In this discussion, which was ized by Professor Washburn as having great value, the conclusion reached is thus stated: "It cannot be overlooked that, notwithstanding the broad language of the constitution ('the com mon law of England ae well as so much of the stat ute law as has been heretofore adopted in practice, . . . such parts only excepted as are repugnant to the rights and privileges contained in this con stitution and the declaration of rights') there were many parte of the common law of England, as it stood prior to 1776, which never have in fact been regarded by our courts as in force in this country ; yet it is to be observed that the courts have not herein acted arbitrarily in adopting some parts of the oommon law and rejecting other parts, accord ing to their views of the policy of particular 'rules or doctrine. On the contrary, those parts of the common law of England which have not been here practically administered by the courts will be found on examination to reduce themselves to two classes, resting upon grounds which render them proper to be treated as implied exceptions to the constitu tional provision in ad/titian to the expressed excep tion of such parte of the common law as were re pugnant to the rights and privileges contained in the constitution. One of these classes of excep tions may be briefly disposed of. It embraces those parts of the rules and practice of the common law which had become superseded by long settled us ages of trade, or business, or habits of dealing among our people, such as could not be unsettled or disturbed without serious inconvenience or injury. In such cases, upon the necessary maxim that com monis error Tacit NEI, the courts accepted these departures as practical modifications of the com mon law. . . .
"The other class of rules which, though parte of the common law of England, have never been ad ministered by the courts under the constitution of 1776, embraces those parts of the common law which in the terms usually employed were, at the period of our independence, inapplicable to the ex isting circumstances and institutions of our people. "There is less difficulty in applying the limitation practically than in attempting to define it. I un derstand it as excluding those parts of the common law of England which were applicable to subjects connected with political institutions and usages pe culiar to the mother country, and having no exist ence in the colonies, such for example as officers, dignities, advowsons, titles, etc. ; also, ae exclud ing some of the more artificial rules of the common law, springing out of the complicated system of police, revenue, and trade, among a great commer cial people and not therefore applicable to the more simple transactions of the colonies or of the states in their early history; also it may be understood as excluding or modifying many rules of what is known as the common law of practice, and possibly of evidence, which the greater simplicity in our system for the administration of justice, would render unnecessary or inconvenient.
"But, on the other hand, our legislative and judi cial history shows conclusively that what may be termed the common law of property was received as an entire system, subject to alterations by the legislature only. ' Rights of property and of person
are fundamental rights necessary to be defined and protected in every civil society. The common law, as a system framed to this very end, could not be deemed inapplicable in the colonies for want of a subject matter, or as being needless or superfluous, or unacceptable, which ie the true sense of the limitation in question. Certain it is, as a matter of history, that our ancestors did not so treat it." Among the other cases in which the subject is treated are Van Ness v. Pacard, 2 Pet. (U. S.) 144, 7 L. Ed. 374 ; Town of Pawlet v. Clark, 9 Cra. (U. S.) 333, 3 L. Ed. 735; Lyle v. Richards, 9 S. & R. (Pa.) 330; Rensselaer Glass Factory v. Reid, 5 Cow. (N. Y.) 628., Doe v. Winn, 5 Pet. (U. S.) 241, 8 L. Ed. 108; Wheaton v. Peters, 8 Pet. (U. S.) 658, 8 L. Ed. 1055; U. S. v. Hudson, 7 Cra. (U. S.) 32, 3 L. Ed. 259; U. S. v. Coolidge, 1 Wheat. (U. S.) 415, 4 L. Ed. 124; Robinson v. Campbell, 3 Wheat. (U. S.) 223, 4 L. Ed. 372; U. S. v. Ravara, 2 Dail. (U. S.) 297, 1 L. Ed. 388; U. S. v. Worrall, 2 Dail. (U. S.) 384, 1 L. Ed. 426; Com. v. Leach, 1 Mass. 61; Boynton v. Rees, 9 Pick. (Mass.) 532; Win throp v. Dockendorfe, 3 Greenl. (Me.) 162; Colley v. Merrill, 6 Greenl. (Me.) 55; Sib ley v. Williams, 3 Gill. & J. (Md.) 62; U. S. v. Coolidge, 1 Gall. (U. S.) 489, Fed. Cas. No. 14,857; State v. Danforth, 3 Conn. 114; John son v. Terry, 34 Conn. 260 ; Dawson v. Coff man, 28 Ind. 220 ; Powell v. Sims, 5 W. Va. 1, 13 Am. Rep. 629 ; Lansing v. Stone, 37 Barb. (N. Y.) 16 ; Barlow v. Lambert, 28 Ala. 704, 65 Am. Dec. 374. See Sampson's Discourse before the N. Y. Hist. Soc.
The adoption of the common law has been held to include the construction of common law terms; Carpenter v. State, 4 How. (Miss.) 163, 34 Am. Dec. 116 ; Buckner v. Bank, 5 Ark. 536, 41 Am. Dec. 105; statutes; Com. v. Churchill, 2 Metc. (Mass.) 118; and constitutional provisions; McGinnis v. State, 9 Humph. (Tenn.) 43, 49 Am. Dec. 697; curtest' ; McCorry v. King's Heirs, 3 Humph. (Tenn.) 267, 39 Am. Dec. 165; dower ; Davis v. O'Ferrall, 4 G. Greene (Ia.) 168; husband and wife ; Van Maren v. Johnson, 15 Cal. 308 ; champerty ; Key v. Vattier, 1 Ohio 132 ; real property, title, estate, and tenures; Hemingway v. Scales, 42 Miss. 1, 97 Am. Dec. 425, 2 Am. Rep. 586 ; Harkness v. Sears, 26 Ala. 493, 62 Am. Dec. 742; Powell v. Bran don, 24 Miss. 343 ; sureties; Vidal v. Girard, 2 How. (U. S.) 127, 11 L. Ed. 205; chari table uses ; Burr v. Smith, 7 Vt. 241, 29 Am. Dec. 154 ; Williams v. Williams, 8 N. Y. 541; Witman v. Lex, 17 S. & R. (Pa.) 88, 17 Am. Dec. 644 ; decedent's estates ; Cutting V. Cutting, 86 N. Y. 529; remedies and tice; Straffin's Adm'r v. Newell, T. 1:1, P. Charit. (Ga.) 172, 4 Am. Dec. 705; U. S. v. Wonson, 1 Gall. 20, Fed. Cas. No. Hightower v. Fitzpatrick's Heirs, 42 Ala. 597 ; Grande v. Foy, 1 Hemp. 105, Fed. Cas. No. 5,682a ; Fisher v. Cockerell, 5 Pet. (U. S.) 253, 8 L. Ed. 114; Wiley v. Ewing, 47 Ala. 424.