Common Law and English Statutes Adopted in American Founding Era

Common Law and English Statutes Adopted in American Founding Era

nolu chanApril 28, 2012

TABLE OF CONTENTS

002. Table of source material

007. The Law of Nations per Kents Commentaries

011. The Common Law per Kents Commentaries

013. State by State Review, adoption of law in the Founding Era

033. Appendix of Source Material

607. End.

TABLE OF SOURCE MATERIAL

All listed source material is incorporated within this document and hypertext linksgo to the appended material without leaving this document.

Miscellaneous:

Commentaries on American Law by James Kent (Kents Commentaries),Vol I, 12th Ed., Edited by Oliver Wendell Holmes, Jr. (1896)

[033] Part I, Of the Law of Nations; Lecture I, Of the Foundation and History of the Law of Nations, pp. 1-23.

[056] Part I, Of the Law of Nations; Lecture II, Of the Duties of Nations in a State of Peace, pp. 24-71.

[104] Part III, Of the Various Sources of the Municipal Law of theSeveral States; Lecture XXI. Of Reports of Judicial Decisions; Source of the Common Law, pp. 640-668.

[133] Patrick Henry, Debates and Other Proceedings of the Convention of Virginia, 2nd Ed., pp. 316-17.

Constitutions:

[135] Connecticut 1776[137] Delaware 1776[143] Georgia 1777[150] Maryland 1776[162] Massachusetts 1780[180] New Hampshire 1776[182] New Jersey 1776[187] New York 1777[199] North Carolina 1776[205] Pennsylvania 1776[214] Rhode Island 1842 (superseded charter of 1643)[225] South Carolina 1776[231] Virginia 1776

Acts And Statutes

[234] Georgia, Act of February 25, 1784, An Act for reviving and enforcing certain Laws therein mentioned.

[236] New Hampshire, Laws of the State of New Hampshire, passedJanuary session, 1943; pp. 231-33, 259.

[240] North Carolina, Act of 1715, Chap. 5, An act for the moreeffectual observing of the Queens peach, and establishing a good and lasting foundation of government in North Carolina.

[241] North Carolina, Act of 1778, Chap. 133, An act to enforce suchparts of the statute and common laws as have been heretofore inforce and use here, and the acts of Assembly made and passedwhen this territory was under the government of Great Britain, andfor reviving the several acts therein mentioned.

[243] Pennsylvania, Act of 1777, An Act to revive and put in force suchand so much of the late laws of the province on Pennsylvania, as isjudged necessary to be in force in this commonwealth, and torevive and establish the Courts of Justice, and for other purposestherein mentioned.

[248] Rhode Island, Act of April, 1700, An Act, for putting in Force theLaws of England in all Cases, where no Particular Law of thisColony hath Provided a Remedy.

[249] Rhode Island, Act of 1750 (1749?), a bill for introducing into thiscolony, such of the statutes of England, as are agreeable to theconstitution, and make report of their doings, the greatest part ofwhom, presented what followeth; [list of English statutes] andall and every of the statutes, aforesaid, be, and they are herebyintroduced into this colony, and shall be in full force therein, untilthe General Assembly shall order otherwise.

[251] South Carolina, Act of 1712, An Act to put in force in thisProvince the Several Statutes of the Kingdom of England or SouthBritain, therein particularly mentioned.

[434] Virginia, Statute 1-200, The Common Law, (Code 1919, 2, 1-10; 2005, c. 839.)

[435] Vermont, Act of November 4, 1797, An Act, adopting thecommon law of England, and declaring that all persons shall beequally entitled to the benefit and privilege of law and justice.

[436] District of Columbia, Act of February 27, 1801, An Actconcerning the District of Columbia.

[442] District of Columbia, Act of March 3, 1801, An Actsupplementary to the act intituled An act concerning the Districtof Columbia.

[445] District of Columbia, Act of May 3, 1802, An Act additional to,and amendatory of, an act, intituled An act concerning theDistrict of Columbia.

[450] Northwest Territory, Act of July 14, 1795, A Law declaring whatlaws shall be in force.

Court Opinions:

[451] Crawford v. United States, 29 S.C.R. 260, 212 U.S. 183 (1909),(from the Court of Appeals of the District of Columbia)

[461] Dion v. Cheshire Mills, 92 NH 414 (1943)

[465] Ferguson v. Georgia, 365 U.S. 570 (1961) (from the SupremeCourt of Georgia)

[494] Morriss Lessee v. Vanderen, S. Ct. of Pennsylvania, 1 Dallas (Pa) 64, (1782)

[499] Patterson v. Winn, 5 Peters 233, 30 U.S. 233 (1831) (from the Circuit Court of Georgia)

[509] Respublica v. Mesca et al, Court of Oyer and Terminer at Philadelphia, 1 Dallas (Pa) 73 (1783)

[512] Straffin v. Newell, Superior Court, Chatham County, Georgia,T.U.P.C. 172 (1808)

[513] The Will of Sarah Zane, Opinion of the Circuit Court of the UnitedStates, Eastern District of Pennsylvania (1833)

[585] Wells v. Pierce, 27 N.H. 503 (1853)

[597] United States v. Worrall, U.S. Circuit Court, District ofPennsylvania, 2 Dallas (Pa) 384 (1798)

[607] End.

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The Law of Nations per Kents Commentaries

Kents Commentaries at page 1:

PART I.

OF THE LAW OF NATIONS.

LECTURE I.

OF THE FOUNDATION AND HISTORY OF THE LAW OFNATIONS.

When the United States ceased to be a part of the British empire, andassumed the character of an independent nation, they became subject tothat system of rules which reason, morality, and custom had establishedamong the civilized nations of Europe, as their public law. During thewar of the American revolution, Congress claimed cognizance of allmatters arising upon the law of nations, and they professed obedience tothat law, according to the general usages of Europe. (a) By this law weare to understand that code of public instruction which defines therights and prescribes the duties of nations, in their intercourse with eachother.1

(a) Ordinance of the 4th December, 1781, relative to maritimecaptures. Journals of Congress, vii. 185, The English judges havefrequently declared that the law of nations was part of thecommon law of England. Triquet v. Bath, 3 Burr. 1478;Heathfleld v. Chilton, 4 ib. 2015; and it is well settled that thecommon law of England, so far as it may be consistent with theconstitutions of this country, and remains unaltered by statute, isan essential part of American jurisprudence. Vide infra, 841, 472,473.

For other definitions, see Wheat. pt. 1, c. 1, Danas note, 9;1Aust. Jur. lect. 6, 3d ed. 231.

International Law is probably the better title. Wheat.Danas note, 7; Woolsey, Introd. 19; Abdys Kent, 4; Twiss,Law of Nat. pt. 1, 85; cf. Aust. Jur. lect. 5, 3d ed. 177; post,51, n. (b). The ju s g e n tium of the Roman lawyers is nowunderstood to have meant something very different fromthe modern international law. It was a collection ofrules and principles, determined by observation to becommon to the institutions which prevailed among thevarious Italian tribes. The ju s natu rale , or Law ofNature, is simply the ju s g e n tium , seen in the light ofa peculiar theory. The confusion between JusGentium, or law common to all nations, andin te rnatio nal law is entirely modern. Maine, Anc. Law,c.3, Am. ed. pp. 48, 50. See Aust. Jur. lect. 31 J Gaii. Inst. 1, 1.


There has been a difference of opinion among writers, concerning thefoundation of the law of nations. It has been considered by some as a meresystem of positive institutions, founded upon consent and usage; whileothers have insisted that it was essentially the same as the law of nature,applied to the conduct of nations, in the character of moral persons,susceptible of obligations and laws. We are not to adopt either of thesetheories as exclusively true.


There is a natural and a positive law of nations. By the former, everystate, in its relations with other states, is bound to conduct itself withjustice, good faith, and benevolence; and this application of the law ofnature has been called by Vattel the necessary law of nations, becausenations are bound by the law of nature to observe it; and it is termed byothers the internal law of nations, because it is obligatory upon them inpoint of conscience.


Grotius has, therefore, been justly considered as the father of the law ofnations. He arose like a splendid luminary, dispelling darkness andconfusion; and imparting light and security to the intercourse of nations.


The most popular and the most elegant writer on the law of nations isVattel, whose method has been greatly admired. He professed to havefollowed the voluminous work of Wolff on the Law of Nature andNations, and to be enlightened and guided by his learning, with muchimprovement upon the doctrine and arrangement of his great master.He has been cited, for the last half-century, more freely than anyone ofthe public jurists; but he is very deficient in philosophical precision. Histopics are loosely and often tediously and diffusively discussed, and he isnot sufficiently supported by the authority of precedents, whichconstitute the foundation of the positive law of nations.


We now appeal to more accurate, more authentic, more precise,and more commanding evidence of the rules of public law, by areference to the decisions of those tribunals to whom, in everycountry, the administration of that branch of jurisprudence isspecially intrusted. We likewise appeal to the official documentsand ordinances of particular states, which have professed toreduce into a systematic code, for the direction of their owntribunals, and for the information of foreign powers, the law ofnations on those points which relate particularly to the rights ofcommerce and the duties of neutrality.

Kents Commentaries at page 24: [*21]

Nations are equal in respect to each other, and entitled to claim equalconsideration for their rights, whatever may be their relative dimensionsor strength, or however greatly they may differ in government, religion,or manners. This perfect equality, and entire independence of all distinctstates, is a fundamental principle of public law. It is a necessaryconsequence of this equality that each nation has a right to governitself as it may think proper, and no one nation is entitled todictate a form of government or religion, or a course of internalpolicy, to another. No state is entitled to take cognizance or noticeof the domestic administration of another state, or of what passeswithin it as between the government and its own subjects.

Kents Commentaries at page 68: [*44]

A consul is not such a public minister as to be entitled to the privilegesappertaining to that character, nor is he under the special protection ofthe law of nations. He is entitled to privileges to a certain extent, such asfor safe-conduct, but he is not entitled to the just gentium. Vattel thinks (b)that his functions require that he should be independent of the ordinarycriminal jurisdiction of the country, and that he ought not to be molested,unless he violates the law of nations by some enormous crime; and that,if guilty of any crime, he ought to be sent home to be punished. (c) Butno such immunities have been conferred on consuls by the modernpractice of nations; and it may be considered as settled law, that consulsdo not enjoy the protection of the law of nations, any more than otherpersons who enter the country under a safe-conduct. In civil and criminalcases they are equally subject to the laws of the country in which theyreside. (d) The same doctrine, declared by the public jurists, has beenfrequently laid down in English and American courts of justice. (a) Itseems, however, from some decisions in France, mentioned by Mr.Warden, (b) that foreign consuls cannot be prosecuted before a Frenchtribunal, for acts done by them in France, by order of their government,and with the authorization of the French government, and that, ingeneral, a consul cannot be prosecuted without the previous consent ofhis government. Consular privileges are much less extensive in Christianthan in Mahometan countries. In the latter they cannot be imprisonedfor any cause whatever, except by demanding justice against them of thePorte, (c) and they partake very considerably of the character andimportance of resident ministers. They are diplomatic agents under thename of consuls, and enjoy the rights and privileges which the OttomanPorte recognizes in relation to the foreign ministers resident atConstantinople. (d) By treaty, an entire immunity is usually given to thepersons, domestics, and effects of the resident consuls, and no consulsreside with the Barbary states but under the protection of treaties. (e)

Considering the importance of the consular functions, and the activitywhich is required of them in all great maritime ports, and the approachwhich consuls make to the efficacy and dignity of diplomatic characters, itwas a wise provision in the Constitution of the United States which gaveto the Supreme Court original jurisdiction in all cases affecting consuls, aswell as ambassadors and other public ministers; and the federaljurisdiction is understood to be exclusive of the state courts. (f) (x)l

Source of the Common Law per Kents Commentaries

Kents Commentaries at 643-644: [*472-473]

But though the great body of the common law consists of acollection of principles, to be found in the opinions of sages ordeduced from universal and immemorial usage, and receivingprogressively the sanction of the courts, it is, nevertheless, true,that the common law, so far as it is applicable to our situation andgovernment, has been recognized and adopted, as one entiresystem, by the constitutions of Massachusetts, New York, NewJersey, and Maryland. It has been assumed by the courts ofjustice, or declared by statute, with the like modifications, as thelaw of the land in every state. It was imported by our colonialancestors, as far as it was applicable, and was sanctioned by royalcharters and colonial statutes. (a) It is also the established doctrine, thatEnglish statutes, passed before the emigration of our ancestors, andapplicable to our situation, and in amendment of the law, constitute apart of the common law of this country. (b) (x)

Kents Commentaries at 645-646 [*473-474]

2. Force of Adjudged Cases. The best evidence of the commonlaw is to be found in the decisions of the courts of justice,contained in numerous volumes of reports, and in the treatisesand digests of learned men, which have been multiplying from theearliest periods of the English history down to the present time. (c)The reports of judicial decisions contain the most certain evidence, andthe most authoritative and precise application of the rules of thecommon law. Adjudged cases become precedents for future casesresting upon analogous facts, and brought within the same reason; andthe diligence of counsel, and the labor of judges, are constantly required,in the study of the reports, in order to understand accurately theirimport, and the principles they establish. But to attain a competentknowledge of the common law in all its branches has now become avery serious undertaking, and it requires steady and lasting perseverance,in consequence of the number of books which beset and encumber the

path of the student. (d) The grievance is constantly growing, for thenumber of periodical law reports and treatises which issue from theEnglish and American press is continually increasing; and if we wish toreceive assistance from the commercial system of other nations, and tobecome acquainted with the principles of the Roman law, as receivedand adopted in continental Europe, we are in still greater danger ofbeing confounded, and of having our fortitude subdued, by theimmensity and variety of the labors of the civilians. (a)

Kents Commentaries at 648-649: [*476-477]

A solemn decision upon a point of law, arising in any given case,becomes an authority in a like case, because it is the highest evidencewhich we can have of the law applicable to the subject, and the judgesare bound to follow that decision so long as it stands unreversed, unlessit can be shown that the law was misunderstood or misapplied in thatparticular case. If a decision has been made upon solemn argument andmature deliberation, the presumption is in favor of its correctness; andthe community have a right to regard it as a just declaration orexposition of the law, and to regulate their actions and contracts by it. Itwould therefore be extremely inconvenient to the public, if precedentswere not duly regarded and implicitly followed. It is by the notoriety andstability of such rules that professional men can give safe advice to thosewho consult them; and people in general can venture with confidence tobuy and trust, and to deal with each other. If judicial decisions were tobe lightly disregarded, we should disturb and unsettle the greatlandmarks of property. When a rule has been once deliberately adoptedand declared, it ought not to be disturbed, unless by a court of appeal orreview, and never by the same court, except for very cogent reasons, andupon a clear manifestation of error; and if the practice were otherwise, itwould be leaving us in a state of perplexing uncertainty as to the law. (a)The language of Sir William Jones (b) is exceedingly forcible on thispoint. No man, says he, who is not a lawyer, would ever know howto act; and no man who is a lawyer would, in many instances, knowwhat to advise, unless courts were bound by authority as firmly as thePagan deities were supposed to be bound by the decrees of fate.

STATE BY STATE REVIEWADOPTION OF LAW IN THE FOUNDING ERA

1. Connecticut

Constitution of Connecticut 1776.

PARAGRAPH 1. Be it enacted and declared by the Governor, andCouncil, and House of Representatives, in General Court assembled, Thatthe ancient Form of Civil Government, contained in theCharter from Charles the Second, King of England, andadopted by the People of this State, shall be and remain theCivil Constitution of this State, under the sole authority of thePeople thereof, independent of any King or Prince whatever. Andthat this Republic is, and shall forever be and remain, a free,sovereign and independent State, by the Name of the STATE OFCONNECTICUT.

2. Delaware

Constitution of Delaware 1776.

ART. 24. All acts of assembly in force in this State on the 15thday of May last (and not hereby altered, or contrary to theresolutions of Congress or of the late house of assembly of thisState) shall so continue, until altered or repealed by the legislatureof this State, unless where they are temporary, in which case theyshall expire at the times respectively limited for their duration.

ART. 25. The common law of England, as well as so muchof the statute law as has been heretofore adopted in practicein this State, shall remain in force, unless they shall be alteredby a future law of the legislature; such parts only excepted as arerepugnant to the rights and privileges contained in thisconstitution, and the declaration of rights, &c., agreed to by thisconvention.

3. Georgia

Constitution of Georgia 1777.

The Constitution of Georgia did not address this issue. It wasaddressed in Statute law and by judicial opinion.

Georgia, Act of February 25, 1784

3. Sec. I. Be it enacted, &c. That all and singular the several acts,clauses, and parts of acts, that were in force and binding on theinhabitants of the said province, on the 14th day of May, in theyear of our Lord 1776, so far as they are not contrary to theconstitution, laws, and form of government now established inthis state, shall be, and are hereby declared to be in full force,virtue, and effect, and binding on the inhabitants of this state,immediately from and after the passing of this act, as fully andeffectually, to all intents and purposes, as if the said acts, and eachof them, had been made and enacted by this general assembly,until the same shall he repealed, amended, or otherwise altered bythe legislature: And also the common laws of England, andsuch of the statute laws as were usually in force in the saidprovince, except as before excepted.

Straffin v. Newell, Superior Court, Chatham County, Georgia, T.U.P.C. 172 (1808)

I shall decide upon the second ground only. At the trial, theprotest of the master of the vessel was admitted as evidence inchief. Now the protest of the master is not evidence per se; it canonly be used in a court governed by the rules of the commonlaw, to impeach the testimony of the master himself, or asincidentally corroborative of the log-book. There was therefore amisdirection of the judge, on this point of the evidence.

In this case the plaintiff is the administrator of the master, whichought to have suggested an invincible objection to theadmissibility of the protest. 2 Esp.Rep. 489; 7 D. and E. werecited by Davis and Berrien.

This court is governed by the rules and principles of the commonlaw, so far as they are permitted to operate by our constitutionand laws. The case therefore cited from 1 Dallas, p. 6, militatingwith those rules and principles, cannot be received as authority.

Rule made absolute.

Patterson v. Winn, 5 Peters 233, 240 30 U.S. 233 (1831) (from the Circuit Court of Georgia), Justice Story:

The common law is the law of Georgia; and the rules ofevidence belonging to it are in force there, unless so far asthey have been modified by statute, or controlled by asettled course of judicial decisions and usage. Upon thepresent question, it does not appear, that Georgia has everestablished any rules at variance with the common law; though itis not improbable, that there may have been, from the peculiarorganization of her judicial department, some diversity in theapplication of them, in the different circuits of that state, acting,as they do, independent of each other, and without any commonappellate court to supervise their decisions. We think it clear,that by the common law, as held for a long period, anexemplification of a public grant, under the great seal, isadmissible in evidence, as being record proof of as high anature as the original. It is a recognition, in the most solemnform, by the government itself, of the validity of its owngrant, under its own seal; and imports absolute verity, asmatter of record.

The authorities cited at the bar fully sustain this doctrine.There was, in former times, a technical distinction existing on thissubject, which deserves notice. As evidence, suchexemplifications of letters-patent seem to have been generallydeemed admissible. But where, in pleading, a profert was made ofthe letters-patent, there, upon the principles of pleading, theoriginal, under the great seal, was required to be produced; for aprofert could not be of any copy or exemplification. It was to curethis difficulty that the statutes of 3 Edw. VI., c. 4, and 13 Eliz., c.6, were passed, by which, patentees, and all claiming under them,were enabled to make title in pleading, by showing forth an

exemplification of the letters patent, as if the original werepleaded and set forth. These statutes being passed, before theemigration of our ancestors, being applicable to oursituation, and in amendment of the law, constitute a part ofour common law. A similar effect was given by the statute of 10Ann., c. 18, to copies of deeds of bargain and sale, enrolled underthe statute of Hen. VIII., when offered by way of profert inpleading; and since that period, a copy of the enrolment of abargain and sale is held as good evidence as the original itself. 1Phil. Evid., ch. 5, 2, p. 208-302; ch. 8, 2, p. 352-6; 408-11; Bac.Abr. title Evidence, F. p. 610, 644, 646; Com. Dig. Evidence, A,2; 1 Stark. Evid. 33, p. 152; 2 Saund. Plead. & Evid. 638; PagesCase, 5 Co. 53; 12 Vin. Abr. tit. Evidence, A, b, 25, p. 97; A, b,33, p. 114; 1 Saund. 189, note 2. Such, then, being the rule ofevidence of the common law, in respect to exemplifications,under the great seal, of public grants, the application of it to thecase now at bar will be at once perceived; since, by the laws ofGeorgia, all public grants are required to be recorded in theproper state department.

Ferguson v. Georgia, 365 U.S. 570 (1961) (from the Supreme Court of Georgia)

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The State of Georgia is the only State indeed, apparentlythe only jurisdiction in the common law world to retainthe common law rule that a person charged with a criminaloffense is incompetent to testify under oath in his ownbehalf at his trial. Georgia in 1866 abolished by statute thecommon law rules of incompetency for most other persons.However, the statute, now Georgia Code 38-416, expresslyretained the incompetency rule as to persons charged in anycriminal proceeding with the commission of any indictableoffense or any offense punishable on summary conviction. . . .Two years later, in 1868, Georgia allowed the criminal defendantto make an unsworn statement. The statute enacted for thatpurpose, as amended, is now Georgia Code, 38-415, andprovides:

In all criminal trials, the prisoner shall have the right to make tothe court and jury such statement in the case as he may deemproper in his defense. It shall not be under oath, and shall havesuch force only as the jury may think right to give it. They maybelieve it in preference to the sworn testimony in the case. Theprisoner shall not be compelled to answer any questions oncross-examination, should he think proper to decline to answer.

4. Maryland

Constitution of Maryland 1776.

III. That the inhabitants of Maryland are entitled to thecommon law of England, and the trial by jury, according to thecourse of that law, and to the benefit of such of the Englishstatutes, as existed at the time of their first emigration, andwhich, by experience, have been found applicable to their localand other circumstances, and of such others as have been sincemade in England, or Great Britain, and have been introduced,used and practised by the courts of law or equity; and also to actsof Assembly, in force on the first of June seventeen hundred andseventy-four, except such as may have since expired, or have beenor may be altered by acts of Convention, or this Declaration ofRights subject, nevertheless, to the revision of, andamendment or repeal by, the Legislature of this State: and theinhabitants of Maryland are also entitled to all property, derivedto them, from or under the Charter, granted by his MajestyCharles I. to Ccilius Calvert, Baron of Baltimore.

5. Massachusetts

Constitution of Massachusetts 1780 (quote from Chapter VI)

ART. V. All writs, issuing out of the clerks office in any of thecourts of law, shall be in the name of the commonwealth ofMassachusetts; they shall be under the seal of the court fromwhence they issue; they shall bear test of the first justice of thecourt to which they shall be returnable who is not a party, and besigned by the clerk of such court.

ART. VI. All the laws which have heretofore been adopted,used, and approved in the province, colony, or State ofMassachusetts Bay, and usually practised on in the courts oflaw, shall still remain and be in full force, until altered orrepealed by the legislature, such parts only excepted as arerepugnant to the rights and liberties contained in thisconstitution.

ART. VII. The privilege and benefit of the writ of habeas corpusshall be enjoyed in this commonwealth, in the most free, easy,cheap, expeditious, and ample manner, and shall not besuspended by the legislature, except upon the most urgent andpressing occasions, and for a limited time, not exceeding twelvemonths.

6. New Hampshire

Constitution of New Hampshire 1776

The Constitution of New Hampshire did not address this issue.It was addressed in Statute law and by judicial opinion.

New Hampshire, Laws of the State of New Hampshire, passed Januarysession, 1943; pp. 231-33, 259.

[233] 6. Common Law Lien. When any factor, or any third partyfor the account of any such factor, shall have possession of goodsand merchandise, such factor shall have a continuing general lien,as set forth in section 1 of this chapter, without recording thenotice and posting the sign provided for in this chapter.

[233] 7. Construction. This act is to be construed liberally tosecure the beneficial interest and purposes thereof. A substantialcompliance with its several provisions shall be sufficient for thevalidity of a lien and to give jurisdiction to the courts to enforcethe same. Nothing in this chapter shall be construed asaffecting or limiting any existing or future lien at commonlaw or any rights at common law, or any right given by anyother statute or provision of the Revised Laws.

[259] 13-a. Register Authorized. In addition to his common lawand statutory powers the attorney general shall have theauthority to prepare and maintain a register of all public trustsheretofore or hereafter established or active in the state.

Wells v. Pierce, 27 N.H. 503, 512 (1853)

Equity, as a great branch of the law of their native country, wasbrought over by the colonists, and has always existed as a partof the common law, in its broadest sense, in NewHampshire.

Dion v. Cheshire Mills, 92 NH 414 (1943)

except for the brief period 1682 to 1699 we never had separatecourts of chancery. At all other colonial periods, equitypractice was in the common-law courts, as now, and evenwhen there was a court of chancery, the common-law Court ofCommon Pleas undertook in one instance to exercise equityjurisdiction. Barefoot v. Wadley, supra.

7. New Jersey

Constitution of New Jersey 1776

XXI. That all the laws of this Province, contained in the editionlately published by Mr. Allinson, shall be and remain in full force,until altered by the Legislature of this Colony (such onlyexcepted, as are incompatible with this Charter) and shall be,according as heretofore, regarded in all respects, by all civilofficers, and others, the good people of this Province.

XXII. That the common law of England, as well as so muchof the statute law, as have been heretofore practised in thisColony, shall still remain in force, until they shall be alteredby a future law of the Legislature; such parts only excepted,as are repugnant to the rights and privileges contained inthis Charter; and that the inestimable right of trial by jury shallremain confirmed as a part of the law of this Colony, withoutrepeal, forever.

8. New York

Constitution of New York 1777

XXXV. And this convention doth further, in the name and by theauthority of the good people of this State, ordain, determine,and declare that such parts of the common law of England,and of the statute law of England and Great Britain, and ofthe acts of the legislature of the colony of New York, astogether did form the law of the said colony on the 19th dayof April, in the year of our Lord one thousand seven hundredand seventy-five, shall be and continue the law of this State,subject to such alterations and provisions as the legislature of thisState shall, from time to time, make concerning the same. Thatsuch of the said acts, as are temporary, shall expire at the timeslimited for their duration respectively. That all such parts of thesaid common law, and all such of the said statutes and actsaforesaid, or parts thereof, as may be construed to establish ormaintain any particular denomination of Christians or theirministers, or concern the allegiance heretofore yielded to, and thesupremacy, sovereignty, government, or prerogatives claimed orexercised by, the King of Great Britain and his predecessors, overthe colony of New York and its inhabitants, or are repugnant tothis constitution, be, and they hereby are, abrogated and rejected.And this convention doth further ordain, that the resolves orresolutions of the congresses of the colony of New York, and ofthe convention of the State of New York, now in force, and notrepugnant to the government established by this constitution,shall be considered as making part of the laws of this State;subject, nevertheless, to such alterations and provisions as thelegislature of this State may, from time to time, make concerningthe same.

9. North Carolina

Constitution of North Carolina 1776

The Constitution of New Hampshire did not address this issue.It was addressed in Statute law.

North Carolina, Act of 1715, Chap. 5

2. Be it therefore enacted by the authority aforesaid, and it is hereby enactedand declared, That the common law is, and shall be, in force, inthis government, except such part in the practice, in theissuing and return of writs, and proceedings in the court ofWestminster, which for want of several officers cannot beput in execution; which ought to be supplied by rules of thegeneral court of this government, being first approved of by thegovernor and council, which shall be good in law, from time totime, till it shall be altered by act of assembly.

3. And be it further enacted and declared by the authority aforesaid, Thatall statute laws of England, providing for the privileges ofthe people, as also, all statute laws made for limitation ofactions, and preventing of vexatious law suits, and forpreventing immorality and fraud, and confirminginheritances and titles of land, are and shall be in force here,although this province, or the plantations in general, are nottherein named.

North Carolina, Act of 1778, Chap. 133

An act to enforce such parts of the statute and common laws ashave been heretofore in force and use here, and the acts ofAssembly made and passed when this territory was under thegovernment of the late proprietors and the crown of GreatBritain, and for reviving the several acts therein mentioned.

1. WHEREAS doubts may arise, upon the revolution ingovernment, whether any and what laws continue in force here:for prevention of which,

2. Be it enacted, &c. That all such statutes, and such parts ofthe common law, as were heretofore in force and use withinthis territory, (b) and all the acts of the late generalassemblies thereof, or so much of the said statutes, commonlaw, and acts assembly, as are not destructive of, repugnantto, or inconsistent with the freedom and independence of thisstate, and the form of government therein established, and which

have not been otherwise provided for, in the whole or in part, notabrogated, repealed, expired, or become obsolete, are herebydeclared to be in full force within this state.

10. Pennsylvania

Constitution of Pennsylvania 1776

The Constitution of New Hampshire did not address this issue. Itwas addressed in Statute law. There is a provision using anoteworthy turn of phrase.

SECT. 42. Every foreigner of good character who comes to settlein this state, having first taken an oath or affirmation of allegianceto the same, may purchase, or by other just means acquire, hold,and transfer land or other real estate; and after one yearsresidence, shall be deemed a free denizen thereof, and entitled toall the rights of a natural born subject of this state, except that heshall not be capable of being elected a representative until aftertwo years residence.

Pennsylvania, Act of 1777, An Act to revive and put in force such and somuch of the late laws of the province on Pennsylvania, as is judged necessaryto be in force in this commonwealth, and to revive and establish the Courts ofJustice, and for other purposes therein mentioned.

II. Be it therefore enacted, and it is hereby enacted, That each and everyone of the laws or acts of General Assembly, that were in forceand binding on the inhabitants of the said be province on thefourteenth day of May last, shall be in force from and binding onthe inhabitants of this state from and after the tenth day ofFebruary next, as fully and effectually, to all intents and purposes,as if the said laws, and each of them, had been made or enacted bythis General Assembly; and all and every person and personswhomsoever are hereby enjoined and required to yield obedienceto the said laws, as the case may require until the said laws or actsof General Assembly respectively shall be repealed or altered, oruntil they expire by their own limitation; and the common lawand such of the statute laws of England as have heretoforebeen in force in the said province, except as is hereafterexcepted.

Morriss Lessee v. Vanderen, S. Ct. of Pennsylvania, 1 Dallas (Pa) 64, (1782)

It is the opinion of the court, however, that the common lawof England has always been in force in Pennsylvania; that allstatutes made in Great Britain, before the settlement ofPennsylvania, have no force here, unless they are convenient andadapted to the circumstances of the country; and that all statutesmade since the settlement of Pennsylvania, have no force here,unless the colonies are particularly named. (c) The spirit of the actof assembly passed in 1718 supports the opinion of the court.

The statute of limitations, 32 Hen. VIII, c. 2, has always beenreceived in Pennsylvania.

Respublica v. Mesca et al, Court of Oyer and Terminer at Philadelphia, 1Dallas (Pa) 73 (1783)

The Chief Justice delivered the opinion of the court as follows:

MCKEAN, C. J. The point before the court has been wellargued; and on a full consideration of the subject, we now findlittle difficulty in pronouncing our decision. The first legislatureunder the commonwealth, has clearly fixed the rule,respecting the extension of British statutes, by enacting thatsuch of the statutes as have been in force in the lateprovince of Pennsylvania, should remain in force, till alteredby the legislature; and it appears in evidence, that the 28 Edw.III, c. 13, has been in force in the late province, since a trial permedietatum lingu was allowed in the case of a burglary committedby one Ottenreed, in the mansion-house of Mr. Clifford.

United States v. Worrall, U.S. Circuit Court, District of Pennsylvania, 2Dallas (Pa) 384 (1798)

[392] The prosecution against Henfield was not expressly on thetreaty, but on the law of nations, which is a part of thecommon law of the United States; and the power of indictingfor a breach of treaty, not expressly providing the means ofenforcing performance in the particular instance, is itself a

common-law power. Unless the judicial system of the UnitedStates justified a recourse to common law, against anindividual guilty of a breach of treaty, the offence, where nospecific penalty was to be found in the treaty, would,therefore, remain unpunished.

The Will of Sarah Zane, Opinion of the Circuit Court of the United States,Eastern District of Pennsylvania (1833)

The first law passed on the change of government, declaredthe province laws in force till altered or repealed; also thecommon law and such parts of the statute laws of Englandas had been before in force.And so much of any law or actof Assembly as declares, orders, directs, commands any matter orthing repugnant to, or inconsistent with the constitution, ishereby declared not to be revived, but shall be null and void, andof no force or effect. 1 Dallas Laws, 722.

11. Rhode Island

Constitution of Rhode Island 1842. (superceded charter of 1663)

Sec 13. No man in a court of common law shall be compelled togive evidence criminating himself.

Rhode Island, Act of April 30, 1700, An Act, for putting in Force the Lawsof England in all Cases, where no Particular Law of this Colony hathProvided a Remedy.

Be it Enacted by the General Assembly, and by the Authority of the same,That in all Actions, Matters, Causes and things whatsoever, whereno Particular Law of this Colony is made to Decide andDetermine the same; that then and in all such Cases the laws ofEngland shall be put in Force to Issue, Determine and Decide thesame. Any Usage, Custom or Law to the contrary hereofnotwithstanding.

Rhode Island, Act of 1750 (1749?), a bill for introducing into this colony,such of the statutes of England, as are agreeable to the constitution....

Whereas, this Assembly, at their session in October last,appointed a committee, to prepare a bill for introducing into thiscolony, such of the statutes of England, as are agreeable to theconstitution, and make report of their doings, the greatest part ofwhom, presented what followeth:

We, the subscribers, being appointed to report what statutes ofGreat Britain are, and ought to be in force in this colony, doreport as followeth: that the following statutes, viz.:

The statute of Merton, concerning dower.

The statute of Westminster the first, as far as it concerns bail.

The statute of Glocester.

The statute of Westminster the second, de donis conditionalibus.

The statutes of the 1st Henry V., of additions.

The statues of partition, in general.

The statutes of the 32 Henry VIII., concerning leases, saving andexcepting the last paragraph of the said statute.

The statutes of 21 James I., chapter 16th, for limiting real actions;and that of 32 Henry VIII., chapter 2d.

The statutes of James and Elizabeth, and all statutes that concernbastardy, as applicable to the constitution of this colony.

All statutes that are against criminal offenders, so far as they aredescriptive of the crime; and where the law of this colony hathnot described and enjoined the punishment, then that part of thestatute that relates to the punishment, also; always saving andexcepting such statutes, as from the nature of the offencesmentioned in them, are confined to Great Britain, only.

The statute of Henry III., commonly called the statute of uses.

The statute of 29 Charles II., commonly called the statute offrauds and perjuries.

The statutes of 22 and 23 Charles II., chapter 10th, fordistributing the estates of intestates.

The statute of 3 and 4 William and Mary, chapter 14th.

The statute of 4 and 5 Anne, chapter 16th, relating to jointtenants, and tenants in common.

That part of the statute of Anne, that subjects lessees that holdover their term against the will of the lessor, to the payment ofdouble rent, during the lime they hold over.

All statutes relating to the poor, and relating to masters and theirapprentices ; so far as they are applicable in this colony, andwhere we have no law of the colony.

All which statutes, we are humbly of opinion have heretoforebeen, and still ought to be in force in this colony.

D. UPDIKE, J. HONEYMAN, JR., J. ALPIN.

And this Assembly, having taken the said report intoconsideration, do vote and resolve, that all and every of thestatutes, aforesaid, be, and they are hereby introduced intothis colony, and shall be in full force therein, until theGeneral Assembly shall order otherwise.

12. South Carolina

Constitution of South Carolina 1776

XXIX. That the resolutions of this or any former congress ofthis colony, and all laws now of force here, (and not herebyaltered,) shall so continue until altered or repealed by thelegislature of this colony, unless where they are temporary, in

which case they shall expire at the times respectively limited fortheir duration.

South Carolina, Act of 1712, An Act to put in force in this Province theSeveral Statutes of the Kingdom of England or South Britain, thereinparticularly mentioned.

I. Be it enacted by the Most Noble Prince, Henry Duke ofBeaufort, Lord Palatine, and the rest of the true and absoluteLords and Proprietors of this Province, by and with the adviceand consent of the rest of the members of the General Assembly,now met at Charlestown, for the Southwest part of this Province,and by the authority of the same, That the several statutes, andthe several paragraphs and sections, or numbers of theparagraphs of the several statutes of the Kingdom ofEngland, entituled as followeth, and made and enacted in suchyears of the reigns of the Kings and Queens of England, asbefore the titles of the several statutes is in this Act set down, andas the same are distinguished and divided into paragraphs andsections or numbers, by Joseph Keble of Grays Inn, Esq., in hisStatutes at Large, from Magna Charta to the end of the reign ofKing Charles the Second, and continued, with the addition of allthe statutes made in the reign of King James the Second, andKing William and Queen Mary, to the end of the last sessions ofParliament, May the third, 1695, in the seventh year of the reignof his late Majesty, King William the third, in two volumes,printed at London, in the year of our Lord one thousand sixhundred ninety and five, and as the same are further continued ina third volume of the Statutes at Large, beginning with theseventh and eighth years of the reign of the late King William thethird, and continued to the end of the last session of Parliament,March the fourteenth, 1704, in the fourth year of the reign of herpresent Majesty, Queen Anne, printed at London in the year ofour Lord one thousand seven hundred and six, together with anAddenda to the said third volume, beginning with the fourth yearof the reign of her present Majesty Queen Anne, and continuedto the end of the last session of Parliament, April the first, 1788,in the seventh year of her said present Majesties reign, printed atLondon in the year of our Lord one thousand seven hundred andeight, and the statutes printed since the said third volume and the

addenda, being statutes made in the seventh and eighth years ofher present Majesties reign, at the Parliament summoned to beheld at Westminster, the eighth day of July, Anno Dom. 1708, inthe seventh year of her Majesties reign, and by several writs ofprorogation begun and holden on the sixteenth day ofNovember, 1708, being the first session of the said Parliamentand from thence continued by several prorogations to thefifteenth day of November, 1709, being the second session of thesaid Parliament, which statutes were printed at London by herMajesties printers, in the years 1708, 1709 and 1710; are and arehereby to be in as full force, power and virtue as if the samehad been specially enacted and made for this Province, or asif the same had been made and enacted therein by anyGeneral Assembly thereof, (that is to say,) [continues for another180 pages]

13. Virginia

Constitution of Virginia 1776

The Constitution of Virginia did not address this issue. It wasaddressed in Statute law and at the Constitutional Conventionof Virginia in 1788.

Patrick Henry, Debates and Other Proceedings of the Convention ofVirginia, 2nd Ed., pp. 316-17.

When our government was first instituted in Virginia, we declaredthe common law of England to be in force.

Virginia, Statute 1-200, The Common Law, (Code 1919, 2, 1-10;2005, c. 839.)

1-200. The common law.

The common law of England, insofar as it is not repugnantto the principles of the Bill of Rights and Constitution ofthis Commonwealth, shall continue in full force within the

same, and be the rule of decision, except as altered by theGeneral Assembly.

(Code 1919, 2, 1-10; 2005, c. 839.)

14. Vermont

Vermont Act of November 4, 1797; An Act, adopting the common law ofEngland, and declaring that all persons shall be equally entitled to thebenefit and privilege of law and justice.

Sect. 1. It is hereby enacted by the General Assembly of the State ofVermont, That so much of common law of England, as isapplicable to the local situation, and circumstances, and isnot repugnant to the constitution, or to any of the acts of thelegislature of this state, be, and hereby is adopted law,within this state; and all courts are to take notice thereof, andgovern themselves accordingly.

1 V.S.A. 271, common law adopted

271. Common law adopted

So much of the common law of England as is applicable tothe local situation and circumstances and is not repugnantto the constitution or laws shall be laws in this state andcourts shall take notice thereof and govern themselvesaccordingly.

15. District of Columbia

District of Columbia, Act of February 27, 1801, An Act concerning theDistrict of Columbia. [2 Stat. 103]

SECTION 1. Be it enacted by the Senate and House of Representatives ofthe United States of America in Congress assembled, That the laws ofthe state of Virginia, as they now exist, shall be and continuein force in that part of the District of Columbia, which wasceded by the said state to the United States, and by themaccepted for the permanent seat of government; and that the

laws of the state of Maryland, as they now exist, shall be andcontinue in force in that part of the said district, which wasceded by that state to the United States and by them acceptedas aforesaid.

District of Columbia, Act of March 3, 1801, An Act supplementary to theact intituled An act concerning the District of Columbia. [2 Stat. 115]

SEC. 2. And be it further enacted, That all indictments shall run inthe name of the United States, and conclude, against the peaceand government thereof. And all fines penalties and forfeituresaccruing under the laws of the states of Maryland andVirginia, which by adoption have become the laws of thisdistrict

District of Columbia, Act of May 3, 1802, An Act additional to, andamendatory of, an act, intituled An act concerning the District ofColumbia. [2 Stat. 193]

Be it enacted by the Senate and House of Representatives of the United Statesof America in Congress assembled, That the circuit court of thecounty of Washington, in the territory of Columbia, shall havepower to proceed in all common law and chancery causeswhich now are, or hereafter shall be instituted before it, in whicheither of the parties reside without the said territory, in the sameway that non-residents are proceeded against in the general courtor in the supreme court of chancery in the state of Maryland.

SEC. 2. And be it further enacted, That the circuit court of thecounty of Alexandria, in the district of Columbia, shall havepower to proceed in all common law and chancery causeswhich now are, or hereafter shall be instituted before it, in whicheither of the parties are non-residents of said district of Columbia,in the same way, and under the same regulations observed by thedistrict court or by the high court of chancery in Virginia, inproceeding against non-residents.

16. Northwest Territory

Northwest Territory, Act of July 14, 1795, A Law declaring what laws shall bein force.

The common law of England, all statutes or acts of theBritish parliament made in aid of the common law, prior tothe fourth year of the reign of King James the first (andwhich are of a general nature, not local to that kingdom) andalso the several laws in force in this Territory, shall be therule of decision, and shall be considered, as of full force, untilrepealed by legislative authority, or disapproved of by congress.

[This page intentionally left blank]

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+1-200

1-200. The common law.

The common law of England, insofar as it is not repugnant to the principles of theBill of Rights and Constitution of this Commonwealth, shall continue in full forcewithin the same, and be the rule of decision, except as altered by the GeneralAssembly.

(Code 1919, 2, 1-10; 2005, c. 839.)

Dion v. Cheshire Mills, 92 NH 414 (1943)

Supreme Court of New Hampshire

May 4, 1943

Paul L. Dionv.Cheshire Mills

Syllabus by the Court

In case by a workman against his master for personal injuries with plea in bar that plaintiff hadelected to receive compensation under the workmens compensation act the plaintiff byreplication alleged that the said election was induced by defendants fraud. The plaintiffs motionthat the issue of fraud be submitted to a jury was rightly denied as that issue was for the court,being in effect the plaintiffs application for affirmative relief in equity by cancellation.

In such case the plaintiffs further replication that he was mentally and physically incapable ofmaking an alleged election with understanding raised an issue for the jury, for in this instance theplaintiff is seeking defensive relief, not that affirmative relief by way of cancellation which hemay have only in equity.

The early history of the extent and manner in which equity jurisdiction was exercised either by acourt of chancery or by courts of common law during our colonial and provincial periods dispelssome misconceptions entertained in later decisions which nevertheless reached correct results.

Case, for negligence. The defendant pleaded in bar that the plaintiff had elected his statutoryremedy under the compensation act, the provisions of which had been accepted by the defendant.In replication the plaintiff alleged that his election and acceptance were induced by thedefendants fraud and that he signed papers evidencing his election because of such fraud.

The plaintiff moved that all issues be consolidated for trial by jury. This motion was denied, andthe trial Justice ruled that the issue whether or not the plaintiff elected to accept compensation betried by the court. To these rulings the plaintiff excepted. Transferred on the plaintiffs bill ofexceptions by Lorimer, J.

Opinion of the Court, Page, J.

The question whether the issues should be consolidated was for the court, and no reason appearswhy his decision in that respect should be overruled. Genest v. Company, 75 N.H. 365. Thequestion was raised at the hearing on the motion whether the effect of the rulings made would notbe to deprive the plaintiff of his constitutional right to trial by jury, and that question is before us.

Some confusion has arisen because of the fact that both law and equity take jurisdiction overissues of fraud. The plaintiff referred in argument to the phrase used by counsel in Hoitt v.Holcomb, 23 N.H. 535, 544, concurrent jurisdiction. If by that phrase it be understood, as heldby that case, that fraud may be a defence at law as well as in equity, the phrase is harmless. Uponthe authority of that case it is also clear that fraud is a defence to an unsealed instrument as wellas to a bond, and the instrument now involved may be supposed to be unsealed. It is also true, aspointed out in argument, that insanity is a defence to a proceeding on a contract, whether theproceeding be at law or in equity. Burke v. Allen, 29 N.H. 106, 114. It has also been held thatwhere a defence is well pleaded in law, it is improper for the party so pleading to beginproceedings in equity to try out the issue already properly joined at law. Sullivan &c. Company v.Stowell, 80 N.H. 158. Such a party cannot have relief in equity if he can obtain it at law. Miller v.Scammon, 52 N.H. 609.

Yet to speak of equity and law having concurrent jurisdiction over fraud may be quite misleading.In connection with defences grounded on fraud, its use may be precise enough. Usually, asapplied to defences, the two jurisdictions are concurrent. The real test of the question ofjurisdiction is the capacity in which the court acts upon an issue. Since our courts act both at lawand in equity, there is room for confusion in this regard, unless there be careful consideration ofthe nature of the relief sought. The nature of the relief is the key to the jurisdiction.

It does not help to declare the substantive law that fraud vitiates a contract. That substantive lawis identical in both law and equity, but the jurisdictional question is not thereby answered. It isclear enough that where the execution of a release is denied by the plaintiff, a court of law hasjurisdiction. But where the execution of an instrument is admitted, but sought to be avoided forfraud, it is equally clear that the vitiating of the contract, except as a matter of defence to anaction on it, belongs to equity. It is not enough to say that fraud vitiates a contract at both law andequity. That is true, but it does not follow, as has too often and too easily been concluded, that inall situations the jurisdictions are concurrent.

Relief sought from a contract or an instrument induced by fraud will belong to equity or to law inaccordance with its nature. If a plaintiff has been deprived of money or chattels by a contractfraudulently procured, he may rescind the contract and recover in an action at law his money orhis chattels; or he may bring an action of deceit at common law and recover money damages. Butif he wishes the cancellation of the instrument and restoration to his original position, or if hedesires to have the instrument reformed, he has no remedy at law and must proceed in equity.Pomeroy, Equity Jurisprudence (5th ed.), s. 872. The rule thus announced is the rule concerningfraud, just as it was declared in McIsaac v. McMurray, 77 N.H. 466, to be the rule concerninginstruments made under a mutual mistake of fact. The distinction proposed by the plaintiffscounsel, both in the trial court and here, does not exist.

With these principles in mind, confusion may be avoided. The plaintiff has sued the defendantfor damages at law. The defendant has pleaded an election by the plaintiff which is a completebar on its face to the prosecution of the plaintiffs action. The plaintiff has filed a replicationasserting that he executed a written election which is invalid because obtained by the defendantsfraud. Though called by a common-law name his replication is in substance something else. Itis not a defence, legal or equitable, to an action brought by the defendant. The plaintiff does notseek defensive relief at all; he is seeking affirmative relief by way of cancellation, which hecannot have at law, and may have only in equity. Until the instrument is cancelled, he has noright at law. The law leaves him where his signature left him, without any affirmative reliefexcept in equity. We are dealing with no defence, but with an affirmative claim that ispreliminary to such legal rights as the plaintiff may have.

The rulings below did not deprive the plaintiff of the right to trial by jury of legal issues, as wasthe case in Baird v. Company, 39 Cal. App. 512, cited by the plaintiff. In King v. Company, 156Minn. 494, also cited by the plaintiff, the ruling sought by the defendant would have had thateffect. The ruling below did not involve a failure to recognize fraud as a legal defence as was thecase in Greenberg v. Company, 283 N. Y. S. 619, or so-called equitable estoppel as a defence atlaw, which was the case in Watkins v. Company, 9 Wash. (2d) 703. There was no refusal of theconstitutional right to have issues at law decided by a jury.

For many years it has been well settled here that in equity there is no constitutional right to trialby jury. That question needs no examination anew except for the fact that our older cases have insome degree misconceived our equity practice prior to the Revolution. In the end themisconceptions have resulted in no serious error, but it may be well enough to dispel some thathave come to light during research into colonial practice. For example, it is not true, as suggestedin Wells v. Pierce, 27 N.H. 503, 512, that during the years of our jurisdictional union withMassachusetts, 1641-1679, the General Court of that Commonwealth had original chanceryjurisdiction to the exclusion of our inferior courts of law.

During that union a statute made a clear provision in connection with the subject of trial by jurythat if there be matter of apparent equity, as the forfeiture of an obligation, breach of Covenantwithout damage, or the like, the Bench shall determine such matters of equity. Colonial Laws ofMassachusetts, 1660 (1889 ed.), 167.

The practice without jury is clear. Cutt v. Rawlins, 2 Province Deeds, 185 (County Court, 1672);Petition of David Cambell , 1 Court Papers, 633; Leavitt v. Dearing, 2 Court Papers, 343 (Courtof Associates, 1673). The practice in equity without jury continued after New Hampshire becamea royal province, whether under the Cutt Commission (Scammon v. Jones, 5 Court Papers, 335),or under Cranfield (Martin v. Waldron, 8 Court Papers, 51; Barefoot v. Wadley, 1 ProvincePapers, 469), or under Governor Allen (Young v. Gilman, 10 Court Papers, 93, 94).

There is no foundation for the supposition in Wells v. Pierce, 27 N.H. 503, 512, that the judiciaryact of 1692 remained law and that the Governor and Council were a court of chancery of originaljurisdiction (they were a court of appeals) until the Revolution. It is true that the provision for acourt of chancery was not expressly repealed, but the judiciary act of 1699 (1 Laws N.H. 660)

impliedly, though not expressly, repealed the provisions of the act of 1692 for all common-lawcourts. The act of 1699 contained no provision at all for a chancery court. Instead of that itrevested in the common-law civil courts a chancery jurisdiction similar to that practiced duringthe union with Massachusetts, when there were no separate equity courts. That jurisdiction wassomewhat enlarged in 1743. 2 Laws N.H. 725. The acts of 1699 and 1743 are found in allappropriate compilations after they were passed prior to 1792, but the provision of 1692 for aseparate court of chancery is never found. For almost a century the act of 1699 was construed ashaving repealed the act of 1692. No contrary suggestion was made until two generations after thecolonial period.

Frequently during the period from 1699, the common-law courts exercised chancery jurisdiction,just as they had done from 1641 to 1679. Two typical cases will suffice. In 1760, Libbey v.Waldron came up in the Superior Court on a writ of review. It was an action on a bond for 500pounds. The jury returned a verdict of forfeiture, which at common law would mean a judgmentfor 500 pounds unless the court gave affirmative relief in equity. The court chancered the bondand gave judgment for slightly more than one-tenth of the penal sum. Superior Court Judgments,D, 66. The other case, Cunningham v. Holland, in 1766, involved a bond for 200 pounds.According to the record the Court are of opinion, that there is due 131 pounds 15 shillings.They added an order for further affirmative relief by the release of a mortgage given to secure thebond. Superior Court Judgments, E, 381. Never is there a suggestion that an equitable issue wassubmitted to a jury. Just as during the seventeenth century, denial of trial by jury in equity wasthe rule during all the subsequent colonial period. Such issues as were submitted to the jury afterthe adoption of the Constitution were either framed in the discretion of the court for theenlightenment of the Judges consciences or under such a total misapprehension of colonialpractice as once misled this court (Marston v. Brackett, 9 N.H. 336, 349) into saying that thepractice in equity prior to the Constitution gave parties the right to trial by jury. Such use of thejury in the words of the Constitution (Bill of Rights, Art. 20) was heretofore otherwise used andpracticed.

The unsupported supposition in Marston v. Brackett was seriously doubted, upon betterinformation of our legal history, but with still too little knowledge of it, in Wells v. Pierce, supra,and Copp v. Henniker, 55 N.H. 179, 211. The latter case was understood, without considerationand perhaps erroneously, to have overruled the Marston case. Bellows v. Bellows, 58 N.H. 60;Proctor v. Green, 59 N.H. 350, 351. The result was supported by a construction of thesupposedly unrepealed act of 1692 in State v. Saunders, 66 N.H. 39. In spite of misconceptions,the result was correct.

The truth is that during our pre-constitutional period there is no trace of trial by jury of equitableissues, but every evidence that it was always denied, and that except for the brief period 1682to 1699 we never had separate courts of chancery. At all other colonial periods, equitypractice was in the common-law courts, as now, and even when there was a court ofchancery, the common-law Court of Common Pleas undertook in one instance to exerciseequity jurisdiction. Barefoot v. Wadley, supra.

U.S. Supreme Court

Ferguson v. Georgia, 365 U.S. 570 (1961)

No. 44

Argued November 14-15, 1960Decided March 27, 1961

365 U.S. 570

APPEAL FROM THE SUPREME COURT OF GEORGIA

Syllabus

The Georgia Code, 38-416, makes a person charged with a criminal offense incompetentto testify under oath in his own behalf at his trial; but 38-415 gives him the right to makean unsworn statement to the jury without subjecting himself to cross-examination. At thetrial in a state court in which appellant was convicted of murder, his counsel was denied the rightto ask him any questions when he took the stand to make his unsworn statement.

Held: this application of 38-415 denied appellant the effective assistance of his counsel at acrucial point in his trial, and it violated the Due Process Clause of the Fourteenth Amendment.Pp. 365 U. S. 570-596.

215 Ga. 117, 109 S.E.2d 44, reversed.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The State of Georgia is the only State indeed, apparently the only jurisdiction in thecommon law world to retain the common law rule that a person charged with a criminaloffense is incompetent to testify under oath in his own behalf at his trial. Georgia in 1866abolished by statute the common law rules of incompetency for most other persons. However, thestatute, now Georgia Code 38-416, expressly retained the incompetency rule as to personscharged in any criminal proceeding with the

365 U. S. 571

commission of any indictable offense or any offense punishable on summary conviction. . . .Two years later, in 1868, Georgia allowed the criminal defendant to make an unsworn statement.The statute enacted for that purpose, as amended, is now Georgia Code, 38-415, and provides:

In all criminal trials, the prisoner shall have the right to make to the court and jury suchstatement in the case as he may deem proper in his defense. It shall not be under oath, and shallhave such force only as the jury may think right to give it. They may believe it in preference tothe sworn testimony in the case. The prisoner shall not be compelled to answer any questions oncross-examination, should he think proper to decline to answer.

In this case, a jury in the Superior Court, Douglas County, Georgia, convicted the appellant ofmurder, and he is under sentence of death. After the State rested its case at the trial, theappellants counsel called him to the stand, but the trial judge sustained the States objection tocounsels attempt to question him. To the argument that to deny counsel the

right to ask the defendant any questions on the stand . . . violates . . .[Amendment] VI . . . [and] the Fourteenth Amendment to the Constitution of theUnited States . . . [because] it deprives the defendant of the benefit of his counselasking him questions at the most important period of the trial . . . ,

the trial judge answered that, under 38-415,

. . . you do not have the right to do anything more than instruct your client as tohis rights, and . . . you have no right to question him on direct examination.

In affirming the conviction and sustaining this ruling, the Supreme Court of Georgia said:

The constitutional provisions granting to persons charged with crime the benefitand assistance of counsel confer only the right to have counsel perform

365 U. S. 572

those duties and take such actions as are permitted by the law, and to requirecounsel to conform to the rules of practice and procedure, is not a denial of the

benefit and assistance of counsel. It has been repeatedly held by this court thatcounsel for the accused cannot, as a matter of right, ask the accused questions ormake suggestions to him when he is making his statement to the court and jury.

215 Ga. 117, 119, 109 S.E.2d 44, 46-47.

On appeal brought here under 28 U.S.C. 1257(2), we noted probable jurisdiction. 362 U.S. 901.

The only question which the appellant properly brings before us is whether this application by theGeorgia courts of 38-415 denied the appellant the guiding hand of counsel at every step in theproceedings against him, Powell v. State of Alabama, 287 U. S. 45, 287 U. S. 69, within therequirements of due process in that regard as imposed upon the States by the FourteenthAmendment. See also Chandler v. Fretag, 348 U. S. 3.

Appellant raises no question as to the constitutional validity of 38-416, the incompetencystatute. However, decision of the question which is raised under 38-415 necessarily involves1consideration of both statutes. Historically, these provisions have been intertwined.

365 U. S. 573

For 38-416 is a statutory declaration of the common law rule disqualifying criminaldefendants from testifying, and 38-415, also with its roots in the common law, was anattempt to mitigate the rigors of that incompetency.

The disqualification of parties as witnesses characterized the common law for centuries.Wigmore traces its remote origins to the contest for judicial hegemony between the developingjury trial and the older modes of trial, notably compurgation and wager of law. See 2 Wigmore,Evidence, pp. 674-683. Under those old forms, the oath itself was a means of decision. SeeThayer, Preliminary Treatise on Evidence, pp. 24-34. Jury trial replaced decision by oath withdecision of the jurors based on the evidence of witnesses; with this change: [T]he party wasnaturally deemed incapable of being such a witness. 2 Wigmore, p. 682. Incompetency of theparties in civil cases seems to have been established by the end of the sixteenth century. See 9Holdsworth, History of English Law, p. 194. In time, the principal rationale of the rule becamethe possible untrustworthiness of the partys testimony; for the same reason, disqualification wasapplied in the seventeenth century to interested nonparty witnesses.2

Its firm establishment for criminal defendants seems to have come somewhat later. In thesixteenth century, it was necessary for an accused to conduct his own defense,

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since he was neither allowed to call witnesses in his behalf nor permitted the assistance ofcounsel. 1 Stephen, History of the Criminal Law of England, p. 350. The criminal trial of thisperiod has been described as

a long argument between the prisoner and the counsel for the Crown, in whichthey questioned each other and grappled with each others arguments with theutmost eagerness and closeness of reasoning.

Stephen, supra, p. 326. In the process, the defendant could offer by way of explanation materialthat would later be characterized as testimony. 2 Wigmore, p. 684. In the seventeenth century,however, he was allowed to call witnesses in his behalf; the right to have them sworn wasaccorded by statute for treason in 1695 and for all felony in 1701. 7 Will. III, c. 3; 1 Anne, St. 2,c. 9. See Thayer, supra, pp. 157-161, and n. 4; 2 Wigmore, pp. 685-686. A distinction was drawnbetween the accused and his witnesses they gave evidence, but he did not. See 2 Wigmore, pp.684-685, and n. 42; 9 Holdsworth, supra, pp. 195-196. The general acceptance of the interestrationale as a basis for disqualification reinforced this distinction, since the criminal defendantwas, of course, par excellence an interested witness. The old common law shuddered at the ideaof any person testifying who had the least interest. State v. Barrows, 76 Me. 401, 409. SeeBenson v. United States, 146 U. S. 325, 146 U. S. 336-337.

Disqualification for interest was thus extensive in the common law when this Nation was formed.3 Bl.Comm. 369. Here, as in England, criminal defendants were deemed incompetent as3witnesses. In Rex v. Lukens, 1 Dall. 5, 1 U. S. 6, decided in 1762, a Pennsylvania court refused

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to swear a defendant as a witness, holding that the issue there is question must be proved byindifferent witnesses. Georgia, by statute, adopted the common law of England in 1784, and the rules of evidence belonging to it [were] in force there. Doe v. Winn, 5 Pet. 233,30 U.S. 241. Georgia therefore followed the incompetency rule for criminal defendants longbefore it was given statutory form by the Act of 1866. See Jones v. State, 1 Ga. 610; Roberts v.State, 189 Ga. 36, 40-41, 5 S.E.2d 340, 343.4

Broadside assaults upon the entire structure of disqualifications, particularly the disqualificationfor interest, were launched early in the nineteenth century in both England and America.Bentham led the movement for reform in England, contending always for rules that would notexclude, but would let in the truth. See Rationale of Judicial Evidence, bk. IX, pt. III, c. III(Bowring ed.), pp. 393-406. The basic ground of the attack was, as Macaulay said, that

[A]ll evidence should be taken at what it may be worth, that no considerationwhich has a tendency to produce conviction in a rational mind should be excludedfrom the consideration of the tribunals.

Lord Macaulays Legislative Minutes, 1835, pp. 127-128. The qualification in civil cases ofnonparty witnesses despite interest came first. See Lord Denmans Act of 1843, 6 & 7 Vict., c.85. The first general exception in England for party witnesses in civil cases was the CountyCourts Act of 1846, 9 & 10 Vict., c. 95, although there had

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been earlier grants of capacity in certain other courts. Best Evidence (Lely ed. 1893), pp. 158-159. Lord Broughams Act of 1851, 14 & 15 Vict., c. 99, virtually abolished the incompetency ofparties in civil cases.5

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The qualification of criminal defendants to give sworn evidence if they wished came last. Thefirst statute was apparently that enacted by Maine in 1859 making defendants competentwitnesses in prosecutions for a few crimes. Maine Acts 1859, c. 104. This was followed in Mainein 1864 by the enactment of a general competency statute for criminal defendants, the first suchstatute in the English-speaking world. The reform was largely the work of John Appleton of theSupreme Court of Maine, an American disciple of Bentham. Within 20 years. most of the Statesnow comprising the Union had followed Maines lead. A federal statute to the same effect wasadopted in 1878, 20 Stat. 30, 18 U.S.C. 3481. Before the end of the century, every State exceptGeorgia had abolished the disqualification.6

Common law jurisdictions outside the United States also long ago abolished the disqualification.This change

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came in England with the enactment in 1898 of the Criminal Evidence Act, 61 & 62 Vict., c. 36.7Various States of Australia had enacted competency statutes even before the mother country, asdid Canada and New Zealand. Competency was extended to defendants in Northern Ireland in1923, in the Republic of Ireland in 1924, and in India in 1955.8

The lag in the grant of competency to the criminally accused was attributable in large measure toopposition from those who believed that such a grant threatened erosion of the privilege againstself-incrimination and the presumption of innocence.

[I]f we were to hold that a prisoner offering to make a statement must be swornin the cause as a witness, it would be difficult to protect his constitutional rights inspite of every caution, and would often lay innocent parties under unjust suspicionwhere they were honestly silent, and embarrassed and overwhelmed

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by the shame of a false accusation. . . . [It would result in] . . . the degradation ofour criminal jurisprudence by converting it into an inquisitory system, from whichwe have thus far been happily delivered.

People v. Thomas, 9 Mich. 314, 320-321 (concurring opinion). See also Ruloff v. People, 45 N.Y.213, 221-222; People v. Tyler, 36 Cal. 522, 528-530; State v. Cameron, 40 Vt. 555, 565-566; 1Am.L.Rev. 443; Maury, Validity of Statutes Authorizing the Accused to Testify, 14 Am.L.Rev.753.9

The position of many who supported competency gave credence to these fears. Neither Benthamnor Appleton was a friend of the privilege against self-incrimination. While Appleton justified10competency as a necessary protection

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for the innocent, he also believed that incompetency had served the guilty as a shield, and thusdisserved the public interest. Competency, he thought, would open the accused to cross-examination, and permit an unfavorable inference if he declined to take the stand to exculpatehimself.11

This controversy left its mark on the laws of many jurisdictions which enacted competency. Themajority of the competency statutes of the States forbid comment by the prosecution on thefailure of an accused to testify, and provide that no presumption of guilt should arise from hisfailure to take the stand. The early cases particularly emphasized the importance of suchlimitations. See, e.g., Staples v. State, 89 Tenn. 231, 14 S.W. 603; Price v. Commonwealth, 77Va. 393; State v. Taylor, 57 W.Va. 228, 234-235, 50 S.E. 247, 249-250. Cf. 1 Cooley,Constitutional Limitations (8th ed.), pp. 658-661. See generally, Reeder, Comment Upon Failureof Accused to Testify, 31 Mich.L.Rev. 40. For the treatment of the accused as a witness inCanada, see 12 Can.Bar Rev. 519, 13 Can.Bar Rev. 336; in Australia, see 6 Res Judicatae 60; andin Great Britain, see 2 Taylor, Evidence (12th ed.) 864-865; 51 L.Q.Rev. 443; 58 L.Q.Rev. 369.

Experience under the American competency statutes was to change the minds of many who hadopposed them. It was seen that the shutting out of his sworn evidence could be positively hurtfulto the accused, and that innocence

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was in fact aided, not prejudiced, by the opportunity of the accused to testify under oath. AnAmerican commentator discussing the Massachusetts statute in the first year of its operation said:

We have always been of opinion that the law permitting criminals to testifywould aid in the detection of guilt; we are now disposed to think that it will beequally serviceable for the protection of innocence.

1 Am.L.Rev. 396. See also 14 Am.L.Reg. 129.

This experience made a significant impression in England, and helped to persuade Parliament tofollow the American States and other common law jurisdictions in granting competency tocriminal defendants. In the debates of 1898, the Lord Chancellor quoted a distinguished Englishjurist, Russell Gurney:

[A]fter what he had seen there [in America], he could not entertain a doubt aboutthe propriety of allowing accused persons to be heard as witnesses on their ownbehalf.

54 Hansard, supra, p. 1176. Arthur Balfour reported to the Commons that

precisely the same doubts and difficulties which beset the legal profession in thiscountry on the suggestion of this change were felt in the United States, but theresult of the experiment, which has been extended gradually from State to State, isthat all fears have proved illusory, that the legal profession, divided as they werebefore the change, have now become unanimous in favor of it, and that no sectionof the community, not even the prisoners at the bar, desire to see any alterationmade in the system.

60 Hansard, supra, pp. 679-680.12

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A particularly striking change of mind was that of the noted authority on the criminal law, SirJames Stephen. Writing in 1863, Stephen opposed the extension of competency of defendants.He argued that it was inherent that a defendant could not be a real witness:

[I]t is not in human nature to speak the truth under such a pressure as would bebrought to bear on the prisoner, and it is not a light thing to institute a systemwhich would almost enforce perjury on every occasion.

A General View of the Criminal Law of England, p. 202. Competency would put a dangerousdiscretion in the hands of counsel.

By not calling the prisoner, he might expose himself to the imputation of a tacitconfession of guilt, by calling him, he might expose an innocent man to a cross-examination which might make him look guilty.

Ibid. Allowing questions about prior convictions would indirectly put the man upon his trial forthe whole of his past life. Id., p. 203. Twenty years later, Stephen, after many years experienceon the criminal bench, was to say:

I am convinced by much experience that questioning, or the power of givingevidence is a positive assistance, and a highly important one, to innocent men, andI do not see why, in the case of the guilty, there need by any hardship about it. . . .A poor and ill-advised man . . . is always liable to misapprehend the true nature ofhis defence, and might in many cases be saved from the consequences of his ownignorance or misfortune by being questioned as a witness.

1 Stephen, History of the Criminal Law of England, pp. 442, 444.

In sum, decades ago, the considered consensus of the English-speaking world came to be thatthere was no rational justification for prohibiting the sworn testimony of the accused, who aboveall others may be in a position to meet the prosecutions case. The development of the unsworn

statement practice was itself a recognition of the harshness of the incompetency rule. While itsorigins

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antedated the nineteenth century, its strong sponsorship by English judges of that century is13explained by their desire for a mitigation of the rigors of that rule. Baron Alderson said:

I would never prevent a prisoner from making a statement, though he hascounsel. He may make any statement he pleases before his counsel addresses thejury, and then his counsel may comment upon that statement as a part of the case.If it were otherwise, the most monstrous injustice might result to prisoners.

Reg. v. Dyer, 1 Cox C.C. 113, 114. See also Reg. v. Malings, 8 Car. & P. 242; Reg. v. Walkling, 8C. & P. 243; Reg. v. Manzano, 2 F. & F. 64; Reg. v. Williams, 1 Cox C.C. 363. Judge Stephenssponsorship of the practice was especially influential. See Reg. v. Doherty, 16 Cox C.C. 306. Seealso Reg. v. Shimmin, 15 Cox C.C. 122; 60 Hansard, supra, p. 657. It became so well establishedin England that it was expressly preserved in the Criminal Evidence Act of 1898.14

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The practice apparently was followed in this country at common law in a number of States, andreceived statutory recognition in some. Michigan passed the first such statute in 1861; unlike theGeorgia statute of 1868, it provided that the prisoner should be subject to cross-examination onhis statement. See People v. Thomas, 9 Mich. 314. The Georgia Supreme Court, in one of the15early

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decisions considering the unsworn statement statute, stressed the degree of amelioration expectedto be realized from the practice, thereby implicitly acknowledging the disadvantages for thedefendant of the incompetency rule. The Court emphasized

the broad and liberal purpose which the legislature intended to accomplish. . . .This right granted to the prisoner is a modern innovation upon the criminaljurisprudence of the common law, advancing to a degree hitherto unknown theright of the prisoner to give his own narrative of the accusation against him to thejurors, who are permitted to believe it in preference to the sworn testimony of thewitnesses.

Coxwell v. State, 66 Ga. 309, 316-317.16

But the unsworn statement was recognized almost everywhere else as simply a stop-gap solutionfor the

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serious difficulties for the accused created by the incompetency rule.

The system of allowing a prisoner to make a statement had been introduced as amere makeshift, by way of mitigating the intolerable hardship which occasionallyresulted from the prisoners not being able to speak on his own behalf.

60 Hansard, supra, p. 652.

The custom grew up in England out of a spirit of fairness to give an accused,who was otherwise disqualified, an opportunity to tell his story in exculpation.

State v. Louviere, 169 La. 109, 119, 124 So. 188, 192. The abolition of the incompetency rulewas therefore held in many jurisdictions also to abolish the unsworn statement practice. In suchcases, the unsworn statement of an accused becomes secondary to his right of testifying underoath, and cannot be received. State v. Louviere, supra, 169 La. at 119, 124 So. at 192.

The privilege was granted to prisoners because they were debarred from givingevidence on oath, and for that reason alone. When the law was changed and theright accorded to them to tell their story on oath as any other witness the reasonfor making an unsworn statement was removed.

Rex v. Krafchenko, [1914] 17 D.L.R. 244, 250 (Man.K.B.).17

Where the practice survives outside America, little value has been attached to it.

If the accused does not elect to call any evidence or to give evidence himself, hevery often makes an unsworn statement from the dock.

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It is well understood among lawyers that such a statement has but little evidential valuecompared with the sworn testimony upon which the accused can be cross-examined. . . .

Rex v. Zware, [1946] S.A.L.R. 1, 7-8.

How is a jury to understand that it is to take the statement for what it is worth, ifit is told that it cannot regard it as evidence [i.e., proof] of the facts alleged?

68 L.Q.Rev. 463. The unsworn statement

is seldom of much value, since it is generally incoherent and leaves open manydoubts which cannot be resolved by cross-examination.

69 L.Q.Rev. 22, 25. The right of a prisoner to make an unsworn statement from the dock stillexists . . . but with greatly discounted value. 1933 Scots Law Times 29. Commentators andjudges in jurisdictions with statutory competency have suggested abrogation of the unswornstatement right. See 94 Irish Law Times, March 5, 1960, p. 56; 68 L.Q.Rev. 463; Rex v.McKenna, [1951] Q.S.R. 299, 308.

Georgia judges, on occasion, have similarly disparaged the unsworn statement.

Really, in practice it is worth, generally, but little if anything to defendants. Ihave never known or heard of but one instance where it was supposed that theright had availed anything. It is a boon that brings not much relief.

Bird v. State, 50 Ga. 585, 589.

The statement stands upon a peculiar footing. It is often introduced for the merepurpose of explaining evidence, or as an attempt at mitigation; the accused and hiscounsel throw it in for what it may happen to be worth, and do not rely upon it asa substantive ground of acquittal.

Underwood v. State, 88 Ga. 47, 51, 13 S.E. 856, 858.

The unsworn statement has anomalous characteristics in Georgia practice. It is not treated asevidence or like the testimony of the ordinary sworn witness.

The statement may have the effect of explaining, supporting, weakening, orovercoming the evidence, but still it is something

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different from the evidence, and to confound one with the other, either explicitlyor implicitly, would be confusing, and often misleading. . . . The jury are to dealwith it on the plane of statement, and not on the plane of evidence, and may derivefrom it such aid as they can in reaching the truth. The law fixes no value upon it; itis a legal blank. The jury may stamp it with such value as they think belongs to it.

Vaughn v. State, 88 Ga. 731, 739, 16 S.E. 64, 66. Because the statement is not evidence, even thecharge in the strict terms of the statute favored by the Georgia Supreme Court, see Garrett v.State, 203 Ga. 756, 765, 48 S.E.2d 377, 383; Emmett v. State, 195 Ga. 517, 541, 25 S.E.2d 9, 23,calls attention to the fact that the defendant is not under oath. Moreover, charge after chargegoing beyond the terms of the statute has been sustained. Thus, in Garrett v. State, supra, the trialjudge instructed that, while the defendants were allowed to make a statement,

they are not under oath, not subject to cross-examination, and you are authorizedto give to their statement just such weight and credit as you think them entitled toreceive.

In Emmett v. State, 195 Ga. at 540, 25 S.E.2d at 22, the instruction was that the statement mightbe believed in preference to the sworn testimony if you see proper to give it that weight and th

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Common Law and English Statutes Adopted in American Founding Era