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* CHAPTER III.

THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS.

The Constitution of the United States assumes the existence of thirteen distinct State governments, over whose people its authority was to be extended if ratified by conventions chosen for the purpose. Each of these States was then exercising the powers of government under some form of written constitution, and that instrument would remain unaffected by the adoption of the national Constitution, except in those particulars in which the two would come in conflict; and as to those, the latter would modify and control the former. But besides this fundamental law, every State had also a body of laws, prescribing the rights, duties, and obligations of persons within its jurisdiction, and establishing those minute rules for the various relations of life which cannot be properly incorporated in a constitution, but must be left to the regulation of the ordinary law-making power.

By far the larger and more valuable portion of that body of laws consisted of the common law of England, which had been transplanted in the American wilderness, and which the colonists, now become an independent nation, had found a shelter of protection during all the long contest with the mother country, brought at last to so fortunate a conclusion.

The common law of England consisted of those maxims of freedom, order, enterprise, and thrift which had prevailed in the conduct of public affairs, the management of private business, the regulation of the domestic institutions, and the acquisition, control, and transfer of property from time immemorial. It was the outgrowth of the habits of thought and action of the people, and

1 Livingston v. Van Ingen, 9 &c. of Mobile v. Dargan, 45 Ala. Johns. 507; State v. Cape Girardeau, 310. &c. R. R. Co., 48 Mo. 468; Mayor,

was modified gradually and insensibly from time to time as those habits became modified, and as civilization advanced, and new inventions introduced new wants and conveniences, and new modes of business. Springing from the very nature of the people themselves, and developed in their own experience, it was obviously the body of laws best adapted to their needs, and as they took with them their nature, so also they would take with them these laws whenever they should transfer their domicile from one country to another.

To eulogize the common law is no part of our pres- [* 22] ent purpose. Many of its features were exceedingly harsh and repulsive, and gave unmistakable proofs that they had their origin in times of profound ignorance, superstition, and barbarism. The feudal system, which was essentially a system of violence, disorder, and rapine, gave birth to many of the maxims of the common law; and some of these, long after that system has passed away, may still be traced in our law, especially in the rules which govern the acquisition, control, and enjoyment of real estate. The criminal code was also marked by cruel and absurd features, some of which have clung to it with wonderful tenacity, even after the most stupid could perceive their inconsistency with justice and civilization. But, on the whole, the system was the best foundation on which to erect an enduring structure of civil liberty which the world has ever known. It was the peculiar excellence of the common law of England that it recognized the worth, and sought especially to protect the rights and privileges, of the individual man. Its maxims were those of a sturdy and independent race, accustomed in an unusual degree to freedom of thought and action, and to a share in the administration of public affairs ; and arbitrary power and uncontrolled authority were not recognized in its principles.

Awe surrounded and majesty clothed the king, but the humblest subject might shut the door of his cottage against him, and defend from intrusion that privacy which was as sacred as the kingly prerogatives. The system was the opposite of servile ;

1 " A feudal kingdom was a con- cipher or a tyrant, and a great porfederacy of a numerous body, who tion of the people were reduced to lived in a state of war against each personal slavery." Mackintosh, Hisother, and of rapine towards all man- tory of England, c. 3. kind, in which the king, according to 2 See post, p. * 299. his ability and vigor, was either a

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its features implied boldness, and independent self-reliance on the part of the people ; and if the criminal code was harsh, it at least escaped the inquisitorial features which were apparent in criminal procedure of other civilized countries, and which have ever been fruitful of injustice, oppression, and terror.

For several hundred years, however, changes had from time to time been made in the common law by means of statutes. Originally the purpose of general statutes was mainly to declare and reaffirm such common-law principles as, by reason of usurpations

and abuses, had come to be of doubtful force, and which, [* 23] therefore, * needed to be authoritatively announced, that

king and subject alike might understand and observe them. Such was the purpose of the first great statute, promulgated at a time when the legislative power was exercised by the king alone, and which is still known as the Magna Charta of King John. Such also was the purpose of the several confirmations of that charter, as well as of the Petition of Right, and the Bill of Rights, each of which became necessary by reason of usurpations. But further statutes also became needful because old customs and modes of business were unsuited to new conditions of things when property had become more valuable, wealth greater, commerce more extended, and when all these changes had brought with them new desires and necessities, and also new dangers against which society as well as the individual subject needed protection. For this reason the Statute of Wills 4 and the Statute of Frauds and Perjuries 5 became important; and the Habeas Corpus Act 6 was also found necessary, not so much to change the law, as to

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1 It is justly observed by Sidney 8 1 William & Mary, sess. 2, c. 2. that os

Magna Charta was not made 4 32 Henry VIII. c. 7, and 34 & to restrain the absolute authority, for 35 Henry VIII. c. 5. no such thing was in being or pre

5 29 Charles II. c. 3. tended (the folly of such visions 6 31 Charles II. c. 2. seeming to have been reserved to 7 “I dare not advise to cast the complete the misfortunes and igno- laws into a new mould. The work miny of our age), but it was to assert which I propound tendeth to the the native and original liberties of pruning and grafting of the law, and our nation by the confession of the not the plowing up and planting it king then being; that neither he nor again, for such a remove I should his successors should any way en- hold for a perilous innovation." Bacroach upon them.” Sidney on Gov- con’s Works, Vol. II. p. 231, Phil. ernment, c. 3, sec. 27.

ed. 1852. 21 Charles I. c. 1.

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secure existing principles of the common law against being habitually set aside and violated by those in power.

From the first the colonists in America claimed the benefit and protection of the common law. In some particulars, however, the common law as then existing in England was not suited to their condition and circumstances in the new country, and those particulars they omitted as it was put in practice by them.

1 " The common law of England 534; Commonwealth v. Hunt, 4 Met. is not to be taken, in all respects, to 122; Pearce v. Atwood, 13 Mass. be that of America. Our ancestors 354; Sackett v. Sackett, 8 Pick. 309; brought with them its general princi- Marks v. Morris, 4 Hen & M. 463; ples, and claimed it as their birth- Mayo v. Wilson, 1 N. H.58; Houghton right; but they brought with them v. Page, 2 N. H. 44; State v. Rollins, and adopted only that portion which 8 N. H. 550; State v. Buchanan, 5 was applicable to their condition.” H. & J. 356; Sibley v. Williams, 3 Story, J., in Van Ness v. Pacard, 2 G. & J. 62; State v. Cummings, 333 Pet. 144. ". The settlers of colonies Conn. 260; Martin v. Bigelow, 2 in America did not carry with them Aiken, 187; Lindsley v. Coats, 1 Ohio, the laws of the land as being bound 245; Bloom v. Richards, 2 Ohio, x. s. by them wherever they should settle. 390; Lyle v. Richards, 9 S. & R. · They left the realm to avoid the incon- 330; State v. Campbell, T. U. P. veniences and hardships they were Charlt. 167; Craft v. State Bank, 7 under, where some of these laws were Ind. 219; Dawson v. Coffman, 28 Ind. in force; particularly ecclesiastical 220; Bogardus v. Trinity Church, 4 laws, those for payment of tithes, and Sandf. Ch. 757 ; Morgan v. King, 30 others. Had it been understood that Barb. 9; Lansing v. Stone, 37 Barb. they were to carry these laws with 15; Simpson v. State, 5 Yerg. 356; them, they had better have stayed at Crouch v. Hall, 15 Ill. 263; Brown v. home among

their friends, unexposed Pratt, 3 Jones (N. C.) Eq. 202 ; to the risks and toils of a new settle- Stout o. Keyes, 2 Doug. (Mich.) 184; ment. They carried with them a right Lorman v. Benson, 8 Mich. 18; Pierto such parts of laws of the land as son v. State, 12 Cal. 149; Norris v. they should judge advantageous or Harris, 15 Cal. 226; Powell v. Sims, useful to them ; a right to be free 5 W. Va. 1; Colley v. Merrill, 6 Me. from those they thought hurtful, and 55; State v. Cawood, 2 Stew. 362 ; a right to make such others as they Carter v. Balfour, 19 Ala. 814; Barshould think necessary, not infringing low v. Lambert, 28 Ala. 704; Goodthe general rights of Englishmen; and win v. Thompson, 2 Greene (Iowa), such new laws they were to form as 329; Wagner v. Bissell, 3 lowa, 396; agreeable as might be to the laws Noonan v. State, 9 Miss. 562; Powof England” Franklin, Works by ell v. Brandon, 24 Miss. 343; Coburn Sparks, Vol. IV. p. 271. See also v. Harvey, 18 Wis. 147; Reaume v. Chisholm v. Georgia, 2 Dall. 435; Chambers, 2:2 Mo. 30; Hamilton v. Patterson v. Winn, 5 Pet. 241; Kneeland, 1 Nev. 40. The courts of Wheaton v. Peters, 8 Pet. 659; Pol- one State will presume the common lard v. Hagan, 3 How. 212; Com- law of a sister State to be the same as monwealth v. Leach, 1 Mass. 59; their own, in the absence of evidence Coromonwealth o. Knowlton, 2 Mass. to the contrary. Abell v. Douglass,

(* 24] They also claimed the benefit of * such statutes as from

time to time had been enacted in modification of this body of rules. And when the difficulties with the home government sprung up, it was a source of immense moral power to the colonists that they were able to show that the rights they claimed were conferred by the common law, and that the king and Parliament were seeking to deprive them of the common birthright of Englishmen. Did Parliament attempt to levy taxes in America, the people demanded the benefit of that maxim with which for many generations every intelligent subject had been familiar, that those must vote the tax who are to pay it? Did Parliament order offenders against the laws in America to be sent to England for trial, every American was roused to indignation, and protested against the trampling under foot of that time-honored principle, that trials for crime must be by a jury of the vicinage. Contending thus behind the bulwarks of the common law, Englishmen would appreciate and sympathize with their position, and Americans would feel doubly strong in a cause that was right not only, but the justice of which must be confirmed by an appeal to the consciousness of their enemies themselves.

The evidence of the common law consisted in part of the declaratory statutes we have mentioned, in part of the commentaries 4 Denio, 305; Kermott v. Ayer, 11 Issachar will never meet; that the Mich. 181; Schurman v. Marley, 29 same people or nation should be both Ind. 458.

the lion's whelp and the ass between 1 The acts of Parliament passed burdens; neither will it be that a after the settlement of a colony were people overlaid with taxes should ever not in force therein, unless made so become valiant and martial. It is by express words, or by adoption. true that taxes levied by consent of Commonwealth v. Lodge, 2 Grat. the State do abate men's courage less, 579; Pemble v. Clifford, 2 McCord, as it hath been seen notably in the 31. See Swift v. Tousey, 5 Ind. 196; exercise of the Low Countries, and in Baker v. Mattocks, Quincy, 72 ; Cath- some degree in the subsidies of Engcart v. Robinson, 5 Pet. 280. Those land, for you must note that we speak amendatory of the common law, if now of the heart and not of the suited to the condition of things in purse; so that although the same America, were generally adopted by tribute or tax laid by consent or by tacit consent. For the differing views imposing be all one to the purse, yet taken by English and American it works diversely upon the courage. statesmen upon the general questions So that you may conclude that no here discussed, see the observations people overcharged with tribute is fit by Governor Pownall, and the com- for empire." Lord Bacon on the ments of Franklin thereon, 4 Works True Greatness of Kingdoms. of Franklin, by Sparks, 271.

3 These statutes upon the points 2 - The blessing of Judah and which are covered by them are the

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