elude all enquiry, and to baffle sense and reason till he was chained and fettered, so we can never hope to have any rational certainty of what concerns us so vitally, till we can bind down this evanescent and fleeting essence, by some clear and positive definition. We know more of what it is not, than what it is. It is not the civil nor the military law, nor the marine nor the merchant law; nor the natural, the national, nor the ecclesiastical law, nor the law of equity. It is not common sense, unless, as Lord Coke tells us, that it is "artificial common sense; not the sense of any common men, but only to be acquired by long diligence and study"! Touching its origin, we find learning and genius both run mad. Blackstone traces it back to the wilds of Gaul and Germany; but if we believe Lord Coke, we owe it to the fortunate accident of the second rape of Helen. His words are these: "6 King Brutus, the first King of the land, as soon as he had settled himself in the kingdom, for the safe and peaceable government of his people, wrote a book in the Greek tongue, calling it the law-of the Britons; and he collected the same out of the laws of the Trojans. This king, they say, died after the creation of the world 2860 years; before the incarnation of Christ 1103 years; Sumuel being then judge of Israel. I will not," he adds "examine these things in a quo warranto. The ground, I think, was best known to the authors and writers of them; but that these laws of the ancient Britons, their contracts and other instruments, and the records and judical proceedings of the judges, were wrought and sentenced in the Greek tongue, it is plain and evident from proofs luculent and uncontrollable." Now the story of the old chroniclers runs thus: Eneas the son of Venus, flying from the flames of Troy, carried off his father Anchises upon his back; his household gods in one hand, and his boy Ascanius in the other, leaving his wife behind; and after wandering far and wide, jilting poor Dido, killing king Turnus, and marrying his betrothed Lavinia, founded a kingdom, out of which grew that proud city destined to be the mistress of the world; he died leaving his son Ascanius heir of his fortunes. The grandson of this Ascanius was king Brutus, the great father of the common law. He having shot his father Sylvius with an arrow, with like piety as his great grand-father brought away, not household gods, but what was more precious still, the common law; and after much wandering, and many warlike and amorous adventures, he landed at Totness in Devonshire; and finding the country peopled with giants, and governed by their king Gog Magog, he slew both king and giants to make room for the common law, and became the "first king of this land!" by killing the last!

The next inquiry is, how this law came to be called common. From the number of exceptions as shown above, it has little pretensions to universality. It was never known to any other nation except that southern half of the island to which it was reveal

ed by king Brutus the giant-killer. And Wm. Penn had good reason to say upon his trial at the Old Bailey, that "if it was common it would not be so difficult to produce; and if it was so difficult to understand, it could not be very common," But as the pedant derived the word lucus (a grove) from non lucendo, as though it were called light because it was dark; so may this have been called common because it is so uncommon.

But it may be said why fight with shadows? None of our wise and eminent jurist now contend for the antiquated barbarity of the Saxon or Anglo Norman usages, None but the simple. and ignorant, now prattle about the codes of the Inas and Guthruns, and the laws of Edward the Confessor. Though we should admit this, it is yet too soon to give quarter to this old and inveterate enemy of common sense. It is true that some learned lawyers and judges have renounced the errors of the ancient superstition, and have fixed a new æra for the inception of the common law, namely, the middle of the 17th century. For instance, Mr. Duponceau, in the work before us, and the Supreme Court of Pennsylvania in the ducking-stool case. Yet. with all

respect for such high authority, there is something to be said still, Mr, Duponceau is a scholar and an accomplished lawyer, and, moreover, a zealous and disinterested friend to his country and to mankind, and one of whom we are proud; but if he has overthrown the authority of Fortescue and Coke, and Hale and Blackstone, he has thereby shown that we are no longer to be governed by the authority of any great names. We cannot help thinking that the acute genius of that gifted writer must have been under a bias, (either from a too prudent and over cautious fear of innovation, or, from the point of view in which he stands, in a state, where some unsuccessful attempts at reformation have created a temporary re-action) when he declares so strongly against a code.

Yet as the arguments of able men, though liable to error, still scatter light as they proceed, we shall copy the words of Mr. Duponceau (p. 107.) I venerate the common law," he says, "not indeed the law of the Saxons, Danes and Normans, not that which prevailed in England daring the reign of the Plantagenets, the Tudors, and the Stuarts, but that which took its rise at the time of the great English revolution, in the middle of the 17th century, to which the second revolution in England gave shape and figure; which was greatly improved in England in the reign of William and Anne, and the two first Georges, and which during the last period and since, has received its greatest improvement and perfection in this country, where it shines with greater lustre than has ever illumined the Island of Great Britain. In former times," he adds, "it bore no resemblance to what it is now." There is truth and force in these assertions: but what do they prove? That in this country there can be, truly speaking,

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no common law, or rather that ours is not that which goes in England by the na:ne of the common law." For it is of the essence of the common law that it be immemorial, that is, beyond the time whereof the memory of man runneth not to the contrary;" and it is settled that the memory of man runneth to the contrary of every custom since King Richard Cœur de Lion began to reign; and to say that any common law could be made since this "time of memory," is heresy downright. It is well, therefore, for the amiable and excellent author, that the bigotry and superstition of the black letter has subsided, otherwise the Saxon devotees, and all the Edward the confessor's men would cry "stone him, stone him!" When he says that," in former times, it bore no resemblance to what is now," how would that be brooked by those who maintain that the common law, through all times and changes and events has still been one and the same; and that whether it was Greek or Latin, Celtic or Teutonic, French or English, Christian or heathen, catholic or protestant, feudal or allodial, monarchial or republican, it had still, for its wise maxim, nolumus mutari? Many of the principles which we extol and partially set down to the credit of the common law, are to be found only in statutes derogatory of it, so that if we should adopt it without those statutes we should be slaves and savages. We should neither have magna charta nor bill of rights, nor the statutes of treason, nor of bail, nor of habeas corpus, nor any of those which put an end to the gross abuses and grievances practised and perpetrated under the name and authority of the common law. We should have wardship, marriage forfeitures, aids to make lords' sons knights, and to marry their daughters, homage and escuage, and voyages royal, witchcraft and heresy, high commission court, star chamber, ordeal, battel, and all the evils of past ages of ignorance and tyranny.

If it be said, as it has often been, that our constitution recognizes this common law, and that our forefathers in this land claimed it as their birth right, this may be deserving of a more se

rious answer.

Our fathers were like other men's fathers in very many respects; and in this, amongst other things, that they spoke the language they had learned. They had, however, a knowledge of their rights and interests, and maintained them manfully, and in that they were most commendable. They were unwilling to be taxed without their own consent, and they resisted, at the hazard of being punished as mutineers and rebels by the rules of the common law, the stamp tax and tea duty, and after many unavailing petitions to their "dread sovereign;" after the most humble and submissive protestations of devoted attachment to his person and government; finding these disregarded and scorned, and their lives, persons and property threatened and attacked, they resolutely, and valiantly took up arms, and finally declared themNo. 19. Vol XII,

selves free and independent; and from that time their language changed with their condition, and we hear no more of those fulsome and servile terms which, whilst they remained subjects, they were obliged to use, and without which their prayers and supplications never could have made their way even to the lowest step of their dread sovereign's throne. And when they came to form a new political constitution, it is rather remarkable how they guarded against any thing like the adoption of the English common law. Ir was not then, indeed the moment, amidst the clash of arms and the din of war, to enter upon the details of an entire · ly new judicial code, and they wisely left that to be effected when their independence should be established, and peace and security should render it practicable and safe. That independence itself was then but a dangerous and doubtful experiment. A political constitution was what the exigence required; and that was no servile imitation, but a free and original design sketched by the hand of bold commanding genius. It retained so much of the common and statute law of England, and so much only, as, together with the legislative acts of the colony, constituted the law of the colony rejecting whatever was repugnant to the spirit of that constitution, and specifically all that could be so construed as to maintain monarchy or church-establishment. But it contained another equally important reservation— that it should be subject to be altered and modified by future legislation. To have changed the course and current of the law at that juncture would have been not only imprudent, but impracticable; that was deferred till some more auspicious moment. This proud city and its port was still in possession of an enemy; our independence was still a doubtful and dangerous experiment. Civil strife and the tumult of war had not yet ceased. The heads of the courageous statesmen who framed the constitution were, by the common law, forfeited and demanded, and they in return struck off the head of the common law; for the king is, according to lord Coke, the principium et finis, the beginning and the end of the common law. Did they expect when they did this, that it would live so long after? that like the Hydra of Lerna a new head would sprout out? or that when the begining and end were both truncated it would, like the worm called polypus, send forth new shoots and regenerate the vital organs of which they had deprived it? Or did they mean to embalm it with sweet odors, and keep it like a mummy, shrunk and without vitality, or to be remembered in rubrics and celebrated in homilies? No; their fond prophetic visions, through the darkness of the tempest that lowered upon them, foretold that the day might come when their arduous struggles would be crowned with full success, and liberty and self-government would be no longer a problem: when their bold and glorious example would be imitated; and when laws would be given to their regenerated state

bearing the impress of reason and liberty, and founded upon independent principles and unsophisticated truth. And never could their hopes have pictured an occasion so favourable as the present; nor ever was the want of such reform so manifest; for whilst our political constitutions are the models of imitation to the regenerated that rise in succession, like stars from the horizon, and follow in our orbit, yet there is not one but would turn in disgust from the complex formalities and antiquated barbarities that remain more or less intermingled with the administration of our law.

Let it not, therefore, be an argument for eternizing the follies of other times, that our forefathers claimed the common law as their birth-right. If they did so, it was because they had no betetr and no other phrase. The vocabulary of freedom was then new and scanty; for liberty itself was but an embryo. And it would be just as reasonable to interpret the bill of rights in England by the servile addresses presented to king James, from the cities, counties and boroughs, of which he carried great chests full, when he was declared to have abdicated his crown, and which he had leisure to read for the first time, when he took up his residence at Saint Germain.

But after all, what matters it to us now, how those who went before us, said or did, in the spirit of their day? We must act and speak in the spirit of our own. We can no longer equivocate with ourselves, nor with the nations whose eyes are upon us, some for evil and some for good. We rank too high to make it a matter of indifference what our jurisprudence is. Even with respect to our estimation abroad, it is of importance; and whoever can feel for the true glory of his country, must feel it to be So. We may, it is true, amuse ourselves with vain boastings, and reiterate the figures of rhetoric and fancy, touching Gothic foundations and Corinthian columns, and elegant modern super structures: but if we would sustain our moral and intellectual character as a nation free and regenerated, we must away at once with superstition, chicanery and folly.

Suppose, as it happened in the early days of Greece, some statesman or lawgiver should set out upon his travels in search of the laws best suited to the government of a young commonwealth, and with that view should land upen our shores, what is the wise book of Minos that we should spread open to his view? Doubtless, that in which our own youth are put to learn the elements and rudiments of their own laws the four commentaries of Sir William Blackstone. In the first of them he would read of a constitution that was an ancient and venerable edifice till spoiled by the rage of modern improvement; of statutes penned by men of little or no judgment, so that the learned had much to perplex their heads to make atonement between insensible and disagreeing words. The inviolability, ubiquity, and immorality