THE CIVIL AND THE COMMON LAW nations recognizing the civil law, that sys tem of law was expressly abrogated save in the state of Louisiana, where, by permanent settlement under the French and Spanish rule, the principles of the civil law had be come definitely established. And I may be permitted to say in passing that the recog nition of the civil law in Louisiana is rather more theoretical than practical; for imme diately on the establishment of the state government there, the common law proced ure as to crimes and the right of trial by jury in civil cases was introduced; and that, notwithstanding the constant reiteration of the adherence in that state to the Roman system, the law as practically administered differs so little from the common law recog nized in the other states of the Union, that cases decided in Louisiana are cited quite as effectually in the common law courts of the various states as are the decisions of other sister states in which the common law pre vails. It is only as to a few subjects that the recognized law of Louisiana seems to be practically different from that of the other states. This popular allegiance to the common law has been characteristic of the American people. The Continental Congress in the Declaration of Rights, made in 1774, before independence was resolved upon, announced the doctrine that the colonists had brought with them the common law, and were en titled to its protection. In what was, per haps, the first theoretical discussion of the nature of our American system of govern ment (Du Ponceau on Jurisdiction, p. 91), it is said: "We live in the midst of the com mon law; we inhale it at every breath, im bibe it at every pore; we meet with it when we wake and when we lie down to sleep, when we travel and when we stay at home. It is interwoven with the very idiom that we speak; and we cannot learn another system of laws without learning at the same time another language." John Adams an nounced the general belief that the common law belonged to the people of the United
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States, who formed the Federal government; and Story and Kent reiterated the same doctrine. At times there has been some expression of dissatisfaction with the recog nition of the common law, as when it was attempted by the legislature of Kentucky to forbid the citation of English decisions in the courts of that state; but this discontent has arisen from a misapprehension as to the nature of the common law. It has been supposed to be an incident of the govern ment of Great Britain, and therefore its preservation among us a relic of our subjection to that government; whereas, in fact, it is a characteristic of the free institu tion which the people of Great Britain, as well as of the colonies, preserved by a long struggle against the encroachments of the royal power. We must not assume, then, that it was of little significance that the great West came under the jurisdiction of the common law. Had this region been colonized and retained by France until it was filled by a prosperous and homogeneous people, had the institu tions of the civil law become the foundation of a system of government of such a people, then, although the people of this region might have finally asserted their indepen dence of France or of Spain, as the case might be, and entered upon a career of self-govern ment, yet if a spirit of rivalry had arisen between the great West and the United States, such as would have been almost in evitable, it might well have come about that the Code Napoleon, or Las Siete Partidas of Spain, rather than the principles of the law laid down by Coke and Hale and Blackstone and Kent and Story would have been the foundation of the jurisprudence of this great empire. We would thereby have missed much of which we are justly proud. That such result might have been of very practical significance is illustrated by a case de cided so recently as April, 1905, in the Supreme Court of Kansas, in which the in troduction of the common law into this region is relied upon for the purpose of sus
