nances, seems to be necessary, in order to show what was their view of statutes; when our colonies first enacted laws, while yet subject to the British government; and also, at the time of our separation from them, and since; because the judicial interpretation given at that time by English law writers to statutes, was a part of the common law, which we also borrowed from that country, and then adopted as our own; and except in so far as we have wrought changes in this common law either by legislation or by finding it inapplicable to our changed form of government, and substituted changes more suited to the condition of a free people, we still follow in practice, the interpretations of those venerated sages of the English law whose writings we regard as standard authority.'

These law writers, and also distinguished jurists, inform us, that much of the common law which we so borrowed and adopted, is nothing else but ancient statutes and ordinances worn out by time; a that all our law began by the consent of the legislature; that many of those things that we take for the common law, were undoubtedly acts of parliament, though not now to be found of record. b

It would hardly be profitable in this work, nor within its design, to trace the antiquity of the statutes of other nations than that of England, for the reason that our early laws are in a large degree copied from those of that country, or adopted into our system.

The scholar, or curious student of the history of early legislation who desires further research into this branch of law-making power, is referred to the twelve tables of the Roman republic, to their frequent revisions of statute laws, and their forms of codification; especially as we have adopted into our jurisprudence some ideas derived from the civil law.

a Wilmot, ch. j. 2 Wils. R. 348.

b Hale's History of the Common Law, 66.

NOTE 3.-Where the English statutes are adopted into our own legislation, the known and settled construction of them, by the courts of law, is considered as silently incorporated into the acts; or is received with all the weight of authority. Pennoch v. Dialogue, 2 Peters, 2. It is proper, that the construction given to statutes in the country where they have been enacted, should follow the same statutes when adopted here. Cathcart v. Robinson, 5 Peters, 263.

The common law of England, as modified by positive enactment, together with the statute laws which were in force at the time of the emigration of the colonists, became in fact, the common law, rather than the common and statute law of the colony. The statute law of the mother country, therefore, when introduced into the colony of New York, by common consent, (because it was applicable to the colonists in their new situation and not by legislative enactment,) became the common law of the province.a

Such parts of the common law, as with acts of the legislature of the colony of New York, formed the law of the colony on the 19th of April, 1775, which have not been altered, continue the law of the State, subject to alteration by the legislature. Such parts as are repugnant to the constitution, are abrogated. Const. of N. Y. 1777 § 35; Const. of N. Y. of 1822, Art. 7, § 13; Const. of N. Y. 1846, Art. 1, § 17.

New statutes in America, became necessary at once, upon our separation from the mother country. The old customs and modes of business in England, were in many respects, unsuited to our new condition, and theory of government. But such of the English statutes as guarded and secured to the people at large, and to the individual, rights against the usurpations of power, were re-enacted here, with but slight changes. Among these, are the habeus corpus, the statute of frauds, the statute of wills, etc. The right of petition, and bill of rights were secured by the fundamental law, the written constitutions.

The best English definition of a statute, to be collected from approved authors, is "such acts as are made by the king's majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in parliament assembled." This is the written will of parliament.

Our American statutes are made by like solemnities of form, and become the express written will of the legislature; and they are rendered authentic by prescribed constitutional and legal forms and requirements.

While it is true that our American legislatures, are in a great degree, modelled after the parliament of Great Britain; and, that the usages and customs of legislation here, are derived from the

a Bogardus v. Trinity church, 4 Paige, 498, 1 Mass. R, 60; 2 id. 534.

parliamentary, or common law of England; we are met at once with a striking contrast, between the powers which may be exercised by an American legislature, and those which are exercised by the British parliament.

"The authority of the English parliament, in the enactment of laws has no bounds; it is transcendant. It is possessed of sovereign and uncontrollable power." By the constitution of that kingdom, this power, which is there despotic, runs without limit, and rises above all control. The validity of an act of parliament cannot be drawn in question by the judicial department." a

"It hath (says Sir Wm. Blackstone) sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime or criminal. This being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate, or new model the succession to the crown; as was done in the reign of Henry VIII, and William III. It can alter the established religion of the land; as was done in a variety of instances in the reign of Henry VIII, and his three children. It can change and create afresh, even the constitution of the kingdom, and of the parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore, some have not scrupled to call its power by a figure, rather too bold; the omnipotence of parliament." b

Though they boast of a constitution, they have no written constitution. What is called the British constitution, consists of the fundamentals of British polity, laid down in customs, precedents, decisions, and statutes. The common law in it, is a far greater portion of it, even than the statutes of parliament. Their constitution depends upon the caprice of parliament. It can be changed by them; and it is changed by them from time to

time to meet emergencies. They have actually, in several instances, changed by legislative acts, some of the most fundamental articles of government, and yet in no country, are the constitutional principles, of civil and political liberty, more discussed; and held to be sacred, than in Great Britain.

With us in America it is different. Such strong expressions of power, is entirely inapplicable to the idea of legislative authority in American States. This difference springs from the different theories upon which the two governments rest. In England, parliament is recognized as possessing the sovereign power of the country. The American legislature possesses but a portion of the sovereign power. The sovereignty is in the people; and the legislatures whom they create, can only discharge a trust, (guarded with restrictions, well defined) of which the people have made them the depository. When in a republican, or other form of government, it is asserted that the natural and necessary source of civil authority is in the people; it is intended that this is so, until the government has been formed; for before the formation of a government, it cannot be said the people have political rights. So that primarily, it may be asserted, that sovereignty resides in God himself, who is the source of all order, power, right, and authority. "By me kings reign, and princess decree justice;"a and St. Paul instructs us, that "there is no power but of God, that the powers that be, are ordained of God."b As therefore, the Deity himself, does not condescend, directly to administer the government of States; those upon whom the sovereignty rests, are His depositories of the civil power. "There is one law-giver."c It is in this qualified sense then, that we speak of human, or governmental sovereignty, and it is this sense that we say in our republican form of government, that the people are the source of power.

The national and State governments, all have constitutions reduced to writing. These constitutions emenate from the people, who are the original source of all political power. The people in their sovereign capacity, ordain and establish this fundamental law, which is paramount to the power of the legislature, and is the supreme law of the land. The powers of the legisla

a 1 Proverbs 8, 15.

b 2 Romans 13, 1.

c 3 James 4, 12.

ture are derived from the constitution, and are subordinate to it. They are but one branch of the sovereignty, their acts depend upon, are limited by, and must be conformable to the constitution. Every act of the legislature repugnant to this written fundamental law, is absolutely void.

Notwithstanding the difference in power and effect, as we have shown, between the statutes passed by the English parliament, and those passed by the legislature of the American States, the law of interpretation of statutes in most respects, is in both countries, substantially in accord and harmony.

NOTE-It is in regard to this harmony of views, and to the presentation of variances, wherever they are found to exist between the laws of the two countries, that much of this work will be devoted