The American Judiciary | Page 7

thought in this country, though not by the
Lords of Trade and Plantations, to be a privilege of Americans, as
British subjects. In some colonies this statute was re-enacted, or, as in
Virginia, rights under it conceded under the royal prerogative. In others,
as in Maryland, it was treated as being, by tacit adoption, the birthright

of the inhabitants. In the "Declaration and Resolves" of the first
Continental Congress, they assert "that the respective colonies are
entitled to the Common Law of England," and in the address to the
people of Great Britain they complain that the English settlers in
Canada "are now the subjects of an arbitrary Government, deprived of
Trial by Jury, and when imprisoned cannot claim the Benefit of the
Habeas Corpus Act, that great Bulwark and Palladium of English
Liberty."[Footnote: Journals of Congress, I, 29, 44. A. H. Carpenter,
"Habeas Corpus in the Colonies," American Historical Review, VIII,
18.]
The same sentiments dictated the terms of the Ordinance of 1787,
under which our first Territories were to be organized. One of its
leading provisions was this:
ART. 2. The inhabitants of the said territory shall always be entitled to
the benefits of the writ of habeas corpus, and of the trial by jury; of a
proportionate representation of the people in the legislature, and of
judicial proceedings according to the course of the common law.
A recognized system of jurisprudence had, under the circumstances and
from the causes which had been stated, begun to grow up before the
Revolution. It might fairly be called American, but it was thoroughly
English by heredity, and had been shaped by a long succession of
English influences, and steadied by the firm hand of English power.
The Revolutionary War made everything connected with the law of
England distasteful to the people at large. The lawyers knew its value:
the community did not. Public sentiment favored an American law for
America. It was quickened by the unfriendly feeling toward the mother
country which became pronounced toward the close of the eighteenth
century and culminated in the War of 1812. Several of the States, New
Jersey leading off, passed statutes forbidding the citation, in the
argument of causes, of any decisions of the English courts made since
the Declaration of Independence. Under one of these Henry Clay, in
1808, was stopped by the Supreme Court of Kentucky when reading in
argument from an opinion of Lord Ellenborough;[Footnote: Hickman v.
Boffman, Hardin's Rep., 348, 364.] but after a few years, legislation of

this kind, while it might remain formally unrepealed, was treated as
obsolete both by court and bar.[Footnote: Statutes of New Jersey, ed. of
1800, p. 436 (1799); Morehead and Brown, "Digest of the Statutes of
Kentucky," I, 613 (1807).]
In courts held by unlearned judges, also, English law-books were
lightly considered. One of this kind was Chief Justice Livermore, of
New Hampshire. Shortly after the close of the Revolution, while
presiding on the bench, he stopped a lawyer who was reading from one
with the inquiry whether he thought that the members of the court did
not "understand the principles of justice as well as the old wigged
lawyers of the dark ages did."[Footnote: "Memoir of Jeremiah Mason
Mason," 29.]
But whether cited or not from their original sources, the settled
doctrines of English law were sure in the end to permeate both bar and
bench in every State.
The Roman law and the law of nations were studied in preparation for
admission to the American bar more generally and more thoroughly in
the years immediately preceding and following the Revolutionary era
than they have been since.[Footnote: See Chap. XXIII.] The law
student was also set then to reading more books on English law than he
is now.[Footnote: See Report of the American Bar Association for
1903, p. 675.] He learned his profession by the eye and not by the ear.
His only lectures were the occasional arguments on a demurrer or writ
of error which he might hear in the court room, and these were a
reiteration of rules laid down in English law-books.
The reason why he read more of Roman law than is now required in
legal education was mainly that there was more time for it, since of
English law reports there were then few, and of American none.
When the Revolution broke out it also became important in helping to
explain the practice in prize courts. These were set up (or existing
common law courts invested with admiralty jurisdiction) in all the
States, and American privateers gave them not a little business. In order
to secure uniformity of decision in matters so directly affecting our

foreign relations, the Continental Congress claimed the right to exercise
appellate functions, through a standing committee of its members, and
in 1780 organized a