ancient maxims and customs, embodying the wisdom and experience of ages, and forming a system that naturally keeps pace with the habits and wants of the current times.1 Many are the names in the books by which it is distinguished. To distinguish it from statute law it is sometimes called the unwritten law, lex non scripta'; not meaning that it is at present merely oral, or communicated by word of mouth alone from the former ages to the present; for the monuments and evidences of our legal customs are now contained in the records of our several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved to us and handed down from the times of highest antiquity; but these parts of our law are styled 'leges non scriptae' because their original institution and authority are not set down in writing, as acts of the legislature are, but they receive their binding power, and the force of law, by long and immemorial usage, and by their universal reception throughout the land." 2

Now, keeping in mind Bateman's definition of the source, force, and sanction of the common law, as above and independent of promulgation in statutory form, let us examine his assertion that the common law does not exist as of the whole country for lack of adoption or power to adopt. He says:

8

"So far as they relate to civil rights and remedies, and the definition and punishment of crimes and misdemeanors, the laws of the colonies in force before the Revolution, including not only the common law of England, but also English statutes in amendment thereof, were generally retained and confirmed by authority of the people, as

1 Bell v. Ohio & Pennsylvania R. R. Co., 1 Casey (25 Pa. St.), 161, 174.

2 1 Blackstone, 63, 64; Hale's History of the Common Law, 23. Bateman, Political and Constitutional Law, 61.

forming the basis of the common law of the several States; we cannot say 1 - of the United States, because, first; that law alone which is common to the United States, but which is not called the 'common law,' is found solely in the organic law of the Union, the federal Constitution, and is wholly composed of that Constitution and the laws enacted and treaties made in pursuance thereof; secondly, neither by the Articles of Confederation, nor by the present Constitution of the Union, was the common law ever adopted or confirmed, either as the law of the several States, or as the law of the United States; nor was ever the government of the United States, or any of its departments, legislative, judicial, or executive, invested with power to adopt, confirm, or administer the same." 2

3

But the organic law of the United States was not the only law common to the United States, for by Bateman's assertion the law of England, which applied to all the colonists as Englishmen, was retained in the colonies. As, by Bateman's assertion, it was never adopted as the law of the States, it must have been retained by the acknowledged rule of international law preserving the law of the land until changed by the new sovereign, the rule set forth in Knowlton v. The Commonwealth of Massachusetts. There being admittedly no arrangement of the law having for its object the change of the common law, it was retained with its former universality of application, the only change being in the political law, that is the law of

1 Bishop's Criminal Law, 15, n. 4.

2 Citing Chase, C. J., in U. S. v. Worrall, 2 Dallas, 395; Pomeroy's Constitutional Law, secs. 739-759, and cases cited.

3 See Reinsch in VI Am. Hist. Review, 584, on English Common

Law in the Early American Colonies.

4

• 2 Mass. 530.

allegiance. The same acts which made the Constitution the organic law of the Union made the common law, upon which the Constitution rested for its source, sanction, and construction the common law which

the Constitution expressly preserved

the common

The men

law, the law of the land, and of the whole land. who framed the Constitution were all of the same school, and no dispute of any principle of law found its way into the Constitution, a document broad enough to cover all law. By Bateman's own assertion it could not have been adopted in the States, nor was it necessary that it should be adopted in the United States. By the force of the very assertions of Bateman and by the rule of international law, the common law remained as the law of the land.1 And Bateman denies the power of the States to change by statute the "common law of the United States." He says:

"The great characteristic which distinguishes our common law from all other laws and systems of law, and in which alone consists its peculiar genius and excellence, is, not that its rules are those of eternal and immutable justice, but that it is founded on the principle that a usage or custom, maxim or statute, so obviously reasonable, convenient and just, as to have been sanctioned and approved by every man's reason and experience, and retained and continued from generation to generation, though

1 See this principle set forth by Chief Justice Shaw, in Commonwealth v. Chapman, 13 Metcalf, 68, quoted supra. See also, as to Jamaican law, same principle in Blankard v. Galdy, 2 Salkeld, 411, or 4 Mod. 222 (1693); Earl of Derby's Case, 2 And. 116; Mem. P. Wms. 75; see Cross v. Harrison, 16 How. 164, settlement of California; Airhart v. Massieu, 98 U. S. 491; for effect of settlement of India on Hindoo and the introduction of English law, see Advocate-General v. Ranee Surnomoye Dossee, 1863, 2 Moore's P. C., N. S. 22.

the record and history of its origin have long been lost, shall be and remain of force and effect as part of the law of the land. This is the great and fundamental principle of our common law; a principle which, attracting to itself the wisdom and experience of each age of civilized man, descends from generation to generation as an ancient inheritance, adorned and improved from the remotest times."

Here Bateman not only furnishes the reason for the original universality of application of the common law of the United States the existence of which he denies but also the explanation and proof of its uniform development not by legislation but by its own inherent force of self-adjustment and rejuvenation, and of its actual present existence and universal application in the United States.

$187. THE COMMON LAW AND THE COURTS: STATE AND NATIONAL. But we do not need to depend upon deduction where the fact has been adjudicated and established beyond controversy. In the exhaustive note to McKennon v. Winn,' the learned annotator shows that "the common law has been adopted as the basis of jurisprudence in every State of the Union except Louisiana and in that State in criminal matters." In that State, too, we have seen, the common law practically exists in all matters except those matters which relate to tenure, and in Louisiana the whole law was more indebted to Edward Livingston of New York than to Justinian. Moreover, the territories in

1 22 L. R. A. 501.

Charles Noble Gregory in Harvard Law Review, Vol. XIII, 344: William Wirt Howe, ibid. Vol. XVI, 358. In Mortimer v. N. Y. El. Ry. Co., 6 N. Y. Supp. 898, it was held that neither the Dutch nor the Roman law ever prevailed in New York.

the Northwest received the common law as the basis of their jurisprudence, by the Ordinance of 1787, providing that the inhabitants should always be entitled to the "benefits of the writ of habeas corpus, and of the trial by jury, of procedure according to the course of the common law." This was the instrument that destroyed primogeniture. It was adopted by the nation under an organic law far less generous in its recognition of the powers of the national government, and the sections of which this provision was a part were expressed to be an irrevocable contract between the original States committing them also to the common law. The common law was adopted in the whole United States by an act so solemn that not even the Constitution of the United States could have changed it, for that instrument was not to be adopted unanimously.2

Nor does the assertion of a common law of the United States diminish the dignity and importance of State tribunals. These courts now are courts of original jurisdiction in matters of common law. To say that the law they administer is the law for the Union is certainly not to detract from the importance

"Shall always be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent."

See Old South Leaflets, No. XIII. "We are accustomed to praise the lawgivers of antiquity; we help to perpetuate the fame of Solon and Lycurgus; but I doubt whether one single law of any lawgiver, ancient or modern, has produced the effects of more distinct, marked, and lasting character than the Ordinance of 1787." WEBSTER.

"The Ordinance of 1787 belongs with the Declaration of Independence and the Constitution. It is one of the three title deeds of American Constitutional Liberty." - GEORGE F. HOAR.