration was made, taught them, that the system, in its particular parts, must undergo changes proportioned to the changes in their situation. This sentiment was understood clearly and in its full extent. By alterations, which, after their emigration, might be made in England, the obligatory principle of the common law dictated, that they should in no manner be affected; because to such alterations they had now no means of giving their consent. Hence the rule, that acts of parliament, made after the settlement of a colony, have, in that colony, no binding operation.

It is highly requisite, that these great truths should be stated, and supported, and illustrated in all their force and extent.

The emigrants, who in the year 1620 landed near Cape Cod, at a place, which they afterwards called New Plymouth, had the honour of planting the first permanent colony in New England. Before they landed, they entered into a political association, which, on many accounts, deserves to be noticed in the most particular manner. It is in these words. "In the name of God. Amen. We, whose names are hereunder written, the loyal subjects of our dread sovereign lord king James, by the grace of God, of Great Britain, France, and Ireland king, defender of the faith, &c. having undertaken, for the glory of God and advancement of the Christian faith, and honour of our king and country, a voyage, to plant the first colony in the northern parts of Virginia, do by these presents, solemnly and mutually, in the presence of God and of one another, covenant and combine ourselves together into a civil body politick, for our better ordering and preservation, and furtherance of the ends aforesaid; and by virtue hereof, do enact, constitute, and frame such just and equal laws and ordinances, from time to time, as shall be thought most meet for the general good of the colony, unto which we promise all due subjection and obedience. In witness whereof, we have subscribed our names at Cape Cod, 11th November, 1620."³⁷⁵

In this manner was a civil society formed, by an original compact, to which every one consented, and, of consequence, by which every one was bound. During the infancy of the colony, we are told, the legislature consisted of the whole body of the male inhabitants. In the year 1639 they established a house of representatives, composed of deputies from the several towns. These representatives, in the true spirit of the principles, which we have been delineating, determined to make the laws of England the general rule of their government. "To these laws," says their ancient historian, Hubbard, "they were willing to be subject, though in a foreign land; adding some municipal laws of their own, in such cases, where the common and statute laws of England could not well reach, and afford them help in emergent cases."³⁷⁶ Under the foregoing compact and the principles of legislation, which have been mentioned, this colony long enjoyed all the blessings of a government, in which prudence and vigour went hand in hand.³⁷⁷

In Virginia we see the same principles adopted and ratified by practice. In the month of March 1662, the assembly of that ancient dominion met: with the most laudable intentions, it reviewed the whole body of the laws of the colony. In this review, their object was, "to adhere to the excellent and often refined customs of England, as nearly as the capacity of the country would admit."³⁷⁸

In Maryland we beheld a repetition of the same scene. In the month of April of the same year, the legislature of this colony, with a spirit congenial to that of the common law, declared, that, in all cases where the usages of the province were silent, justice should be administered according to the customs and statutes of England; "so far as the court shall judge them not inconsistent with the condition of the colony."³⁷⁹

The foregoing principles were recognised even under the arbitrary government of James the second. When he passed a commission ― the legality of which is not the present subject, to carry on a temporary administration in Massachussetts, New Hampshire, Maine, Narraghanset, the commissioners were created a court of record for administering affairs civil and criminal, so that the forms of proceedings and judgments be consonant to the English laws, as near as the circumstances of the colony will admits.³⁸⁰

It has been already remarked, that as the rules of the common law are introduced by experience and custom; so they may be withdrawn by discontinuance and disuse. Numerous instances of the conduct of the colonies settled in America evince the force and extent of this remark. Many parts of the common law as received in England, a kingdom populous, ancient, and cultivated, could receive no useful application in the new settlements, inconsiderable in respect both of numbers and improvement.

This principle is fully recognised by the learned Author of the Commentaries on the laws of England. "It hath been held," says he, "that if an uninhabited country be discovered and planted by English subjects; all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue (such especially as are enforced by penalties) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them; and, therefore, are not in force."³⁸¹

It has been often a matter of some difficulty to determine what parts of the law of England extended to the colonies, and what parts were so inapplicable to their situation as not to be entitled to reception. On this, as on many other subjects, those who felt had a right to judge. The municipal tribunals in the different colonies decided the question in the controverted instances, which were brought before them; and their decisions and practice were deemed authoritative evidence on the points, to which they related.

The advocates for the legislative power of the British parliament over the American colonies remind us, that the colonists were liable to the duties as well as entitled to the rights of Englishmen; and that, as Englishmen, they owed obedience to their ancient legislature; according, as it is said, to a principle of universal equity; that he who enjoys the benefit shall submit patiently to all its inconveniences.³⁸²

It is always proper to guard against verbal equivocation; the source of the grossest errours both in opinion and practice. That it is the duty of some Englishmen to pay obedience to the legislature of England, is admitted very readily. The principles, on which this obedience is due, have been amply illustrated in a former part of our lectures.³⁸³ Acts of parliament have been shown to be binding, because they are made with the consent or by the authority of those, whom they bind. Such Englishmen, therefore, as have had an opportunity of expressing this consent, or of exercising this authority, are certainly hound to pay obedience to those acts of parliament. But is this the case with all Englishmen? Let us know what is meant by the term. Is it confined to those, who are represented in parliament? In that confined sense, it is conceded that they owe obedience to that legislature. Is it extended to all those, who are entitled to the benefits of the common law of England? In that extended sense, no such concession will or ought to be made: such a concession would destroy the vital principle of all their rights ― that of being bound by no human laws, except such as are made with their own consent. It never is the duty of an Englishman, of one entitled to the common law as his inheritance ― it never is the duty of such a one to surrender the animating principle of all his rights.

He who enjoys the benefit, it is said, shall submit patiently to all its inconveniences. True: but do Englishmen who are not and cannot be represented in parliament, enjoy the benefit? Unquestionably, they do not. To the inconveniences, then, they are under no obligation of submitting. This is the true inference. The opposite inference burthens the colonists with the inconveniences separated from the benefit: it does more ― it burthens the colonists with the inconveniences, augmented in consequence of this very separation. When the benefit of representation is lost; the inconveniences will be increased in a dreadful proportion. This reasoning seems to be just in theory. Let us apply to it the touchstone of fact.

In the journals of the house of commons, we find some short notes taken of a parliamentary debate, in the year 1621, concerning tobacco. The result of this debate was a bill, which was afterwards passed into a law, for preventing the inordinate use of tobacco. Among other short notes on this subject, is the following one, very instructive and interesting ― "Mr. Solicitor ― loveth England better than Virginia."³⁸⁴ To every claim of obedience to the parliament without representation there, the standing answer and objection ought to be, in reference to the spirit of Mr. Solicitor's honest, and, indeed, natural declaration ― the members of parliament love England better than America.

This important subject deserves to be pursued further. Citizens, who emigrate, carry with them their rights and liberties. When to these rights and liberties, duties and obligations are inseparably annexed, the latter should be performed wherever the former can be enjoyed. But, in some instances, the enjoyment of the former becomes, from the nature and circumstances of things, altogether impracticable. The question, which we now consider, presents to us one of those instances. Obedience to acts of parliament is, as we have seen at large, founded on the principle of consent. That consent is expressed either personally or through the medium of representation. That it cannot he given personally is evident from the case supposed: the citizen has emigrated to another country. The same reason shows, that it cannot be given through the medium of representation. The right of representing is conferred by the act of electing: elections for members of parliament are held within the kingdom: at those elections, the citizen, who has emigrated into another country, cannot vote. The result, then, is unavoidably this: if, by the emigration of the citizen, the enjoyment of his right of representation is necessarily lost; the duty of obedience, the consequence of enjoying that right, cannot possibly arise. When the cause is removed, the effect must cease to operate.

In this plain and simple manner, from the principles, which we have traced and established as the foundation of the obligatory force of law, we prove incontestably, that the colonists, after their emigration, were under no obligations of obedience to the acts of the English or British parliament. Principles, properly and surely laid, are eminently useful both for detecting and confuting errour, and for elucidating and confirming truth.

The history as well as the principles of this momentous question ought to be fully developed and known. It is an instructive, and it is an interesting one. It has engaged the attention of the civilized world. It has employed the treasures and the force of the most respectable nations. America, both North and South, almost all the European powers, either as parties or as neutrals, acted or waited in arms for the important and final decision. On one side, it was worth all that it has cost. The auspicious event we have seen and experienced. Its rise, its progress, and its merits, every citizen, certainly every lawyer and statesman, in the United States, should accurately know.

The dependence of the colonies in America on the parliament of England seems to have been a doctrine altogether unknown and even unsuspected by the colonists who emigrated, and by the princes with whose consent their emigrations were made. It seems not, for a long time, to have been a doctrine known to the parliament itself.

Those, who launched into the unknown deep, in search of new countries and habitations, still considered themselves, it is true, as subjects of the English monarchs, and behaved suitably and unexceptionably in that character; but it no where appears, that they still considered themselves as represented in an English parliament, or that they thought the authority of the English parliament extended over them. They took possession of the country in the king's name: they treated, or made war with the Indians by his authority: they established governments under his prerogative, as it was then understood, or, as it was also then understood, by virtue of his charters. No application, for those purposes, was made to the parliament: no ratification of the charters or letters patent was solicited from that assembly, as is usual in England, with regard to grants and franchises of much less importance.

My Lord Bacon's sentiments on this subject ought to have great weight with us. His immense genius, his universal learning, his deep insight into the laws and constitution of England, are well known and much admired. Besides; he lived at that very time when the settlement and the improvement of the American plantations began to be seriously pursued, and successfully to be carried into execution. Plans for the government and regulation of the colonies were then forming; and it is from the first general idea of those Plans that we can best unfold, with precision and accuracy, all the more minute and intricate parts of which they afterwards consisted. "The settlement of colonies," says he, "must proceed from the option of those who will settle them, else it sounds like an exile: they must be raised by the leave and not by the command of the king. At their setting out, they must have their commission or letters patent from the king, that so they may acknowledge their dependency upon the crown of England, and under his protection." "They must still be subjects of the realm." "In order to regulate all the inconveniences, which will insensibly grow upon them," he proposes, that the king should erect a subordinate council in England, whose care and charge shall be, to advise and put in execution all things, which shall he found fit for the good of these new plantations; who, upon all occasions, shall give an account of their proceedings to the king or to the council board, and from them receive such directions as may best agree with the government of that place.³⁸⁵ It is evident from these quotations, that my Lord Bacon had no conception, that the parliament would or ought to interpose, either in the settlement or in the government of the colonies.

We have seen the original association of the society, who made the first settlement in New England. In that instrument, they acknowledge themselves the loyal subjects of the king; and promise all due subjection and obedience to the colony: but we hear nothing concerning the parliament. Silence is sometimes expressive: it seems to be strongly so in this instance.

About sixty years afterwards, and during the reign of Charles the second, the general court of that colony exhibit the following natural account of the principles, on which the first settlement was made. "The first comers here," say they, "having first obtained leave of king James, of happy memory, did adventure, at their own proper costs and charges, through many foreseen and afterwards felt sufferings, to break the ice, and settle the first English plantation in this then uncultivated remote part of your dominions. We have had now near about sixty years lively experience of the good consistency of the order of these churches with civil government and order, together with loyalty to kingly government and authority, and the tranquillity of this colony. May it therefore please your most excellent majesty to favour us with your gracious letters patent for our incorporation into a body politick, with singular the privileges as your majesty has been accustomed to grant to other colonies, so to your majesty's colony of Connecticut."³⁸⁶ Still no mention is made of parliament: still no application is made to that body. These omissions could not have been owing to accident: they must have been intentional. Before this time, the pretensions of parliament, during the existence of the commonwealth, had been both known and felt; and, at this time, must have been remembered.

By the charter of Rhode Island, granted in the fourteenth year of Charles the second, the king grants and confirms all that part of his dominions in New England in America, containing the Narraghanset Bay, and countries and parts adjacent, &c. Here, also, no notice is taken of the parliament.

The following transactions relating to Virginia, exhibit, in a very striking point of view, the sentiments both of the king and of the colonists, concerning the interference of parliament with the business of colonial administration. Sir William Berkely, who, in the year 1639, was appointed governour of that colony, was, among other things, directed to summon the burgesses of all the plantations, who, with the governour and council, should constitute the grand assembly, with power to make acts for the government of the colony, as near as may be to the laws of England.

A discontented party in Virginia contrived, in what particular manner is not mentioned, to have a petition presented, in the name of the assembly to the house of commons, praying a restoration of the ancient patents and corporation government. The governour, the council, and the burgesses no sooner heard of a transaction so contrary to truth and their wishes, than they transmitted an explicit disavowal of it to England; and, at the same time, sent an address to the king, acknowledging his bounty and favour towards them, and earnestly desiring to continue under his immediate protection. In that address, they desired that the king would, under his royal signet, confirm their declaration and protestation against the petition presented, in their names, to the house of commons, and transmit that confirmation to Virginia. The king expresses strong satisfaction with this address; declares that their so earnest desire to continue under his immediate protection is very acceptable to him; and informs them, that he had not before the least intention to consent to the introduction of any company over the colony; but that he was much confirmed in his former resolutions by the address; since he would think it very improper to change a form of government, under which his subjects there received so much content and satisfaction. He transmits to them, under his royal signet, his approbation of their petition and protestation.³⁸⁷

In the colony of Massachussetts, the famous navigation act, made by the English parliament, met with a strong and steady opposition. It was not enforced by the governour annually chosen by the people, whose interest it was that it should not be observed. Of consequence, no custom house was established. The colony carried on the greater part of the trade of the plantations to every quarter of the globe: and vessels from every European country, from France, from Spain, from Italy, from Holland, were crowded together in the harbour of Boston. This prosperous situation excited the envy and the jealousy of the mercantile and manufacturing interests in England. These principles produced, from the merchants and manufacturers, a representation to Charles the second; in which they prayed, that the colonies might receive no supplies but from England; and that the subjects of New England might be compelled to trade according to law. When information of these measures was transmitted to Massachussetts by her agents in England; the general court avowed the conduct of the colony; justified that conduct in point of legality; and stated the sacrifice which it was willing to make of its interests, though not of its rights. It acknowledged that no regard had been paid to the laws of navigation. It urged that those laws were an invasion of the rights and privileges of the subjects of his majesty in that colony, they not being represented in the parliament; because, according to the usual sayings of the learned in the law, the laws of England were bounded within the four seas, and did not reach America; but that, as his majesty had signified his pleasure, that those laws should be observed, it had made provision, by an ordinance of the colony, which obliged masters of vessels to yield faithful obedience, and commanded officers to see them strictly observed.³⁸⁸

A letter written in the year 1698 from governour Nicholson of Maryland to the board of trade shows that the sentiments of the colony of Massachussetts, with regard to the authority of acts of parliament, had, when the letter was written, become general in the colonies. "I have observed that a great many people in all these provinces and colonies, especially in those under proprietaries, and the two others under Connecticut and Rhode Island, think that no law of England ought to be in force and binding to them without their own consent for they foolishly say they have no representatives sent from themselves to the parliament of England: and they look upon all laws made in England, that put any restraint upon them, to be great hardships."³⁸⁹

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310. 1. Ld. Bacon, 252. Aph, 32.

311. Hale. Hist. 55.

312. El. Jur. (4to.) 94.

313. Finch. 74. 75.

314. De Laud. c.17.

315. De bel. Gal. l. 6. c. 13.

316. 3. Rep. Pref. 9 b.

317. Bac. on Gov. 9.

318. Id. 10.

319. Bac. on Gov. 12.

320. Id. 56.

321. Id. 64.

322. Bac. on Gov. 68.

323. Id. 70.

324. 3. Edin. Phil. Trans. 10.

325. Pett. on Jur. 154. 155.

326. Pett. on Jur. 159.

327. Bever. 2.

328. P. 1.

329. Livy.1. 3. c. 31.

330. Livy. l. 3. c. 34.

331. Burn's Ecc. Law. Pref. 1.

332. Ante. vol. 1. p. 63. 64.

333. Consult Gibbon's Rom. Emp. c. 44. vol. 8. p. 19, and the authorities cited in his notes.

334. Just. Ins. l. 1. t. 2. s. 3.

335. Ante. vol.1. p. 203.

336. Consult Gib. Rirn. Emp. c. 44. vol. 8. p. 26. 27. and the authorities cited.

337. 1. Guth. Eng. 40.

338. Tac. Agric. c. 21. ― Millar. 16. 17.

339. Millar. 10.

340. 4. Bl. Com. 401.

341. 2. Bl. Com. 215.

342. 2. Bl. Com. 516. 517. Bever, 482.

343. 2. Whitak. 545.

344. 2. Whitak. 235. 236.

345. 2. Whitak. 111.

346. 2. Henry. 277. 278. cites Spel. Rel. p. 49.

347. 1. Whitak. Pref. 7