in the Revolution, the colonies, even those which, like Connecticut, had pretty consistently disclaimed the common law, found it to their interest to insist on the common law as the right of Americans. The First Continental Congress in its Declaration and Resolves declared "that the respective colonies 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 colonization, and which they have by experience respectively found to be applicable to their several local and other circumstances.'

99

72. The effect of the Revolution-The reaffirming of the common law.-Independence of the British sovereignty did not change the legal system of the United States. This was not merely because of a principle of the law of nations that the law of a country is unchanged by a mere change of political sovereignty, but also because the Americans insisted that their revolution had in part been fought to secure the rights to which the common law entitled them. Many states proceeded to provide by statute that the common law of England should be the basis of their law. Thus, for example, Virginia: "The common law of England, so far as it is not repugnant to the principles of the Constitution of this state, shall continue in force within the same, and the right and benefit of all writs, remedial and judicial, given by any Statute or Act of Parliament made in aid of the common law prior to the fourth year of the reign of James I, of a general nature and not local to England, shall still be preserved so far as the same may consist with the Constitution of this

state."31

Even in the absence of express legislation the same doctrine was assumed by the state courts in practice; and the nation, in providing a government for its national territory by the Northwest Ordinance, granted to its inhabitants "the benefits of the writ of habeas corpus, and trial by jury, and of judicial proceedings according to the course of the common law."

73. The new states.-The same assumption of the adoption of the common law was applied also in the case of newly acquired territory which had been unoccupied hitherto by civilized men. Judge Field, in the case of Norris v. Harris, 32 laid down the rule that when American citizens emigrated into such territory they were "considered as carrying with them so much of the same common law in its modified and improved condition under the influence of modern civilization and republican principles as is suited to their wants and conditions."

In the case, however, of states in which a government already existed at the time of their becoming a part of the United States, the law then in force remained until abrogated by statute. Thus, Florida and Texas adopted the common law by statute, but Louisiana retained the French law of her earlier allegiance. Michigan abolished the French, and Missouri the Spanish law, which at one time were in force within their respective territories, before they were admitted as states, and adopted the common law.

81 Pollard's Va. Code (1904), chap. 2, § 2. 32 15 Cal. 226.

· 74. The demand for a native law.-But while the wiser statesmen and the legal profession of the day wished to preserve the common law, the anti-British feeling in the community, which persisted after the Revolution and was aggravated by the War of 1812, called for a new and native law. In 1799 New Jersey forbade the citation in court of any decisions of the English courts since the Declaration of Independence, and other states followed suit. This attitude, however, was only temporary, and the persuasive influence of English cases as precedents re-asserted itself. The only important result of the demand for an American law was that it led to an early and important enlargement of the field of study which American lawyers sought to cultivate. Perhaps an even greater impulse in this direction was given by the French sympathies of many of the leaders of the American thought of that day. A study of the civil law, especially as expounded by the great French jurists and political theorists, was a part of the preparation of serious students for the bar, and the influence and teaching of James Wilson, trained in the civil law in Scotland, were important in the same direction. This enlargement of the outlook of the American bar resulted in an early liberalizing of the doctrine of American commercial and maritime law, and in a tendency toward a recognition of the influence of juristic writing as a persuasive source of law which not only has produced much and valuable legal literature in this country, but has also constituted a unifying element in preserving a common tradition in the large number of separate

jurisdictions now administering law in the United States.

75. The content of the adopted law. While it is clear that the American people adopted the common law in general, yet the adoption by statute or judicial decision was always expressly subject to limitation. The classic statement by Justice Story puts it thus: "The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their condition."33 This raises several somewhat difficult questions. What was the content of the law adopted from England? What were the conditions which rendered a particular portion of the English law inapplicable in America? How far was the English law modified by the usages of the colonial courts?

In the first place it is generally agreed that the law received included the fundamental principles of the common law, and its characteristic method of development by judicial decision.34 It has never been seriously disputed by the bar of this country, nor by the bench so far as it has been drawn from the ranks of the legal profession, that the doctrine of adherence to precedent and of development of the law by judicial reasoning in analogy to the general principles established in precedent, obtains in America.

33 Van Ness v. Pacard, 2 Peters 137, at 143-144 (U. S.). 34 See Morgan v. King, 30 Barb. 9 (N. Y.), at 12-15.

As to the extent to which the particular rules of the common law were adopted, two limitations have been set. In the first place, it has been recognized as within the province of the courts to decide whether or not a given principle of the common law is applicable in American conditions. Thus, in the case of Morgan v. King, already cited, a distinction was suggested between the test of navigability in a country like England, whose rivers are relatively short and flow into the sea-i. e., that those only are navigable in which the tide ebbs and flows-and the test appropriate to our long and full-fed interior rivers. So also the English rule that the owner of cattle must keep them fenced has given way on our Western prairies to a rule better suited to these great plains.35 In the second place, even when conditions are not such as to render an English common law rule inapplicable, a distinction is drawn between those English precedents and statutes which are binding on American courts, and those which in the case of precedents have persuasive authority only and in the case of statutes, none. State statutes, in most cases, fix a point of time after which this situation arises. This point is fixed by most of the original states at the date of their own settlement. The majority of those carved out of the Northwest Territory selected 1607, the year of the founding of Jamestown, Va. Some chose 1776, the date of the national independence. In some Western states the date set by the statute is qualified by the position that their adoption of the common law does not re35 Seeley v. Peters, 5 Gilman 130, at 150 (I.).

M.A.L.-6