Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/180

 140 § 157. And so has been the uniform doctrine in America ever since the settlement of the colonies. The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law. Notwithstanding the clearness of this doctrine, both from the language of the charters, and the whole course of judicial decisions, Mr. Jefferson has treated it with an extraordinary degree of derision, if not of contempt. "I deride (says he) with you the ordinary doctrine, that we brought with us from England the common law rights. This narrow notion was a favourite in the first moment of rallying to our rights against Great Britain. But it was that of men, who felt their rights, before they had thought of their explanation. The truth is, that we brought with us the rights of men, of expatriated men. On our arrival here the question would at once arise, by what law will we govern ourselves? The resolution seems to have been, by that system, with which we are familiar; to be altered by ourselves occasionally, and adapted to our new situation." 4 Jefferson's Corresp. 178.

How differently did the Congress of 1774 think. They unanimously resolved, "That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law." They further resolved, "that they were entitled to the benefit of such of the English statutes, as existed at the time of their colonization, and which they have by experience respectively found to be applicable to their several and local circumstances." They also resolved, that their ancestors at the time of their emigration were "entitled" (not to the rights of men, of expatriated men, but) "to all the rights, liberties, and immunities of free and natural born subjects within the realm of England." Journal of Congress, Declaration of Rights of the Colonies, Oct. 14, 1774, p. 27 to 31. 1 Chalm. Opinion, 202, 220, 295; 1 Chalm. Annals, 677, 681, 682; 1 Tuck. Black. Comm. 385; 1 Kent's Comm. 322; Journal of Congress, 1774, p. 28, 29; 2 Wilson's Law Lect. 48, 49, 50; 1 Tuck. Black. Comm. App. 380 to 384; Van Ness v. Packard, 2 Peters's Sup. R. 137, 144.