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parties who assert a different rule to show that matter by proof. A similar presumption must prevail as to the existence of the common law in those states which have been established in territory acquired since the revolution, when such territory was not at the time of its acquisition occupied by an organized and civilized community: where in fact the population of the new state upon the establishment of government was formed by emigration from the original states. As in British colonies, established in uncultivated regions by emigration from the parent country, the subjects are considered as carrying with them the common law, so far as it is applicable to their new situation; so when American citizens migrate into territory which is not occupied by civilized man, and commence the formation of a new government, they are equally considered as carrying with them so much of the same common law, in its modified and improved condition under the influence of modern civilization and republican principles, as is suited to their new condition and wants. But no such presumption can apply to states in which a government already existed at the time of their accession to this country, as Florida, Louisiana, and Texas." (Field, C. J., in Norris v. Harris, 15 Cal. 252.)

No one will contend that the common law as it existed in England has ever been in force in all its provisions in any state in the Union. It was adopted only so far as its principles were suited to the conditions of the colonies: and from this circumstance, we see that what is common law in one state is not so considered in another. The judicial decisions, the usages and customs of the respective states must determine how far the common law has been introduced and sanctioned in each. (Per McLean, J., in Wheaton v. Peters, 8 Peters, 591, 659; Thompson J., dissenting, 8 Peters, 687, 688.)

The decisions of the English courts are authority in ours (except so far as the rule may be changed by

statutes) down to the time of adoption. As to their force since opinions differ. (Cooley's Const. Lim. 24, 52; Cathcart v. Robinson, 5 Peters, 280; Sedgwick's Stat. and Const. Law, 7; Boyer v. Sweet, 4 Ill. 121.)

"It is insisted that, inasmuch as we have adopted the common law of England, we have adopted likewise all its rules: and that resort must be had to the English courts to ascertain what the rule is in any given case, wherein the legislature has not provided one. It is true we have, like most other states in the Union, adopted the common law by legislative act: but it must be understood only in cases where that law is applicable to the habits and condition of our society, and in harmony with the genius, spirit, and objects of our institutions. Generally, too, those courts furnish strong evidence of what the common law is: but it is equally true that they have made many innovations upon its original principles, and refining upon the adjudications of one another, many of them have become very much modified or wholly changed. The courts of the several states have also taken advantage of the pliant nature, in which consists one of the greatest excellencies, and adapted to the ever varying exigencies of the country, and to the ever changing conditions of society. Great Britain and the thirteen original states had each substantially the same system of common law originally, and a decision now by one of the highest courts of Great Britain as to what the common law is upon any point is certainly entitled to great respect in any of the states, though not necessarily to be accepted as binding authority, any more than the decisions in any one of the other states upon the same point. It gives us the opinions of all judges as to what the law is, but its force as an authoritative declaration must be confined to the country for which the court sits and judges. But an English decision before the revolution is in the direct line of authority." (Cooley's Const. Lim. 52.)

....

In construing English statutes adopted by any one of our states, the rule laid down by the United States supreme court is that the earlier British decisions are to be considered as accompanying the statutes themselves, and forming an integral part of them, while the later are not to be regarded as authority upon such construction, though regarded with respect. The dividing line between the two is said to be the time of separation of the British empire. (Per Marshall, C. J., in Cathcart v. Robinson, 5 Peters, 264, 280, 1831, in which case the later English construction of the statute of fraudulent conveyances [27 Eliz.] was rejected.)

That the rules of decision drawn from the civil and canon laws by the English ecclesiastical and admiralty courts have become incorporated into the common law, or unwritten law of England, which as a system has been adopted here in America, has been uniformly held. (Davis v. Baugh, 1 Sneed. 477, 479; Crump v. Morgan, 3 Ired. Eq. 91.)

We are in the habit of taking notice of the common law of England without proof; not, however, because it is the common law of a foreign country, but because that common law has become a law to us, and we look to it without proof, as to our own law. It would be quite rash for a court here to presume that all the common law of England was in force in her colonies. (Shepley J., 15 Me. 151.)

The date at which the common law must be assumed to have been adopted is commonly held to have been that of the first permanent settlement, 4 Jac. I. A. D. 1607 (Kent Com. vol. 1, p. 473, n. a; Chisholm v. Georgia, 2 Dall. 435; Chalmer's Col. Opinions, p. 206.)

Other authorities hold that the common law was adopted as it stood in 1776-the date of independence. (Cooley's Const. Lim. 25; Duponceau on Jurisdiction, p. 89; Sedgwick's Const. Law, 10.)

Others that the date must be fixed for each colony by its own circumstances.

The law so adopted was only so much of the entire English system as was adapted to the situation and need of the colonists. At the time of the revolution, 1776, the entire public law of England ceased to be applicable. (Cooley's Const. Lim. 23; Sedgwick's Stat. and Const. Law, pp. 6, 9; Van Ness v. Packard, 2 Peters, 134, 144; Terret v. Taylor, 9 Cranch, 46; Town of Pawlet v. Clark, 9 Cranch, 333; Rex v. Vaughn, 4 Burr. 2500.)

The system of law so adopted was the common law, therefore, as modified by all statutes passed prior to the date of adoption. Such statutes are not written law, with us, but a part of the common law. (2 Wilson's Law Lectures, 48-55; Sedgwick's Stat. and Const. Law, 6; Chalmer's Col. Opinions, pp. 208, 209; Kent Com. vol. 1, p. 473, and notes; Commonw. v. Leach, 1 Mass. 59; Commonw. v. Knowlton, 3 Mass. 534; Patterson v. Winn, 5 Peters, 241; Bogardus v. Trinity Church, 4 Paige, 197; State v. Rollins, 8 N. H. 550.)

"It is a natural presumption, and therefore is adopted as a rule of law, that on the settlement of a new territory by a colony from another country, especially where the colonists continue subject to the same government, that they carry with them the general laws of the mother country which are applicable to the situation of the colonists in the new territory: which laws thus become the laws of the colony, until they are altered by common consent or by legislative enactment. But there might be a technical difficulty in pleading a statute of the mother country as the statute law of the colony. The common law of the mother country, as modified by positive enactments, together with the statute laws which are in force at the time of the emigration of the colonists, becomes in fact the common law, rather than the common and statute law of the colony. The statute law of the mother

country, therefore, when introduced into the colony by common consent, because it was applicable to the colonists in their new situation and not by legislative enactment, becomes a part of the common law of this province. It is sufficient therefore to plead the facts necessary to bring a case within the common law of the state, without any reference to the English statutes." (Chancellor Walworth, in Bogardus v. Trinity Church, 4 Paige, 197.)

There are, however, dissenting opinions, holding that the English statutes are adopted as such, and not as part of the common law. Judge Minor, Institutes, 1, 43, speaks of the common doctrine, citing 1 Kent, 473, as "pernicious and unwarrantable," and cites Levy v. McCartee, 6 Peters, 110. Cf. Johnson, J., in 5 Peters, 245. That was a New York case, and the point decided was that a statute passed in 1788, "that none of the statutes of England or Great Britain shall be considered as laws of this state," repealed a statute of 11 and 12 Will. III. c. 6, and all other English statutes, and did not leave them in force as a part of the common law.

In New York, the constitution of 1777, art. 35, declared "that such parts of the common law of England, and of the statute law of E. and G. B. . . . as together did form the law of said colony on the 19th of April, 1775, shall be and continue the law of this state," and the statute of 1788 was evidently intended to interpret the clause underlined, which was omitted in the constitution of 1821 and 1846. (See Sedgwick, pp. 10, 11.)

(37) They (the colonies) have courts of justice of their own, from whose decisions an appeal lies to the king in council here in England, page 108.

In Chalmers' Opinions, a well-known work of great authority upon points of colonial and foreign law (p. 687 of 1st Am. ed. Burlington, 1858) is a severe remark on this passage of Blackstone, who is quoted as saying that

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