Page:The Green Bag (1889–1914), Volume 18.pdf/37

 THE GREEN BAG cabulary, the Scotch have almost abandoned of the federal enforcement of the constitu Roman law in all their courts.1 From these tional provision as to fugitive slaves became examples, it is easy to see what will be the extremely bitter, the common-law principle fate of the existing system in Porto Rico has become firmly rooted in our polity. No and the Philippines. Whether it is the in state has departed from it, and one of the nate excellence of our legal system or the states which formerly agitated for referring innate cock-sureness of the people that live constitutional questions to a special, nonunder it, so that, even as Mr. Podsnap judicial tribunal, has since adopted a con talked to the Frenchman as if he were a stitution in which the courts are expressly deaf child, we assume that our common-law directed to declare the invalidity of uncon-" notions are part of the legal order of nature, stitutional legislation.1 In addition to this and are innocently unable to understand far-reaching principle, which fixes the com that any reasonable being can harbor con mon-law doctrine of the supremacy of law ceptions that run counter to them, the Anglo- in our institutions, the common-law dogmas Saxon refuses to be ruled by any other law. of inviolability of person and property, of Maine's supposition that the newer states the local character of criminal jurisdiction, of the Union would take the Louisiana Code of due process of law — a phrase as old at for the substratum of their law, and his least as the reign of Edward III — that prophecy that Roman law would become private property cannot be taken for private the lingua franca of universal jurisprudence,2 use, nor for public use without due compen sation — a doctrine as old as Magna Carta have proved wide of the mark. An achievement strictly in line with the — that no one shall be compelled in any history of the common law is the intrench- criminal prosecution to be a witness against ment of its doctrines in our constitutions, himself, and of the right of trial by jury, state and federal, culminating in the Four with all that was meant thereby at com teenth Amendment, so that its fundamental mon law — all these dogmas are protected and distinctive dogmas are beyond the reach in state and federal constitutions so as to be of ordinary state action, and are to be dis substantially beyond the reach of legisla lodged in many cases only by amendment tion. If Coke were to come among us, he of the Federal Constitution itself. This was might miss the law of real property which he not achieved without a struggle. Jefferson, knew so minutely. Our law of contracts in 1815, denounced the common-law doc and our mercantile and corporation law trine of supremacy of law, when applied would doubtless be unfamiliar, but he by courts in holding legislative acts uncon would be thoroughly at home in our con stitutional, as a theft of jurisdiction. Vir stitutional law. There he would see the ginia, Kentucky, Pennsylvania, Georgia, and development and the fruition of his Second Wisconsin successively denounced it. A Institute. All that might surprise him strong opinion to the contrary was pro would be that so much had been taken from nounced by an able judge. As late as 1833, and made of his labors with so little recog it was seriously proposed that the Federal nition of the source. Superficially, then, the triumph of the Constitution be amended to provide a spe common law seems assured. Nevertheless, cial tribunal for the determination of ques jurists are by no means certain that this is tions as to the authority of Congress and of so. The most obvious danger, and the one the several states under the Constitution. most frequently adverted to, is legislation. But despite opposition, which at the time 1 Professor Dove Wilson in 16 Juridical Re view, 68. 1 " Village Communities," 330.

1 For an account of this agitation, see address by Judge Lurton, Proc. Bar Ass'n. Tenn., 1903, p. 125.