their panoply, their glory, and their song of rejoicing
in the house of their pilgrimage. It covered
them in the day of their calamity, and their trust
was under the shadow of its wings. From the first
settlement of the country, the genius of our institutions
and our national spirit have claimed it as a common
possession, and exulted in it with a common pride.
A century ago, Governor Pownall, one of the most eminent
constitutional jurists of colonial times, said of the
common law, “In all the colonies the common
law is received as the foundation and main body of
their law.” In the Declaration of Rights,
made by the Continental Congress at its first session
in ’74, there was the following resolution:
“Resolved, That the respective colonies are
entitled to the common law of England, and especially
to the great and inestimable privilege of being tried
by their peers of the vicinage according to the course
of that law.” Soon after the organization
of the general government, Chief Justice Ellsworth,
in one of his decisions on the bench of the U. S.
Sup. Court, said: “The common law of
this country remains the same as it was before the
revolution.” Chief Justice Marshall, in
his decision in the case of Livingston vs. Jefferson,
said: “When our ancestors migrated to America,
they brought with them the common law of their native
country, so far as it was applicable to their new
situation, and I do not conceive that the revolution
in any degree changed the relations of man to man,
or the law which regulates them. In breaking
our political connection with the parent state, we
did not break our connection with each other.”
[Hall’s Law Journal, new series.] Mr.
Duponceau, in his “Dissertation on the Jurisdiction
of Courts in the United States,” says, “I
consider the common law of England the jus commune
of the United States. I think I can lay it down
as a correct principle, that the common law of England,
as it was at the time of the Declaration of Independence,
still continues to be the national law of this country,
so far as it is applicable to our present state, and
subject to the modifications it has received here in
the course of nearly half a century.” Chief
Justice Taylor of North Carolina, in his decision
in the case of the State vs. Reed, in 1823,
Hawkes’ N.C. Reps. 454, says, “a law
of paramount, obligation to the statute, was
violated by the offence—COMMON LAW, founded
upon the law of nature, and confirmed by revelation.”
The legislation of the United States abounds in recognitions
of the principles of the common law, asserting their
paramount binding power. Sparing details, of which
our national state papers are full, we illustrate
by a single instance. It was made a condition
of the admission of Louisiana into the Union, that
the right of trial by jury should be secured to all
her citizens,—the United States government
thus employing its power to enlarge the jurisdiction
of the common law in this its great representative.