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their independence, without regard to the very considerable changes, that it had experienced and undergone in its actual application to the state of society on this side of the ocean, and without making allowance, moreover, for the more mutable and practical aptitude, which its principles had acquired in the character of a system for the colonies, during the long period of their dependence upon the crown of Great Britain, would be that proposition upon which we should linger a long time, before we gave it our absolute assent.

But the American common law, we apprehend, is in quite another tone and spirit. On this topic we may avail ourselves of the remarks made by Mr Du Ponceau, upon the essential improvements, which civil jurisprudence has undergone in the United States; and this is in those respects, in which he considers the common law to be originally inferior to the civil. He considers it to be still in a progressive state of improvement, and to be becoming more and more 'dignified with American features.' Our landed estates, for example, have become allodial; the traits of the feudal system are nearly effaced, excepting a few forms and phrases, among which, that of fee simple still survives. The principles of conveyancing are simplified, and registries established to supersede the ancient form of livery of seizin. Entails, where not abolished, are very easily destroyed. Survivership in joint tenancy is almost extinct. The laws of descent are assimilated to the rules of succession, established by the Roman law; and the privilege of primogeniture is abolished. 'If children, then heirs.' The intricate peculiarities of English practice in general are less observed; legal proceedings rendered less expensive, and legal rights more easily understood by those, who cannot pretend to be subtle lawyers.

Now the most of these changes were actually effected, and the principles of them all were in operation, and the whole impulse, in fact, communicated before the Revolution. From all this it is moreover apparent, as if of much greater consequence, that the American common law had acquired a spirit of change; and that this spirit had moved over the face of the deep, which was no longer a dead and stagnant surface, but was excited with all the vigor of a new creation. Whatever inflexibility may be arrogated, or attributed to the English system, the character of our own is not so VOL. XXI.-No. 48.

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harsh and rugged, as many have deemed it; and if such be the true quality of the common law of England in any degree equivalent to the supposition, we regard it as a still further evidence of the actual departure, which the American common law had acquired from it, anterior to the epoch prescribed by Mr Du Ponceau.

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That the common law did exist in this country, before the Revolution, is a mere matter of fact, totally independent of any argument concerning its excellence, or any question touching its character as a system. There must be some law in every country, and this was the law of ours; at least until some more satisfactory conclusion can be established. 'But why,' says Mr Du Ponceau, and we take pleasure in borrowing the following beautiful, and somewhat Ciceronian passage, why need I go into such a wide argument to prove, what I consider a self evident principle? We live in the midst of the common law; we inhale it at every breath, imbibe it at every pore; we meet it when we wake, and when we lay down to sleep; it is interwoven with the very idiom that we speak, and we cannot learn another system of laws, without learning at the same time another language. We cannot think of right or wrong, but through the medium of the ideas, that we have derived from the common law.' It is the very ens rationis, and, as Mr Du Ponceau observes in another place, is a part of every civil and political institution. In this sense it becomes quite obvious, that the United States must have a general law, not so much arising out of their constitution, as resulting from their condition, suiting itself to their national circumstances, fitting itself to their federal relations, and incorporating itself with their municipal concerns and uses.

A civil community cannot be conceived to exist without a body of jurisprudence; and it is no doubt perfectly correct to say, as has been suggested by one of our most valuable, though least obtrusive jurists, that our present social contract must be supposed to have been formed upon the supposition of certain fundamental principles of social order, derived from the common law, or as he terms it, 'adopted under our English common law,' whether expressly referred to by it or No language can be more correct, in our judgment, than to say, that this was the element of the constitution.

not.

Nor does this phraseology exclude the use of the civil law as a principle of interpretation, whenever it may be important to the same instrument. The security of the rights and repose of private society against general search warrants, of the conscious independence of personal liberty against arbitrary seizure or extravagant stipulation, the indemnity of individual property against acts of involuntary benevolence, or in other words, the resistance of taxation without representation; the independence of thought, together with its signs, of speaking, writing, and publishing, as well as the liberty of volition and action, within the bounds of law; these were the topics that were perpetually harped upon out of the common law, and served to fan the flame of freedom on both sides of the Atlantic.

On the same platform of our original common law, we are able to keep pace with the progress of the most enlightened principles of national and public law, and avail ourselves of the advances of general jurisprudence in the improvement of our civil code, or the explication of our political system. In that manner, without doubt, the United States. will eventually come to have a common law, 'not that of England, nor of Rome, nor of France, but the common law of the United States.' In that manner, together with that body of natural reason and law, which is requisite for the municipal order of civil society; and those usages, which we have derived from England, and those customs, which were established in the colonies; and those legal principles, that we have already borrowed from other sources, with those that we may hereafter extract from foreign codes, or the future combinations of our concerns and interests, we shall probably acquire a system of common law, suitable to expound and give effect to the constitution, and open a sufficient field for the operation of all the benevolent and equitable principles.

We have expressed our assent to the doctrine of Mr Du Ponceau, respecting the existence of a common law for this country. We acknowledge its necessity to the exposition of the constitution. We admit it was an element floating, if he pleases, in the atmosphere. We regard it still as a vast reservoir of valuable jurisprudence; but we are not satisfied with the correctness of his expression, in calling it the common law of England, and fixing its authority at the epoch of

the Declaration of Independence. It seems to us to be beginning with the old phrases of the civil law Regiam Majestatem. We are far, as we hope we have already said, from charging upon Mr Du Ponceau the heretical idea of any inherent efficacy, in the law of England at that instant, as binding us proprio vigore; and yet something of that kind seems necessarily to be implied, without some kind of mordant, or medius terminus, to ground the color, or connect the consequence with some immediate cause. And it is difficult to discover, what basis of authority the common law of England could rest upon in this country, at the period of the Revolution, similar in any manner to the authority which it enjoyed in England; or equivalent even to the predominance, which the civil law has obtained upon the continent of Europe. We have even yet to learn how the common law of England, in the capacity of common law of England, could prevail in the colonies during the century after their settlement.

We will add our concession to the criminal law of England, of all the unrivalled excellence that belongs to it as a rule of jurisdiction, and also as a species of jurisprudence connected with all there is valuable in English liberty. But, agreeing with Mr Du Ponceau, respecting the existence of an American common law, independent of that of England, we are induced to give it an origin somewhat beyond the breaking out of the Revolution; and after that period, until the adoption of the national constitution, at which time he represents the whole tide of common law pouring in upon us, there was a considerable interval. At that latter period certainly a foreign code, like the law of England, could have owed its obligation only to our adoption; but a limitation of its authority, like that, would not probably be insisted upon by Mr Du Ponceau. The common law, which constitutes the desideratum in his mind, requires some grounds, for which we must search into the state of things long before our independence; and we may discover it by analysing those general principles and usages, which are to be found in that generally received and long established law, which forms the present substratum of the laws of every state in the Union.' This is the doctrine of Chief Justice Marshall, and we deem it incapable of any addition or subtraction for its improvement.

We would not undertake to be perfectly confident, however, on any point, on which we might have the misfortune to appear to differ from Mr Du Ponceau, and least of all would we engage in any mere difference about words. Perhaps he is to be understood by his favorite phrase, common law of England, as making use of that sort of metaphor in describing the common law of this country, before the Revolution, which our forefathers were so fond of employing, in all the models they made of their social and civil institutions. England, before the Revolution, was always called home; and in this way, the common law of the colonies may be deemed to have acquired, and preserved the name of the common law of England. In the same manner the expression may be understood to have been used by Mr Du Ponceau, who in no part of his book is to be considered as having adopted it, without an implied reference to the changes, which the system had undergone in this country. We have no right to understand him in any sense, which a sound view of the subject will not warrant; nor without all those limitations, which the most careful reflection would suggest. Nor are we aware, that Mr Du Ponceau intended anything by the language alluded to, beyond what the most profound analysis of the principles, on which our institutions rest, would authorise. His known precision of language will not allow us to suppose, that he uses any terms without a perfectly appropriate signification; but we are after all inclined to query, whether, on the present occasion, he has sufficiently guarded himself against misapprehension.

ART. VI.-A Review of the Efforts and Progress of Nations, during the last Twentyfive Years. By J. C. L. De Sismondi. Translated from the French by PETER S. DU PONCEAU. 8vo. pp. 36. Philadelphia, 1825.

THIS pamphlet was originally written, as an Essay, in the Revue Encyclopédique.* It professes to be a survey, taken

* The Revue Encyclopédique is the most valuable foreign journal, which an American can consult, for variety of information and liberality of tone.

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