258. Principles of the

Revolution summed up.

59. Nature of the common law.

ed might perhaps have proved competent for all the purposes of the union, had they been properly distributed among the departments of a well-balanced government, and been framed to act upon the citizens of the states, instead of the states themselves in their several political capacities as such. But it was left to the government of each state to enforce the laws and resolutions of congress; those even upon which depended the maintanance of the federal authority. Hence the necessity of that revision of the articles of confederation, which was accomplished by the framers of the federal constitution of 1789.

It has now been seen, that the great political principles established by the American Revolution, were-first, the RIGHT of political revolution itself; at least as against any government resting, not in the common consent of the governed, but merely in its power to rule; secondly, the SOVEREIGNTY OF THE PEOPLE of each state; finally, the sovEREIGNTY OF THE STATES UNITED,-the principle of their union being the same with that upon which the individual members of each state are united. This will be fully explained when we come to consider the nature of our present political system, as established by the state constitutions and the constitution of the United States.

In conclusion of this inquiry, it will be proper to briefly notice the change, if any, which the Revolution of 1776, caused or produced with respect to the COMMON LAW.

That system of law, which the earlier settlers of this

MENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist. Though this principle does not run through all the powers delegated to the union; yet it pervades and governs those on which the efficacy of the rest depends; except, as to the rule of apportionment, the United States have an indefinite direction to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the union; yet in practice, they are mere recommendations, which the states observe or disregard at their option.' Alexander Hamilton, in No. 15 of The Federalist, pp. 67-68.

country brought with them from England, and which derives its obligation not from legislative enactments, but from universal custom and immemorial usage, and which is the fountain of American jurisprudence, is distinguished and known as the common law. It consists of ancient maxims and customs, embodying the wisdom and experience of ages, and forming a system that naturally keeps pace with the habits and wants of the current times. Many are the names in our books by which it is distinguished. To distinguish it from statute law, it is sometimes called the unwritten law, lex non scripta; 'not meaning that it is at present merely oral, or communicated from the former ages to the present solely by word of mouth; for the monuments and evidences of our legal customs are now contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity; but these parts of our law are styled leges non scriptæ, because their original institution and authority are not set down in writing, as acts of the legislature are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the land."

The Roman law was also divided, as well too the Grecian, into written and unwritten. Nor, says Justinian, is it an inelegant division of the law, into written and unwritten; which seems to have taken rise from the peculiar customs of the Athenians and Lacedemonians. For the Lacedemonians trusted chiefly to memory, for the preservation of their laws; but the laws of the Athenians were committed to writing.3

The common law of England, and also parts of the stat ute law, being the law of the parent state, formed the basis

11 Casey, 176.

21 Blackst. Comm. 63-64. Hale's Hist. Com. Law, 23.

3 Just. Inst. 1, 2, 10. For a similar reason of this division in later times, see Blackst. Comm. B. I., 63—B. IV. 408.

2 60. Confirmation of

the common law.

861. By and for whom confirmed.

of jurisprudence in each of the colonies, prior to the American Revolution. But political revolutions dissolve the obligation of political laws. And therefore the principles and doctrines of the common law, as well as of the statute law of England, so far as they concerned the political relations of the people of this country, were wholly annulled and swept away by the Revolution, when the colonies severally resumed to themselves the sovereignty of the political state. However, by much the greater body of the common law of England, which in no way concerned our political relations, but furnished the rule of our conduct as members of civil society, was afterward sanctioned and confirmed: either by the people themselves, in the framing and enactment of their state constitutions: or else by their state legislatures, in the exercise of powers which were delegated to them by those constitutions. Hence a general and primary criterion by which to determine whether this or that doctrine of the law of England, as held before the American Revolution, has survived that event, and remained in force as a part of our own common law. On the one hand, at least, it may safely be assumed, that the doctrines and rules of the English law, so far as they relate to the political state, the powers of government, or the political obligations of the people, form no part of the law of this country. For these, the powers of government, whether state or federal, and the political obligations of the people, are founded wholly in our written constitutions. Our doctrine of allegiance, for example, could not be derived from the old common law, unless we should wholly ignore the American Revolution, and still profess our subjection to the crown of Great Britain.1

So far as they relate to civil rights and remedies, and

1I do not forget that cases of treason (which, however, the United States could not punish) were tried in this country, before our constitutional governments were fairly established, seemingly upon authority of our common law, but in reality, by no other right than that of revolution. It was never questioned that treason could be committed against each state, or that each state as a sovereign community had power to define and punish the offence.

the definition and punishment of crimes and misdemeanors, the laws of the colonies in force before the Revolution, including not only the common law of England but also English statutes in amendment thereof,' were generally retained and confirmed by authority of the people, as forming the basis of the common law-of the SEVERAL STATES; we cannot say-of the UNITED STATES: because, first; that law alone which is common to the United States, but which is not called 'the common law,' is founded solely in the organic law of the union, the federal constitution, and is wholly composed of that constitution and the laws enacted and treaties made in pursuance thereof: secondly; neither by the articles of confederation, nor by the present constitution of the union, was the common law ever adopted or confirmed, either as the law of the several states, or as the law of the United States; nor was ever the government of the United States, or any of its departments, legislative, judicial, or executive, invested with power to adopt, confirm, or administer the same."

cellence.

The great characteristic which distinguishes our common 62. Its law from all other laws and systems of law, and in which peculiar gealone consists its peculiar genius and excellence, is, not nius and exthat its rules are those of eternal and immutable justice (for rules of this nature can never be peculiar to any particular body of law), but that it is founded in the principle that a usage or custom, maxim or statute, so obviously reasonable, convenient and just, as to have been sanctioned

1 See 1 Bish. Crim. Law, p. 15, note 4.

"If there were any such law, as the common law of the United States," we should wish to inquire, with Mr. Justice Chase (in 2 Dall. 395), '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, of Pennsylvania or Connecticut?' It is, however, a settled point, that the courts of the United States are clothed with no common law jurisdiction whatever, and that all the powers they possess must be referred to the grants of the constitution, or to these grants and laws of congress passed in pursuance thereof. Pomeroy's Constitutional Law, ¿¿ 739 and 759, and cases there cited.

and approved by every man's reason and experience, and retained and continued from generation to generation, though the record and history of its origin have long been. lost, shall be and remain of force and effect as part of the law of the land. This is the great and fundamental principle of our common law: a principle which, attracting to itself the wisdom and experience of each successive age of civilized man, descends from generation to generation, as an ancient inheritance, adorned and improved from the remotest times.

269. Orig

of sovereignty.

(2 d) OF POLITICAL SOVEREIGNTY: AND HEREIN

(1 e a) OF THE LEGISLATIVE POWER

(1 fa) OF THE PEOPLE.

THE PRINCIPLE OF SOVEREIGNTY, when traced to its origi inal principle nal source, is found, as we have seen, in THE NATURAL RIGHT OF SELF-GOVERNMENT: and this we have defined to be, in the case of an individual, the right of a man to govern himself, in relation to matters peculiarly and immediately affecting himself, according to his judgment of what is right; in relation to things in which others with him are equally concerned, by his agreements with them; in the case of a people, the right of that people to govern themselves, in their relations to each other, by laws expressive of their common will and consent; in their relations to other political states, by their compacts or treaties with them.

Society is naturally and necessarily formed, not of a single consolidated mass of flesh and blood, but of many and different natural individuals, each of whom has his own distinct organization and separate existence, and consequently must be considered both in relation to himself, and in relation to others, his equals. The duties and rights of each must therefore be distinguished, as either internal and absolute, or external and relative; and this in accord