Convention of the State of New York, as were then in force, and not repugnant to the new government, subject also to the power of the Legislature to alter; and they abrogated and abolished all such parts of the English common and statute law, and of the colonial enactments, as established any particular denomination of Christians, or as created allegiance to the king of Great Britain, or as were repugnant to the new Constitution. The amended Constitution of the same State, of 1821 (Art. vii, § 13), adopted such parts of the common law, and of the acts of the Legislature of the colony of New York, as formed the law of the colony on the 19th of April, 1775, and the resolutions of the Congress of the colony, and of the Convention of the State of New York, in force on the 20th April, 1777, not since expired, repealed, or altered, and not repugnant to the Constitution, and subject to the power of the Legislature. The Constitution of the same State, of 1846 (Art. i, § 17), contained the same provision which, as it will be seen, omits all mention of the statute law of Great Britain.

The Constitution of Maryland (1776) declared (Art. iii), that the inhabitants of Maryland are entitled to the common law of England, and to the benefit of such of the English statutes as existed at the time of the first emigration, and which, by experience, have been found applicable to their social and other circumstances, and of such others as have since been made in England and Great Britain, and have been introduced and practiced by the courts of law and equity, and also to all acts of Assembly in force on the 1st of June, 1774, except such as may have since expired or have been altered by acts of Convention, or the Declaration of Rights, subject to the revision of the Legislature.

The Constitution of Massachusetts (1780) contained this simpler provision (Chapter vi, Art. vi.) "All the laws which have heretofore been adopted, used, and approved in the prov ince, colony, or State, of Massachusetts Bay, and usually prac ticed on in the courts of law, shall still remain and be in full force until altered or repealed by the Legislature, only excepting those parts repugnant to the rights and liberties contained in this Constitution." And the Supreme Court of this State, as

we have seen, has said that the first settlers of the colony regarded the law of England as their law, and governed themselves by it.*

The Constitution of New Hampshire (1792) adopted substantially the same provision as the one last cited from that of Massachusetts.

The Constitution of New Jersey (1776) declared, § 21, that the laws contained in the edition lately published by Mr. Allison, such only excepted as are incompatible with the Constitution, should be and remain in full force until altered by the Legislature of the colony; and, § 22, that the common law of England, as well as so much of the statute law as has been heretofore practiced in the colony, shall still remain in force till altered by the Legislature, such parts only excepted as are repugnant to the rights and privileges contained in the new Constitution.

We see, that by these constitutions, the common law, as such, was recognized; and such may be assumed to be gener ally the law of those States the constitutions of which contain no such affirmative provision. (a)

* Commonwealth v. Alger, 7 Cushing, 53, 66. See this case for a very interesting dis

cussion on the "Body of Liberties" adopted in 1641, by the colony of Massachusetts.

(a) It is often laid down as a general proposition, that the common law is presumed to be in force in another State. If this presumption rests upon what may be judicially taken notice of in the history of the country, it should, in the language of Judge Field, be confined to "those States which were originally colonies of England, or were carved out of such colonies," and to "territory acquired since the revolution, where such territory was not, at the time of its acquisition, occupied by an organized and civilized community." Norris v. Harris, 15 Cal. 226. See Stokes v. Macken, 62 Barb. 145, where it is laid down that if the foreign State was once under the same government as the State of the forum, the court will take judicial notice of what the law then was, and will presume it unchanged. Thus the civil law, in a modified form, prevails in Louisiana. Reynolds v. Swain, 13 Louis. R. 193. In California the common law prevails, Comp. Laws, ch. 41; and in Florida, Thomp. Dig. p. 21; and in Texas, Act of Jan. 26, 1840.

As to foreign countries where the common law is known not to prevail, the only presumption which could have any basis of probability would be that the general principles there obtain, which naturally belong to all systems alike. In respect of some branches of the law, in which there is everywhere a general similarity,—e. g., commercial law,--identity might, perhaps, be presumed.-Story on Confl. of Laws, § 637 a.

When the presumption that the common law is in force is entertained, is it the

At the same time it has been declared by the Supreme Court of the United States, to be clear that there can be no common law of the Union. The federal Government is composed of twenty-four sovereign and independent States, each of which may have its local usages and common law; but there is no principle which pervades the Union, and has the authority of law, that is not embodied in the Constitution or laws of the Union. The common law could be made a part of the federal system only by legislative adoption. It is settled that the federal courts have no jurisdiction of common-law offences, and that there is no common law of the Union.* When, therefore, a common-law right is asserted, we must look to the State where the controversy originated. What is common law in one State may not be, and frequently 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.†

State of Pennsylvania v. The Wheeling Bridge Co. 13 Howard, 519.

Wheaton v. Peters, 8 Peters R. 591 and 659. But see the very able opinion of the late Vice-Chancellor Sandford, in Lynch v. Clarke, 1 Sandf. 583, where he says, p. 654, "In my judgment there is no room for doubt, but that to a limited extent the common law (or the principles of the common law, as some

prefer to express the doctrine) prevails in the United States as a system of national jurisprudence. To what extent it is applicable, I need not hazard an opinion, either in general terms or in particular instances, beyond the case in hand; but it seems to be a necessary consequence, from the laws and jurisprudence of the colonies, and of the United States under the articles of confederation, that in a

common law as brought from England, unaffected by local statutes and modifications, or, is it the common law as altered by the State of the forum? In favor of the first of these alternatives, see Gordon v. Ward, 16 Mich. 360; Johnson v. Chambers, 12 Ind. 102; and see, also, Thurston v. Percival, 1 Pick. 415.

But, in many courts the presumption is not based upon any probability as to what the foreign law actually is, but upon the necessity of applying some certain and known rule, which rule, it is said, must be that of the forum until a different one is shown. Thus, in Pagett v. Curtiss, 15 La. Ann. 451, the law of South Carolina, a common-law State was presumed to be that of the forum, Louisiana, where the civil law is the basis of the established jurisprudence; and in New York, in Monroe v. Douglas, 5 N. Y. 447, it was held that a Scotch settlement of real estate, in the absence of proof of the Scotch law, must be construed according to the lex fori. And even the statute law of the forum is applied. In fact, if the doctrine rests upon the basis last mentioned, and not upon any considerations of probability as to what the foreign law actually is, the statutory law of the forum must be applied as readily, and for the same reason, as the common or unwritten law. See, also, Bean v. Briggs, 4 Iowa, 464; Sayre v. Wheeler, 32 Iowa, 559; Allen v. Watson, 2 Hill (S. C.), 319; Woodrow v. O'Connor, 28 Vt. 776; Whidden v. Seelye, 40 Me. 247; Stokes v. Macken, 62 Barb. 145.

It is often said that Christianity is part and parcel of the common law; but this is true only in a modified sense. Blasphemy is an indictable offence at common law; but no person is liable to be punished by the civil power who refuses to embrace the doctrines or follow the precepts of Christianity; our Constitutions extend the same protection to every form of relig ion, and give no preference to any. Still though Christianity is not the religion of the State, considered as a political corporation, it is nevertheless closely interwoven into the texture of our society, and is intimately connected with all our social habits, and customs, and modes of life.* (a)

The great body of the common law of England, and of the statutes of that country as they existed in 1776, are, then, so far as applicable to our condition, the basis of our jurisprudence. Upon this foundation we have erected a great superstructure of law, the fabric of judicial decisions and the product of the numerous legislative bodies to which the government of the States and of the Union is confided. As we shall have occasion

matter which by the Union has become a national subject, to be controlled by a principle coëxtensive with the United States, in the absence of constitutional or congressional provision on the subject, it must be regulated by the principles of the common law, if they are pertinent and applicable."

Williams v. Williams, 4 Seld. 525, 553;

Ayres v. The Methodist Episcopal Church, 3 Sandf. 351; Andrews v. N. Y. Bible and Prayer Book Society, 4 Sandf. 156; Vidal v. Gerard's Executors, 2 Howard, 127; Going v. Emery, 16 Pick. 107; Executors of Burr v. Smith, 7 Verm. 241; and other cases, as to the doctrine of charitable and pious uses in this country.

(a) Sunday Laws.-Christianity is not a part of the common law. Bloom v. Richards, 2 Ohio N. S. 387 (contract made on Sunday). Christianity is a part of the common law. Shover v. State, 5 Eng. 259 (a grocery open on Sunday). See also Charleston v. Benjamin, 2 Strobh. 508; Commonwealth v. Wolf, 3 S. & R. 48; Frolichstein v. Mayor, 40 Ala. 725 (cases of Jews working on Sunday); Specht v. Commonwealth, 8 Penn. St. 312 (case of a Seventh-day Baptist working on Sunday); Voglesong v. State, 9 Ind. 112; State v. Ambs, 20 Mo. 214 (cases of selling liquor on Sunday); Lindenmuller v. People, 33 Barb. 548 (case of a theatrical exhibition on Sunday).

Blasphemy.-See Commonwealth v. Kneeland, 20 Pick. 206, per Morton, J., pp 233-6; State v. Chandler, 2 Harr. 553; Updegraff v. Commonwealth, 11 S. & R. 394 (cases on a statute); People v. Ruggles, 8 Johns. 225 (case at common law).

Bible and Religious Teaching in Public Schools.-See Donahoe v. Richards, 38 Me. 379; Minor v. Board of Education, &c., Supr. Ct. of Cincinnati, in which an ordinance of the board removing the Bible from the public schools was held void on general grounds, and as opposed to the State Constitution. The decision of the Superior Court in this case has, however, lately been reversed by the Supreme Court of Ohio, but not yet reported.

to see in the progress of this work, the statute law of the United States, and of the different members of the confederacy, form a vast body of jurisprudence, in many cases complicated, peculiar and novel, but eminently adapted to our unprecedented situation, and of equal interest for the citizen and the lawyer.

To these two sources of municipal law, viz., common and statute law, must be added in America a third. We have thought it wise to set limits to the law-making authority, and by the direct action of the people themselves to establish certain rules and principles of action which can be varied by no power less than that supreme will which calls the legislator into being. In other words, we have imposed constitutional restraints on the Legislature.

Something of this same disposition is to be found in the annals of the mother country. The history of the race to which the people of America belong, in all their struggles for the attainment and preservation of freedom, shows their marked and sedulous care in obtaining and preserving formal acknowledgments and records of their rights and liberties, muniments of title, as they might in technical language be termed.

So early as the 1st of Richard III, Parliament "declared that the court of Parliament is of such authority, and the people of this land of such a nature and disposition, as experience teacheth that manifestation and declaration of any truth or right made by the three estates of this realm assembled in Parliament, and by authority of the same, maketh, before all other things, most faith and certain quieting of men's minds, and removeth the occasion of doubts."*

So, the barons of England were not satisfied with humbling the power of John. They exacted and obtained the execution of the great Charter. The reformers in the time of Charles I demanded his assent to the Petition of Right; and the throne of England now rests on the Bill of Rights, the fruit of the revolution of 1688, a bill prepared by the Convention Parliament, in its own emphatic language, "as their ancestors in such cases had usually done."+

Cotton's Abr. of Records, 713, 714, quoted in Maddock's Life of Somers, i, p. 294.

Bill of Rights, 1 W. and M. Sess. 2, c. 2.