Front Page Titles (by Subject) Of the Unwritten, or Common Law of England; And Its Introduction into, and Authority Within the United American States - View of the Constitution of the United States with Selected Writings
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Of the Unwritten, or Common Law of England; And Its Introduction into, and Authority Within the United American States - St. George Tucker, View of the Constitution of the United States with Selected Writings 
View of the Constitution of the United States with Selected Writings, ed. Clyde N. Wilson (Indianapolis: Liberty Fund 1999).
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Of the Unwritten, or Common Law of England; And Its Introduction into, and Authority Within the United American States
The question of the role of the common law in federal jurisprudence was a major issue of the early American republic. Opposition to Federalist initiatives to establish such a role formed a large part of the Jeffersonian Republican attempts to restrain the imperial federal judiciary. As Tucker writes: “This question is of very great importance, not only as it regards the limits of the jurisdiction of the federal courts; but also, as it relates to the extent of the powers vested in the federal government. For, if it be true that the common law of England, has been adopted by the United States in their national, or federal capacity, the jurisdiction of the federal courts must be co-extensive with it; or, in other words, unlimited. …” After a long struggle, lasting well into the nineteenth century, the doctrine against which Tucker contends was successfully grafted onto the federal system, largely through the untiring cleverness of Justice Joseph Story. The importance that Tucker ascribes to the question is indicated by his placing it in the first volume as Appendix E, immediately following View of the Constitution of the United States.
Having accompanied the commentator, to the fountain head, from whence he deduces the common law of England, it becomes us to trace its progress to our own shores. This, as it respects the commonwealth of Virginia, considered as an independant state, unconnected with any other, might have been regarded as an unnecessary trouble at this day; the convention, by which the constitution of the commonwealth was established, having expressly declared, “That the common law of England, and all statutes, or acts of parliament made in aid of the common law, prior to the fourth year, of James the first, which are of a general nature not local to that kingdom, together with the several acts of the colony then in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force, until the same shall be altered by the legislative power of the commonwealth.” Ordinances of Convention May, 1776.
But some late incidents having given rise to an opinion, that the common law of England, is not only the law of the American States, respectively, according to the mode in which they may, severally have adopted it, but that it is likewise the law of the federal government, a much wider field for investigation is thereby opened; of the importance of which, the general assembly of Virginia, at their session in the winter of 1799, have thus expressed their sentiments, in behalf of themselves, and their constituents. “It is distressing to reflect, that it ever should have been made a question, whether the constitution of the United States on the whole face, of which, is seen so much labour to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; a law that would sap the foundation of the constitution, as a system of limited, and specified powers.”
My present purpose, therefore, is, in the compass of this note to enquire, how far the common law of England, is the law of the federal government of the United States? Should the enquiry seem long, to some of my readers, the importance of the subject I trust, will be deemed a sufficient apology for it.
A question has lately been agitated, whether the common, or, unwritten law of England, has been adopted in America, by the establishment of the constitution of the United States; or, in other words, how far the laws of England, both civil and criminal, make a part of the law of the American States, in their united and national capacity.
Judge Ellsworth is reported, on a late occasion, to have laid it down as a general rule, that the common law of England is the unwritten law of the United States, in their national or federal capacity.1 Judge Washington, also, is said to have delivered a similar opinion, upon another occasion. The like opinion has been advanced on the floor of the federal house of representatives … concurrent opinions from such respectable authority deserve to be candidly, and respectfully examined, where any doubt is entertained of their correctness; and where any such doubt is entertained, they ought to receive an early and full discussion; otherwise they will soon acquire the force of precedents. These are often more difficult to be shaken than the most cogent arguments, when drawn from reason alone.
This question is of very great importance, not only as it regards the limits of the jurisdiction of the federal courts; but also, as it relates to the extent of the powers vested in the federal government. For, if it be true that the common law of England, has been adopted by the United States in their national, or federal capacity, the jurisdiction of the federal courts must be co-extensive with it; or, in other words, unlimited: so also, must be the jurisdiction, and authority of the other branches of the federal government; that is to say, their powers respectively must be, likewise, unlimited. How far this may be the case, it is my present purpose to examine with candour.
In the prosecution of this subject it will be necessary to enquire,
I. We are to enquire, whether the several colonies of Great Britain, which now compose the United States of America, brought with them the laws of the mother country, so far as they were applicable to the situation and circumstances of the colonies, respectively, or not.
Although very little doubt upon this part of our inquiry was, perhaps, ever entertained in America, yet the celebrated judge Blackstone in his commentaries on the laws of England, expressly denies that the common law of England, as such, had any allowance or authority in the British American colonies. “Plantations, or colonies in distant countries,” as he observes, “are either such where the lands are claimed by the right of occupancy, only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated they have been either gained by conquest, or ceded by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between the two species of colonies, with respect to the laws by which they are bound. For it hath been held, that if any 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.” … Afterwards he adds: “But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but till he does actually change them, the ancient laws of the country remain, unless such as are against the laws of God, as in the case of an infidel country. Our American plantations are principally of this latter sort; being obtained in the last century, by right of conquest, and driving out the natives, or by treaties. And therefore the common law, as such, has no allowance or authority there.”
As I apprehend the opinion here cited is not as correct as many others of the learned commentator, I shall venture to state some objections to it: observing by the way, that his conclusion is applicable only to the colony of New-York, which was originally settled by the Dutch, and afterwards conquered by the English, and ceded to the crown by the treaty of Breda in 1667; and perhaps, to the adjacent colony of Jersey, which was likewise ceded by the same treaty, and was also peopled at that time by the Dutch, the boundaries between the two colonies being not then established. But with respect to the other colonies; whether they were obtained by purchase from the Indian natives, as was certainly the case with Pennsylvania, and as it has been said, was the case with several others; or whether the territory was acquired by conquest; or by cession; in either case, as those persons by whom the colony was settled, were neither the people who were conquered, nor those who were ceded by treaty, to a different sovereignty; but the conquerors, themselves, or colonists, settling a vacant territory ceded by treaty, the conclusion here made by judge Blackstone will appear to be erroneous. For baron Puffendorf informs us, that sovereignty, by way of conquest, is acquired when a nation, having just reason to make war upon another people, reduces them by the superiority of their arms to the necessity of thenceforward submitting to the government of the conquerors. And with respect to countries ceded by treaty, Grotius tells us, it is not the people that are alienated, but the perpetual right of governing them as a people. Now the British emigrants by whom the colonies were settled were neither a conquered nor a ceded people, but free citizens of that state, by which, the conquest was made, or, to which, the territory was ceded; the Indians, the former people, having uniformly withdrawn themselves from the conquered, or ceded territory. What is here said by Mr. Blackstone, cannot, therefore, be applicable to any colony, which was settled by English emigrants, after the Indian natives had ceded, or withdrawn themselves from, the territory, however applicable it may be to New-York, where the Dutch settlers remained, after they were conquered, and after the perpetual right of governing them as a people, was ceded by the treaty of Breda before mentioned.
This distinction between the English emigrants, and the Indian natives, being once understood, we shall be able to apply to the former, what Grotius says upon this subject, viz. “When a people, by one consent, go to form colonies, it is the original of a new and independent people; for they are not sent out to be slaves, but to enjoy equal privileges and freedom.” This sentiment he adopts from Thucydides, who, speaking of the second colony sent by the Corinthians to Epidamnus, says, they ordered public notice to be given, that such as were willing to go thither, should enjoy the same rights and privileges as those who staid at home; which corresponds precisely with the declaration contained in Queen Elizabeth’s charter to Sir Walter Raleigh, bearing date March 25, 1584, whereby she promises and engages that for the purpose of “uniting in more perfect league and amity such lands and countries as the patentees should settle with the realms of England and Ireland, and for the better encouragement of those who would engage in the enterprize, the said countries so to be possessed and inhabited, should from thenceforth be in allegiance and protection of her, her heirs and successors; and further grants to the said Sir Walter Raleigh, his heirs and assigns, and to every other person or persons, to their and every of their heirs, that they and every of them that should thereafter be inhabiting in the said lands, countries, and territories, should and might have and enjoy all the privileges of free denizens, or persons native of England.”2 The like engagements and stipulations were contained in all the successive charters granted by King James, to the colony of Virginia; from whence it seems probable that the charters of all the other colonies contained the same. If this were the case, we may, without recurring to the authority of the writers on the law of nations, decide upon the ground of compact alone, that the English emigrants who came out to settle in America, did bring with them all the rights and privileges of free natives of England; and, consequently, did bring with them that portion of the laws of the mother country, which was necessary to the conservation and protection of those rights. A people about to establish themselves in a new country, remote from the parent state, would equally stand in need of some municipal laws, and want leisure, and experience to form a code adapted to their situation and circumstances. The municipal laws of the parent state being better known to them, than those of any other nation, a recurrence to them would naturally be had, for the decision of all questions of right and wrong, which should arise among them, until leisure and experience should enable them to make laws better adapted to their own peculiar situation. The laws of the parent state would from this circumstance acquire a tacit authority, and reception in all cases to which they were applicable. Of this applicability, the colonists themselves could be the only competent judges; the grant of a legislature of its own, to each colony, was a full recognition of this principle, on the part of the crown; and sanctioned the exercise of the right, thereby recognized, on all future occasions.
II. Let us now enquire, what part of the laws of the mother country might be deemed applicable to the situation of the colonies, respectively; and as such adopted by them severally.
I shall endeavour to consider this question, first, in a strictly legal point of view; secondly, in a more general, and political light; and lastly, I shall examine the conduct of the colonies, respectively, in the practical exercise of the right before spoken of; viz. of judging for themselves what parts of the laws of the mother country were applicable, or inapplicable, to their respective situations and circumstances.
1. It seems to be generally understood, that all the colonies were inhibited by the terms of their several charters, and provincial constitutions, from passing any act derogatory from the sovereignty and supremacy of the crown of England, as the head of the nation; and it was further provided by their charters, that all the laws which they should make should conform, as nearly as might be, to the laws and statutes of England, and not be repugnant thereto.
As, according to strict legal construction, all the laws and statutes of England in force at the time of their migration, might be considered as potentially existing in the colonies, so might they be regarded as actually existing there, whenever co-relative subjects occurred, upon which they could operate; except so far, and so far only, as their several charters might have permitted a departure from this general principle. The colonies under this construction, might be compared to corporations within the realm of England, many of which have power to make bye-laws, for the regulation of their own internal police; but in so doing, are bound to conform to the general laws of the realm, which are in all cases paramount to their own local institutions.
But this strict construction, however applicable to domestic corporations within the realm, where the administration of justice in a regular course was already established in courts of the most extensive jurisdiction; and where any defects in the existing laws of the realm, must be supposed to be subject to the immediate observation of the supreme legislature of the nation, by whom, if expedient, they could be immediately remedied; this construction, I say, must have been perfectly inapplicable to the circumstances of infant and remote colonies, surrounded by hostile savage nations, and equally destitute of support from the crown, as the supreme executive, for aid, or authority to repel their aggressions, and incursions; and of the means of application to the judicial courts of the realm for the redress of private injuries, or the punishment of such as were of a public nature: and not less destitute of the means of application to the national legislature for the remedy of such inconveniences of a public nature, as must continually have manifested themselves, under such circumstances. Some of the first charters, indeed, seem to have been intended to constitute a body politic, or trading company within the kingdom, rather than to establish foreign governments, beyond its limits; to which circumstance we may ascribe the omission of those more general and extensive powers contained in some subsequent charters. These omissions the colonists themselves endeavoured to supply by voluntary consent and agreement among themselves, as was done in Massachusetts in the election of a representative body to assist in making law:3 an innovation, which was not confined to that colony, but, which was acquiesced in, and even sanctioned by the crown, in its more recent charters, and provincial establishments. The highest act of sovereign authority likewise became necessary to be exercised upon criminals, in the privation of life, concerning which the first Massachusetts charter made no mention: but the government of that colony undertook to inflict capital punishments without recourse to the crown, for additional powers; without which, such a conduct was in strictness murder, in all concerned. In the same manner did they supply a defect of authority to erect judicatories for the probate of wills; to constitute courts of admiralty jurisdiction; to impose taxes; and to create towns, and other bodies corporate.4 Although what is here said relates only to the colony of Massachusetts, there is reason to believe that a similar conduct was observed in the other New-England colonies, and perhaps in all those which were settled about the same time.
In examining this question, we must, therefore, abandon the ground of strict, legal, technical construction; since upon that ground the colonies must either have been swallowed in the vortex of anarchy, or have expired under the peine forte et dure of submission to rigid, and impracticable rules.
2. I shall, therefore, now proceed to consider this part of the question under the more liberal light of general policy.
We must here recollect, that the laws of England are divided into two distinct classes; the unwritten, and the written law: the former consisting of ancient, immemorial, general rules, maxims, and usages; the latter of written statutes, or acts of parliament, from time to time made in affirmance, or for the amendment, of the ancient unwritten law; or to remedy some defect, mischief, or inconvenience therein; or finally, to repeal and annul it, altogether. Consequently, the common, or unwritten law must have been in a state of continual change, from the first institution of parliaments, in the thirteenth century, to the present time; a period of more than five hundred years; two centuries whereof have elapsed since the first migrations were made to America, under the authority of charters granted by the crown of England; though not quite half a century passed over, between the establishment of the colony of Georgia, and the declaration of independence.
The ancient, immemorial, unwritten law of England, may be divided into the jus commune, common law, or folk-right, of which the ancient English were so tenacious, and which they struggled so hard to maintain under the first princes of the Norman line: which subsequent princes so frequently promised to keep and restore, as the most popular act they could do, when pressed by foreign emergencies, or domestic discontents, and which depended solely upon custom; which carries this internal evidence of freedom along with it, that it was probably introduced by the voluntary consent of the people. And, secondly, the jura coronae, or prerogatives of the crown, as contradistinguished from the rights and privileges of the people: the foundation of which could only be discovered in many respects, to rest upon immemorial usurpations, exactions, and oppressions, generated by feudal tyranny, and enforced by irresistible military authority. From these two copious, and opposite springs are derived all those rules and maxims, which constitute the ground and foundation of the common law, generally so called. And it is in the admixture of these opposite characters and principles, that we discover, according as the scale of liberty, or prerogative has preponderated, a greater or less proportion of the one, or the other, in every subordinate rule and maxim, which, together, compose the whole body of the English common law.
The jus commune, or folk-right, above-mentioned, had for its object, the rights of persons; comprehending the rules, maxims, and usages adopted to ensure the legal and uninterrupted enjoyment of a man’s life, his limbs, his body, his health, and his reputation; with the power of locomotion, or changing his situation, or moving to whatever place his own inclination may direct; and generally, of doing every thing that his own disposition might prompt, or suggest to him to do, that is not attended with injury to any other, or to the society at large, without imprisonment, molestation or restraint; and lastly, the free use, enjoyment, and disposal, of all his lawful acquisitions, without any control or diminution. These being the rights and privileges which were expressly guaranteed by the royal charters, there can be no reason to doubt that it was the intention of the colonists to adopt them, in all cases where they might be found applicable to their new condition. To judge of this applicability, time, and experience were both requisite; since it might happen that a rule which might have been highly beneficial and practicable in the mother country, might from local circumstances, or other considerations, be deemed inexpedient, or impracticable, in an infant colony. Thus we find that in Massachusetts they very soon disregarded that ancient rule of the common law, which constitutes the eldest son sole heir to his father, and divided the estate, whether personal, or real, according to circumstances, among all the branches of the family: A departure from the principles of the feudal law, of the propriety of which few Americans at this day entertain any doubt, yet certainly not authorised by the terms of their charter. Local circumstances, likewise, gave an early rise to a less justifiable departure from the principles of the common law in some of the colonies, in the establishment of slavery; a measure not to be reconciled either to the principles of the law of nature, nor even to the most arbitrary establishments in the English government at that period; absolute slavery, if it ever had existence in England, having been abolished long before. These instances shew that the colonists in judging of the applicability of the laws of the mother country to their own situations and circumstances, did not confine themselves to very strict, and narrow limits.
The jura coronae, or lex prerogativa, as denominated by Sir Matthew Hale, may be divided into two heads. First, those prerogatives which appertained strictly to the person of the prince; and secondly, such as regarded him in his political capacity, only; as the supreme head and ruler of the nation. Though all these which were not expressly given up by the crown in its charters, might, in strictness, be considered as potentially existing in every part of the nation, yet the exercise, or violation, of them, or a great part of them, being perfectly impracticable in remote colonies, such parts may well be considered as in abeyance, or perfectly dormant, there. All those prerogatives which were annexed to the person of the prince; as an individual, in whose case, that was law, which was not law in any case of a subject, must have been of this latter description; since the colonies could have nothing to do with them, in the internal administration of their affairs. … On the other hand those parts of the jura coronae which regard the prince, in his political capacity, only; that is, as the chief magistrate of the nation; the representative of his people; the administrator of the laws, and general conservator of the peace of his dominions, were applicable, or inapplicable, I apprehend, as circumstances might direct. Those laws, for example, which regard the king as supreme head of the national church, and punished nonconformity to its doctrines, and discipline, could not have been deemed applicable to the circumstances of a colony in which universal toleration in matters of religion was established by charter; and still less, perhaps, where the established, or prevailing religion of the colony differed from the church of England both in discipline, and in doctrine. Neither can we suppose the laws which regarded the king as supreme lord of the soil of his dominions, and those who held under him as military vassals, would be applicable to the condition of colonists who held their lands in free and common socage: yet the military tenures were not abolished in England, till near a century after the first charters granted to the colonies; and consequently that part of the common law which was founded upon the nature of these tenures remained in full force there, whilst it would have been perfectly absurd to suppose it could have been at all applicable to the colonies. Upon this ground we may infer that all the rules and maxims of the common law which sprung from that source, were equally inapplicable to the colonies; for cessante ratione, cessat et ipsa lex.
As to crimes and misdemeanors, no doubt the laws relating to such are mala in se, as murder, mayhem, and other offences which are universally admitted to be against the laws of God, and of nature, might have been deemed applicable to the situation of each colony; since the prevention and punishment of such offences are among the first objects of civil polity. But this was the case only with regard to such offences as might be strictly termed mala in se; and, as such, by the general consent of all civilized nations, admitted to be against the laws of God. Therefore the laws against heresy, witchcraft, sorcery, apostacy, and blasphemy, which, in some of the colonies, were regarded as among the most crying sins against God, and as such, punished with more severity than murder itself, could not have been deemed applicable, as was before observed, to those colonies, where universal toleration, in matters of religion, was established by charter. And as to that class of offences which are denominated mala prohibita, as not being contrary either to the laws of God, or to those of nature, but merely prohibited by the positive laws of society; the laws by which they were defined, restrained, or punished in the mother country, could not be deemed generally applicable to the colonies, because, in some of them there might be no co-relative subject for them to operate upon; as in the case of non-conformity to the worship of the church of England, before mentioned; which, although an offence in England which was punished with much severity, could not be deemed an offence in a colony, where universal toleration, or a different denomination of religion, was established; however it might continue to be deemed an offence in those colonies where the church of England was established as the religion of the colony. To this head we may likewise refer the whole class of offences against the prince, as an individual; whose personal prerogatives could be in no danger of violation in a colony, situated at the distance of a thousand leagues from his kingdom and residence. And many of those which were attached to the kingly office, must have been equally out of the reach of invasion, or attack, from so remote and feeble a quarter; and consequently could not have been deemed applicable to the situation and circumstances of colonies, of that description.
Nor must the motives and intentions of the colonists, in their respective migrations, be disregarded in an inquiry of this nature. Such of them, as allured by the hopes or prospects of immense riches, or a comfortable subsistence, at least, were induced by such motives, only, to leave their native country; to which, perhaps, they looked forward to return, may well be supposed to retain for its government and laws the same filial attachment as they felt for their natale solum; and would, consequently, conform as near as possible both in doctrine and in practice to all the institutions of the mother country. On the contrary, those who fled from what they accounted tyranny, both in church and state, and quitted their native country as a prison, in which they were exposed to all the terrors of persecution; preferring to it an asylum in the howling wilderness, where they might establish and enjoy freedom in a remote and unknown quarter of the globe, must have carried with them prejudices against the laws and government of the parent state, which would induce a general rejection of all such as were inimical to those principles, which prompted them to migrate. And as two strait lines, which diverge from each other at the same point, can never after meet, or become parallel, so the institutions of two countries, founded upon such discordant principles, could never after be assimilated to each other.
In addition to these sources of endless variety, and disagreement, between the civil institutions of the several colonies, there remain two others, equally copious, which have not yet been noticed, or but very slightly. The first, arising from the changes introduced by the English statute law, or acts of parliament made between the periods, when the several colonies were respectively settled; the whole amounting to somewhat more than one hundred and fifty years. Now it was held, that those English laws, only, which were in being, at the time of the settlement of each colony, respectively, were in force in such colony. Consequently the statutes made in England, between the period when Virginia was first settled, and that when Georgia was settled, amounting to one hundred and fifty-two years, and the consequent changes which those statutes made in the common law, had no effect or operation in Virginia; although, according to the principles which are generally agreed upon, those statutes, and the changes in the common law thereby produced, must have had an operation and authority in Georgia, so far as they were applicable to the situation and circumstances of that colony. Those who are acquainted with the prodigious changes made in the laws of England, during the period above-mentioned, will at once discover that there could be no common rule of law between those two colonies, unless that rule could be deduced, without alteration, from a period antecedent to the charter of Virginia. The same observation will hold as to all the other colonies, neither of which were bound by any English law that was not in being at the time of its own establishment. … The second source of variety and disagreement here referred to, and by far the most copious, had its rise in the power which the legislatures of the several colonies were perpetually engaged in exercising, viz. that of making laws adapted to the views, principles, situation, and circumstances of their respective inhabitants and countries. Being perfectly independent of each other, and without any other political relation or connection, except that of acknowledging the same common sovereign; and equally ignorant and regardless of the municipal institutions, or domestic policy of each other; each pursued that course which a regard to their own domestic concerns prompted them to take; until, like the radii of a circle, they arrived from the same common center to points diametrically opposite, or receding from each other in proportion to the length they were extended.
Nor must we forget, what was also before slightly mentioned, that a part of the present United States was first settled by a Dutch colony; and another part, by Swedes. The tract claimed by those two nations extended from the thirty-eighth to the forty-first degree of latitude, and was called the New Netherlands, comprehending the present states of New-York, New-Jersey, Pennsylvania, Delaware, and the Eastern Shore of Maryland: it was conquered by the English, and confirmed to the crown of England by the treaty of Breda in 1667. The Dutch inhabitants remained in their settlements in New-York, and a part of Jersey; the Swedes, if I mistake not, were removed from Delaware to New-York, where they likewise remained. According to judge Blackstone, the laws of England, as such, could have no allowance, or authority there; this being a conquered and ceded country, and not a colony originally planted by Englishmen: and according to his principles, also, the laws of Holland, and of Sweden, were the municipal laws of those provinces, until the period of their conquest; and so continued until other laws were imposed upon them by the crown of England. When, and in what degree, a change was made in this manner; or whether any such change was ever formally made, can only be determined by recurrence to documents not within the reach of the author of these sheets.
From all these considerations it will appear, that in our inquiries how far the common law and statutes of England were adopted in the British colonies; or, in other words, what parts of those laws might be deemed applicable to their respective situations and circumstances, we must again abandon all hope of satisfaction from any general theory, and resort to their several charters, provincial establishments, legislative codes, and civil histories, for information. For although the colonial legislatures are understood to have been inhibited from passing any law derogatory from the sovereignty of the crown, or repugnant to the laws and statutes of England; which seems to have been the only common rule imposed upon them, yet the application of this rule in the several colonies will be found to have been as various as their respective soils, climates, and productions.
A research of this extensive nature is equally beyond the proposed limits of this essay, and the sources of information which its author possesses. Yet it may be neither unuseful, nor uninstructive, to turn our attention for a few moments towards such an inquiry; from whence we may possibly be made sensible how fruitless would be the labour of a further search after an uniform system of law in the British colonies.
The legislature of Virginia, the most ancient of the British colonies, was constituted by letters patent of March the 9th, 1607, in the fourth year of king James the first; the first charter granted by queen Elizabeth, to Sir Walter Raleigh, bore date March 25th, 1584, about three and twenty years before: it is not of much consequence from which of these periods we date the obligation of the laws of England. They seem to have been adopted by consent of the settlers, which might easily enough be done, whilst they were few, and living altogether. Of such adoption, however, we have no other proof, than their practice till the year 1661, when they were expressly adopted by an act of the assembly, which declares, “that they had endeavoured, in all things, as near as the capacity and constitution of the country would admit, to adhere to those excellent and often refined laws of England, to which they profess and acknowledge all reverence and obedience; and that the laws made by them are intended by them but as brief memorials of that which the capacity of the courts is utterly unable to collect out of its vast volumes, though sometimes perhaps, for the difference of condition, varying in small things.” The several charters of queen Elizabeth and king James, stipulated that lands in Virginia should be held of the crown in free and common socage.
The first acts to be found in the colonial code of Virginia provide for building churches, appointing vestries, and laying out glebes in every parish. And by an act dated in 1642, it is provided, that for the preservation of purity and unity of doctrine, and discipline in the church, and the right administration of the sacraments, no minister should be admitted to officiate in Virginia, without producing to the governor a testimonial of his ordination from some bishop in England, and subscribing to be conformable to the orders and constitutions of the church of England, and the laws there established. All persons not having a lawful excuse, were obliged to attend their parish church every Sunday, under penalty of fifty pounds of tobacco; “but quakers and other recusants, who, out of non-conformity to the church, totally absented themselves, were made liable to such fines and punishments as by stat. 23, Eliza. were imposed upon them; being for every month’s absence, twenty pounds sterling; and if they forbore a twelvemonth, then to give security for their good behaviour, besides payment of the before-mentioned fine. And all quakers, for assembling in unlawful assemblies, and conventicles were farther subject to a fine of two hundred pounds of tobacco, for each offence.” The like penalty was extended two years after to any other separatist whatsoever, and the third offence, made the offender liable to banishment. Any person entertaining a quaker to teach, or preach, was subject to a fine of 5000 pounds of tobacco, and any justice of the peace, or other officer, neglecting the duties prescribed thereby for suppressing quakers, was subjected, likewise, to a penalty: and any master of a vessel bringing a quaker into the colony, was moreover liable to the penalty of 5000 pounds of tobacco.
Here then, we find not only the common law and statutes of England, so far as they were applicable to the situation of the colony, but also the hierarchy of the church of England, in its full vigour, established and adopted in Virginia.
But this general adoption of the laws of England was probably confined to the colony of Virginia, which, even to the period when the revolution commenced, was distinguished for its loyalty, beyond any other of the plantations. The New-England colonies owed their establishment to that spirit of independency, which afterwards shone forth there, in its full lustre, and received new accession from the aspiring character of those, who being discontented with the established church, and with regal government, sought for freedom amidst those savage desarts. But, even in Virginia, we find the distinction made, between acts of parliament antecedent to their settlement, and such as were subsequent thereto. Many of the latter were from time to time, either expressly declared to be in force in the colony, or, were introduced into the colonial code, in form of acts of the general assembly. The statute of 7 and 8 of William the third, which declares that “the solemn affirmation of quakers shall be accepted instead of an oath,” for so much thereof as relates to such affirmation, was, by an act of assembly, passed in the year, 1705, declared to be in force in Virginia; the statute of 3 W. and M. c. 14. For relief of creditors against fraudulent devises was, in like manner declared to be in force in Virginia, by an act passed in the year 1726, and re-enacted in the year 1748. The statutes of limitations, 32 H. 8. c. 2. and 21 Ja. 1. c. 16. were enacted in the year 1710, with alterations in the former. The statutes of 21 Ja. 1. C. 27, to prevent the destroying of bastard children; and c. 24, concerning persons dying in execution, were likewise enacted about the same time. So was a part of the statute 16, and 17. Car. 2. c. 5, for preventing delays of execution by writ of audita querela; as also several clauses of the statute for preventing frauds and perjuries, 29 Car. 2. c. 3, whilst other parts of the same statute were either entirely omitted, or materially changed; as in the case of a will of lands: the statute requires 3 or 4 witnesses; the act of the Virginia assembly requires only two. Many other instances, if necessary, could be adduced to the like effect.
The Massachusetts colony may be considered as the parent of the other colonies of New-England; there being no importation of planters from England to any part of the continent northward of Maryland, except to Massachusetts, for more than fifty years after the colony began. The first settlement attempted in the year 1607, (the same in which the charter of James the first to Virginia bears date) soon failed.
The colony of New-Plymouth, which may be regarded as the most ancient establishment in New-England, owed its existence to that bigotry and persecution which prevailed at that time among christians of every sect and denomination. The adventurers procured a patent from the Virginia company in 1620, and, eight years after, a charter was obtained from the crown: the settlement having been previously effected. This charter, according to governor Hutchinson, was intended to constitute a corporation in England, like that of the East India company; but on the proposal of several gentlemen of figure and estate, who were dissatisfied with the arbitrary proceedings both in church and state, and pleased themselves with the prospect of the enjoyment of liberty in both, in America, it was resolved the succeeding year, by the general consent of the company, that the government and patent should be settled in New-England. In 1630, they established rules for proceeding in all civil actions, and instituted subordinate powers for punishing offenders. In civil actions, equity, according to the circumstances of the case, seems to have been their rule of determining; the judges had recourse to no authority but common reason and understanding.5 In 1634, they began to think about a body of laws suited to the circumstances of the colony, civil and religious; and in the year 1648, (the same in which the regal government was subverted in England) the whole collected together, were ratified by the general court, and then first printed. The principal characters in Massachusetts during this period were the intimate friends of the leading members of parliament, Pym, Hampden, &c. and whilst Cromwell was at the head of affairs, he shewed them all the indulgence they desired; from 1640 to 1660, they approached very near to an independent commonwealth.
In the system of laws and government which they established they departed from their charter, and instead of making the laws of England the ground work of their code, they preferred the laws of Moses.6 In that branch of law more especially, which is distinguished by the name of crown law, they professed to have no regard to the rules of the common law of England. It seems to have been the general opinion that acts of parliament had no other force than what they derived from acts made by the general court to establish, or confirm them. High treason was not mentioned, conspiracy to invade their own commonwealth, or any treacherous perfidious attempt to alter and subvert fundamentally the frame of their polity and government, was made capital. Murder, sodomy, witchcraft, arson, and rape of a child under ten years of age, were the only crimes made capital in the colony, which were capital in England. They made no distinction between murder and manslaughter, and the statutes which allowed, or denied the benefit of clergy were disregarded. The worship of any other God besides the Lord God, was capital. Governor Hutchinson doubts whether a Roman catholic for the adoration of the host, might not have come within that law. Blasphemy, man-stealing, adultery with a married woman, wilful perjury in certain cases, cursing, or smiting a parent by a child above the age of sixteen years, except in one or two particular cases, were all capital offences. A stubborn and rebellious son, according to Deuteronomy c. 21. upon conviction was also to suffer death. There were several trials under this law. Rape was left to the court to punish with death or other grievous punishment at discretion. Several offences were capital upon a second conviction; as the returning of a Romish priest, or a quaker, after banishment upon the first conviction: The denial of either of the books of the old and new testament, to be the written and infallible word of God, was either banishment, or death, for the second offence, at the discretion of the court. Burglary and theft in a house, or field, on the Lord’s day, were capital upon a third conviction: larceny, or theft was punishable by fine or whipping, and restitution of treble the value; fornication, by enjoining marriage, by fine, or corporal punishment. Common fowlers, tobacco-takers, and idlers, the constables were required to present to the next magistrate; and the select men of every town were required to oversee the families: to distribute the children into classes, and to take care that they were employed in spinning and other labour according to their age and condition. Contempt of authority was punished with great severity, by fine, imprisonment, or corporal punishment. Lesser offences were punished at the discretion of the court. Such are the outlines of their penal code: it would be mispending time to attempt to shew the numerous departures therein, from the principles both of the common, and statute law of England.
Nor were many of the civil regulations less dissimilar. Marriages from the first settlement of the colony were celebrated by magistrates, and not by clergymen. At the revolution they were solemnized by the clergy. A man who struck his wife, or a woman her husband, was liable to a penalty of ten pounds, or corporal punishment. In testamentary causes they at first so far allowed the civil law, as to consider real estates, as mere bona, and did not confine themselves to any rules of distribution in England. They considered the family and estate in all their circumstances, as was before mentioned, and sometimes assigned a greater portion to one branch than another; and sometimes they settled all upon the widow; executors or administrators were not held, as at the common law, to prefer a debt due by judgement, or bond, to a simple contract debt; fee-simple estates descended to every child; but estates tail to the eldest son, or other heir at common law. Traitors and felons might dispose of their estates, real and personal, by will, after sentence; and if they died intestate, distribution was made as in other cases. No free inhabitant of any town could sell his lands therein, but to some other free inhabitant of the same town; unless the town gave consent, or refused to give what others offered without fraud; which was agreeable to the law of Moses, which forbad the alienation of lands from one tribe to another. The clergy were at all times exempted from taxes, on their persons, or estates, under their own improvement. Nor was their ecclesiastical polity at less variance with the laws and statutes of England, which regard the king as the supreme head of the church, and make it penal not to conform to the doctrine and discipline of that church. Upon their removal they supposed their relation both to the civil and ecclesiastical government, except so far as a special reserve was made by their charter, was at an end; and that they had a right to form such new model of both, as best pleased them. Accordingly they established an ecclesiastical polity of their own, totally differing from the mother country, it being one of the principles upon which their platform, or church-government was formed, “that there is no jurisdiction to which particular churches are, or ought to be subject, by way of authoritative censure, nor any other church power, extrinsical to such churches, which they ought to depend upon any other sort of men for the exercise of.” In general the ordination of ministers was by imposition of the hands of their brethren in the ministry; but some churches called for the aid of no ministers of other churches, but ordained their ministers by the imposition of the hands of some of their own brethren. They laid aside the fasts and feasts, as well as the doctrine and discipline of the church of England; yet they appointed days of fasting and thanksgiving occasionally, and any person absenting himself from public worship on those days, was liable to a fine: and nonconformity was attended with the deprivation of more civil privileges than in England. This intolerant spirit occasioned complaints to be preferred against the colony, after the restoration, not only by episcopalians, but by baptists, quakers, and other sectarists; which, together with other reasons, produced the abrogation of their charter, by a decree of the high court of chancery in England, in the year 1684. A new charter was obtained in 1691, upwards of sixty years after the date of the former, and seventy years from the first settlement of the colony of New-Plymouth, and near half a century from the period when a system of laws the most discordant to those of the mother country had been established. In the mean time the laws of England had undergone many very material alterations, and the system of government had twice been wholly changed. The new charter contained nothing of an ecclesiastical constitution. Liberty of conscience was allowed to all except papists. On the publication of the new charter, there was room to question what was the law in civil and criminal matters, and how far the common law and what statutes took place. The general court soon after passed an act declaring that all the laws of the colony of Massachusetts, and the colony of New-Plymouth, not being repugnant to the laws of England, nor inconsistent with the charter, should be in force in the respective colonies to the 10th of November, 1692, except where other provision should be made by act of assembly. Instead of committing to a few select and able men, the duty of preparing, and digesting a complete code, or system of laws, upon a preconcerted plan, the whole of which each person should have kept in view: which after being submitted to, and approved by the general assembly, might have been sent to England, to be finally ratified there, by the crown; it was proposed that the members of the general court should, during the recess, consider of such laws as were necessary to be established. This improvident step according to governor Hutchinson, produced consequences by which the people of the province were ever after sufferers; “the construction of many laws,” he tells us, “has been doubtful and varying, it being impossible to reconcile the several parts to any general principle of law whatever.” Many of the subsequent acts of assembly were passed from time to time, one after another, as they happened to be brought in; and when sent to England for allowance, some were disapproved; others, which depended upon, or had some connexion with those which were disapproved, were allowed. The legislature consisting of many of the same persons who had composed the same body under the old charter, the same spirit prevailed in most of the laws which were passed, as in the former code: many of them were consequently disallowed; others were approved, among which is enumerated an act for punishing criminal offences, in many parts mitigating the penalties at common law; as also an act for the settlement of intestates’ estates, which continued in force until the period when Hutchinson wrote his history; and is, not improbably, the law of the land at this day. By this act such estates were to be divided among all the children, giving to the eldest son a double portion; and where there were no children, the whole was to go to the next of kin to the intestate. This act was variously interpreted, the courts, where there were no children, at first adjudging that the estate should go to the heir at common law; but later judgments have assigned it to the half blood, to the father, and also to the mother. Notwithstanding which general entails were adjudged not to be partible.
A body of people receding from the established government and religion of a country can not, as was before remarked, be supposed to have carried with them any great affection for its laws. To this cause we must attribute that immediate departure from the conditions of their first charter, which prohibited the making any laws repugnant to those of England. A strict compliance with this condition would require the aid of learned counsel, whose professional pursuits might enable them to point out the conformity required by the charter. Of such counsel the general court are said to have acknowledged the want. Under such circumstances, had there been every disposition to adhere strictly to the terms of their charter, it would have been impossible. A single instance will shew what extensive consequences flowed from these causes. By the charter of Massachusetts, (which agrees perfectly with the charters of the other colonies, in this respect,) it was stipulated that the colonists should hold their lands in free and common socage, as of the manor of East-Greenwich in the county of Kent. In Massachusetts this was interpreted to include all the properties and customs of gavel-kind; one of which is, that lands are partible among all the sons; and another, that they are not subject to forfeiture for treason or felony, according to the maxim, the father to the bough, the son to the plough. This interpretation gave a correspondent stamp to their laws, before noticed. In Virginia that part of the charter was interpreted to establish the common law rule of descents, in favour of the eldest son, or next collateral kinsman of the whole blood, in exclusion of all others in equal degree; and the law of forfeiture, in cases of treason or felony, was adopted in its fullest latitude. Two ships sailing from the equator to the opposite poles would scarcely pursue more different courses, or arrive at more opposite points. If such different interpretations could be made where the text was so short, familiar, and explicit, what irreconcileable variances might we not expect in the construction of the numerous, and often discordant dogmas, contained in the vast volumes of common law reports, and statutory provisions?
The colonies of Connecticut and New-Hampshire, which, according to governor Hutchinson, grew out of Massachusetts, severally adopted institutions, both civil and religious, which bore a great conformity to those of Massachusetts. Perhaps the spirit of civil independence run higher in Connecticut, even than in Massachusetts; and that of religious intolerance towards all who differed from them in doctrine, or in discipline, was certainly equal in both.7 Toleration was preached against as a sin in rulers, which would bring down the judgments of heaven upon the land. This spirit of intolerance in Massachusetts produced the settlement of Rhode-Island, where religious freedom seems first to have erected her standard, under the protection of the charter granted by Charles the second, in the fourteenth year of his reign, a.d. 1662, which declared, that no person within that colony, at any time thereafter, should be any wise molested, punished, disquieted, or called in question for any differences of opinion in matters of religion, who do not actually disturb the civil peace of the colony. Universal toleration was not long after established in Pennsylvania, and there flourished more than in any other country. Popery, the abomination of the religious bigots of New England, seems to have been rather favoured, than discouraged in Maryland. In no other colony, except Rhode-Island and Pennsylvania was it tolerated. It is not improbable that in every colony the prevailing sentiments and laws respecting religion, had a corresponding effect upon their civil institutions. Of this Peters mentions a remarkable instance in Connecticut, not many years before the American revolution. A negro was brought to trial before the superior court at Hertford for castrating his master’s son: the court could find no law to punish him. The lawyers quoted the English statute against maiming; the court were of opinion that statute did not reach the colony, because it had not been passed in the general assembly.8 At length, however, the court had recourse to the vote of the first settlers at New-Haven, viz. that the bible should be their law, till they could make others more suitable to their circumstances. The court were of opinion that vote was in full force, as it had not been revoked; and thereupon tried the negro by the Jewish law, “eye for eye, tooth for tooth”; and he suffered accordingly. Mr. Swift, in his system of the laws of Connecticut, tells us, that the English common law had never been considered as more obligatory there, than the Roman laws had been in England. That there is no general rule to ascertain what part of it is binding; that the running the line of distinction is a subject of embarrassment to the courts; and that it has no other foundation there, than the voluntary reception of it by the general (implied) consent of the people, (in particular cases, I presume.) That the first settlers there instead of considering it to be the basis of their jurisprudence, and in all cases binding, have only considered it as auxilary to their statutes. … That a consequence of this doctrine has been, the introduction of many new rules and principles, which have greatly improved the legal system of that state; from whence he adduces a second branch of what he stiles the common law of the state, founded upon the adjudications of the courts, in all cases of defect of the common law not supplied by statute.9 In Virginia, it would be a violation of the constitution for the courts to undertake to supply all defects of the common law not already supplied by statute. That is the exclusive province of the legislature.
From this specimen, my readers will readily perceive that it would require the talents of an Alfred to harmonize and digest into one system such opposite, discordant, and conflicting municipal institutions, as composed the codes of the several colonies at the period of the revolution; united with the coercive arm of the Norman tyrant to enforce obedience to it, when digested. In vain then should we attempt, by any general theory, to establish an uniform authority and obligation in the common law of England, over the American colonies, at any period between the first migrations to this country, and that epoch, which annihilated the sovereignty of the crown of England over them. I shall, therefore, proceed to consider,
3. Thirdly; what part of the laws of England were abrogated by the revolution, or retained by the several states, when they became sovereign, and independent republics.
And here we may premise, that by the rejection of the sovereignty of the crown of England, not only all the laws of that country by which the dependence of the colonies was secured, but the whole lex prerogativa (or Jura Coronae before mentioned) so far as respected the person of the sovereign and his prerogatives as an individual, was utterly abolished: and, that so far as respected the kingly office, and government, it was either modified, abridged, or annulled, according to the several constitutions and laws of the states, respectively: consequently, that every rule of the common law, and every statute of England, founded on the nature of regal government, in derogation of the natural and unalienable rights of mankind; or, inconsistent with the nature and principles of democratic governments, were absolutely abrogated, repealed, and annulled, by the establishment of such a form of government in the states, respectively. This is a natural and necessary consequence of the revolution, and the correspondent changes in the nature of the governments, unless we could suppose that the laws of England, like those of the Almighty Ruler of the universe, carry with them an intrinsic moral obligation upon all mankind. A supposition too gross and absurd to require refutation.
In like manner, all other parts of the common law and statutes of England, which, from their inapplicability, had not been brought into use and practice during the existence of the colonial governments, must, from the period of their dissolution, be regarded not only as obsolete, but as incapable of revival, except by constitutional, or legislative authority. For they no longer possessed even a potential existence, (as being the laws of the British nation, and as such, extending, in theoretical strictness, to the remotest part of the empire,) because the connexion, upon which this theoretical conclusion might have been founded, was entirely at an end: and having never obtained any authority from usage, and custom, they were destitute of every foundation upon which any supposed obligation could be built. … This is a regular consequence of that undisputed right which every free state possesses, of being governed by its own laws. … And as all laws are either written; or acquire their force and obligation by long usage and custom, which imply a tacit consent; it follows, that where these evidences are wanting, there can be no obligation in any supposed law.
Another regular consequence of the revolution was this: when the American states declared themselves independent of the crown of Great-Britain, each state from that moment became sovereign, and independent, not only of Great-Britain, but of all other powers, whatsoever. Each had its own separate constitution and laws, which could not, in any manner, be affected or controlled by the laws, or constitutions of any other. From that moment there was no common law amongst them but the general law of nations, to which all civilized nations conform. And as no law could thereafter be imposed upon the people of any state, but by the legislature thereof, so no law could be obligatory in one state, merely because it was obligatory in another. And how much soever their municipal institutions might agree, one with another, yet as it was in the power of their legislatures, respectively, to alter the whole, or any part of them, whenever they should think proper, therefore, such coincidence by no means established a common rule amongst them; because, as was before observed, the establishment of a law within the jurisdiction of one state, gave it no authority within the jurisdiction of any other. From hence it follows, that the adoption of the common law, or statutes of England, in one state, or in several, or even in all, although it might produce a general conformity in their municipal codes, yet as such adoption was the separate act of each state, it could not operate so as to give to those laws a sanction superior to any other laws of the states, respectively; inasmuch as each state would still have retained the power of changing, or rejecting them, whenever it should think proper: and much less, could the adoption of them under various modifications, limitations, and restrictions, (as was actually the case,) create such a superior sanction, as thereafter to render them paramount, not only to the legislative authority, but even to the constitutions, of the respective states.
These things being premised, we shall now proceed to enquire what was actually done by the several states, in regard to the subject, here spoken of.
The constitution of Massachusetts,10 declares, that, “the people of that commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent state; and do, and forever thereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not thereafter, be by them expressly delegated to the United States of America, in congress assembled.” … This is merely a declaration of the law of nations: and as such, applies equally to every other state in the union, as to the commonwealth of Massachusetts. And though, perhaps, it will be objected, that by the confederation formed between the states, they were, respectively abridged of a very large portion of that sovereignty, which some other nations exercise; yet this objection admits of several answers, viz. First, The articles of confederation, were not agreed upon, nor ratified, till several years after the states became independent.11 Secondly, when agreed upon, and ratified, they contained an express declaration, in conformity to the law of nations,12 “that each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not thereby expressly delegated to the United States in congress assembled.” … Thirdly, that no power is therein delegated to congress, whereby that body was authorised to introduce, or to establish the common law, or statutes of England, or of any other country or nation, in the United States, as the general law of the land, therein.
The constitution of Massachusetts further declares, that, “all the laws which had been theretofore adopted, used and approved, in the province, colony, or state of Massachusetts-bay, and usually practised on, in the courts of law, shall still remain and be in full force, until altered, or repealed by the legislature; such parts only excepted, as are repugnant to the rights, and liberties contained in that constitution.” Among those rights we find the following declaration, that, “all power residing originally, in the people, and being derived from them, the several magistrates and officers of government, vested with authority whether legislative, executive, or judicial, are their substitutes, and agents, and are, at all times, accountable to them.” Again . … That “government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people and not for the profit, honour, or private interest of any one man, family, or class of men.” … And again; that, “the people have a right to require of their law-givers and magistrates an exact, and constant observance of the fundamental principles, of the constitution, in the formation and execution of all laws.” And further; that, “the liberty of the press, is essential to the security of freedom, in a state; and ought not, therefore, to be restrained in that commonwealth.”
These constitutional declarations (among many others of a similar nature, contained, not only in the constitution of Massachusetts, but in those of the far greater part of the states in the union) establish, beyond the reach of doubt, I apprehend, the several points premised, under this head. And here we may remark, in the way, that by these constitutional declarations all the colonial laws, (of whose validity, as being repugnant to the common law, and statutes of England, great doubts had been entertained during the colonial government), were, thenceforth, unquestionably established, how repugnant, soever, they might have been to the common law, or statutes of England, or the conditions of their charter. The adoption of the laws of England, we see was confined to such as had been theretofore adopted, used, and approved, within the colony, and usually practised on, in the courts of law; with an exception as to such parts as were repugnant to the rights and liberties contained in the constitution. It was therefore essential to the force and obligation of any rule of the common law, that it had been before that time actually adopted, used, or approved, in the colony: and further, that it should not be repugnant to the rights and liberties contained in the constitution. Otherwise, although it might be found in every law treatise from Bracton, and Glanville, to Coke, Hale, Hawkins, and Blackstone; or in every reporter from the year-books to the days of Lord Mansfield, it would have no more force in Massachusetts, than an edict of the emperor of China.
But let us now proceed to inquire what other states have done upon this subject.
The constitution of New-York, ordains, and declares, that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New-York, as together did form the law of the said colony on the 19th day of April, 1775, shall be, and continue the law of the land, subject to such alterations and provisions, as the legislature of the state shall, from time to time make, concerning the same. That all such parts thereof as may be construed to establish any particular denomination of christians, or concerns the allegiance, theretofore yielded to, and the supremacy, sovereignty, government, or prerogatives, claimed or exercised by the king of England or his predecessors, over the colony or its inhabitants, or are repugnant to that constitution, are thereby abrogated, and rejected.
The constitution of New-Jersey, declares, that, the common law of England, as well as so much of the statute law, as had been theretofore practised in that colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in that charter.
The constitution of Delaware, declares, nearly in the same words, that the common law of England, as well as so much of the statute law, as had theretofore been adopted in practice in that state, shall remain in force; unless they shall be altered by a future act of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in that constitution.
The constitution of Maryland declares, that the inhabitants thereof are entitled to the common law of England, and the trial by jury according to the course of that law, and to the benefit of such English statutes as existed, at the time of their first emigration, and which by experience have been found applicable to their local and other circumstances, and of such others as have since been made in England, or Great-Britain, and have been since introduced, used, and practised by the courts, &c. except such as may be altered by acts of convention, or that declaration of rights, subject to the revision, amendment, or repeal, of the legislature of that state.
The convention of Virginia, declared, that the common law of England, and all statutes or acts of parliament made in aid of the common law, prior to the fourth year of James the first, which are of a general nature, not local to that kingdom, together with the several acts of the colony then in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force, until the same shall be altered by the legislative power of the commonwealth. This has since been done, and at this day, no statute of England, or Great-Britain, as such, has any authority in Virginia, except in one or two special cases, particularly saved by the act of repealing them; and the common law, both in criminal and civil cases, has undergone a most extensive change.
The constitution of South-Carolina, established March 19, 1778, declares, that the resolutions of the late Congresses of that state, and all laws then in force there, and not thereby repealed, shall so continue until altered, or repealed, by the legislature of the state, unless where they are temporary.
The constitutions of the other states, so far as I have had an opportunity of consulting them, are silent on the subject of the adoption of the common law, or statutes of England. But I apprehend, that what I have here selected is sufficient to shew, that in every state, where they have been adopted, they have the force of laws, only, sub graviori lege; like the civil and canon laws, in England: being modified, limited, restrained, repealed, or annulled, by the provisions contained in their several constitutions, bills of rights, legislative codes, and judicial usages, and practice; and in all cases subject to the future amendment, repeal, and control, of the legislatures of the several states, respectively. These modifications, restrictions, and limitations, being different in the different states, according to the difference of their several constitutions and laws, and the different terms of adoption, it would be altogether a hopeless attempt, to endeavour to extract from such discordant materials, an uniform system of national jurisprudence, were there any grounds in the American constitutions to warrant such an undertaking. Hitherto, I apprehend, we have met with nothing of the kind. It only remains to inquire,
4. How far that portion of the common law and statutes of England, which has been retained by the several states, respectively, has been engrafted upon, or made a part of the constitution of the United States.
It will be remembered, that the object of the several states in the adoption of that instrument, was not the establishment of a general consolidated government, which should swallow up the state sovereignties, and annihilate their several jurisdictions, and powers, as states; but a federal government, with powers limited to certain determinate objects; viz. their intercourse and concerns with foreign nations; and with each other, as separate and independent states; and, as members of the same confederacy: leaving the administration of their internal, and domestic concerns, to the absolute and uncontrolable jurisdiction of the states, respectively; except in one or two particular instances, specified, and enumerated in the constitution. And because this principle was supposed not to have been expressed with sufficient precision, and certainty, an amendatory article was proposed, adopted, and ratified; whereby it is expressly declared, that, “the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This article is, indeed, nothing more than an express recognition of the law of nations; for Vattel informs us, “that several sovereign, and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may in certain respects put some constraint on the exercise of it, in virtue of voluntary engagements. And with respect to the construction and interpretation of that article, the great Bacon gives us the following rule: “As exception strengthens the force of a law in cases not excepted; so enumeration weakens it, in cases not enumerated.”13 Now, the powers prohibited by the constitution to the states, respectively, are all exceptions to powers, which they before enjoyed; the powers granted to congress, are all enumerations of new powers thereby created: the prohibition on the states, operating, therefore, as an exception, strengthens their claim to all powers not excepted: on the other hand, the grant of powers to the federal government operating only by way of enumeration, weakens its claim in all cases not enumerated.
These things being premised, I shall take a short survey of the constitution of the United States, with a view to discover, whether that instrument contains any grant of general jurisdiction in common law cases, to the federal government; or prohibits the states from the exercise of such general jurisdiction: except only, in some few cases, particularly enumerated. For without such grant the federal government cannot exercise such a jurisdiction; and without such prohibition, the states, respectively, cannot be abridged of it.
1. The powers delegated to congress, are not all legislative: Many of them have been usually supposed to belong to the executive department; such are,
The power of declaring war; granting letters of marque and reprisal; raising and supporting armies, and navies; and borrowing money; none of which contain, or can be presumed to imply, any grant of general jurisdiction in common law cases. The legislative powers of congress, are also determinate, and enumerated, being,
This clause, I apprehend, cannot be construed to enlarge any power before specifically granted; nor to grant any new power, not before specifically enumerated; or granted in some other part of the constitution. On the contrary it seems calculated to restrain the federal government from the exercise of any power, not necessarily an appendage to, and consequence of some power particularly enumerated. Acts of congress to be binding, must be made pursuant to the constitution; otherwise they are not laws, but a mere nullity; or what is worse, acts of usurpation.14 The people are not only not bound by them, but the several departments and officers of the governments, both federal, and state, are bound by oath to oppose them; for, being bound by oath to support the constitution, they must violate that oath, whenever they give their sanction, by obedience, or otherwise, to any unconstitutional act of any department of the government.
If the reader can discover in any of the powers before enumerated, that which contains a grant of general jurisdiction in common law cases to the federal government, our enquiry is at an end. And he will render an incomparable act of service to his country, by laying his finger upon that clause, and pointing it out to his fellow-citizens, that they may no longer puzzle themselves, or their agents, about a question of such importance. … But, if he can not do this, and is not yet convinced that no such grant is contained in the constitution, I must request him patiently to attend me, whilst we hunt for it in some other part of that instrument.
2. Then; we are to seek for this grant in that article which relates to the powers and duties of the executive department.
The president, by that article, is declared to be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States: he may require the opinion, in writing, of the principal officer of each of the executive departments, upon any subject relating to the duties of their respective offices, and hath power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. He may with advice and consent of the senate, make treaties; and may nominate, and with consent of the senate, appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers whose appointments are not otherwise provided for; he may fill up all vacancies that may happen during the recess of the senate, by temporary commissions; it is his duty to give congress information of the state of the union, and he may recommend to their consideration such measures as he may judge necessary and expedient; he may on extraordinary occasions convene both houses, or either of them; and in case of disagreement between them with respect to the time of adjournment, may adjourn them; he hath a qualified negative upon all the other acts, and proceedings; he is to receive ambassadors and other public ministers; he is to take care that the laws be faithfully executed; and to commission all officers of the United States.
The most dextrous political empyric would, I apprehend, be puzzled to extract from the preceding enumeration any thing, which could bear the most distant resemblance to a grant of general jurisdiction in common law cases: we, are driven then, in the last resort to seek for it.
3. In that article, which relates to the constitution and powers of the judiciary department. It is therein declared,
That the judicial power shall extend to all cases in law and equity, arising under the constitution; the laws of the United States; and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty; to controversies to which the United States shall be a party; to controversies between two, or more states; between citizens of different states; between citizens of the same state, claiming lands under grants from different states; and between a state and foreign states.
Such is the power of the judiciary department, as now limited by the thirteenth article of the amendments to the constitution of the United States. I shall endeavour to analize the whole.
1. The judicial power of the federal government extends to all cases in law and equity arising under the constitution. Now, the powers granted to the federal government, or prohibited to the states, being all enumerated, the cases arising under the constitution, can only be such as arise out of some enumerated power delegated to the federal government, or prohibited to those of the several states. These general words include what is comprehended in the next clause, viz. Cases arising under the laws of the United States. But as contra-distinguished from that clause, it comprehends some cases afterwards enumerated, e. g. Controversies between two or more states; between a state and foreign states; between citizens of the same state claiming lands under grants of different states; all which may arise under the constitution, and not under any law of the U. States. Many other cases might be enumerated, which would fall strictly under this clause, and no other. As, if a citizen of one state should be denied the privileges of a citizen in another; so, if a person held to service or labour in one state, should escape into another and obtain protection there, as a free man; so, if a state should coin money, and declare the same to be a legal tender in payment of debt, the validity of such a tender, if made, would fall within the meaning of this clause. So also, if a state should, without consent of congress, lay any duty upon goods imported, the question as to the validity of such an act, if disputed, would come within the meaning of this clause, and not of any other. … In all these cases equitable circumstances may arise, the cognizance of which, as well as such as were strictly legal, would belong to the federal judiciary, in virtue of this clause.
2. The judicial power of the United States extends to all cases arising under the laws of the United States; . … now as the subjects upon which congress have the power to legislate, are all specially enumerated, so the judicial authority, under this clause, is limited to the same subjects as congress have power to legislate upon. Thus congress being authorised to pass uniform laws of naturalization, the question whether a person is an alien, or not, falls under this head, provided the party were an alien born. So, also, if a person be accused of counterfeiting the public securities of the United States, this question would be cognizable in the federal courts, under this clause; but if he were accused of any other forgery: of this offence the state courts, and not the federal courts, possess jurisdiction.
3. The power of the federal judiciary extends to cases arising under treaties; as well those already made, as to such as might be made after the adoption of the constitution. … Of the former kind were the questions concerning the validity of payments made into the state treasuries by British debtors, during the war; of the latter sort, may be such questions as may hereafter arise under the treaty of 1794, enabling British subjects, though aliens, to hold and inherit lands, within the U. States. … In neither of the preceding clauses can we find any thing like a grant of general jurisdiction in common law cases.
4. To all cases affecting ambassadors, other public ministers, and consuls; these cases, although provided for in some countries by statute, where that is not the case, belong to the law of nations, and not to the common law.
5. To all cases of admiralty and maritime jurisdiction; these were never held to be within the jurisdiction of the common law.
6. To controversies to which the United States shall be a party. The word cases used in the preceding clauses of this article comprehends, generally, I apprehend all cases, whether civil or criminal, which are capable of falling under these heads, respectively, instances of which it might be unnecessary here to repeat: I shall however add to what I have before said, that it comprehends such criminal cases as may arise within the precincts of the seat of government, not exceeding ten miles square; or within the precincts of forts, dockyards, magazines, and arsenals, purchased with the consent of the state in which they may be; and finally, treason against the U. States; piracies and felonies committed upon the high seas; and offences against the law of nations; and against the revenue laws of the U. S.
The word controversies, as here used, must be understood merely as relating to such as are of a civil nature. It is probably unknown in any other sense, as I do not recollect ever to have heard the expression, criminal controversy. As here applied, it seems particularly appropriated to such disputes as might arise between the U. States, and any one or more states, respecting territorial, or fiscal, matters. … Or between the U. States and their debtors, contractors, and agents. This construction is confirmed by the application of the word in the ensuing clauses, where it evidently refers to disputes of a civil nature only, such for example, as may arise between two or more states; or between citizens of different states; or between a state, and the citizens of another state; none of which can possibly be supposed to relate to such as are of a criminal nature, unless we could suppose it was meant to deprive the states of the power of punishing murder or theft, if committed by a foreigner, or the citizen of another state.
7. The judicial power extends likewise to controversies between two or more states; and between a state, and foreign states. These must be proceeded in, and determined according to the law of nations, and not according to the common law.
8. To controversies between citizens of different states; and between citizens of any state and the subjects or citizens of foreign states. … In these cases, the municipal law of the place where the cause of controversy arises, whether that be one of the United States, or Great Britain, France, Spain, Holland, Hamburg, or any other country; or the general law of merchants; or, the general law of nations according to the nature and circumstances of the case, must be the rule of decision, in whatever court the suit may be brought. Thus if a bond be given in Philadelphia, the rate of interest must be settled according to the laws of Pennsylvania. If a bill of exchange be drawn in Virginia, the rate of damages must be settled by the law of that state. If in England, Hamburg, or Cadiz, the custom of merchants in those places, respectively, must govern. If a ransom bill be drawn at sea, the law of nations in that case must be consulted. If the controversy relate to lands, the law of the state where the lands lie must be referred to; unless the lands be claimed under grants from different states; in which case the territorial rights of each state must be inquired into. The same must be done, in the last case which remains to be noticed; viz:
9. Controversies between citizens of the same state claiming lands under grants of different states. None of the cases enumerated in this, and the preceding paragraph can be construed to give general jurisdiction in cases at common law, or such as ordinarily arise between citizens of the same state; under which description, civil suits, in general, (with the exception of the case here supposed) are comprehended; or such as may arise between a state, and its own citizens, or subjects; under which head crimes and misdemeanors are comprehended. This being the only enumerated case, in which the federal courts can take cognizance of any civil controversy between citizens of the same state, it can not extend to such common law cases, as may arise between them; all such cases being reserved to the jurisdiction of the states, respectively. And on the other hand, as it does not extend to any case that may arise between a state and its own citizens or subjects; nor to any case between a state, and foreign citizens or subjects, or the citizens of any other state15 … so every such case, whether civil or criminal, and whether it arise under the law of nations, the common law, or law of the state, belongs exclusively, to the jurisdiction of the states, respectively. And this, as well from the reason of the thing, as from the express declarations contained in the twelfth and thirteenth articles of the amendments to the constitution.
Having thus minutely examined all the enumerated powers, which are vested in the federal government, or any of its departments, and not finding any grant of general jurisdiction in cases at common law, we are warranted, under the twelfth article of amendments, in concluding, that no such jurisdiction has been granted; and consequently, that it remains with the states, respectively, in all cases not enumerated; so far, as their several constitutions and legislative acts, may admit the authority and obligation of the common law, or statutes of England, in each state, respectively.
But it has, I believe, been said, that if this general jurisdiction in common law cases has not been granted to the federal government in express terms, yet it is given by implication. This admits of several answers:
The constitution of Virginia declares, and the constitutions of the other states agree therewith, that the legislative, executive, and judiciary departments shall be separate and distinct: the common law unites all three in one and the same person.
The constitution of Maryland declares there shall be no forfeiture of any part of the estate of any person for any crime, except murder, or treason against the state; the laws of Virginia have abolished forfeitures in all cases: The doctrine of forfeiture, in case of conviction, or attainder for any crime, is one of the pillars of criminal jurisprudence, by the common law.
The constitution of Pennsylvania declares, that the penal laws as theretofore used in that state, shall be reformed, and punishment made less sanguinary, and more proportionate to crimes. If the common law be revived, this article is a mere nullity. South-Carolina has an article in it’s constitution to the same effect.
The same constitution declares, that the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of the government. It is contended by some persons in power, that the common law does not permit this freedom to any person.
The constitution of Georgia declares, that no grand-jury shall consist of fewer than eighteen persons; the common law deems sixteen a sufficient number.
The same constitution will not allow of a special verdict in any case: The practice of the common law courts in England for five hundred years past, has been to the contrary.
The constitution of North Carolina, declares, that every foreigner who comes to settle in that state, having first taken an oath of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate; and after one year’s residence shall be deemed a free citizen. The constitution of Pennsylvania, has an article to the same effect. … The foreigner is not naturalized immediately upon taking the oath of allegiance; he continues an alien for a year; and if he departs before its expiration, remains an alien: yet he may acquire, hold, and transfer lands: by the common law, an alien can not hold lands.
The constitution of Georgia, prohibits entails; and declares that the real estate of a person dying intestate shall be divided equally among his children: that the widow shall have a child’s part, or her dower, at her option. And if there be no children the estate shall be divided among the next of kin. The common law admits of entails; and absolutely rejects the other provisions of this article.
The constitutions and laws of all the states of the union, (except Massachusetts, where there have been judicial decisions to the contrary), admit slavery. The common, as understood for many centuries past in England, absolutely rejects slavery. … Should a question arise upon that subject in Maryland, Virginia, North Carolina, South Carolina or Georgia, it might be of serious consequence, if the common law were pronounced to be paramount to the laws of the states.
Lastly, The constitutions and laws of all the states, in which the common law and statutes of England have been expressly adopted, in a certain degree, declare that those laws are not to be construed so as to impair any of the rights and privileges contained in their respective constitutions and laws; and further subject them to be repealed, altered, or annulled, by acts of their respective legislatures: the construction contended for, would render the common law paramount to those constitutional declarations, and to all legislative acts. These cases might be multiplied without end; I shall only add one more, which may serve to illustrate the consequences likely to flow from this doctrine, were it possible it should be established.
The constitution of Pennsylvania, declare, that all men have a natural inherent right to emigrate from one state to another that will receive them, whenever they think, that thereby, they may promote their own happiness. Virginia, made a law to the same effect, in the year, 1783, which still continues to be a part of her code. The English jurists deny to the subjects of the crown of Great Britain the right of expatriation, a doctrine which they contend is derived from the common law. In those states which have adopted the common law under certain limitations, but have made no declaration in their constitution, nor any legislative act upon the subject, the right of expatriation may still be questionable. But ought it to be questioned in Pennsylvania, or Virginia, (both which states have, in the most solemn and explicit manner repealed the law,) because it is still questionable in Connecticut, where the law was, perhaps, not repealed, because the right had never before been questioned. What a snare is it for the feet of the citizens of the United States, if obsolete maxims of this kind, may be revived at the discretion of a judge, and enforced with severe penalties, notwithstanding they may have been expressly repealed and annulled in the most solemn manner by the authority of the states, respectively! What principle can be established, more inimical to the independence of sovereign states, or more destructive to the liberty, security, and happiness of the citizen, than, that the unwritten law of a foreign country, differing from them in the fundamental principles of government, is paramount to their own written laws, and even to those constitutions, which the people had sealed with their blood, and declared to be forever inviolable! Such, however, is the necessary, and inevitable consequence, of this constructive grant of jurisdiction in all cases at common law, to the courts of the United States, or to any department of the federal government.
But, were it possible that the consequence above mentioned would not follow, which, however, seems to be altogether inevitable, another consequence, scarcely less mischevous, must follow from the rule contended for; if, in reducing it to practice in the federal courts, it should be admitted, that the common law might be repealed in certain states, in virtue of their constitutions or legislative acts, but remain in full vigour in others. Thus, if it be admitted in the federal courts that a native citizen of Pennsylvania, or Virginia, may expatriate himself, because the constitution of the former, and the law of the latter, expressly permit him to do so; but that a native citizen of Connecticut, cannot expatriate himself, because the common law has not been repealed in that state; here the same action must, by the same judge, be decided to be lawful in one part of the United States, and unlawful in another. Consequently, a native citizen of Connecticut, may be punished, as a citizen of the United States, for doing that, which a native of Pennsylvania, or Virginia, may do with impunity. On the other hand, if the right of expatriation be denied, in the case of a native of Pennsylvania, or Virginia, would not such a denial amount to a declaration, that the common law of England is paramount to the law of the one, and the constitution of the other? This dilemma proves, that it could not be the intention of the several states to grant a power so unbounded in its operation, and so destructive to those principles which they deemed inseparable from their constitutions, and therefore sacred, and inviolable.
But perhaps it will be contended, that the power of establishing an uniform rule of naturalization, includes in it the power to prohibit the right of expatriation. This admits of more than one answer.
5th. But to return to our subject; there are certain passages in the constitution, and the amendments thereto, not yet noticed, which perhaps may be relied on to establish this doctrine of a grant of general jurisdiction to the federal courts or government, in cases at common law, by implication: These are,
In all these passages, we may be told, the common law is evidently referred to as the law of the land. This is not the case; it is referred to as a known law: and might in strictness have been referred to as the law of the several states, so far as their constitutions and legislative codes, respectively, have admitted or adopted it. Will any man who knows any thing of the laws of England, affirm, that the civil, or Roman imperial law, is the general law of the land in England, because many of its maxims, and its course of proceedings, are generally admitted and established in the high court of chancery, which is the highest court of civil jurisdiction, except the parliament, in the kingdom? Or that the canon, or Roman ecclesiastical law, is the general law of the land, because marriages are solemnized according to its rites; or because simony, which is an ecclesiastical offence, is also made an offence by statute?
But it will be asked, what is meant by suits at common law, the cognizance of which, from this article, appears to belong to the federal courts. The answer is easy; in many of the states, the courts are distinguished by the epithets of common law courts, and courts of equity. In the former, the rules and mode of proceeding in the English courts of common law jurisdiction, have under different modifications been adopted; the latter pursue the course of the civil law. Suits cognizable in these courts, respectively, are consequently denominated, suits at common law, and suits in equity, comprehending under these terms all civil suits, except such as are of a maritime nature. … The trial by jury being the usual mode of trial in all the states, except in the courts of equity, it was thought expedient to preserve the same mode of trial in the federal courts, as in the state courts. The article gives not a new jurisdiction, not before expressly granted, in the third article of the constitution; it merely prescribes a mode of trial.
We may fairly infer from all that has been said that the common law of England stands precisely upon the same footing in the federal government, and courts of the United States, as such, as the civil and ecclesiastical laws stand upon in England: That is to say, it’s maxims and rules of proceeding are to be adhered to, whenever the written law is silent, in cases of a similar, or analogous nature, the cognizance whereof is by the constitution vested in the federal courts; it may govern and direct the course of proceeding, in such cases, but cannot give jurisdiction in any case, where jurisdiction is not expressly given by the constitution. The same may be said of the civil law; the rules of proceeding in which, whenever the written law is silent, are to be observed in cases of equity, and of admiralty, and maritime jurisdiction. In short, as the matters cognizable in the federal courts, belong, (as we have before shewn, in reviewing the powers of the judiciary department) partly to the law of nations, partly to the common law of England; partly to the civil law; partly to the maritime law, comprehending the laws of Oleron and Rhodes; and partly to the general law and custom of merchants; and partly to the municipal laws of any foreign nation, or of any state in the union, where the cause of action may happen to arise, or where the suit may be instituted; so, the law of nations, the common law of England, the civil law, the law maritime, the law merchant, or the lex loci, or law of the foreign nation, or state, in which the cause of action may arise, or shall be decided, must in their turn be resorted to as the rule of decision, according to the nature and circumstances of each case, respectively. So that each of these laws may be regarded, so far as they apply to such cases, respectively, as the law of the land. But to infer from hence, that the common law of England is the general law of the United States, is to the full as absurd as to suppose that the laws of Russia, or Germany, are the general law of the land, because in a controversy respecting a contract made in either of those empires, it might be necessary to refer to the laws of either of them, to decide the question between the litigant parties. Nor can I find any more reason for admitting the penal code of England to be in force in the United States, (except so far as the states, respectively, may have adopted it, within their several jurisdictions) than for admitting that of the Roman empire, or of Russia, Spain, or any other nation, whatever.
One or two instances, in addition to those already mentioned, may set this matter in a clearer light. If a suit be brought in a federal court upon a bond executed in England, the bond must be actually sealed, because the common law of England requires that every bond, deed, or covenant, should be executed in that manner; and if it be not, it is not a bond, but merely a simple contract; but if the bond be executed in Virginia, where a scroll by way of seal, is by law declared to be as effectual as if the instrument were actually sealed, there the law of the state shall prevail, and turn that contract into a specialty, by which the lands of the obligor may be bound, which in England would only bind his goods and chattles, after his decease. So if a bill of exchange be drawn in Virginia, an action of debt may be maintained thereupon, in that state; but if it be drawn in any other state, or country, the action I apprehend, must be brought, even in that state upon the custom of merchants. Thus, the lex loci may operate not only so as to determine the nature of the contract, but of the remedy. And with respect to the mode of proceeding, in order to a remedy, wherever the constitution and laws of the United States are silent, there, I apprehend, the law of the state, where the suit is brought, ought to be observed as a guide: thus if a suit be brought upon a bond the plaintiff may demand bail, in Virginia, as of course, and an endorsement to that effect will be sufficient to compel the sheriff, who executes the writ, to take bail at his peril. But in England, the plaintiff in that case, must make an affidavit of the sum actually due upon the bond, otherwise the sheriff is not obliged to take bail. So in the same case, if the sheriff neglects to take bail where he ought to do it, the plaintiff may proceed, in Virginia, against the defendant and sheriff, at the same time, and shall have judgment for his debt against both at once, unless special bail be put in; whereas in England, he must bring a special action on the case, against the sheriff, for neglect of his duty, instead of having the remedy which the laws of Virginia furnish him with. So also, if a bond be executed in London, and a suit be brought thereupon, in the state of Virginia, the defendant cannot plead non est factum, as is the usual course of pleading in England, unless he verifies his plea by affidavit; without which it cannot be received; and the same course of proceeding, I apprehend, is to be observed in the federal, as in the state courts.
From the whole of the preceding examination, we may deduce the following conclusions:
First. … That the common law of England, and every statute of that kingdom, made for the security of the life, liberty, or property of the subject, before the settlement of the British colonies, respectively, so far as the same were applicable to the nature of their situation and circumstances, respectively, were brought over to America, by the first settlers of the colonies, respectively; and remained in full force therein, until repealed, altered, or amended by the legislative authority of the colonies, respectively; or by the constitutional acts of the same, when they became sovereign and independent states.
Secondly. … That neither the common law of England, nor the statutes of that kingdom, were, at any period antecedent to the revolution, the general and uniform law of the land in the British colonies, now constituting the United States.
Thirdly. … That as the adoption or rejection of the common law and statutes of England, or any part thereof, in one colony, could not have any operation or effect in another colony, possessing a constitutional legislature of its own; so neither could the adoption or rejection thereof by the constitutional, or legislative act of one sovereign and independent state, have any operation or effect in another sovereign independent state; because every such state hath an exclusive right to be governed by its own laws only.
Fourthly. … Therefore the authority and obligation of the common law and statutes of England; as such in the American states, must depend solely upon the constitutional or legislative authority of each state, respectively; as contained in their several bills of rights, constitutions, and legislative declarations . … which, being different in different states, and wholly independent of each other, cannot establish any uniform law, or rule of obligation in all the states.
Fifthly. … That neither the articles of confederation and perpetual union, nor, the present constitution of the United States, ever did, or do, authorize the federal government, or any department thereof, to declare the common law or statutes of England, or of any other nation, to be the law of the land in the United States, generally, as one nation; nor to legislate upon, or exercise jurisdiction in, any case of municipal law, not delegated to the United States by the constitution.
Since the publication of the preceding tract, I have met with the case of the United States against Worral, which I had not before seen.
The defendant was charged with an attempt to bribe Tench Coxe, commissioner of the revenue; it was admitted that the offence did not come within the act of 1 Congress, 2 Session, c. 9, §. 21. and a question was asked of the attorney for the U. States, by Judge Chase, whether he meant to support his indictment solely at common law? If you do, said he, I have no difficulty upon the subject. The indictment cannot be maintained in this court, viz. The circuit court of the U. States, for the district of Pennsylvania.
The attorney for the United States, answering in the affirmative; Chase, justice, stopped the counsel for the defendant, and delivered an opinion to the following effect.
Chase, Justice. “This is an indictment for an offence highly injurious to morals, and deserving the severest punishment; but as it is an indictment at common law, I dismiss, at once, every thing that has been said about the constitution and laws of the United States.
“In this country, every man sustains a two-fold political capacity; one in relation to the state, and another in relation to the United States: for the constitution of the union is the source of all the jurisdiction of the national government; so that the departments of the government can never assume any power that is not expressly granted by that instrument, nor exercise a power in any other manner than is there prescribed. Besides the particular cases, which the eighth section of the first article designates, there is a power granted to congress to create, define, and punish crimes and offences, whenever they shall deem it necessary and proper by law to do so, for effectuating the objects of the government; and although bribery is not among the crimes and offences specially mentioned, it is certainly included in this general provision. The question, however, does not arise about the power: whether the courts of the United States can punish a man for any act, before it is declared by a law of the United States, to be criminal? Now, it appears to my mind, to be as essential, that congress should define the offences to be tried and apportion the punishment to be inflicted, as that they should erect courts to try the criminal, or to pronounce a sentence on conviction.
“It is attempted, however, to supply the silence of the constitution, and statutes, of the union, by resorting to the common law, for a definition and punishment of the offence which has been committed: but, in my opinion, the United States, as a federal government, have no common law. If indeed the U. States, can be supposed for a moment, to have a common law, it must, I presume, be that of England; and yet it is impossible to trace, when, or how, the system was adopted, or introduced. With respect to the individual states, the difficulty does not occur. When the American colonies were first settled by our ancestors, it was held, as well by the settlers, as by the judges and lawyers of England, that they brought hither as a birthright and inheritance, so much of the common law, as was applicable to their situation, and change of circumstances. But each colony judged for itself, what parts of the common law were applicable to its new condition; and in various modes, by legislative acts, by judicial decisions, or by constant usage, adopted some parts, and rejected others. Hence, he who shall travel through the different states, will soon discover, that the whole of the common law of England, has been no where introduced; that some states have rejected what others have adopted; and that there is, in short, a great and essential diversity, in the subjects to which the common law is applied, as well as in the extent of the application. The common law, therefore, of one state, is not the common law of another; but the common law of England, is the law of each state, so far as each state has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a federal, or state court.
“But the question recurs, when and how, have the courts of the United States acquired a common law jurisdiction in criminal cases? The United States must possess the common law themselves, before they can communicate it to their judicial agents: now the United States did not bring it with them from England; the constitution does not create it; and no act of congress has assumed it. Besides, what is the common law, to which we are referred? Is it the common law entire, as it exists in England; or modified as it exists in some of the states; and of the various modifications, which are we to select; the system of Georgia, or New-Hampshire, Pennsylvania or Connecticut?
“Upon the whole, it may be a defect in our political institutions, it may be an inconvenience in the administration of justice, that the common law authority, relating to crimes and punishments, has not been conferred upon the government of the United States, which is a government in other respects also of a limited jurisdiction: but judges cannot remedy political imperfections, nor supply any legislative omission. I will not say whether the offence is at this time cognizable in a state court. But certainly congress might have provided, by law, for the present case, as they have provided for other cases of a similar nature; and yet if congress had even declared and defined the offence, without prescribing a punishment, I should still have thought it improper to exercise a discretion upon that part of the subject.”
Peters, Justice.18 “Whenever a government has been established, I have always supposed, that a power to preserve itself, was a necessary, and an inseparable concomitant. But the existence of the federal government would be precarious, it could no longer be called an independent government, if, for the punishment of offences of this nature, tending to obstruct and pervert the administration of its affairs, an appeal must be made to the state tribunals, or the offenders must escape with absolute impunity.
“The power to punish misdemeanors, is originally and strictly a common law power; of which, I think, the United States are constitutionally possessed. It might have been exercised by congress in form of a legislative act; but it may, also, in my opinion, be enforced in a course of judicial proceeding. Whenever an offence aims at the subversion of any federal institution, or at the corruption of its public officers, it is an offence against the well-being of the United States; from its very nature, it is cognizable under their authority; and, consequently, it is within the jurisdiction of this court, by the 11th section of the judicial act.”
Here then are two opposite opinions on this great question. On the trial of Isaac Williams, in the district court of Connecticut, February 27, 1797, for accepting a commission under the French Republic, and under the authority thereof committing acts of hostility against Great-Britain, the defendant alledged, and offered to prove that he had expatriated himself from the United States, and become a French citizen before the commencement of the war between France and England. This produced a question as to the right of expatriation; when Judge Ellsworth, then chief justice of the United States, is said to have delivered an opinion nearly to the following effect.
“The common law of this country remains the same as it was before the revolution. The present question is to be decided by two great principles; one is, that all the members of a civil community are bound to each other by compact; the other is, that one of the parties to this compact cannot dissolve it by his own act. The compact between our community and its members is, that the community shall protect its members, and on the part of the members, that they will at all times be obedient to the laws of the community, and faithful in its defence. It necessarily results that the member cannot dissolve this compact, without the consent or default of the community. There has been no consent . … no default. Express consent is not claimed; but it is argued that the consent of the community is implied, by its policy . … its conditions . … and its acts. In countries so crouded with inhabitants, that the means of subsistence are difficult to be obtained, it is reason and policy to permit emigration; but our policy is different; for our country is but scarcely settled, and we have no inhabitants to spare.
“Consent has been argued from the condition of the country, because we were in a state of peace. But though we were in peace, the war had commenced in Europe. We wished to have nothing to do with the war; but the war would have something to do with us. It has been extremely difficult for us to keep out of this war; the progress of it has threatened to involve us. It has been necessary for our government to be vigilant in restraining our own citizens from those acts which would involve us in hostilities. The most visionary writers on this subject do not contend for the principle in the unlimited extent, that a citizen may, at any, and at all times, renounce his own, and join himself to a foreign country.
“Consent has been argued from the acts of our government permitting the naturalization of foreigners. When a foreigner presents himself here, we do not inquire what his relation is to his own country; we have not the means of knowing, and the inquiry would be indelicate; we leave him to judge of that. If he embarrasses himself by contracting contradictory obligations, the fault and folly are his own; but this implies no consent of the government that our own citizens should also expatriate themselves. … It is, therefore, my opinion, that these facts which the prisoner offers to prove, in his defence, are totally irrelevant,” &c. The prisoner was accordingly found guilty, fined and imprisoned. See the account of his trial, National Magazine, No. 3, p. 254. I presume not to answer for the correctness of it.
As the learned judge in this opinion, refers to no express prohibitory law, except the common law, (by which I presume was meant the common law of England) we must understand his opinion, as founded upon the doctrine that the common law of England is the common law of the United States, in their federal, and national capacity and character. How far reason is on the side of that opinion, the student may form some judgement from what has been said in the foregoing essay.
And here it will be proper to subjoin an instruction from the general assembly of Virginia, to the senators from this state, in congress, January 11, 1800.
“The general assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle, and tremendous in its consequences: That the common law of England is in force under the government of the United States. It is not at this time proposed to expose at large the monstrous pretentions resulting from the adoption of this principle. It ought never, however, to be forgotten, and can never be too often repeated, that it opens a new tribunal for the trial of crimes never contemplated by the federal compact. It opens a new code of sanguinary criminal law, both obsolete and unknown, and either wholly rejected or essentially modified in almost all its parts by state institutions. It arrests, or supercedes, state jurisdictions, and innovates upon state laws. It subjects the citizens to punishment, according to the judiciary will, when he is left in ignorance of what this law enjoins as a duty, or prohibits as a crime. It assumes a range of jurisdiction for the federal courts, which defies limitation or definition. In short it is believed, that the advocates for the principle would, themselves, be lost in an attempt, to apply it to the existing institutions of federal and state courts, by separating with precision their judiciary rights, and thus preventing the constant and mischievous interference of rival jurisdictions.
“Deeply impressed with these opinions, the general assembly of Virginia, instruct the senators, and request the representatives from this state, in congress, to use their best efforts. …
“To oppose the passing of any law, founded on, or recognizing the principle lately advanced, ‘that the common law of England, is in force under the government of the United States;’ excepting from such opposition, such particular parts of the common law, as may have a sanction from the constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; . … and excepting, also, such other parts thereof as may be adopted by congress as necessary and proper for carrying into execution the powers expressly delegated.”
works used by tucker
[1.]Since this essay was transcribed for the press, I have seen an “account of the trial of Isaac Williams” in the federal district court, for the district of Connecticut: therein, the chief justice of the United States is reported to have delivered it as his opinion, that “the common law of this country remains the same, as it was before the revolution.” This doctrine I apprehend, goes much farther than that which I have stated above. Editor’s note: Tucker refers here to Chief Justice Oliver Ellsworth and Justice Bushrod Washington of the U.S. Supreme Court.
[2.]Stith’s History of Virginia.
[3.]According to Governor Hutchinson, all the colonies before the restoration of Charles the Second, except Maryland, settled a model of government for themselves. History of Massachusetts. A different policy was adopted after the restoration. Ibid.
[4.]Minot’s History of Massachusetts.
[7.]Belknap’s History of N.H.; Peters’s History of Conn.
[8.]Castration was mayhem at the common law, and by that law might have been punished as felony. It would seem that the court neither considered the common law nor the statute of Mayhem, as in force in Connecticut.
[9.]Swift’s System of the Laws of Connecticut.
[10.]Established, March, 1780.
[11.]They were not finally agreed upon and ratified till the first day of March 1781.
[13.]Bacon, of the advancement of learning.
[14.]See the Federalist, No. 33. and No. 44.
[15.]Editor’s note: Eleventh Amendment.
[16.]Editor’s note: Here as elsewhere, Tucker means the Tenth Amendment by “the twelfth article of the amendments.”
[17.]See Vattel, Book the first.
[18.]Editor’s note: At this time, U.S. Supreme Court justices sat with U.S. District Court judges (in this case Richard Peters) to form the circuit court of appeals. Judge Chase was Justice Samuel Chase of the U.S. Supreme Court.