otherwise would have become, by analogy, a part of the common law of the Territory, as the English statutes in force at the Declaration of Independence formed a part of the common law of the States, and which were held to have been also excluded by this act from operation in the Territory.

Thus it will be seen that a pure common-law course of jurisprudence was early established in the Territory; and this continues to be the law of Mississippi in all cases where it is applicable to our circumstances, adapted to the spirit of our institutions, and has not been expressly repealed, enlarged, or modified by statute or varied by usage; and our courts have constantly rested a scrutinizing and jealous eye upon any statute passed in its derogation. They have invariably given to such statutes a strict construction, careful not to enlarge their import or operation beyond the expressed intention of the Legislature. Hence the legislative invasions of the common law in Mississippi have been confined, for the most part, to such instances as are rendered necessary by the character of our government and the condition of our society; and it is to be regretted that the common-law rules of pleading have been so simplified by statute and the practice of the courts as to leave a broad gap in the bar for the entrance of incompetence and ignorance. In this respect it is to be confessed that a noble science has been degraded through a mistaken notion of expediency.

Thus the lawyers of Mississippi were early introduced into that illimitable and boundless field of jurisprudence, whose nice distinctions, subtle intricacies, and comprehensive scope, had awakened and given food and impulse to that brilliant array of greatness which emblazons with glory the history of the English courts.

In establishing the Territorial courts, the course of the common law was, in every instance, cited as the one to be pursued. Indeed, the constitution and powers of these courts, their characters, jurisdiction, and mode of procedure were all made similar, as far as practicable, to the common-law courts as already established in the States; and as the various changes and modifications to which they have from time to time been subjected, evince the necessities of the progress as well as the pecu

liarities of our society, I will present their character and constitution in the order of their establishment. An act passed on the 28th day of February, 1799, by the Territorial Council, which consisted of the Governor and the three Territorial judges, provided for the establishment of a court to be styled the General Quarter Sessions of the Peace, which was to be held four times annually in every county, and that a competent number of justices should be nominated and commissioned by the Governor in every county, under the seal of the Territory, which justices, or any three of them, one being a justice of the quorum, should hold the General Sessions of the Peace when and as often as occasion required.

The power of these courts extended to the cognizance of all crimes and misdemeanors, of whatever nature or kind, committed within their respective counties, the punishment of which did not extend to life, limb, or imprisonment for more than a year, or forfeiture of goods and chattels, or lands and tenements, to the government of the Territory.

From the judgment of these courts a writ of error lay to the Supreme Territorial Court; and the same act provided that the Territorial judges should hold a supreme court once in every year in each county, at the place appointed for the courts of General Quarter Sessions.

To these courts belonged, as a matter of course, the highest judicial functions, and all the powers and scope of the Territorial jurisprudence. Besides their appellate jurisdiction, they had all the original functions of common-law courts of assize, of oyer and terminer, and of general jail delivery.

By this same act was established also a court of common pleas, which was to be held four times annually in each county, and for which a competent number of justices was to be commissioned by the Governor, which said jutsices or any three of them, according to the tenor and direction of their commissions, should hold pleas of assize, scire facias replevins, and hear and determine all manner of pleas, actions, suits, and causes, civil, personal, real, and mixed, and according to the course of the common law.

In addition to these, an act was passed at the same session of

the Legislative Council appointing a judge of probate in each county, who should have cognizance of all matters belonging and pertaining to a court of probate, except the rendering of definitive sentences and final decrees. These courts were to be held four times annually in each county, and, whenever it was necessary that final decrees should be rendered, the judge was required to call to his aid two of the justices of the court of common pleas, and, when thus constituted, the court had full probate jurisdiction.

In the same year an act was passed, entitled "A law for the easy and speedy recovery of small debts," which provided that, upon complaint being made to any justice of the common pleas or of the peace against any debtor whose debt was under eight dollars, he should issue his writ, causing the parties to be brought before him forthwith, and, after hearing the evidence, should forthwith give judgment in the matter, which should be final and conclusive to all the parties to the action, without appeal; and if the judgment was not immediately satisfied, and no effects were found sufficient to produce the amount, the constable was required to take the debtor to jail, where he was to be safely kept until the sum recovered and all costs should be paid.

By this same act, debts amounting to eight dollars and upward, and not exceeding twenty dollars, were made cognizable before any justice of the common pleas or justice of the peace in the county in which the defendant might reside; who, upon complaint, should issue his capias, or summons, if the defendant was a freeholder, requiring the parties to appear before him; and upon judgment being rendered and remaining unsatisfied, the constable or sheriff was required to convey the debtor to jail, where he was to be safely kept until the amount of the judgment and all costs were paid.

In 1803, the Territorial Assembly erected the town of Natchez into a city, and there established the first mayor's court in the Territory. This court had jurisdiction of all crimes and trespasses committed within the city, in which the punishment did not exceed a fine of fifty dollars, imprisonment for one month, sitting in the stocks, or standing in the pillory; and of all civil

actions originating in the city for any amount not exceeding one hundred dollars; and all civil proceedings were made summary, unless a jury was demanded, which either party might do if the matter in controversy exceeded twenty dollars.

From this court an appeal, when the amount involved exceeded fifty dollars, lay to the Superior Court of Adams County. An appeal lay also from the judgments of the mayor to the city council, held by the mayor and aldermen, who were all commissioned justices of the peace.

These courts performed the judicature of the Territorial government, with but few changes in their functions, until the year 1807, when its equity cognizance was, for the first time, declared and established.

However simple and arbitrary may appear this system, it was perhaps the best and most suitable one that could be devised for the government of a Territory in which the population was sparse and promiscuous, where business transactions were conducted on a small scale, and where it was necessary to enforce the law of meum and tuum in a simple and summary manner.

A digest of its judicature is a truthful indication of the state of a community; and the great danger in the establishment of the jurisprudence of a new country lies in the introduction of the complex systems of older commonwealths.

While the courts of the Mississippi Territory were being strained into conformity with the requirements and vast machinery of the English common law, they were often perplexed with the multitude of complications arising from the various tenures of realty existing, or supposed to exist, in the Territory. Great Britain had claimed the country as being an appendage of the colony of Georgia, and in confirmation of its claim had made grants of lands to its subjects. This claim, as we have seen, was renewed by the State of Georgia, which also issued patents to its citizens. Then followed the Spanish occupation, and large grants of the Territorial lands were made by the Spanish Government; and notwithstanding the acknowledgment by Spain of the pre-existing rights of Georgia, we find the Territorial courts, and even the early courts of the State, greatly confused in respect to the laws of alienation and descent

of landed property. While the civil law was, from the first, protested and ignored, yet it seemed difficult to reconcile the questions arising from the Spanish grants, held under the civil code, with the rules of the common law. These questions were, however, finally settled by the extinction of the supposed civil tenures, and an exclusive application of the common-law rules.

But let us return to the organization of the Territorial courts. The act of February 10th, 1807, ordained that the Supreme Court of the Territory and the Superior Court of the District of Washington should also be and act as courts in chancery, and should have and exercise all the power, authority, and jurisdiction incident to courts of chancery, and clothed the Territorial judges with power to issue all remedial writs.

This act also established a county court, to be composed of three justices of the quorum, and gave to them the powers of probate and cognizance of all matters pertaining to orphans, the registry of deeds, and the control of the county police. This court superseded the powers of probate which had been established, and its jurisdiction extended to all cases in which the amount involved did not exceed one thousand dollars, except in real actions; and from its proceedings an appeal lay to the superior or circuit court of the county, which was presided over by one of the Territorial judges. These courts were established by this same act, and were invested with general original civil and criminal jurisdiction, and with an appellate jurisdiction from the county courts. The judges were prohibited from charging juries in respect to matters of fact, but they might sum up and state the testimony, and declare the law; and the Governor of the Territory was authorized and required, by and with the advice and consent of two of the Legislative Council, as often as necessary, to issue a commission to the judges of the superior courts of the Territory, empowering them, or any two of them, or the judge of the Superior Court of Washington District alone, in the district, to hold a court of sessions of the peace, and oyer and terminer, for the trial of criminals of whatever nature or degree, and to give judgment and award execution.