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the individual States, and therefore are solely applicable to cases in which that sovereignty may be affected; otherwise, it appears clear to me that the limitations of the judiciary power must proceed from other sources.

On the whole, therefore, I think I may venture 1

to assert

1. That the common law is the law of the United States in their national capacity, and is recognised as such in many instances by the Constitution of the United States and the statutes made in pursuance of it.

2. That when the federal Courts are sitting in or for the States, they can, it is true, derive no jurisdiction from the common law, because the people of the United States, in framing their Constitution, have thought proper to restrict them within certain limits; but that whenever by the Constitution or the laws made in pursuance of it, jurisdiction is given to them either over the person or subject matter, they are bound to take the common law as their rule of decision whenever other laws, national or local, are not applicable.

3. But that the limitations of the judiciary power which are the safeguards of the sovereignty of the States, do not apply to the judiciary when sitting in or for the Districts or Territories which acknowledge no sovereignty but that of the nation, and that there the common law has its full force, and is to be the rule in all cases in which the laws of the United States or the local laws do not apply.

I am well aware that this doctrine of the nationality of the common law will meet with many opponents. There is a spirit of hostility abroad against this system which cannot escape the eye of the most superficial observer. It began in Virginia in the year 1799 or 1800, in consequence of an opposition to the alien and sedition acts; a committee of the legislative body made a report against those laws which was accepted by the house, in which it was broadly laid down that the common law is not the law of the United States. Not long afterwards, the flame caught in Pennsylvania, and it was for some time believed that the Legislature would abolish the common law altogether. Violent pamphlets were published to instigate them to that measure. The whole, however, ended in a law for determining all suits by arbitration in the first instance, at the will of either party, and another prohibiting the reading and quoting in Courts of justice of British authorities of a date posterior to the revolution. Both these statutes, as you well know, are still in force.

It was not long before this inimical disposition towards the common law made its way into the State of Ohio. In the year 1819, a learned and elaborate work was published in that State†, in which it was

*This spirit was considerably checked by a well written pamphlet published at the time by Joseph Hopkinson, Esq. of this city, in which he demonstrated the absurdity of the project of abolishing the common law.

Historical sketches of the principles and maxims of American Jurisprudence, in contrast with the doctrines of the English Common Law on the subject of crimes and punishments.-By John Milton Goodenow, 428 pp. 8vo. Steubenville, 1819.

endeavoured to prove not only that the common law was not the law of the United States, but that it had no authority in any of the States that had been formed out of the old north western territory. But few copies of his work have been printed; nevertheless as it is learnedly and elaborately written, it cannot but have had a considerable degree of influence.

In other States, attacks upon the common law, more or less direct, have appeared from time to time.*

* Among those some persons seem to consider the address lately delivered before the Historical Society of New York, by my excellent friend Mr. William Sampson. For my part, 1 rather believe that he meant to point the keen arrows of his wit against the superstition, not against the pure religion of the common law. Mr. Sampson is an Iconoclastes in jurisprudence; he has made pretty free with the Saxon and Norman idols, and may have displeased those who would wish to bring us back to the ancient worship of Thor and Woden. But every liberal common lawyer will applaud the sentiments which he expresses in the following eloquent passage, which I beg leave to quote at large from his address:

"Our law is justly dear to us, and why? because it is the law of a free people, and has freedom for its end, and under it we live both free and happy. When we go forth, it walks silent and unobtrusive by our side, covering us with its invisible shield from violence and wrong. Beneath our own roof, or by our own fireside, it makes our home our castle. All ages, sexes, and conditions, share its protecting influence. It shadows with its wing the infant's cradle, and with its arm upholds the tottering steps of age. Do the smiles of the babe give gladness to the mother's heart, her joy is perfect in the consciousness that no tyrants power dare to snatch it from her arms; that when she consigns it to repose, its innocent slumbers are guarded by a nation's strength, and that it sleeps more free from danger than kings amidst their armed myrmidons. And when life's close draws near, we feel the cheering certitude, that those we love and leave shall possess the goods that we possessed, and enjoy the same secu. rity in which we lived and died. But that we are indebted for this, to Saxon, Scandinavian, Gaul, Greek, or Trojan, is what unsophisticated reason will not endure. We owe it to the growth of knowledge, and to the struggles of virtuous patriots, many of whom have bled and died for it: we owe it to fortu nate occasion and favouring providence." Sampson's Disc. P. 60.

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Its faults (for it is not free from them) are laid hold of and exhibited in the most glaring light; its ancient abuses, its uncertainty, the immense number of volumes in which its 'doctrines are to be sought for, its various and daily increasing modifications in the different States, the contradictory decisions which occur among so many independent tribunals, and above all the supposed danger to our institutions from its being still the law of a monarchical country, the opinions of whose Judges long habit has taught us to respect, which opinions are received from year to year, and admitted in our Courts of justice if not as rules, at least, as guides for their decisions; these are the topics which are in general selected for the animadversions of those who hold the contrary opinion to mine, and there is enough of plausibility in them to make us presume that they are not without effect on the public mind.

That there are real and serious inconveniences in our actual system of jurisprudence, is what no candid man will deny; but none of them is, nor are all of them sufficient to induce the abolition of the common law. Were it abolished, a still greater difficulty must arise, to fill up the immense chasm which would be produced by its absence. Not all the codes of all the Benthams would be capable of producing that effect.

The task of legislation is not so easy a one as some people seem to imagine. The immortal Bacon was

of opinion that neither lawyers nor philosophers were fit for it; the former because their notions were too narrow, the latter because theirs were too enlarg ed. He thought that this business could only be safely confided to statesmen, as being best acquainted with mankind.* For my part, I am inclined to think that a good legislator ought to possess the combined knowledge and talents of the lawyer, the philosopher, and the statesman. I need not say how few there are of those in any age or in any country.

But admitting that this country possesses superior legislative talents to any other, I assert, without the fear of contradiction, that it is impossible to abolish the common law. Make as many codes as you will, this second nature will still force itself upon you:

"Expellas furcâ tamen usque recurret."

In proof of this, I shall adduce a very recent and very striking instance. The emperor Napoleon gave to the French a new and uniform code of laws, which has been now in force about twenty years. It is admitted to be as complete as a work of this

* Qui de legibus scripserunt omnes, vel tanquam philosophi, vel tanquam jurisconsulti, argumentum illud tractaverunt. Atque philosophi proponunt multa, dictu pulchra, sed ab usu remota. Jurisconsulti autem, suæ quisque pa triæ legum, vel etiam Romanarum, aut Pontificarum, placitis obnoxii es addicti, judicio sincero non utuntur, sed tanquam è vinculis sermocinantur. Certè cognitio ista ad viros civiles propriè spectat; qui optimè norunt, quid ferat societas humana, quid salus populi, quid æquitas naturalis, quid gentium mores, quid rerumpublicarum formæ diversæ; ideòque possint de legibus, ex principiis et præceptis, tam æquitatis naturalis, quam politices, decernere. De augm. Scient. 1. 8. c. 3.

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