Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/181

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CH. XVI.]

GENERAL REVIEW.

141

§ 158. We thus see in a very clear lighl the mode, in which the common law was first introduced into the colonies; as well as the true reason of the exceptions to it to be found in our colonial usages and laws.^[1] It was not introduced, as of original and universal obligation in its utmost latitude; but the limitations contained in the bosom of the common law itself, and indeed constituting a part of the law of nations, were affirmatively settled and recognised in the respective charters of settlement. Thus limited and defined, it has become the guardian of our political and civil rights; it has protected our infant liberties; it has watched over our maturer growth; it has expanded with our wants; it has nurtured that spirit of independence, which checked the first approaches of arbitrary power; it has enabled us to triumph in the midst of difficulties and dangers threatening our political existence; and by the goodness of God, we are now enjoying, under its bold and manly principles, the blessings of a free, independent, and united government.^[2]

↑ 2 Wilson's Law Lect. 48 to 55; 1 Tuck. Black. Comm. App. 380 to 384; 1 Chalm. Opinions, 220.
↑ The question, whether the common law is applicable to the United States in their national character, relations, and government, has been much discussed at different periods of the government, principally, however, with reference to the jurisdiction and punishment of common law offences by the courts of the United States. It would be a most extraordinary state of things, that the common law should be the basis of the jurisprudence of the States originally composing the Union; and yet a government engrafted upon the existing system should have no jurisprudence at all. If such be th result, there is no guide, and no rule for the courts of the United States, or indeed, for any other department of government, in the exercise of any of the powers confided to them, except so far as Congress has laid, or shall lay down a rule. In the immense mass of rights and duties, of contracts and claims, growing out of the Constitution and laws of the United States, (upon which positive legislation has hitherto done little or nothing,) what is the rule of decision, and interpretation, and restriction ? Suppose the simplest case of contract with the government of

[1] 2 Wilson's Law Lect. 48 to 55; 1 Tuck. Black. Comm. App. 380 to 384; 1 Chalm. Opinions, 220.

[note181-2] The question, whether the common law is applicable to the United States in their national character, relations, and government, has been much discussed at different periods of the government, principally, however, with reference to the jurisdiction and punishment of common law offences by the courts of the United States. It would be a most extraordinary state of things, that the common law should be the basis of the jurisprudence of the States originally composing the Union; and yet a government engrafted upon the existing system should have no jurisprudence at all. If such be th result, there is no guide, and no rule for the courts of the United States, or indeed, for any other department of government, in the exercise of any of the powers confided to them, except so far as Congress has laid, or shall lay down a rule. In the immense mass of rights and duties, of contracts and claims, growing out of the Constitution and laws of the United States, (upon which positive legislation has hitherto done little or nothing,) what is the rule of decision, and interpretation, and restriction ? Suppose the simplest case of contract with the government of

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