Of the Unwritten, or Common Law of England; and its Introduction Into, and Authority Within the United American StatesPOSTSCRIPT.
FOOTNOTES
1. Since this essay was transcribed for the press, I have seen an "account of the trial of Isaac Williams" in the federal district court, for the district of Connecticut: therein, the chief justice of the United States is reported to have delivered it as his opinion, that "the common law of this country remains the same, as it was before the revolution." This doctrine I apprehend, goes much farther than that which I have stated above.
2. 1 Blackstone's Com. p. 106, 107, 108.
3. Not having any history of either of those colonies to refer to, perhaps I may be mistaken as to what is said respecting the latter.
4. Spavin's Puffendorf Vol. II. p. 342.
5. Grotius de Jure Belli et pacis, lib. 1. c. 3, Sec. 12.
6. Grotius de Jure Belli et pacis, lib. 2, c. 9, Sec. 10.
7. Stith's History of Virginia, p. 4, 8.
8. According to Governor Hutchinson, all the colonies before the restoration of Charles the Second, except Maryland, settled a model of government for themselves. History of Massachusetts, Vol. I, 92. A different policy was adopted after the restoration. Ibid.
9. Minot's History of Massachusetts, page 20.
10. See Blackstone's Commentaries, Vol. I. p. 65, 66, 67.
11. 1 Blackstone's Commentaries, 74.
12. Hutch. Hist. of Mass. Vol. I. p 393, 394.
13. Finch. 85. Blacks. Com. 239.
14. Queen Elizabeth's patent to Sir Walter Raleigh, bore date March 25, 1584. That of George the Second, for the settlement of Georgia, bears date June 9, 1732, a period of one hundred and fifty-two years.
15. Jefferson's Notes on Virginia, 240.
16. Laws of Virginia, 1661, c. 1 Edi. 1769.
17. Jefferson's Notes, 197.
18. Laws of Virginia, Ed. 1769. p. 3.
19. Purvis's collection of the Laws of Virginia, p. 6.
20. Ibid p. 115, 116.
21. Hume's History of England, Vol. IV. 334. Hutch. Hist. of Massachusetts, Vol. I. p 11, 12. Minot's Hist. of Mass. Vol. I. p. 14. Belkn. Hist. of New-Hampshire, Vol. I. p. 67. Peters' Hist. of Connecticut, p. 7.
22. Laws of Virginia, Ed. 1733, p. 163, 156, 259, 260, 359, 360, 361, 363, 364, 385, 446, 448. Ed. 1769, p. 160, &c.
23. Hutch. Hist. of Mass. Vol. 1. preface.
24. Hutch. Hist. of Mass. Vol. I. preface, p. 11, 12.
25. Ibid. 19, 20. Minot's Hist. of Mass. 14. Belknap's Hist. of New-Hampshire, Vol. I. 67.
26. Hutchinson, Vol. I. p. 384.
27. Ibid. 385, 386.
28. Hutchinson, Vol. II. p. 10, 11.
29. Ibid. Vol. I. p. 387.
30. Ibid. Vol. II. p. 12.
31. In 1678, when complaints were made against the colony, in England, it was made capital. Ibid Vol. I. p. 390.
32. Ibid. Vol. I. p. 390.
33. Hutchinson's History of Mass. Vol. I. p. 388, to 392.
34. Hutchinson's History Mass. Vol. I. p. 392, to 397.
35. Ibid. 369.
36. Ibid. 370, 371.
37. Ibid. 374.
38. Ibid. 379.
39. Ibid. 380.
40. Hutch. Hist. Mass. Vol. II. p. 11, 12.
41. Ibid, 17.
42. Ibid. 20, 21.
43. Hutch. h. Mass. Vol. II. p. 63.
44. Ibid. 66.
45. Minots h. Mass, p. 23.
46. Hutch. h. Mass. Vol. I. 395.
47. Belknap's Hist. New-Hampshire, Vol. I. p. 69, 75, 179. Peters's Hist. of Con. p. 63, 82. He tells us it is a ruled case there, that no law, or statute of England is in force there, till formally passed by the general assembly. Ibid, 83.
48. Hutch. Vol. I. 75. Belknap, Vol. I. 84. Peters, 64, 65, 67.
49. Castration was mayhem at the common law, and by that law might have been punished as felony, 3. Inst. 62. It would seem that the court neither considered the common law nor the statute of Mayhem, as in force in Connecticut.
50. History of Connecticut, 83.
51. Swift's System of the Laws of Connecticut, Vol. I. 40 to 47.
52.Sine scripto jus venit, quod usus approbavit; nam diuturni mores consensu utentium comprobati, legem imitantur. Just. Inst. Lib. 1, Fit. 2, 8, 9. The unwritten law is that, which usage has approved: for all customs, which are established by the consent of those who use them, obtain the force of a law. Harris's Justinian, 10.
53. Established, March, 1780.
54. Vattel, p. 9.
55. They were not finally agreed upon and ratified till the first day of March 1781.
56. Vattel, p. 18.
57. Vattel, B. 1, C. 1, Sec. 10.
58. Bacon, of the advancement of learning, fo. 440.
59. 4. Inst. 277.
60. 1. Hale's Hist. P. C. 222.
61. C. U. S. Art. 3. §. 3.
62. See the Federalist, No. 33. and No. 44.
63. Amendments to C. U. S. Art. 11, now ratified, and declared to be a part of the constitution, Swift's Edi. of L. U. S. Vol. 3. p. 131.
64. See Vattel, Book the first.
65. In F. N. B. p. 85. It is expressly said, "that by the common law every man may go out of the realm, to merchandize, or on pilgrimage, or for what other cause he pleaseth, without the king's leave, and he shall not be punished for so doing." The Stat. 3 Ja. 1, c. 4. for the better discovering and repressing popish recusants, first prohibited any person from going out of the realm to serve any foreign prince, without having first taken the oath of allegiance before his departure: the reason of which statute, surely, can not now apply to American citizens .... Mr. Locke, with his usual discernement, examines and refutes the doctrine, that all men are bound to continue in subjection to that government under which they may happen to be born. A doctrine, which having been practically denied by the whole people of America seems to sanction the right of every individual to do the like, even if they had not expresslly recognized it, by constitutional, and legislative declarations. See Locke on Civil Government, Sec. 113, &c.
66. 2 Vol. Dallas's Reports, 384.
