cil, or of the second branch of the Legislature; while in most states that power is exercised exclusively by both branches of the latter. In some instances the executive magistrate is enabled to pursue the dictates of his own unbiased judgment; and in others he is divested of all actual responsibility—either directly, by being placed under the control of a council, or indirectly, from his being chosen by the legislative body, or its more numerous branch. In general, however, the ancient institutions, which the provinces had derived by charter from the crown of England, were, at the change of government, so far preserved as was compatible with the abolition of royal authority and colonial dependance.

Among the most valuable of the institutions retained by the states on the change of government, was that system of jurisprudence by which the absolute and inalienable rights of the people were recognised and secured, their relative rights or civil privileges regulated and maintained, and offences against public justice investigated and punished. It was held as a fundamental maxim, that the colonists, as English subjects, were entitled to the benefits and protection of the common law, and of such parts of the statute law of Great Britain as were applicable to their situation. This system of jurisprudence prevailed in all the colonies. It was brought from England by the original settlers, in those planted under her authority, and had been gradually and silently extended to those provinces which had been conquered by her arms; so that before the Revolution it had been universally established as their municipal code, so far as it was adapted to their circumstances; and it was claimed by the Congress of 1774 as a branch of those "indubitable rights and liberties to which the respective colonies were entitled."

The most essential of these privileges were those natural rights, which are, indeed, common to all mankind, but which, in virtue of Magna Charta, and other fundamental laws of the mother country, were deemed to be the peculiar birthright and inheritance of British subjects. They comprise, according to Sir William Blackstone, that residuum of natural liberty which is not required by the laws of society to be sacrificed to public convenience, as well as those civil privileges which society engages to provide in lieu of those natural liberties so given up by individuals. In the first class, the learned commentator comprehends, 1st. The right of personal security; 2d. The right of personal liberty; and, 3d. The right of private property. The other privileges of the same character, but subordinate in degree, to which, as English subjects, the colonists were entitled, were, 1st. The Constitution, powers, and privileges of their provincial legislatures; 2d. The limitation of the king's prerogative by certain and notorious bounds; 3d. The right of applying to the courts of justice for the redress of injuries; the most valuable incidents to which privilege, were the right of trial by jury, and the benefit of the writ of Habeas Corpus; 4th. The right of petitioning the king, or either branch of the imperial or provincial Legislature, for the redress of grievances; and, 5th. That of keeping arms for their defence; which was, indeed, a public allowance, under certain restrictions, of the natural right of resistance and self-preservation.

In these several articles are contained what are emphatically termed "the liberties of Englishmen." To their enjoyment, the colonists were entitled by birthright as British subjects; and, to vindicate that right, they first took up arms against the parent-state, and ultimately withdrew from her dominion. Upon that separation, and the subsequent establishment of

new governments of their own choice, they were careful to provide for the secure and permanent enjoyment of these their natural rights, and of the civil privileges designed for their maintenance, or substituted as their equivalents. As additional safeguards for their protection, they established, moreover, those great engines of modern opinions, freedom of speech and the liberty of the press, uncontrolled by any but proper moral restraints. But while some of the states expressly recognised, and others tactily accepted, as a part of their municipal code, those portions of the common law which had been previously in force in the colonies, and were now farther modified by the change of government, they universally abolished, either by their constitutions, or by statutes deemed fundamental, that feature of the English system of real property which, in its character of a mere civil regulation, is, nevertheless, like most others of the same feudal origin, powerfully and essentially political in its effects-I mean the right of PRIMOGENITURE. This harsh and inequitable regulation, which, indeed, is not peculiar to England, but prevails in most of the feudal monarchies of Europe, was rejected in all the American States, and each state enacted its own law of descents, differing, indeed, in their details, but agreeing in the general principle of equal distribution.

The frequent violation of the natural and social rights of the colonists by both king and Parliament, and the repeated denials of redress, were set forth in the Declaration of Independence as the cause and justification of dissolving the mutual ties of sovereignty and allegiance; and upon forming the state constitutions, these rights were in some form or other, and with a greater or less degree of particularity and precision, enumerated, and declared inalienable, and reserved inviolably to every citizen.

Such were the institutions of the several states, and such the rights of their individual citizens, when they conjointly became parties to the federal compact. The same great principle of representation, which had been imbodied in the state constitutions, was adopted as the foundation of the new government established for the Union; and the same natural, political, and civil rights and privileges which had been declared to be the inalienable inheritance of the people, as citizens of the respective states, were asserted to belong to them as citizens of the Union; among which, as we have seen, are included such provisions of the common law as were applicable to their situation and circumstances. There are, besides, many recognitions of the existence, at least, of the common law, both in the Constitution of the United States, and in the articles by which it has been amended; and both contain frequent references to the principles, provisions, and terms peculiar to that system of jurisprudence.

It has, nevertheless, been a subject of much discussion, whether the United States, in their national capacity, have actually adopted it; and to what extent, if at all, it may be considered as forming a part of the national jurisprudence. But whatever may be the doubts-whether the common law, in its broadest sense, and to the same extent, mutatis mutandis, as it prevails in England, was recognised as the common law of the Union-it cannot be denied that it forms the substratum of the laws of all the original members of the confederacy; nor that the Constitution of the United States, as well as the constitutions and laws of the several states, were made in reference to the pre-existing validity of the common law, in the colonial and state governments. In many cases, the language of these public acts would be inex

plicable without recourse to the common law of England; and not only is the existence of that system supposed by the Constitution of the United States, but it is constantly appealed to for the construction of powers granted to the Federal Government.

The

general question, however, as to the application and influence of the system, in reference to our national institutions, has not been settled upon clear and definite principles, and may still be regarded, especially in civil cases, as open for farther judicial investigation. The prevailing opinion at present seems to be, that, under the Federal Government, the common law, considered as a source of jurisdiction, was never in force, but considered merely as a means or instrument of exercising the jurisdiction conferred by the Constitution, it does exist in full validity, and forms a safe and beneficial portion of our national code.

The Constitution erected on this basis, and from these materials, is declared, by its preamble, to be "ordained and established by the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity." By the terms, therefore, of this compact, the states are no longer known to each other merely in their sovereign and corporate capacities; but, without destroying their previous organization, the people of the respective states united with each other in founding a new government, operating directly on themselves as individuals, for the attainment of objects for which neither the states separately, nor the former confederation had been found competent. The principle of representation is applied in it, not only to the individual citizens of the respective states as citizens of the United States,