1447. COMMON LAW, State Laws and.
—On the settlement of the colonies now composing
the United States, and the settlement of a legislature in each of them, that legislature,
in some cases, finding that the enacting
a complete code of laws which should reach
every transaction needing legislation, would
be far beyond their time and abilities, adopted,
by an express act of their own, the laws of
England as they stood at that date, comprehending
the common law, statutes to that
period, and the chancery law. In other cases,
instead of adopting them by an express statute
of their own, they considered themselves as
having brought with them, and been, even on
their passage, under the constant obligation
of the laws of the mother country, and on
their arrival they continued to practice them
without any act of adoption, which practice
or usage is evidence that there was an adoption
by general consent. In the case of Connecticut,
they did not adopt the common law
of England at all as their basis, but declared
by an act of their own, that the law of God,
as it stood revealed in the Old and New Testaments,
should be the basis of their laws, to
be subject to such alterations as they should
make. In all the cases where the common
law, or laws of England, were adopted either
expressly or tacitly, the legislatures held of
course, and exercised the power of making
additions and alterations. As the different
States were settled at very different periods,
and the adoption for each State was the laws
of England as they stood at the moment of
the adoption by the State, it is evident that
the system as adopted in 1607 by Virginia, was
one thing, as by Pennsylvania was another
thing, as by Georgia, in 1759, was still a different
one. And when to this is added the
very diversified modifications of the adopted
code, produced by the subsequent laws passed
by the legislatures of the different States, the
system of common law in force in any one
State on the 24th of September, 1789, when
Congress assumed the jurisdiction given them
by the Constitution, was very different from
the systems in force at the same moment in
the several other States: that in all of these
the common law was in force by virtue of
the adoption of the State, express or tacit, and
that it was not in force in Connecticut, because
they had never adopted it.—
Observations on Hardin's Case. Washington ed. ix, 485.
(Nov. 1812)
