“It has happened to the law, as to other productions of human invention, particularly those which are closely connected with the transactions of mankind, that the changes wrought by a series of years have been gradually rendering many parts of it obsolete; so that the systems of one age have become the objects of mere historick remembrance in the next. Of the numerous volumes that compose a lawyer's library, how many are consigned to oblivion by the revolutions in opinions and practice; and what a small part of those, which are still considered as in use, is necessary for the purposes of common business!" x

There are some great eras, when important and very perceptible alterations take place in the situation of men and things: at such eras, the accommodating principle, which we have so often mentioned, will introduce similar and adequate alterations in the rules and practice of the common law. Such considerable changes, together with their extensive influences, diffuse, over many parts of the system, a new air and appearance. At some of those eras, the improvement is as rapid as the change is great. Why should not the present age in America, form one of those happy eras?

During many-very many revolving centuries, the common law has been the peculiar and the deserved favourite of the people of England. It suffered much, as we have seen, from the violence of the Norman conquest; but it still continued the theme of their warmest praise, and the object of their fondest hopes. Its complete restoration was the burthen of every memorial, and

x 1. Reeve. Pref. 1. Roll. Pref, 3—5.

the prayer of every petition. The knowledge of this law formed a considerable part of the little learning of the early and unenlightened ages.

Those, who had received the best education, says Selden, in his dissertation on Fleta, applied themselves assiduously to the study of the ancient English laws and manners, which related to government and the administration of civil affairs. From such characters judges and licensed advocates were selected. These laws and manners were taught in the private families of the most illustrious characters of the kingdom, in monasteries, in colleges, in universities. They had no acquaintance with the Theodosian or Justinian codes. They taught only the manners of our ancestors, and that law, which, even before the period of which we speak, and down to our own times, is kown by the name of the common law of England.

The affectionate manner, in which the great and good Lord Chief Justice Hale speaks of this law, recommends it and him with equal warmth. He introduces it as the common municipal law of the kingdom-as the superintendent of all the particular laws known in any of the courts of justice-as the common rule for the administration of publick affairs in that great kingdomas the object, of which that great kingdom had been always tender; and with great reason; not only because it is a very just and excellent law in itself; but also because it is singularly accommodated to the frame of the English government, and to the disposition of the English nation. As such, it is by a long experience, incor

porated into their very temperament, and has become the constitution of the English commonwealth.

In the natural body, diseases will happen; but a due temperament and a sound constitution will, by degrees, work out those adventitious and accidental diseases, and will restore the body to its just state and situation. So is it in the body politick, whose constitution is animated and invigorated by the common law. When, through the errours, or distempers, or iniquities of men or times, the peace of the nation, or the right order of government have received interruption; the common law has wrought out those errours, distempers, and iniquities; and has reinstated the nation in its natural and peaceful state and temperament.

The best kings of England have been always jealous and vigilant to reform what has, at any time, been found defective in that law; to remove all obstacles, which could obstruct its free course; and to support, countenance, and encourage it, as the best, the safest, and the truest rule of justice in all matters, criminal as well as civil. a

We have seen how much the common law has been loved and revered by individuals, by families, and by the different seminaries of education throughout England: let us now see how much it has been respected by even the legislative power of the kingdom.

On a petition to parliament for redress, in the thirteenth year of Richard the second, the following re

markable judgment of parliament is entered-It appears to the lords of parliament, that the petition is not a proper petition to parliament; since the matter contained in it ought to be determined by the common law: and, therefore, it was awarded, that the party petitioning should take nothing by his suit in parliament; because he might sue at common law, if he thought proper.

We have viewed, in a number of instances, the accommodating spirit of the common law. In other instances its temper is decided and firm. The means are varied according to times and circumstances; but the great ends of liberty are kept steadily and constantly in view.

Its foundations, laid in the most remote antiquity, have not been overturned by the successive invasions, or migrations, or revolutions which have taken place. The reason has been already hinted at: it contains the common dictates of nature, refined by wisdom and experience, as occasions offer, and cases arise.

C

In all sciences, says my Lord Bacon, they are the soundest, that keep close to particulars. Indeed a science appears to be best formed into a system, by a number of instances drawn from observation and experience, and reduced gradually into general rules; still subject, however, to the successive improvements, which future observation or experience may suggest to be proper. The natural progress of the human mind, in the acqui-' sition of knowledge, is from particular facts to general principles. This progress is familiar to all in the business of life; it is the only one, by which real discoveries

have been made in philosophy; and it is the one, which has directed and superintended the instauration of the common law. In this view, common law, like natural philosophy, when properly studied, is a science founded on experiment. The latter is improved and established by carefully and wisely attending to the phenomena of the material world; the former, by attending, in the same manner, to those of man and society. Hence, in both, the most regular and undeviating principles will be found, on accurate investigation, to guide and control the most diversified and disjointed appearances.

How steadily and how effectually has the spirit of liberty animated the common law, in all the vicissitudes, revolutions, and dangers, to which that system has been exposed! In matters of a civil nature, that system works itself pure by rules drawn from the fountain of justice : in matters of a political nature, it works itself pure by rules drawn from the fountain of freedom.

It was this spirit, which dictated the frequent and formidable demands on the Norman princes, for the complete restoration of the Saxon jurisprudence: it was this spirit, which, in magna charta, manifested a strict regard to the rights of the commons, as well as to those of the peerage: it was this spirit, which extracted sweetness from all the bitter contentions between the rival houses of Lancaster and York: it was this spirit, which preserved England from the haughtiness of the Tudors, and from the tyranny of the Stuarts: it was this spirit, which rescued the States of America from the oppressive claims, and from all the mighty efforts made to enforce the oppressive claims, of a British parliament.