The common law of England, says my Lord Coke, d is a social system of jurisprudence: she receives other laws and systems into a friendly correspondence: she associates to herself those, who can communicate to her information, or give her advice and assistance. Does a question arise before her, which properly ought to be resolved by the law of nations? By the information received from that law, the question will be decided: for the law of nations, is, in its full extent, adopted by the common law, and deemed and treated as a part of the law of the land. Does a mercantile question occur? It is determined by the law of merchants. By that law, controversies concerning bills of exchange, freight, bottomry, and ensurances receive their decision. That law is indeed a part of the law of nations; but it is peculiarly appropriated to the subjects before mentioned. Disputes concerning prizes, shipwrecks, hostages, and ransombills, are, under the auspices of the common law, settled and adjudged by the same universal rule of decision. Does a contract, in litigation, bear a peculiar reference to the local laws of any particular foreign country? By the local laws of that foreign country, the common law will direct the contract to be interpreted and adjusted. Does a cause arise within the jurisdiction of the admiralty? Within that jurisdiction the civil law is allowed its proper energy and extent.

But, while she knows and performs what is due to others, the common law knows also and demands what is due to herself. She receives her guests with hospitality; but she receives them with dignity. She liberally dispenses her kindness and indulgence; but, at the same

a Rep. 28. Calvin's Case.

time, she sustains, with becoming and unabating firmness, the preeminent character of gravior lex.

e

There is much truth and good sense, though there is some quaintness of expression, in the following encomium of the common law, which I take from my Lord Coke. "If all the reason, that is dispersed into so many several heads, were united into one, yet could he not make such a law as the law of England is; because by many successions of ages it has been fined and refined by an infinite number of grave and learned men, and by long experience grown to such a perfection for the government of this realm, as the old rule may be justly verified of it, nemi- ' nem oportet esse sapientiorem legibus: no man ought to be wiser than the law, which is the perfection of reason." Indeed, what we call human reason, in general, is not so much the knowledge, or experience, or information of any one man, as the knowledge, and experience, and information of many, arising from lights mutually and successively communicated and improved.

To those, who enjoy the advantages of such a law as has been described, I may well, address myself in the words of Cicero, "Believe me, a more inestimable

f

e 1. Ins. 97. b.

f Mihi credite: major hæreditas venit, unicuique vestrum, a jure et a legibus, quam ab iis, a quibus bona relicta sunt. Nam, ut perveniat ad me fundus, testamento alicujus fieri potest: ut retineam quod meum factum sit, sine jure civili non potest. Quapropter non minus diligenter ea, quæ a majoribus accepistis, publica patrimonia juris, quam privatæ rei vestræ, retinere debetis; non solum quod hæc jure civili septa sunt; sed etiam quod patrimonium unius incommodo demittitur; jus amitti non potest sine magno incommodo civitatis. Cic. pro Cœc. c. 26.

inheritance descends to you from the law, than from those who have left, or may leave you fortunes. A farm may be transmitted to me by the will of any one: but it is by the law alone that I can peacefully hold what is already my own. You ought, therefore, to retain the publick patrimony of the law, which you have received from your ancestors, with no less assiduity than you retain your private estates; not only because these are fenced and protected by the law; but for this further reason, because the loss of a private fortune affects only an individual, whereas the loss of the law would be deeply detrimental to the whole commonwealth."

Does this inestimable inheritance follow the person of the citizen; or is it fixed to the spot, on which the citizen first happened to draw the breath of life? On this great question, it will be proper to consider what the law of England, and, also, what the law of reason says. Perhaps both will speak substantially the same language.

By the common law, every man may go out of the realm to carry on trade, or on any other occasion, which he thinks a proper one, without the leave of the king; and for so doing no man shall be punished. "

We are told, however, that if the king, by a writ of ne exeat regnum, under his great or privy seal, thinks proper to prohibit any one from going abroad; or sends a writ to any man, when abroad, commanding his return; and, in either case, the subject disobeys; it is a high contempt of the king's prerogative, for which the offen

8 F.N. B. 85. Jenk. 88.

der's lands shall be seized, till he return; and then he is liable to fine and imprisonment.

h

The discussion of this prerogative, and the cases, in which it may be justly and usefully exerted, it is unnecessary, for my present purpose, to undertake or enumerate; because if this prerogative was admitted in the fullest extent, in which it has ever been claimed, it would weaken neither the principles nor the facts, on which my observations shall be grounded.

A citizen may leave the kingdom: an alien may enter it. Does the former lose?-does the latter acquire the rights of citizenship? No. Neither climate, nor soil, nor time entitle one to those rights: neither climate, nor soil, nor time can deprive him of them. Citizens, who emigrate, carry with them, in their emigration, their best and noblest birthright.'

i

It is remarkable, however, that, in the charters of several of the American colonies, there is this declaration, "that the emigrants and their posterity shall still be considered as English subjects." Whether the solicitude of the colonists obtained, or the distrust of the reign ing sovereigns imposed this clause, it would be superfluous to inquire; for the clause itself was equally unnecessary and inefficient. It was unnecessary, because, by the common law, they carried with them the rights of Englishmen; it was inefficient; because, if such had not been the operation of the common law, the right of

h 1. Bl. Com. 266. Chal. 26. 27.

i The law is the birthright of every subject; so wherever subjects go, they carry their laws with them. 2. P. Wms. 75.]

citizenship could not have resulted from any declaration from the crown. A king of England can neither confer nor take away the rights of his subjects. Accordingly, the charter of Pennsylvania, perhaps the most accurate of all the charters, contains no such declaration. When the charter of Massachusetts, soon after the revolution of 1688, was renewed by king William, he was advised. by his law council, that such a declaration would be nugatory.

As citizens, who emigrate, carry with them their laws, their best birthright; so, as might be expected, they transmit this best birthright to their posterity. By the statute 25. Edw. III. says my lord Bacon, which, if you believe Hussey, is but a declaration of the common law, all children, born in any part of the world, if they be of English parents, continuing, at that time, as liege subjects to the king, and having done no act to forfeit the benefit of their allegiance, are, ipso facto, naturalized. If divers families of English men and women plant themselves at Lisbon, and have issue, and their descendants intermarry among themselves, without any intermixture of foreign blood; such descendants are naturalized to all generations; for every generation is still of liege parents, and therefore naturalized; so as you may have whole tribes and lineages of English in foreign countries. And therefore it is utterly untrue that the law of England cannot operate, but only within the bounds of the dominions of England.'

This great man, whose keen and comprehensive genius saw and understood so much, seems to have viewed the

VOL. II.

k Chal. 14. 15.

14. Ld. Bac, 192.

H

1