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by British law specifically imposed; and the same conclusion, mutatis mutandis, would be reached as to the Dutch law in the colonies conquered from the Dutch, the Spanish law in the colonies conquered from Spain, the French laws in the colonies ceded by France. That this is the case with the colonies conquered from the Indians is maintained by Blackstone1 and other eminent commentators; but to this it may be replied, (1) as is said by Marshall, C. J., the Indians did not possess a distinct national existence, and (2) they did not possess a system of law which could be the basis of the law of any civilized people. There is a good deal, it is true, to sustain this theory in the history of Louisiana, where the Roman law remains as the basis of the local law, while so much of the English law as is in force has been imposed distinctively by statute. But the theory does not hold good with respect to California and Texas, in which the Spanish law-or Roman law, on which the Spanish rests-has left no traces except in its relation to land titles prior to the separation from Mexico. Similar questions arise in respect to New York and the settlements on the Delaware, which were conquered by the English from the Dutch, the Dutch, as to the Delaware settlements, having dispossessed the Swedes. If the conquest theory is correct, then the Dutch law is at the basis of the law of New York, and only so much of the English law is in force as has been expressly imposed by the English.2

1 1 Black Com., 107; 1 Steph. Com., late for the colonies, yet a colony is 107.

2 The distinction is thus put in Stephen's Com. (8th ed., 1880), i. 104: "In case of a colony acquired by occupancy, acts of parliament passed before its acquisition, come into force immediately upon that event, as part of the general law of England-as to all provisions at least, not unsuitable to its social circumstances. But a colony won by conquest or cession is not in general affected by statutes of the United Kingdom passed before its acquisition." It is also stated that "though it is competent to parliament to legis

not considered as affected by acts of parliament passed after its acquisition, and while it is subject to other legislative authority, . . . unless it be referred to in the act, or unless the act be, from its nature, obviously intended to affect all our possessions wherever situate." If this conception be true, the question how far English statutes were adopted by the English colonies in this country would be dependent on the question whether such colonies were conquests or discoveries.

That the English took New York as a conquest from the Dutch is maintained

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The second theory is that of discovery, as it is called; it being held that the first discoverers of an uncivilized country bring to it their common law. That the English were the first discoverers of the Atlantic seaboard is maintained as a matter of fact; and from this flows the conclusion that, if this theory be correct, they planted on the Atlantic seaboard the English common law. But the difficulty as to this theory is that it rests on an assumption singularly arbitrary. If the first discoverer of the new world stamped on it the jurisprudence of his country, that jurisprudence was certainly not the common law of England. If the first settlers on the Mississippi Valley gave to that valley their jurisprudence, then to the Roman and not to the English common law must we look for our primordial system. Nor, even assuming that Englishmen were the first discoverers of our Atlantic seaboard, did England exercise over her North American colonies that care which the planting of a systematic jurisprudence assumes. The colonists of New England left England, not under government tutelage, as England's agents, but in sullen revolt against England, to escape, not to extend, English laws in the shape they then assumed.' The colonists of Pennsylvania were also most of them exiles for conscience' sake. It was otherwise, it is true, with the colonists of the more southern colonies; but these colonists cannot, any more than their northern neighbors, be regarded as England's representatives for the establishing in America of English jurisprudence. "When I know that the colonies," said Burke, in his speech on conciliation with America, "in general owe little or nothing to any care of ours, and that they are not squeezed into this happy form by the constraint of watchful and suspicious

by Judge Tucker (Tucker's Black., i. 382), by eminent colonial counsel consulted on this point (Smith's Hist. N. Y., p. 248), and by Lord Mansfield, Cowp. 211. See 21 Alb. L. J. 9. It has been held by the Court of Appeals that the Dutch were during their occupancy the political sovereigns of New York. Dunham v. Williams, 37 N. Y. 251. And see argument of counsel in

Jackson v. Gilchrist, 15 Johns. 89. On the other hand, Chancellor Walworth expressly claims that the English title to New York is that of discoverers, bringing with them their own law. Canal Appraisers v. People, 17 Wend. 570.

I See Dr. Franklin's remarks, supra,

§ 22.

government, but that, through a wise and salutary neglect, a generous nation has been suffered to take her own way to perfection; when I reflect on these effects, when I see how profitable they have been to us, I feel all the pride of power sink, and all presumption in the wisdom of human contrivances melt and die away within me. My rigour relents-I pardon something to the spirit of liberty." It was the "spirit of liberty" which led not merely to the settlement of Englishmen in this country, but to their selection of a system of laws of their own. It is true that English statesmen and philosophers devised schemes of law for colonial government; but these schemes were never seriously pressed, and soon fell to the ground. The laws the colonies made were neither dictated by England nor favored by England. The best of these laws. were rejected by England and grew up in the teeth of England's veto The common law of each province, and the statute law of each province, was made by itself. It took what it wanted from English jurisprudence. It refused to accept what it did not want, no matter how strongly it might be pressed by crown or proprietor. And it added, in the teeth of royal or proprietary inhibition, whatever it was impelled to addby its conscience or its sense of need.

The third theory, and that which is most consistent with the views taken in the preceding pages, is that of popular adoption; it being assumed by this theory that the inhabitants of each province evolve a common law in harmony with their traditions and habits, and in submission to their conscience and sense of need.3

1 Supra, § 21.
* Supra, §§ 22-6.

3 See supra, § 25.

The growth of law in Pennsylvania has been distinctively discussed, supra, § 23. The early history of New York law is given in a series of excellent articles in the Albany Law Journal, vol. xx. pp. 326, 466; vol. xxi. pp. 7, 127, 267.

That the English colonists brought with them the leading principles of the common law as the basis of discovery,

seems to be asserted in Bogardus v. Trinity Church, 4 Paige, 478. As sanctioning the text, see De Ruyter v. St. Peter's Ch., 3 Barb. Chanc. 119; Sharswood's Blackstone, i. 107, note. And see further, supra, §§ 16, 22.

To sustain the theory of adoption (the third theory stated in the text) may be cited Chancellor Kent's statement (Com. i. 473), that the common law of England "was imported by our colonial ancestors, as far as it was applicable, and was sanctioned by royal

charters and colonial statutes." This leaves out of sight the Dutch colonists of New York, and ignores the conquest theory which would have left Dutch laws in force until expressly superseded by English legislation. The position of Chancellor Kent can only be sustained by assuming that the English colonists, when they took possession of New York, organized (either by custom operating gradually and spontaneously or by express legislation) a system of laws of their own. This is the conclusion adopted in the text. Chief Justice Sharswood, in his notes to Blackstone, as above cited, denies the accuracy of Blackstone's statement that the American plantations were conquered; and in his lecture before the Law Academy, of September 21, 1855, argues that the "claim of England to the soil was made by her by virtue of discovery, not conquest or session. The aborigines 106

were considered but as mere occupants; not sovereign proprietors." But it is hard to see how this can be applied to those portions of the seaboard which the English conquered from the Dutch, having previously recognized the Dutch as sovereigns. And by no possible ingenuity can the English claims to title by discovery be made good in respect to Louisiana, Texas, and the territory on the Pacific conquered from Mexico. If this be so we are reduced to the alternatives of the conquest theory or the theory of adoption. And of the two the latter theory only fits the fact that the English common law is at the basis of the jurisprudence of New York as of Massachusetts and Virginia.

"The law of charities is fully adopted in Georgia as far as is compatible with a free government where no royal prerogative is exercised." Bradley, J., aff. in Jones v. Habersham, 107 U. S. 180.

CHAPTER III.

HISTORY OF ENGLISH AND AMERICAN LAW.

Old French law the foundation of Nor- | His theory of origin of law unsatisfacman law, § 66. tory, § 93. Anglo-Saxon law of distinctive origin, And so of his view of development of § 67. law, § 94. Anglo-Norman law a product of both, System defective in leaving out of sight § 68.

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etc., § 83.

Littleton, § 84.

St. Jerman, Stamford, § 85.

Hooker, Bacon, § 86.

Coke, § 87.

Blackstone, § 88.

Objections based on his optimism

and finality, § 89.

moral sense, § 95.

Rejection of moral sense not consistent
with common law rulings, § 96.
Utility not a satisfactory substitute
from its indefiniteness, § 97.
So from its arbitrariness, § 98.
So as ignoring national traditions,
§ 99.

So as to national genius, § 100.
Austin's conception of negligence de-
fective, § 101.

merits as a reformer, § 102.

merits as vindicating "judiciary law," § 103.

Mystical and logical schools of utilitarians, § 104.

Distinctive views of Holland, § 105.

of Herbert Spencer, § 106. Reforms recently adopted in England, § 107.

American jurists: Story, § 108.
Kent, § 109.

Wheaton, § 110.

In this country the colonies received the common law as far as adapted to their particular conditions, § 111.

Bentham as the champion of reform, Recent English reforms anticipated in § 90.

the United States, § 112.

Austin as a leader of juridical thought, And so of "prevalence of equity," § 113. § 91. Fixity of a code incompatible with destiny required by evolution, § 114.

Defectiveness of his analysis, § 92.

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