The result of the trial being the acquittal of the judges, public sentiment against the English law was still further enflamed in Pennsylvania; and in 1810, a statute was passed (and not repealed until 1836), forbidding the citation of any English decision made since July 4, 1776, except in cases involving the law of nations and maritime law. (1)

The question of the existence of a national Common Law in the criminal jurisdiction of the Federal Courts was finally set at rest by the decision, in 1812, in the case of U. S. v. Goodwin (7 Cranch 32), argued by Attorney General Pinkney for the Government, Dana of Connecticut for the defendants declining to argue. Judge Johnson gave the opinion, holding that an indictment for libel on the President could not be sustained without a Federal statute on the subject, and stating that:

Although this question is brought up now for the first time to be decided by this court, we consider it as having long since been settled in public opinion . . . the general acquiescence of legal men shows the prevalence of opinion in favor of the negative of the proposition. . . All exercise of criminal jurisdiction in common law cases is not within their implied powers. (2)

Even after this decision a feeling of unrest at the weight

as modified by acts of the General Assembly, and as purified by the principles of the Constitution. For the varying exigencies of social life, for the complicated interests of an enterprising nation, the positive acts of the Legislature can provide little, and, independent of the Common Law, rights would remain forever without remedies and wrongs without address. The law of nations, the law of merchants, the customs and usages of trade, and even the law of every foreign country in relation to transitory contracts originating there but prosecuted here, are parts of the common law of Pennsylvania. It is the Common Law, generally speaking, not an Act of Assembly that assures the title and the possession of your farms and your houses, and protects your persons, your liberty, your reputation, from violence; that defines and punishes offences; that regulates the trial by jury; and that gives efficacy to the fundamental principles of the Constitution--simply because it originated in Europe cannot afford a better reason to abandon it, than to renounce the English or German languages, or to abolish the institutions of property and marriage, of education and religion, since they were too derived from the more ancient civilized nation of the world."

See Life of Alexander J. Dallas, by George M. Dallas, (1871).

(1) Henry H. Brackenridge, then Judge of the Supreme Court of Pennsylvania said in his Law Miscellanies (1814), that this act ought to be repealed, and he questioned its constitutionality, "as abridging the right of the judiciary to hear all reason on a question before them."

(2) See U. S. v. Coolidge, I Gallison 488, in 1813, in which Judge Story attempted to make a distinction between power to indict and power to punish. Judge John Davis dissenting, the case was taken to the Supreme Court on a division of opinion; but the Supreme Court refused (1 Wheaton 415), in 1816, to hear an argument on the point.

given to the English Common Law by the courts cropped up through the country; and an excellent description of this condition was given by Peter S. Du Ponceau, Provost of the Law Academy of Philadelphia, in an address to the students, as late as 1824(1):

Various circumstances have concurred after the Revolution to create doubts in the public mind respecting the operation of the Common Law in this country as a national system, particularly in criminal cases. The bitter feeling of animosity against England which the revolutionary war produced was not amongst the least of these causes.

I am well aware that this doctrine of the nationality of the Common Law will meet with many opponents. There is a spirit of hostility abroad against this system which cannot escape the eye of the most superficial observer. It began in Virginia, in the year 1799 or 1800, in consequence of an opposition to the alien and sedition acts; a committee of the legislative body made a report against these laws which was accepted by the House, in which it was broadly laid down that the Common Law is not the law of the United States. Not long afterwards, the flame caught in Pennsylvania; and it was for a time believed that the Legislature would abolish the Common Law altogether. Violent pamphlets were published to instigate them to that measure. The whole, however, ended in

a law for determining all suits by arbitration in the first instance, at the will of either party, and another prohibiting the reading and quoting in courts of justice of British authorities of a date posterior to the Revolution. (2)

It was not long before this inimical disposition towards the Common Law made its way into the State of Ohio. year 1819, a learned and elaborate work was published in that State (3) in which it was endeavored to prove not only that

(1) See A Dissertation on the nature and extent of the Jurisdiction of the Courts of the United States, being a valedictory address to the students of the Law Academy of Philadelphia, April 23, 1824, by Peter S. Duponceau, Provost of the Academy.

Tucker's Blackstone Vol. I, App. E.; Kent's Commentaries, Vol. I, p. 311; Rawle on the Constitution, Chap. 30; North American Review, July 1825; Speech of Bayard, in Debates on the Judiciary, in 1802, p. 372, Story's Commentaries on the Constitution, Vol. I, s. 158.

Federal Common Law, Virginia Law Register, Vol. X (1904). Wharton's Criminal Law, Vol. I.

(2) This spirit was considerably checked by a well written pamphlet published at the time by Joseph Hopkinson, Esq. of Philadelphia, in which he demonstrated the absurdity of the project of abolishing the Common Law.

(3) Historical sketches of the principles and maxims of American Jurisprudence, in contrast with the doctrines of the English common law on the subject of crimes and punishments, by Milton Goodnow, (Steubenvale,

the Common Law was not the law of the United States, but that it had no authority in any of the States that had been formed out of the old Northwestern Territory. But few copies of his work have been printed; nevertheless, as it is learnedly and elaborately written, it cannot but have had a considerable degree of influence. In other States, attacks upon the Common Law, more or less direct, have appeared from time to time. Its faults are laid hold of and exhibited in the most glaring light; its ancient abuses, its uncertainty, the immense number of volumes in which its doctrines are to be sought for, . . . and above all the supposed danger to our institutions from its being still the law of a monarchical country, the opinions of whose judges long habit has taught us to respect, which opinions are received from year to year and admitted in our courts of justice if not as rules, at least as guides for their decisions; these are the topics which are in general selected for animadversion.

CHAPTER X.

EARLY AMERICAN LAW Books.

It has been seen in the preceding chapter how general was the feeling that the law in the United States should be emancipated from its dependence on English decisions. Conditions of life, of commerce, of real estate dealings, and of court practice were essentially different in the United States from those in England; and a distinct body of law was demanded for this country. To supply this demand there arose the body of American law reporters and law writers.

James Sullivan, of Massachusetts, well expressed this general sentiment of those who felt that the country should have a genuine American system of law based on American cases, in his preface to his work on Land Titles, in 1801:

The want of accurate reports necessary to evince what statutes and principles of the English Laws had been adopted, used, and practised upon before the Revolution is very discouraging in this work. . . It would be well for us to have our own comments, and to reject those of other governments which have been issued since we became an independent nation. . . . We ought to have our own reporters, compilers anl compositors. Everyone who will attempt something in this way ought to be encouraged by the public.

There have been motions in some of the legislatures in the Union to prohibit the reading of English reports in our courts of justice. The judges themselves in several of the States have with great propriety inclined to reject the reports of cases determined by England since the American Revolution. These motions, however crude and undigested they may have been, no doubt had their origin in a strong love to our national independence. And the motive is therefore a laudable rather than a reprehensible one.

And, as Cranch said in the preface to his Supreme Court Reports, in 1804:

Much of that uncertainty of the law, which is so frequently and perhaps so justly the subject of complaint in this country,

may be attributed to the want of American reports. Many of the causes, which are the subject of litigation in our courts, arise upon circumstances peculiar to our situation and laws, and little information can be derived from English authorities to lead to a correct decision.

But before a body of American Law could be established, there was need of some authoritative method of preserving the decisions of the courts, in order that the judges might have some means of knowing what the American precedents were.

As a reviewer of one of the early volumes of American reports stated (1):

The United States have, until within a few years, trusted to traditions the reasons of their judicial decisions. But with wealth and commerce, and with more enlarged views of jurisprudence, it became obvious that the exposition of our statutes and the validity of our customs should rest upon a more secure basis than the memory of man or the silent influence of unquestioned

usage.

An accurate view of the state of the law, resulting from the absence of recorded decisions, was given by John Duer, a contemporary of Kent, in describing the condition of New York courts before the era of law reports (2):

The decisions were not the fruit of that careful and laborious investigation which is essential to the proper discharge of the judicial functions; and the authority they might otherwise have claimed was greatly impaired by these frequent differences of opinion that are the necessary result of imperfect examination and study. It was seldom that the opinions of the judges, even in the most important cases, were reduced to writing; and as no reports were then published, and no records preserved of the grounds on which their decisions were placed, the cases were numerous in which they had no rules to direct, no precedents to govern them.

Of this state of things, the inevitable consequences were vacillation, contradictions, confusion, and uncertainty. This defective administration of the law had a most unfavorable influence on the character and pursuits of the Bar; for when cases are slightly examined and rashly decided by the judges, the principal motives for a diligent preparation on the part of counsel cease to exist.

(1) Review of Vol. I. of Tyng's Massachusetts Reports, quoted in Hall's American Law Journal, Vol. I (1808).

(2) Discourse before the Bar of New York, by John Duer (1848).