Imagens das páginas
PDF
ePub

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

B

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.

of

It is no longer the source 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.

[merged small][ocr errors]

These were criminal prosecutions for of fences in which the peace and dignity of the United States seemed to be involved, but the jurisdiction of which was not given to the federal tribunals, either by the Constitution or by any of the statutes made in pursuance of it. These offences, however, were known to the common law, which had defined them and had provided for their punishment. It was, therefore, contended that the Courts could here exercise over them what was called a "common law jurisdiction." The Constitution, it was admitted, had not expressly provided for the preservation of the national peace and dignity by criminal prosecutions in such cases, nor had it vested any authority in the tribunals for that purpose; but it was insisted that that power was indispensable to our national existence, and therefore must be considered as necessarily implied. The federal Courts had a right to interpret the doubtful parts of the Constitution, they were the expounders of the common law, the common law had provided for the punishment of such offences, the safety of the country required that they should be punished, the Courts were, therefore, not only authorised but bound to execute the common law. On the other side, it was easily perceived that

if the federal Judges were to assume this power, there was no knowing where they might stop, that they would not only have an almost unlimited authority over the lives and fortunes of the citizens, but might, in a great degree, impair, if not destroy, the sovereignty of the States, which the Constitution had meant to preserve, and even had guaranteed. Great were the embarrassments which these questions produced; sometimes it was said that the common law was not the law of the United States in their national capacity, at other times that it was so in civil, but not in criminal cases; but no one seemed fully aware of the distinction between the common law considered as a source of jurisdiction, and as a means for exercising it. The Judges, however, unwilling to extend the limits of their authority, generally declined to assume this jurisdiction, justly considering that they were only to look for the extent of their powers to the Constitution and the laws made under it. But this opinion, correct as it was, was not unanimous, nor was it satisfactory to the profession, because in consequence of some obiter dicta of the Judges, it was understood in too wide a sense, and its application was carried to an extent which the Court had not probably contempla

« AnteriorContinuar »