to countries governed by the civil law. The colonists who settled this country, were Englishmen, with the feelings, the attachments, and the prejudices of Englishmen. It became necessary for them to establish or recognize and adhere to some system of law from the moment they landed. That system was of necessity the English, and accordingly, we find the doctrine to have always been that the colonists were subject to, and, as it were, brought with them, the great principles of the common law of the mother country, with such modifications as the legisla tive enactments of Parliament had at that time introduced into it, or the particular situation of the colonists in their new condition required. It is to be understood, then, as a general principle, that the basis, the fundamental element, the starting point, of the jurisprudence of the States of the Union, is the common law of England, so far as the same is not actually repugnant to our system. The exceptions we shall hereafter consider; but so it has been repeatedly decided and affirmed in the thirteen old States, as they are called, which in 1776 threw off the English sovereignty. The declaration of rights made by the first Continental Congress, in 1774, declares that "the respective colonies are entitled to the common law of England, and to the benefit of such of the English statutes as existed at the time of their colonization, and which they have, by experience, found to be applicable to their social, local, and other circumstances." *

This is the uniform language of our judicial decisions, whether of the federal or State tribunals. It has been declared by the Supreme Court of the United States, that our ancestors. brought with them the general principles of the common law as in force at their emigration, and claimed them as their birthright. Nevertheless, that the common law of America is not to be taken in all respects, to be that of England, but that the settlers brought with them, and adopted, only that portion which was applicable to their situation. †

The Supreme Court has also declared that English statutes passed before the emigration of our ancestors, being applicable

* Declar. in Shepard's Cons. Text Book, App. p. 262.

Terrett v. Taylor, 9 Cranch, 43; Town of Pawlet v. Clark, 9 Cranch, 292 and 333.

Van Ness v. Pacard, 2 Peters, pp. 137 and 144.

to our situation, and in amendment of the law, constitute a part of our common law, and the construction of such statutes which prevailed at the revolution, is the rule for the courts of the United States. English judicial decisions, therefore, pronounced previous to our Declaration of Independence, construing or interpreting such statute law of the mother country as we have adopted, are to be received here as a part of such statutes; but judicial decisions on such statutes, pronounced subsequently to our revolution, though treated with great respect, are not to be admitted as authority.t

So, the Court of Chancery of the State of New York has said: "It is a natural presumption, and therefore adopted as a rule of law, that on the settlement of a new territory, by a colony from another country, and where the colonists continue subject to the government of the mother country, they carry with them the general laws of that country, so far as those laws are applicable to the colonists in their new situation, which thus become the unwritten law of the colony, until altered by common consent or legislative enactment;" and it was said to be evident that there was a common law existing in the State of New York, restraining religious corporations from alienating church property, which colonial common law resulted from the importation of the English restraining acts in force at the settlement of the colony.

In Maryland, it has been decided under the Constitution of that State, that their adoption of the common law has no reference to adjudications in England anterior to the colonization, or to judicial adoptions here of any part of the common law during the continuance of the colonial government, but to the common law in mass, as it existed here either potentially or practically, and as it prevailed in England at the time, except such portions of it as were inconsistent with the spirit of the State Constitution and the nature of our new political institu

* Cathcart v. Robinson, 5 Peters, 264280; Fowler v. Stoneum, 11 Texas, 478; Bogardus v. Trinity Church, 4 Paige, 178; Commonwealth v. Knowlton, 2 Mass. 534.

Patterson v. Winn, 5 Peters, 233; Cathcart v. Robinson, 5 Peters, 264.

De Ruyter v. The Trustees of St.

Peter's Church, 3 Barb. Ch. R. 119; s. c. 3
Coms. 238.

Canal Commissioners v. The People, 5
Wend. R. 445; Canal Appraisers v. The
People, 17 Wend. 584.

Decl. of Rights, Sec. 3.

tions; and on this ground it was held that the emigrants brought with them into that colony, the common law of conspiracy.

So it has been held by the Supreme Court of New Hampshire, that the body of the English common law and the statutes in amendment of it, so far as they were applicable to the government and to the condition of the people, were in force as a part of the law of that province, before the revolution, except when other provision was made by express statute or by local usage; and they decided that an indictment at common law could be sustained for an assult and false imprisonment, and for kidnapping, though there were no statute of the State in force creating the offence.*

In Massachusetts, it has been expressly declared + that the first settlers "on coming to that State, brought with them the rights and privileges of Englishmen and the common law of that country, so far as it should be found applicable to their new state and condition. They brought with them also, a charter containing power to make such new laws as their exigency might require. They could live under the old laws, or make new ones. Whenever they legislated upon any subject, their own law regulated them; when they did not legislate, the law they brought with them was their rule of conduct." And the Supreme Court held "that the law by which the emigrants were governed in regard to waste committed by tenants, was the law in force in England at the time of the emigration. Unless our ancestors can be supposed to have settled this country and to have held real estate without any law to protect and preserve it, the law which was in force in the country which they had left, was the law, and remained so in regard to the descent, alienation, etc., of real property, and the remedies for injury to it, until they saw fit to supersede it by a law of their own making." This principle also, has been held in that State, to apply to the English statutes amending or altering the common law, and in force at the time of the emigration. But the statutes passed subsequently are only understood to be in force so far as they may have been practically received

* State v.

Rollins, 8 N. H. R. p. 550.

Sackett v. Sackett, 8 Pick. 309, 315.

into their system. * The common law of Massachusetts is also said to embrace some ancient usages, originating probably from laws passed by the colony of the Massachusetts Bay, annulled by the repeal of the first charter, but by the former practice of the colonial courts accommodated to the habits and manners of the people.t

And this adoption of the common law, even in criminal cases, appears equally established in Maine, it having been held in that State, that to cast a dead body into a river, without the rites of Christian sepulture, is indictable as an offence against common decency.

It is very important to bear in mind the exception already mentioned, that only so much of the English common law was adopted by the colonies as was applicable to their condition. So the English law of fixtures, permitting the tenant to remove trade fixtures, but forbidding him to disturb those made for agricultural purposes, was never the law of this country. "The country was a wilderness, and the universal policy was to procure its cultivation and improvement. The owner of the soil, as well as the public, had every motive to encourage the tenant to devote himself to agriculture, and to favor any exertion that should aid this result." Such is the intimation of the Supreme Court of the U. S.; and in the State of New York, the right of the tenant to remove any "erections that he may have had occasion to make for his own use or enjoyment, if he can do so without injury to the inheritance," and without reference to their particular character, has been specifically declared.

So, again, on the same principle, it has been held in the same State that the English law of ancient lights was never adopted in this country; ** and, in the absence of any special covenant, that when an owner of two adjoining lots in a city leased one of them on which was a building receiving its light and air through an open space on the adjacent lot, that the proprietor had a right to build on the lot in question, so as

Commonwealth v. Knowlton, 2 Mass. R. 530, 534. See also, Commonwealth v. Leach,

1 Mass. 59.

+ Commonwealth v. Knowlton, 2 Mass. R. 530, 534.

Kanavan's Case, 1 Greenl. 226.

Van Ness v. Pacard, 2 Peters, 137, 144.
Dubois v. Kelly, 10 Barb. 496.

** Parker v. Foote, 19 Wend. 309.

even to darken or stop the windows of his tenant, and that his absolute right of property could not be interfered with by injunction.*

Such then, we learn from the highest authority, was the silent and practical adoption of the common law, by the colonists who on the shores of the Atlantic laid the foundations of empire. But when the revolution broke out, and the inhabitants of the new States, with that provident forecast to which attention will hereafter be called, undertook by solemn instruments, to declare and fence in their rights and liberties, it became necessary to determine the fundamental law of the sovereignties just springing into life. So we shall find that at the revolution of 1776, by the Constitutions of most if not all the States, the great body of the common law, and such of the English statutes as were not repugnant to our system, were preserved and adopted as binding on us. But the common law of England is perpetually fluctuating; and it would have been altogether inconsistent with proper notions of national independence to give the law of a foreign country any permanent control over our tribunals or our people. It was, therefore, necessary to fix a time after which any changes effected in the common law of the mother country would have no effect here. And that period is the revolution. That epoch is the era of our independence, legal as well as political, and we recognize no foreign law posterior to that period, binding on us as authority.

So, the Constitution of the State of New York of 1777 provided (Art. xxxv), that "such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the Legislature of the colony of New York, as together did form the law of the said col ony on the nineteenth day of April, in the year of our Lord, 1775, should be, and continue the law of the State, subject to such alterations and provisions as the Legislature of the State should from time to time make concerning the same.' The Constitution also adopted such resolves or resolutions of the Congresses and of the colony of New York, and of the Myers v. Gemmel, 10 Barb. 537.