Page:The Green Bag (1889–1914), Volume 20.pdf/46

 THE UNWRITTEN LAW Really, except the system of Common Law as a constructive, adaptive and harmonizing force, we derive very little of our govern mental syste'mfrom any source except the two centuries of experience of the American colo nies. The most important feature and the one in which our government differs from all other systems, is that it put the judicial power above all others and authorized it to mark out and define the limits of executive and legislative power and distinguish be tween State and National authority. For twelve years that most august tribunal which the world has ever known — the Supreme Court of the United States — groped its way weakly and uncertainly along the path of its new duties. Eminent and able men sat upon its bench. The greatest negotiator of our revolutionary epoch, John Jay, and the brightest and most practical legal mind of the convention, James Wilson, were among its first judges. In fouryears it decided five causes. After ten years it had learned almost nothing of its own powers and duties. Twelve years after its organization a man of great brain, great will, and invincible integrity, John Marshall, was put at its head. The duty of defining State and National authority early claimed his at tention and he enunciated this rule: "The Constitution of the United States must be strictly construed as regards the grant of power, but liberally construed as to the means -by which such power may be exer cised." Around this principle the govern ment of the United States has crystallized. What was it? Simply a new principle of the Common Law — an application of the prin ciple of justice to absolutely new condi tions^ A decade and a half afterward the same great mind, dominated perhaps in some degree by the overwhelming personality of Webster, forged a chain which is fast growing to be shackle, in the definition of the relation of a private corporation to the State au thority and applying to it without restriction or modification the inhibition of the National

constitution in regard to the inviolability of contracts. Around the Dartmouth College case has grown up a mass of Common Law adjudica tions having no other basis, which would of themselves probably fill a score of volumes, and whose influence on the business of the world during the last half century is simply incalculable. The mass of Common Law decisions based on this opinion is hardly to be excelled in the history of English jurisprudence, except by that unwritten mercantile law which Mansfield half a century before had half borrowed and half invented to meet the exigencies of British commerce, then just devoloping into the leading interest of the British realm. Another phase of our history offers a cu rious illustration of the continuing adapt ability of the Common Law, not by the flexibility of its rules but by the adaptability of its organic character to the formulation of new ones. Slavery two centuries ago became, and until within a few years re mained, the most important economical, social, and political factor of a large portion of the Union. In some of the Northern states it was, almost from the adoption of the Constitution, so restricted, antagonized, and subordinated by other interests, that its effect upon their legal devolopment is hardly traceable. At the South, however, it left a peculiar impress, not more upon its statutory than on its unwritten law. Up to 1800 it had been, for some centuries at least, an accepted part of the unwritten Common Law that the presumption of freedom existed in favor of every man. The judges of the South in the due and proper exercise of the functions of the Anglo-Saxon jurist, because of the supreme importance of the institution of slavery and because of the fact that the slave was usually a person having a visible admixture of colored blood, reversed this rule as to such, and declared that the presumption as to them was that they were bondmen and the