assumed the character of manly freedom for which it is now so eminently distinguished.

Twelve Judges, who hold their offices during good hehaviour, are the oracles of this mystical science. In a monarchy like England, which has no written constitution, but in which all the rights of the sovereign as well as the privileges of the people are to be deduced from the common law, those Judges are an useful check against the encroachments of the monarch or his ministers; hence the common law and the judicial power are in that country almost objects of idolatrous worship. While the United States were colonies, they partook of this national feeling. The grievances which induced them to separate from the mother country were considered as violations of the common law, and at the very moment when independence was declared, the common law was claimed by an unanimous voice as the birth right of American citizens; for it was then considered as synonymous to the British Constitution, with which their political rights and civil liberties were considered to be identified. In the dissentions that arose between the colonies and Great Britain, the Constitution, or the common law, which was the same thing, was appealed to in favour of the doc

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be founded on gradual and successive assumptions of power; but those having been established and consolidated by time are now become common law. This ens rationis is a part of every civil and political institution, and every thing connected with the government of the country, is said to be a part of it. Thus the law of nations, the law merchant, the maritime law, the constitution and even the religion of the kingdom, are considered to be parts and parcels of the common law. It pervades every thing, and every thing is interwoven with it. Its extent is unlimited, its bounds are unknown; it varies with the successions of ages, and takes its colour from the spirit of the times, the learning of the age, and the temper and disposition of the Judges. It has experienced great changes at different periods, and is destined to experience more. It is from its very nature uncertain and fluctuating; while to vulgar eyes it appears fixed and stationary. Under the Tudors and the first Stuarts forced loans, wardships, purveyance, monopolies, legislation by royal proclamations, and even the Star Chamber and High Commission Courts, and slavery itself, under the name of villenage, were parts of the common law. At the revolution it shook off those unworthy fetters, and

assumed the character of manly freedom for which it is now so eminently distinguished.

Twelve Judges, who hold their offices during good hehaviour, are the oracles of this mystical science. In a monarchy like England, which has no written constitution, but in which all the rights of the sovereign as well as the privileges of the people are to be deduced from the common law, those Judges are an useful check against the encroachments of the monarch or his ministers; hence the common law and the judicial power are in that country almost objects of idolatrous worship. While the United States were colonies, they partook of this national feeling. The grievances which induced them to separate from the mother country were considered as violations of the common law, and at the very moment when independence was declared, the common law was claimed by an unanimous voice as the birth right of American citizens; for it was then considered as synonymous to the British Constitution, with which their political rights and civil liberties were considered to be identified. In the dissentions that arose between the colonies and Great Britain, the Constitution, or the common law, which was the same thing, was appealed to in favour of the doc

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trines which the contending parties respectively maintained. It was, therefore, held by all in equal veneration, and by all cherished as their most precious inheritance.

The revolution has produced a different state of things in this country. Our political institutions no longer depend on uncertain traditions, but on the more solid foundation of express written compacts; the common law is only occasionally referred to for the interpretation of passages in our textual constitutions and the statutes made in aid of them, which have been expressed in its well known phraseology; but there ends its political empire: it is no longer to it that our constituted authorities look to for the source of their delegated powers, which are only to be found in the letter or spirit of the instruments by which they have been granted.

The common law, therefore, is to be considered in the United States in no other light than that of a system of jurisprudence, venerable, indeed, for its antiquity, valuable for the principles of freedom which it cherishes and inculcates, and justly dear to us for the benefits that we have received from it; but still in the happier state to which the revolution has raised us, it is a SYSTEM OF JURISPRUDENCE

and nothing more. It is no longer the source of power or jurisdiction, but the means or instrument through which it is exercised. Therefore, whatever meaning the words common law jurisdiction may have in England, with us they have none; in our legal phraseology they may be said to be insensible. To them may be applied the language in which the common lawyer of old spoke of a title of the civil law: In ceulx parolx n'y ad pas entendment.*

But this immense change in the existing state of things has not been immediately perceived, nor its effects clearly understood. Therefore our tribunals have been vexed with questions and arguments about the extent of their common law jurisdiction, because it was not observed that all jurisdiction in the sense above explained was irrevocably gone. But old habits of thinking are not easily laid aside ; we might have gone on for many years longer confounding the English with the American common law, if cases had not been brought before the federal Courts, so serious in their nature, and apparently fraught with such dangerous consequences, that hesitation was produced, and the public attention was at last drawn to this important subject.

* 1 Blac. Com. 22.