the word of Hamilton.' And the ten amendments contained positive enactments of the common law.

'In suits at common law where the value in controversy shall. exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury shall be otherwise reëxamined in any court of the United States, than according to the rules of the common law." 112

This was the incorporation of the provision in the Ordinance of 1787, by which the original States and the States to be formed out of the Northwest Territory bound themselves irrevocably to be governed by the common law. It is certain that the common law here specified has been preserved by the courts of the nation. None of the States would be capable of preserving a system of law for the reason that the law of no State is complete without the Constitution and laws of the United States. The State of Rhode Island, for instance, in its contribution of about twenty volumes of reports for its entire history has not preserved even a system of law adequate for its own. courts. Nothing in the Constitution negatives the power of the national government to prescribe a common law, and only the absence at the time of the adoption of the Constitution of any apprehension that the law should be other than uniform can explain the failure of the framers to insert a clause forbidding the States to pass laws of any other than local application. It is the prerogative and the duty of the national government, prescribed in the Constitution,

1 Federalist, No. 27, see post.

2 Seventh Amendment to Constitution of the United States.

to carry out the Seventh Amendment and to secure the blessings of the common law throughout the country.

§ 185. COMMON LAW AS A SAFEGUARD TO ADMINISTRATION. Every nation has a branch of law which regulates ministerial acts. In the United States administrative law has depended largely upon the implications of unwritten law. These, crystallized in decisions, afford a guide which concerns not the government and its officers and agents alone but every citizen. The execution of law and the administration of office are as important as theory and doctrine, and must be hedged about by fundamental principles. There is a body of law called administrative law which rests upon the common law of the United States. The existence of this law furnishes, fully developed, a safeguard against injustice in the relation of officers of the national government to corporations.

$186. NATIONAL ADOPTION OF THE COMMON LAW. Marshall believed in the common law as the source of the powers of the national government, which he did so much to uphold. The early American jurists by unanimous consent reject the notion that the law is necessarily the command of a superior.1 The American doctrine was that rights of American citizens were not founded in the common law as a command but were inherent, that the common law was itself a birthright. Not only did the colonists of the early States and those who occupied the territories of the new States carry the common law with them, but its provisions are in force throughout the United States

1 Hammond's Blackstone, Introduction, Vol. I, p. 112.

except where organized societies were incorporated into the Union.1

By the Ordinance of 1787 the common law was extended by the nation when it had far less power than under the Constitution to all the Northwest Territory, and it need not even be assumed that the national government has the power to extend the common law. It was here and remained throughout the whole country. Louisiana, the alleged Roman law State, follows the common law generally or the national law so far as it is promulgated. All the colonists got their law from the same book, and the birth of the common law as a tangible and ascertainable system was contemporaneous with the birth of American liberty.2

1 Field, C. J., in Norris v. Harris, 15 Calif. 226; see Wheaton v. Peters, 8 Peters, 591, 659. In Mortimer v. New York Elevated R. Co., 6 N. Y. Supplement, 898, the Superior Court of the city of New York decided that neither the Dutch nor the Roman law ever prevailed in the colony and that the common law prevailed from the beginning. See The Amiable Nancy, 1 Paine Rep. 117; Manro v. Almeida, 23 U. S. (10 Wheat.) 473.

Hammond's Blackstone, Preface, p. 7. In Mississippi v. Cohn, 150 U. S. 202, a case originating in Louisiana, where the civil law prevails, the case was remanded by the Supreme Court to the Circuit Court, with directions to be heard "upon the principles of common law and equity." "If," says Judge Shiras, in commenting on this case, "the courts of the United States can only recognize and enforce the principles of the common law when the same form part of the municipal law of the State, how comes it that the Supreme Court directed the Circuit Court in Louisiana to apply the principles of common law and equity, as they existed when the Constitution was adopted, to the decision of the question of jurisdiction arising in that case?" Murray v. C. & N. W. Ry. Co., 62 Fed. 24, 28. Edward Livingston, a New York lawyer who knew both systems of law, made a draft of two codes, one for the United States and one for Louisiana. That State owes more to Livingston than to Napoleon.

The common law of the United States developed uniformly in the early States at the time of the formation of the Union. Uniformity of the law was a natural concomitant of national unity.

"The first volume of the Commentaries was published November 2, 1765, at a time when the thirteen colonies were just beginning to have a sense of their essential unity and of the need of a common law. Nearly all considered the common law of England to be in force, but there were few books from which the law could be learned, and few lawyers who had been able to avail themselves of instruction in the inns of court. Appeals to the king in council were not unknown, but these were too expensive, and, therefore, too few, to have much effect in the unification of these various systems of provincial law. There was evident need of a work which should present the law of the mother country as a complete and harmonious system, and furnish an authority to which all could apply in the dearth of reports and libraries.

"Its reception in America was remarkable. When we consider the number of inhabitants and the scantiness of their needs in general, it is surprising how many copies of so expensive and costly a work were taken up in America in a few years between its publication (1765-1769) and the cessation of commerce with England in 1775 and 1776. Burke tells us in one of his speeches made during the war, that more copies of the Commentaries had been sold in America than in England itself. There is abundant evidence of the immediate absorption of nearly twenty-five hundred copies of the Commentaries in the thirteen colonies before the Declaration of Independence. The natural result must have been that this work became the standard authority at once upon law in every American court, and especially in the great number of small courts of

original common law jurisdiction, by which the knowledge of the common law was most widely diffused. The effect was that upon all questions of private law at least, this work stood for the law itself throughout the country, and at least for a generation to come exercised an influence upon the jurisprudence of the new nation, which no other work has since enjoyed, and to which no other work can possibly now attain." 1

The first American edition of Blackstone was published in the same year as the Declaration of Independence 1776.

Thus the common law, written and yet unwritten, came from one source for the whole country and furnished a bond of common rights. While all this is conceded by some writers, they still insist that the States never had a common law or, if they did, they had the power to abrogate it at will by statute. And it is admitted by these writers that the common law does exist and is of broader sanction than statute. From the assertions into which those who maintain that there is no common law of the United States are betrayed, they are left to the alternative of admitting a common law of universal application in the United States or the entire absence of any law having force, finality, or sanction. One of these writers' says:

"That system of law, which the earlier settlers of this country brought with them from England, and which derives its obligation not from legislative enactments, but from universal custom and immemorial usage, and which is the fountain of American jurisprudence, is distinguished and known as the common law. It consists of

1 Hammond's Blackstone, Preface, p. 7.

2 Bateman, Political and Constitutional Law, sec. 59.