Joseph Story: General Review of the Colonies

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* NOW - Buy this resource online! Click here * General Review of The Colonies§ 146.§ 147.§ 148.§ 149.§ 150.§ 151.§ 152.§ 153.§ 154.§ 155.§ 156.§ 157.§ 158. FOOTNOTES
   1. 1 Bl. Comm. 107.
   2. 2 P. Will. 75; 1 Bl. Common. 107; 2 sSalk. 411; Com. Dig. Ley. C.; Rex v Vaughn, 4 Burr. R. 2500; Chitty on Prerog.ch.3, p. 29, etc.
   3. 1 Bl. Comm. 107; 2 Merivale R. 143, 159.
   4. 1 Bl. Comm. 107; 1 Tucker's Black. note E, 378, 384 et seq. 4 Burr. R. 2500; 2 Merivale R. 143, 157, 158; 2 Wilson' Law Lect. 49 to 54.
   5. Blankard v. Galy, 4 Mod. 222; S.C. 2 Salk. 411, 412; 2 Peere Will. 75; 1 Black. Comm. 107; Campbell v. Hall, Cow;. R. 204, 209, Calvin's case, 7 Co. 1. 17. b; Com. Dig. Navigation, G. 1, 3; Id. Ley. C. 4 Burr. R. 2500; 2 Merivale R. 143, 157, 158.
   6. Campbell v. Hall, Cow;. R. 204, 209; Chitty on Prerog. ch. 3, p. 29 etc.
   7. 1 Bl. Comm 107; Chitty on Prerog. Ch. 3, p 29.
   8. See ante, p. 4 to 20; 1 Chalm. Annals, 676; 3 Wilson's Works, 234.
   9. Vattel, B. 1, ch. 18, 205, 206, 207, 208, 209.
   10. Johnson v. McIntosh, 8 Wheat. R. 543, 576, 595.
   11. Penn v. Lord Baltimore, 1 Vez. 444, 451.
   12. 3 Kent's Comm. 308 to 313; 1 Chalm. Annals, 676, 677; 4 Jefferson's Corresp 478; Worcester v. Georgia, 6 Peters's R. 515.
   13. To do but justice to those times, it is proper to state, that this pretension did not obtain universal approbation. On the contrary, it was opposed by some of the most enlightened ecclesiastics and philosophers of those days, as unjust and absurd; and especially by two Spanish writers of eminent worth, Soto and Victoria. See Sir James McIntosh's elegant treatise on the Progress of Ethical Philosophy, Philadelphia edit. 1832, p. 49, 50.
   14. 4 Wheaton, 575, 576, 588. See also 1 Tuck. Black. Appx. 332. 1 Chalm. Annals, 676.
   15. Vattel, B.1, ch. 18, 208,209; 3 Kent's Comm. 312, 313.
   16. 4 Wheat. R. 590, 591, 596; 1 Grahame's Hist. of America, 44; 3 Kent's Comm. 311; Worcester v. State of Georgia, 6 Peters's Sup. Ct. Rep. 515.
   17. 2 Salk. 411, 412; See also Nall v. Campbell, Cowp. R. 204, 211, 212; 1 Chalm. Ann. 14,15, 678, 679, 689, 690; 1 Chalm. Opinions, 194; 2 Chalm. Opinions, 202; Chitty on Prerog. ch. 2; 2 Wilson's Law Lect. 48, 49.
   18. Vattel, B.1, ch.18, 209;1 Chalm. Annals, 676, 677, 678, 679; 8 Wheat R. 595; Grotius, B. 2, ch. 9, 10.
   19. 1 Chalm Ann 677; Id. 14,1,658; 2 Wilson's Law Lect 48, 49; 3 Wilson's Law Lect. 234, 235.
   20. Robertson's v. Row, 1 Atk. R. 543, 544; Vaughan R. 300, 400; Show. Parl. Cas. 31; 8 Wheat. R. 595; 1 Turk. Black. Comm. App. 382, 383; Dummer's Defence, 1 American Tracts, 18.
   21. Rex v. Brampton, 10 East R. 22, 288, 289.
   22. That of Pennsylvania, 1 Grahame's Hist. 41, note; 1 Chalm. Annals, 14,15, 639, 640,658; 2 Wilson's Law Lect. 48, 49.
   23. Stokes's Colon. 30; Hall v. Campbell, Cowp. R. 204. 212; 1 Turk. Black. Comm. App. 383, 384; Chitty Prerog. 32, 33.
   24. Notwithstanding the clearness of this doctrine, both from the language of the charters, and the whole course of judicial decisions, Mr. Jefferson has treated it with an extraordinary degree of derision, if not of contempt. "I deride (says he) with you the ordinary doctrine, that we brought with us from England the common law rights. This narrow notion was a favourite in the first moment of rallying to our rights against Great Britain. But it was that of men, who felt their right, before they had thought of their explanation. The truth is, that we brought with us the rights of men, of expatriated men. On our arrival here the question would at once arise, by what law will we govern ourselves? The resolution seems to have been, by that system, with which we are familiar; to be altered by ourselves occasionally, and adapted to our new situation." 4 Jefferson's Corresp. 178.

How differently did the Congress of 1774 think. They unanimously resolved, "That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law." They further resolved, "that they were entitled to the benefit of such of the English statutes, as existed at the time of their colonization, and which they have by experience respectively found to be applicable to their several and local circumstances." They also resolved, that their ancestors at the time of their emigration were "entitled" (not to the rights of men, of expatriated men, but) "to all the rights, liberties, and immunities of free and natural born subjects within the realm of England." Journal of Congress, Declaration of Rights of the Colonies, Oct. 14, 1774, p. 27 to 31. 1 Chalm. Opinion, 202, 220, 295; 1 Chalm. Annals 677, 681, 682; 1 Tuck. Black. Comm. 385; 1 Kent's Comm. 322; Journal of Congress, 1774, p. 28, 29; 2 Wilson's Law Lect. 48, 49, 50; I Tuck. Black. Comm. App. 380 to 384; Van Ness v. Packard, 2 Peters's Sup. R. 137, 144.
25. 2 Wilson's Law Lect. 48 to 55; 1 Tuck. Black. Comm. App. 380 to 384; 1 Chalm. Opinions, 220.
26. The question, whether the common law is applicable to the United States in their national character, relations, and government, has been much discussed at different periods of the government, principally, however, with reference to the jurisdiction and punishment of common law offences by the courts of the United States. It would be a most extraordinary state of things, that the common law should be the basis of the jurisprudence of the States originally composing the Union; and yet a government engrafted upon the existing system should have no jurisprudence at all. If such be the result, there is no guide, and no rule for the courts of the United States, or indeed, for any other department of government, in the exercise of any of the powers confided to them, except so far as Congress has laid, or shall lay down a rule. In the immense mass of rights and duties, of contracts and claims, growing out of the Constitution and laws of the United States, (upon which positive legislation has hither to done little or nothing,) what is the rule of decision, and interpretation, and restriction? Suppose the simplest case of contract with the government of the United States, how is it to be construed? How is it to be enforced? What are its obligations? Take an Act of Congress - How is it to be interpreted? Are rules of the common law to furnish the proper guide, or is every court and department to give it any interpretation it may please, according to its own arbitrary will? - My design is not here to discuss the subject, (for that would require a volume,) but rather to suggest some of the difficulties attendant upon the subject. Those readers, who are desirous of more ample information, are referred to Duponceau on the Jurisdiction of the Courts of the United States; to 1 Tucker's Black. Comm. App. Note E, p. 372; to 1 Kent's Comm. Lect. 16, p. 311 to 322; to the report of the Virginia legislature of 1799-1800; to Rawle on the Constitution, ch. 30, p. 258; to the North American Review, July, 1825; and to Mr. Bayard's speech in the Debates on the Judiciary, in 1802, p. 372, etc. Some other remarks illustrative of it will necessarily arise in discussing the subject of Impeachments.