Our ancestors, who emigrated from England to America, were possessed of the knowledge of the laws and jurisprudence of that country; but were free from any obligations of subjection to them. The laws of England had no authority over them, to bind their persons. Nor were they in any measure applicable to their condition and circumstances here. Nor was it possible they should be: for the principle of their government, as it respected the prerogatives of the crown, the estates, rights and power of the lords, and the tenure of their lands, were derived from the feudal system. The privilege of sending members to parliament, from the towns, cities, and boroughs, to compose one branch of the legislature, called the House of Commons, and an exemption from taxation, only by their consent, was extorted from the kings by the barons, and is confirmed by the great charter of liberties as of his gift and grant. Their other laws were calculated for a great commercial nation. As to their criminal code, it was adapted to a people grown old in the habits of vice, where the grossest enormities and crimes were practised. In every respect therefore their laws were inapplicable to an infant country or state, where the government was in the peoples, and which had virtue for its principle, and the public good for its object and end, where the tenure of their lands was free and absolute, the objects of trade few, and the commission of crimes rare.
Our ancestors, therefore, as a free, sovereign, and independent people, very early established a constitution of government by their own authority; which was adapted to their situation and circumstances, and enacted laws for the due and regular administration of justice, for the propagation of knowledge and virtue, for the preservation of the public peace, and for the security and defense of the state against their savage enemies. New Haven did the same with little variation in point of form.
Their common law was derived from the law of nature and of revelation - those rules and maxims of immutable truth and justice, which arise from the eternal fitness of things, which need only to be understood, to be submitted to, as they are themselves the highest authority; together with certain customs and usages, which had been universally assented to and adopted in practice, as reasonable and beneficial....
This constitution of our government, framed by the wisdom of our ancestors about 160 years ago, adapted to their condition and circumstances, was so constructed as to enable the legislature to accommodate laws to the exigencies of the state, through all the changes it hath undergone. And [it] is nearly coeval with our existence as a community, and analogous to the spirit of which all our laws have been made, from time to time, as cases occurred and the good of the public requires. And can it be said, with the least color of truth, that the laws of the state are not adequate to all the purposes of government and of justice?
We need only compare the laws of England with the laws of Connecticut, to be at once convinced of the difference which pervades their whole system. This is manifest in the spirit and principles of the laws, the objects, and in the rules themselves: with respect to the tenure of lands, descents, and who are heirs, and the settlement of insolvent estates, and of other estates testate and intestate, the probate of wills, registering of deeds, the arrangement and jurisdiction of our courts, the forms of civil processes, and the mode of trial, the appointing and returning jurors; and with respect to the settlement and support of the poor, the appointment and regulation of sheriffs, gaols and gaolers, the orderly celebration of marriages and granting of divorces; the means of propagating knowledge, and with respect to the punishments annexed to crimes; and in innumerable other instances, too tedious to mention, which every lawyer is acquainted with. May the citizens of Connecticut glory in this system of government and jurisprudence; which, at first, was the produce of wisdom, is perfected and matured by long experience; which has carried us safe through many a storm, withstood every attack, for more than a century and a half, is grown venerable by age and the wisdom of its regulations, and the rich profusion of blessings which it confers, as the noblest birthright of themselves and their children; and the highest interest and honor of the state as an independent member of a great nation, the rising empire of America!
These rights and liberties are our own, not holden by the gift of a despot. Our government and our rulers are from amongst ourselves; chosen by the free, uninfluenced suffrages of enlightened freemen; not to oppress and devour, but to protect, feed, and bless the people, with the benign and energetic influence of their power (as ministers of God for good to them). This shows the ignorance of those who are clamorous for a new constitution, and the mistake of those who suppose that the rules of the Common Law of England are the common law of Connecticut, until altered by a statute.
These questions are frequently asked; What is the common law of America? Have we any common law in Connecticut? I know not how I can better resolve these questions than by answering another, (viz.) What is common law? And first, common law is the perfection of reason, arising from the nature of God, of man, and of things, and from their relations, dependencies, and connections: It is universal and extends to all men, and to all combinations of men, in every possible situation, and embraces all cases and questions that can possibly arise. It is in itself perfect, clear and certain; it is immutable, and cannot be changed or altered, without altering the nature and relation of things; it is superior to all other laws and regulations, by it they are corrected and controlled. All positive laws are to be construed by it, and wherein they are opposed to it, they are void. It is immemorial, no memory runneth to the contrary of it; it is co-existent with the nature of man, and commensurate with his being. It is most energetic and coercive, for every one who violates its maxims and precepts are sure of feeling the weight of its sanctions.
Nor may we say, who will ascend into heaven to bring it down, or descend into the depths to bring it up, or traverse the Atlantic to import it? It is near us, it is within us, written upon the table of our hearts, in lively and indelible characters; by it we are constantly admonished and reproved, and by it we shall finally be judged. It is visible in the volume of nature, in all the works and ways of God. Its sound is gone forth into all the earth, and there is no people or nation so barbarous, where its language is not understood.
The dignity of its original, the sublimity of its principles, the purity, excellency and perpetuity of its precepts, are most clearly made known and delineated in the book of divine revelations; heaven and earth may pass away and all the systems and works of man sink into oblivion, but not a jot or tittle of this law shall ever fall.
By this we are taught the dignity, the character, the rights and duties of man, his rank and station here and his relation to futurity, that he hath a property in himself, his powers and faculties, in whatever is produced by the application of them, that he is a free agent subject to the control of none, in his opinions and actions but to his God and the laws, to which he is amenable. This teaches us, so to use our own as not to injure the rights of others. This enables us, to explain the laws, construe contracts and agreements, to distinguish injuries, to determine their degree and the reparation in damages which justice requires. This designates crimes, discovers their aggravations and ill-tendency, and measures out the punishments proper and necessary for restraint and example. This defines the obligations and duties between husbands and wives, parents and children, brothers and sisters, between the rulers and the people, and the people or citizens towards each other. This is the Magna Charta of all our natural and religious rights and liberties - and the only solid basis of our civil constitution and privileges - in short, it supports, pervades and enlightens all the ways of man, to the noblest ends by the happiest means, when and wherever its precepts and instructions are observed and followed - the usages and customs of men and the decisions of the courts of justice serve to declare and illustrate the principles of this law. But the law exists the same - nor is this a matter of speculative reasoning merely; but of knowledge and feeling. We know that we have a property in our persons, in our powers and faculties, and in the fruits and effects of our industry. We know that we have a right to think and believe as we choose, to plan and pursue our own affairs and concerns, whatever [we] judge to be for our advantage, our interest or happiness, provided we do not interfere with any principle of truth or of reason and justice. We know the value of a good name, and the interest we have in it. We know that every man's peace and happiness is his own. Nay, more when our persons are assaulted, our lives attacked, our liberties infringed, our reputation scandalized, or our property ravaged from us or spoiled, we feel the injury that is done to us, and by an irrepressible impulse of nature, resent the violation of our rights, and call upon the powerful arm of justice to administer redress. We also know that other men have the same rights, the same sensibility of injuries. When their rights are violated, this law is therefore evidenced both by the knowledge and the feelings of men. These ought to be the governing principles with all legislators in making of laws, with all judges in construing and executing the laws, and with all citizens in observing and obeying them.
Secondly, another branch of common law is derived from certain usages and customs, universally assented to and adopted in practice by the citizens at large, or by particular classes of men, as the farmers, the merchants, etc. as applicable to their particular business, and to all others of the same description, which are reasonable and beneficial.
These customs or regulations, when thus assented to and adopted in practice, have an influence upon the course of trade and business, and are necessary to be understood and applied in the construction of transactions had and contracts entered into with reference to them. To this end the courts of justice take notice of them as rules of right, and as having the force of laws formed and adopted under the authority of the people.
That these customs and usages must have existed immemorially, and have been compulsory, in order to their being recognized to be law, seems to involve some degree of absurdity - that is, they must have the compulsory force of laws, before they can be recognized to be laws, when they can have no compulsory force till the powers of government have communicated it to them by declaring them to be laws. That [is], so long as any one living can remember when they began to exist they can be of no force or validity whatever, however universally they may be assented to and adopted in practice; but as soon as this is forgotten and no one remembers their beginning, then and not until then they become a law.
This may be necessary in arbitrary governments, but in a free government like ours, I suppose, the better reason to be this:
That as statutes are positive laws enacted by the authority of the legislature, which consists of the representatives of the people, being duly promulgated, are binding upon all, as all are considered as consenting to them by their representatives: So these unwritten customs and regulations, which are reasonable and beneficial, and which have the sanction of universal consent and adoption in practice amongst the citizens at large or particular classes of them, have the force of laws under the authority of the people. And the courts of justice will recognize and declare them to be such, and to be obligatory upon the citizens as necessary rules of construction and of justice. The reasonableness and utility of their operation, and the universality of their adoption, are the better evidences of their existence and of their having the general consent and approbation, than the circumstance of its being forgotten when they began to exist.
Thirdly, another important source of common law is, the adjudications of the courts of justice and the rules of practice adopted in them. These have been learned by practice only, as we have no treatises upon the subject, and but one small volume of reports containing a period of about two years only, and a treatise lately wrote by Mr. Swift, containing a commentary on the government and laws of this state. We learn from history, the constitutions of government and the laws of foreign countries, the adjudications and rules of practice adopted in their courts of justice. But this will not give us the knowledge of our own, and although we may seem to have borrowed from them, yet ours is essentially different from all, in that it is highly improved and ameliorated in its principles and regulations, and simplified in its forms, is adapted to the state of our country, and to the genius of the people, and calculated in an eminent manner to improve the mind by the diffusion of knowledge, and to give effectual security and protection to the persons, rights, liberties and properties of the citizens, and is clothed with an energy, derived from a source, and rendered efficacious by a power, unknown in foreign governments, (viz.) the attachment of the citizens who rejoice in being ruled and governed by its laws, for the blessings it confers. Let us, Americans then, duly appreciate our own government, laws and manners, and be what we profess - an independent nation - and not plume ourselves upon being humble imitators of foreigners, at home and in our own country. But let our manners in all respects be characteristic of the spirit and principles of our independence.
I trust by this time the reader has anticipated in his own mind the answer to the questions, what is the common law of America? And have we any common law in the State of Connecticut? These principles, as applied to the situation and genius of the people, the spirit of our government and laws, the tenure of our lands, and the vast variety of objects, civil and military, ecclesiastical and commercial, in our own state have been exemplified in practice, defined, explained and established by the decisions of the courts in innumerable instances, although reports of but few of them have been published. To these I think we ought to resort, and not to foreign systems, to lay a foundation, to establish a character upon, and to rear a system of jurisprudence purely American, without any marks or servility to foreign powers or states; at the same time leave ourselves open to derive instruction and improvement from the observations, discoveries, and experience of the literate, in all countries and nations, respecting jurisprudence and other useful arts and sciences. And indeed, a great part of our legal ideas were originally derived from the laws of England and the civil law, which being duly arranged, have been incorporated into our own system, and adapted to our own situation and circumstances.
It is of great importance to a country or state that the laws which regulate the intercourse among the citizens, determine property, construe and enforce contracts, define crimes and their punishments, and provide remedies for the recovery of rights, and for the redress of wrongs, should be just in principle, clear, concise, and unequivocal in expression, uniform, permanent, and consistent in their meaning and application, and energetic and coercive in their operation, extending to and embracing every possible case. This would enable the courts of law to do justice in all cases, and would supersede the necessity of the courts of chancery - in this state borrowed from a foreign jurisdiction which grew out of the ignorance and barbarism of the law judges at a certain period in that country, from whence borrowed. And would it not be as safe for the people to invest the courts of law with the power of deciding all questions and of giving relief in all cases according to the rules established in chancery as it is to trust those same judges as chancellors to do it? Those rules might be considered as a part of the law, and the remedy be made much more concise and effectual.
Further, would not this remedy great inconveniences and save much expense to suitors, who are frequently turned round at law, to seek a remedy in chancery? And as often turned round in chancery, because they have an adequate remedy at law? These are serious evils and ought not to be permitted to exist in the jurisprudence of a country, famed for liberty and justice; and which can be remedied, only by the interposition of the legislature....