nies in America did not carry with them the laws of the land as being bound by them wherever they should settle. They left the realm to avoid the inconveniences and hardships they were under, where some of these laws were in force; particularly ecclesiastical laws, those for the payment of tithes and others. Had it been understood that they were to carry these laws with them, they had better have stayed home among their friends, unexposed to the risks and toils of a new settlement. They carried with them a right to such parts of the laws of the land as they should judge advantageous or useful to them; a right to be free from those they thought hurtful, and a right to make such others as they should think necessary, not infringing the general rights of Eng lishmen; and such new laws they were to form as agreeable as might be to the laws of Eng

land.'

"The common law of England has, in thirty States, been expressly adopted by a statute of the present State, the statute being adopted in most cases soon after the Revolution. Thus, in Maryland, the people are declared entitled to the common law of England by the Maryland declaration of rights. In twenty-four other States the common law of England so far as applicable and not inconsistent with the constitution and laws of the State, or such part of it as is adapted to the condition and wants of the people, whatever that may mean, is adopted and declared to be in force. In five other States such parts of the common law as were in force in the colony or in the territory previous to the adoption of the State Constitution, are declared in force if not inconsistent therewith.

"This accounts for thirty out of forty-six States and territories. Only in Florida and Dakota there is declared to be no Common Law cases where the law is declared by the codes. In the other fifteen States and territories the statute-books are silent; but I will presume that in all the common law of England prevails; for the only States about which there will be any doubt, namely: Texas, Louisianna, New Mexico and Arizona, originally French or Spanish States, belong to the class which have expressly adopted the common law. We see, therefore, that there is no great ground for diversity here.

"Taking up next the English statutes: Here we find a great diversity. Professor Colby, of Dartmouth, says,* 'By English Constitutional usage acts of parliament passed after the settlement of any American colony were not deemed to bind it unless it was named therein. Long before the Revolution public opinion in America ordained and declared that no act of parliament passed after the settlement of any American colony ought to have force therein, even if applied to it in express terms, unless adopted in it, at least, by tacit consent. When, therefore, independence was proclaimed and State Constitutions were adopted, English statutes amendatory of the common law, only 'so far as applicable and not inconsistent with the laws of the United States or the State' were declared to be in force in the different States. But in this matter the original States, and later the new States, have acted with true English irregularity, and so added to the diversity of the American law.'

"Indiana, Illinois, the Virginias, Missouri, Arkansas, Colorado and Wyoming, adopt all English statutes which were enacted prior to the fourth year of James I., with certain specified exceptions even there; while Rhode Island and Florida adopt all statutes up to the time of the Declaration of Independence; and Pennsylvania all which were in force on May 10 of the year 1776; and New York, on the other hand, expressly denies any effect to any English statutes in New York since May 1, 1788. Thus in Pennsylvania practically all English statutes enacted before May 10, 1776, are in force, while in the neighboring State of New | York none are.

"Nevertheless, I think that the courts of all States - including the vast majority which are silent on this point - do in fact enforce those important English statutes which have grown to be considered as part of the common law. I do not believe, therefore, that there is any great cause for diversity here again.

"Taking up next the colonial statutes: In Massachusetts there are a great many colonial laws which are very interesting; especially the collection known as the Body of Liberties," and which have probably some effect on the

* Address of James F. Colby before Grafton & Coos Bar Association, January 29, 1892.

+ Blackstone, Vol. I, p. 108.

present decisions of courts in that State; but the bulk of them are of interest rather from the sociological point of view. It comprises ninety-eight sections, the first of which is identical with the civil rights provision of the English petition of right to Charles I. Twelve other sections concern similar rights. Section 9 regulates monopolies and patents; and section 10 declares lands free of all feudal systems of tenure. Section 11 gives power to will; and there are forty other sections concerning 'rights at law.' Twenty-one sections called 'Laws concerning liberties, more particularly concerning freemen ;' four sections concerning liberties of children,' four of ser

are

vants;' four of foreigners,' while only two

consider the 'liberties of women.'

"From a general glance at the Massachusetts colonial laws, it appears that substantially all matters now covered by statute were treated of in them, and also many other matters concerning which statute regulation would now be indefensible; for, as we all know, the Puritan commonwealth interfered with the liberty of the citizen to a far greater extent than we would suffer the State to do nowadays.

"As an example of the sort of colonial statute which is still in force to-day, one may mention that statute which was universally adopted throughout the colonies providing that all conveyances of land shall be by deed, and not by livery of seisin; and establishing the relations within which a person may not marry.

mon law.

ously enough, is not identical with the Maryland list; but includes a greater number of statutes, although many statutes were adopted in both.

The only constitutional bodies of law which left any trace on our present States, were the body of liberties of Massachusetts; and the declarations or bills of rights of Virginia, Rhode Island, and Connecticut, the last of which is claimed to be the first independent constitution ever adopted in writing by an English state. For the most elaborate of all the colony constitutional documents, the celebrated scheme of government drawn by John Locke for the settlement of South Carolina, although printed still in the first volume of that colony's laws, so far as any effect or trace of it now goes, has vanished from the face of the earth."

After discussing the subject with great clearness and conciseness, Mr. Stimson, in conclusion, writes of the laws of marriage thus:

"As a result, the conference suggested the age of eighteen in the male, and sixteen in the female. Undoubtedly there are climatic reasons for not making this rule the same in all parts of the country; nevertheless, the difficulty of establishing a sort of Mason-and-Dixon's line on the ability to marry will be obvious to the most flippant observer. The recommendation, as a recommendation, does no harm; but the reader will probably think that it had better stay a recommendation, that the several States, while perhaps increasing the common law age, should nevertheless be left to determine such precise needs as their own experience warrants, and that in all States no marriage should be impeached for non-age which is followed by the birth of a child. One may apprehend in all seriousness that the question of marriage and divorce cannot be settled. This is not saying that it is not well to agitate it and improve the laws where we see them at faultnotably in matters of divorce; and on this point the conference made the following recommendations :

"The laws of New Hampshire and Rhode Island were much like those of Massachusetts, and are quite as bulky. The laws of Connecticut are still more so. The laws of New York are contained in statutes at large; they are bulky and not digested; but most of them were, after all, mere ordinances or regulations of government; not statutes affecting the comIn Maryland we find an official volume of English statutes in force running from the ninth of Henry III.-the statute of dower -down to the eleventh of George III.- the 'Resolved, That it is the sense of this conference renewal of leases; and in South Carolina we that no judgment or decree of divorce should be find an act of 1712 giving a similar list of the granted unless the defendant be domiciled within the State in which the action is brought, or shall have statutes of the kingdom of England, or South been domiciled therein at the time the cause of action Britain, which were in force in that colony, arose, or unless the defendant shall have been personrunning from Magna Charta ninth Henry III., ally served with process within said State, or shall to the twelfth of William III. This list, curi- I have voluntarily appeared in such action or proceeding.

are denied a passage through the straits. This prevents any mail communication with the outside world.

After taking action toward vessels of your own nationality, the masters of the English and German vessels also appeal to you for similar action on their behalf. What response do you make, and why?

announce that they have orders, under certain contingencies, which have now arrived, to request your departure at once from Sandy Point and the straits. They regret to tell you that, if necessary to enforce this request, they will have to use the superior force under their command. What do you do?

What instructions are likely to be sent by our government to our representative in Santiago in regard to this matter?

The Chilean governor on shore informs you that the straits are considered by his government as exclusively territorial waters of Chile, and that he has, for what he deems sufficient reasons, closed the straits to passage by merchantinen, and that the merchantmen, having refused to go back, were detained by force by his order. He further states that he does not feel authorized to deny passage, however, to The Supreme Court of the United States men-of-war. At this time no war exists, and just before adjournment handed down a dethere are no belligerent operations in the vi-cision which establishes the principles of the cinity. What action do you take in response right of self-defense. The decision was given to the appeal from the American merchantmen? on the appeal of Babe Beard from a judgment Please explain in full the situation and the of conviction and sentence of eight years' imreason for your action. prisonment for manslaughter. The facts of the case, it seems, were, that Beard had three brothers-in-law who came to his house with the express determination of driving away a cow, the ownership of which was in dispute between the parties. One of the brothers-in-law advanced upon Beard, who had a gun in his hands, and made a motion as if to draw a revolver from his pocket. Beard struck this brother-in-law over the head, inflicting a wound from which he died. On the trial the judge instructed the jury in regard to the law of selfdefense, and said that Beard was compelled by that law to avoid danger at the hands of the person who threatened him by going away from the place, that the only place where he need not retreat further was his dwelling place. Judge Harlan, in delivering the opinion of the court, says that the charge was defective in point of law on several grounds, and in discussing this question in his opinion, he says:

You deem it your duty to remain at Sandy Point, and while there the aborigines (savages) threaten an attack and massacre. The governor begs you to land a force, and otherwise come to his aid in repelling such an attack. What do you do, and why?

There are several American citizens residing at Sandy Point, transacting business, and owning property there as aliens. The governor compels them to join a military company to defend the town. They question his right, and appeal to you. What answer do you make, and why?

Finally a large military detachment arrives from Chile, convoyed by the Arturo Prat and two fast protected cruisers. The trouble with the Indians and the danger from revolt on the part of the convicts at large, being imminent and serious, the governor, who is also senior military officer, declares martial law, and, among other things, proceeds to seize the property of the American residents for military purposes. Upon their violent resistance to this action, they are arrested, tried, and punished by a military commission, the civil courts being suspended. What action do you take as to this?

"The court, several times in its charge, raised or suggested the inquiry whether Beard. was in the lawful pursuit of his business, that is, doing what he had a right to do, when, after returning home in the afternoon, he went from his dwelling house to a part of his premises near the orchard fence, just outside of which his wife and the Jones' brothers were engaged in a dispute the former endeavoring to prevent the cow from being taken away, the latter trying to drive it off the premises. Was he not doing what he had the legal right to do, when, Finally, the military and naval commanders keeping within his own premises and near his