1443. COMMON LAW, The Colonists and.—
I deride with you the ordinary doctrine,
that we brought with us from England
the common law rights. This narrow notion
was a favorite in the first moment of rallying
to our rights against Great Britain. But it
was that of men who felt their rights before
they had thought of their explanation. The
truth is, that we brought with us the right 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. The proofs of this resolution
are to be found in the form of the oaths of
the judges, 1. Henings Stat. 169. 187: of the
Governor, ib. 504; in the act for a provisional
government, ib, 372; in the preamble to the
laws of 1661-2; the uniform current of opinions
and decisions, and in the general recognition
of all our statutes, framed on that
basis. But the state of the English law at
the date of our emigration, constituted
the system adopted here. We may doubt,
therefore, the propriety of quoting in our
courts English authorities subsequent to that
adoption; still more the admission of authorities
posterior to the Declaration of Independence,
or rather to the accession of that
King, whose reign, ab initio, was the very
tissue of wrongs which rendered the Declaration
at length necessary. The reason for it
had inception at least as far back as the commencement
of his reign. This relation to the
beginning of his reign, would add the advantage
of getting us rid of all Mansfield's
innovations, or civilizations of the Common
Law. For, however, I admit the superiority
of the civil over the common law code, as a
system of perfect justice, yet an incorporation
of the two would be like Nebuchadnezzar's
image of metals and clay, a thing without
cohesion of parts. The only natural improvement
of the common law, is through its
homogeneous ally, the Chancery, in which
new principles are to be examined, concocted
and digested. But when, by repeated decisions
and modifications, they are rendered pure
and certain, they should be transferred by
statute to the courts of common law and
placed within the pale of juries. The exclusion
from the courts of the malign influence
of all authorities after the Georgium Sidus
became ascendant, would uncanonize Blackstone,
whose book, although the most elegant
and best digested of our law catalogue, has
been perverted more than all others, to the
degeneracy of legal science. A student finds
there a smattering of everything, and his indolence
easily persuades him that if he understands
that book, he is master of the whole
body of the law. The distinction between
these, and those who have drawn their stores
from the deep and rich mines of Coke on Littleton,
seems well understood even by the unlettered
common people who apply the appellation
of Blackstone lawyers to these
ephemeral insects of the law. [89]
—
To John Tyler. Washington ed. vi, 65.
(1812)
