ed by king Brutus the giant-killer. And Wm. Penn had good reason to say upon his trial at the Old Bailey, that "if it was common it would not be so difficult to produce; and if it was so difficult to understand, it could not be very common," But as the pedant derived the word lucus (a grove) from non lucendo, as though it were called light because it was dark; so may this have been called common because it is so uncommon.

But it may be said why fight with shadows? None of our wise and eminent jurist now contend for the antiquated barbarity of the Saxon or Anglo Norman usages, None but the simple and ignorant, now prattle about the codes of the Inas and Guthruns, and the laws of Edward the Confessor. Though we should admit this, it is yet too soon to give quarter to this old and inveterate enemy of common sense. It is true that some learned lawyers and judges have renounced the errors of the ancient superstition, and have fixed a new era for the inception of the common law, namely, the middle of the 17th century. For instance, Mr. Duponceau, in the work before us, and the Supreme Court of Pennsylvania in the ducking-stool case. Yet, with all respect for such high authority, there is something to be said still, Mr, Duponceau is a scholar and an accomplished lawyer, and, moreover, a zealous and disinterested friend to his country and to mankind, and one of whom we are proud; but if he has overthrown the authority of Fortescue and Coke, and Hale and Blackstone, he has thereby shown that we are no longer to be governed by the authority of any great names. We cannot help thinking that the acute genius of that gifted writer must have been under a bias, (either from a too prudent and over cautious fear of innovation, or, from the point of view in which he stands, in a state, where some unsuccessful attempts at reformation have created a temporary re-action) when he declares so strongly against a code.

says,

Yet as the arguments of able men, though liable to error, still scatter light as they proceed, we shall copy the words of Mr. Duponceau (p. 107.) "I venerate the common law," he "not indeed the law of the Saxons, Danes and Normans, not that which prevailed in England daring the reign of the Plantagenets, the Tudors, and the Stuarts, but that which took its rise at the time of the great English revolution, in the middle of the 17th century, to which the second revolution in England gave shape and figure; which was greatly improved in England in the reign of William and Anne, and the two first Georges, and which during the last period and since, has received its greatest improvement and perfection in this country, where it shines with greater lustre than has ever illumined the Island of Great Britain. In former times," he adds, " it bore no resemblance to what it is now." There is truth and force in these assertions: but what do they prove? That in this country there can be, truly speaking,

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no common law, or rather that ours is not that which goes in England by the name of the common law." For it is of the essence of the common law that it be immemorial, that is, beyond the time whereof the memory of man runneth not to the contrary;" and it is settled that the memory of man runneth to the contrary of every custom since King Richard Cœur de Lion began to reign; and to say that any common law could be made since this" time of memory," is heresy downright. It is well, therefore, for the amiable and excellent author, that the bigotry and superstition of the black letter has subsided, otherwise the Saxon devotees, and all the Edward the confessor's men would cry "stone him, stone him!" When he says that," in former times, it bore no resemblance to what is now," how would that be brooked by those who maintain that the common law, through all times and changes and events has still been one and the same; and that whether it was Greek or Latin, Celtic or Teutonic, French or English, Christian or heathen, catholic or protestant, feudal or allodial, monarchial or republican, it had still, for its wise maxim, nolumus mutari? Many of the principles which we extol and partially set down to the credit of the common law, are to be found only in statutes derogatory of it, so that if we should adopt it without those statutes we should be slaves and savages. We should neither have magna charta nor bill of rights, nor the statutes of treason, nor of bail, nor of habeas corpus, nor any of those which put an end to the gross abuses and grievances practised and perpetrated under the name and authority of the common law. We should have wardship, marriage forfeitures, aids to make lords' sons knights, and to marry their daughters, homage and escuage, and voyages royal, witchcraft and heresy, high commission court, star chamber, ordeal, battel, and all the evils of past ages of ignorance and tyranny.

If it be said, as it has often been, that our constitution recognizes this common law, and that our forefathers in this land claimed it as their birth right, this may be deserving of a more se

rious answer.

Our fathers were like other men's fathers in very many respects; and in this, amongst other things, that they spoke the language they had learned. They had, however, a knowledge of their rights and interests, and maintained them manfully, and in that they were most commendable. They were unwilling to be taxed without their own consent, and they resisted, at the hazard of being punished as mutineers and rebels by the rules of the common law, the stamp tax and tea duty, and after many unavailing petitions to their "dread sovereign;" after the most humble and submissive protestations of devoted attachment to his person and government; finding these disregarded and scorned, and their lives, persons and property threatened and attacked, they resolutely, and valiantly took up arms, and finally declared themNo. 19. Vol XII,

selves free and independent; and from that time their language changed with their condition, and we hear no more of those fulsome and servile terms which, whilst they remained subjects, they were obliged to use, and without which their prayers and supplications never could have made their way even to the lowest step of their dread sovereign's throne. And when they came to form a new political constitution, it is rather remarkable how they guarded against any thing like the adoption of the English common law. Ir was not then, indeed the moment, amidst the clash of arms and the din of war, to enter upon the details of an entire ly new judicial code, and they wisely left that to be effected when their independence should be established, and peace and security should render it practicable and safe. That independence itself was then but a dangerous and doubtful experiment. A political constitution was what the exigence required; and that was no servile imitation, but a free and original design sketched by the hand of bold commanding genius. It retained so much of the common and statute law of England, and so much only, as, together with the legislative acts of the colony, constituted the law of the colony rejecting whatever was repugnant to the spirit of that constitution, and specifically all that could be so construed as to maintain monarchy or church-establishment. But it contained another equally important reservationthat it should be subject to be altered and modified by future legislation. To have changed the course and current of the law at that juncture would have been not only imprudent, but impracticable; that was deferred till some more auspicious moment. This proud city and its port was still in possession of an enemy; our independence was still a doubtful and dangerous experiCivil strife and the tumult of war had not yet ceased. The heads of the courageous statesmen who framed the constitution were, by the common law, forfeited and demanded, and they in return struck off the head of the common law; for the king is, according to lord Coke, the principium et finis, the beginning and the end of the common law. Did they expect when they did this, that it would live so long after? that like the Hydra of Lerna a new head would sprout out? or that when the begining and end were both truncated it would, like the worm called polypus, send forth new shoots and regenerate the vital organs of which they had deprived it? Or did they mean to embalm it with sweet odors, and keep it like a mummy, shrunk and without vitality, or to be remembered in rubrics and celebrated in homilies? No; their fond prophetic visions, through the darkness of the tempest that lowered upon them, foretold that the day might come when their arduous struggles would be crowned with full success, and liberty and self-government would be no longer a problem when their bold and glorious example would be imitated; and when laws would be given to their regenerated state

ment.

bearing the impress of reason and liberty, and founded upon independent principles and unsophisticated truth. And never could their hopes have pictured an occasion so favourable as the present; nor ever was the want of such reform so manifest; for whilst our political constitutions are the models of imitation to the regenerated that rise in succession, like stars from the horizon, and follow in our orbit, yet there is not one but would turn in disgust from the complex formalities and antiquated, barbarities that remain more or less intermingled with the administration of our law.

Let it not, therefore, be an argument for eternizing the follies of other times, that our forefathers claimed the common law as their birth-right. If they did so, it was because they had no betetr and no other phrase. The vocabulary of freedom was then new and scanty; for liberty itself was but an embryo. And it would be just as reasonable to interpret the bill of rights in England by the servile addresses presented to king James, from the cities, counties and boroughs, of which he carried great chests full, when he was declared to have abdicated his crown, and which he had leisure to read for the first time, when he took up his residence at Saint Germain.

But after all, what matters it to us now, how those who went before us, said or did, in the spirit of their day? We must act and speak in the spirit of our own. We can no longer equivocate with ourselves, nor with the nations whose eyes are upon us, some for evil and some for good. We rank too high to make it a matter of indifference what our jurisprudence is. Even with respect to our estimation abroad, it is of importance; and whoever can feel for the true glory of his country, must feel it to be We may, it is true, amuse ourselves with vain boastings, and reiterate the figures of rhetoric and fancy, touching Gothic foundations and Corinthian columns, and elegant modern super structures: but if we would sustain our moral and intellectual character as a nation free and regenerated, we must away at once with superstition, chicanery and folly.

so.

Suppose, as it happened in the early days of Greece, some statesman or lawgiver should set out upon his travels in search of the laws best suited to the government of a young commonwealth, and with that view should land upen our shores, what is the wise book of Minos that we should spread open to his view? Doubtless, that in which our own youth are put to learn the elements and rudiments of their own laws: the four commentaries of Sir William Blackstone. In the first of them he would read of a constitution that was an ancient and venerable edifice till spoiled by the rage of modern improvement; of statutes penned by men of little or no judgment, so that the learned had much to perplex their heads to make atonement between insensible and disagreeing words. The inviolability, ubiquity, and immorality

of a monarch to whose will and authority it is the most atrocious of crimes to be indocile; who is alone the fountain of all honor and office, justice, law, and mercy, from whom all hold their estates as from his bountiful gift, to be resumed where the conditions are forfeited, upon which they are supposed to be by him granted, and to whose person, all born in his dominion are bound for life by an allegiance which they never can shake off, in whatever region of the earth they may fix their abode, and who cannot even migrate against his will. Without whom, in effect, nothing is that is; for every thing is his; his kingdom, his people, his army, his navy, his high-way, his law, his peace, his treasury, his parliament, his laws; all these are the king's by virtue of his high prerogative. He is moreover, the supreme head of the church; and treason to his person, even in imagination, is punished by hanging, drawing and quartering, embowelling alive, throwing the entrails in the face, and placing the head and four quarters at his gracious disposal, The wandering stranger would then learn the necessity of different ranks and privileged orders, from the Duke and Dutchess to the howling beggar; of the hereditary legislators and judges in the last resort of the church dignitaries from the Archbishop to the sexton and the parish clerk, and might be tempted to inquire why these doctrines were inculcated so persuasively into the minds, and made to compose the manual of our youth, if it were not intended that they should curse their fathers' names for having traitorously withdrawn thair natural allegiance, and sacrilegiouly overthrown the altars of the common law, and the holy alliance of the church and state.

In the second book, he would find the whole doctrine of feuds and services and tenures and villeinage, and all the doctrines of barbarous and slavish times dimly distinguished through the mist of agesthe abstruse learning of estates, and the strange fictitious methods of transfering them-the necessity of corporal tradition for the sake of notoriety, and the means invented by the clergy and the judges to defeat that principle-uses and double uses invented in times of mutual attainders in the long and frequent periods of civil wars and bloody usurpations, to prevent forfeitures and confiscations--the construction of men's wills by their intentions, provided the intentions agreed with the rules of law which never did agree with the intentions-and a thousand such subtleties in which it would be more honorable to be unskilled than skilled, if the tyrant custom had not thrown his mantle over their deformity.

In the third book he would see the remedies for civil wrongs with all their wonderful changes: the Saxon plaint praised for its unlettered simplicity: the quaint formalities of the Norman writs, and the process growing out of them, requiring seven years to bring a defendant to appear; of which the highest praise was