Philadelphia 18th: April 1802
Your favor of the 10th: instant and that of the 12th: ult: on the same subject claim my thanks. I find in the journals of Congress for 1774 to which you refer me, the best clue to the investigation, and I shall avail myself of copious extracts from the documents therein exhibited. There is a remarkable uniformity in the expressions used by the Constituents of the first delagates from the several States, in the Credentials given to them to attend the first Congress, “to consult and consider, how grievances could be redressed, and to deliberate and determine upon wise & proper measures to be recommended by them to all the Colonies for the recovery & establishment of their just rights & liberties, civil & religious.” The “declaration of the town of Boston,” to which you allude, is I presume, the same, which purports to be the production of a meeting of delegates from all the towns in the County of Suffolk; held at Milton, in which a numerous list of resolutions was passed and transmitted to Congress. The greivances enumerated in these resolutions, are declared to be “gross infractions of those rights, to which we are justly entitled by the laws of nature, the British Constitution and the charter of the province;” and in conformity with this is the subsequent declaration in Congress, “that the inhabitants of the English Colonies in North America by the immutable laws of nature, the principles of the English Constitution, a& the several charters or compacts, have the following rights.”
“Resolved 1st: That they are entitled to life, liberty & property; and that they have never ceded to any foreign power whatever, a right to dispose of either without their consent.
2d. That our Ancestors, who first settled these Colonies, were at the time of their emigration from the mother Country entitled to all the rights, liberties and immunities of free and natural-born subjects within the realm of England.
3d: That by such emigration they by no means forfeited, surrendered or lost any of those rights but that they were, and their descendents now are, entitled to the exercise and enjoyment of all such of them, as their local circumstances enable them to exercise & enjoy.”
“5th: That the respective Colonies are entitled to the Common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.”
These are some of the leading principles contained in those declarations, and they fully recognize the complete & perfect existence of the Common law of England, and the Statute law also, so far as it was found consistent with & applicable to the particular situation & circumstances of the Colonies.
Although the Common law doctrine of evidence is not expressly recognized in the Constitution of the United States, nor in that of Pennsylvania, yet I conceive that it is implied in both, by the reservation of the trial by jury; the 5th: 6th: & 7th: articles of amendments to the Constitution of the U.S. relate to trials by jury in criminal & civil causes, and the bill of rights, both in this State & the Constitutions of its nearer neighbours Delaware & New Jersey, recognize the trial by jury, with all its incidents. The Constitution of the latter State, provides, “that all criminals shall be admitted to the same privileges of Witnesses & Counsel, as their prosecutors are or shall be entitled to.”
It is true that we are not originally indebted to our written Constitutions for any of the salutary maxims of the Common law, but there is no State in the Union, where they are not generally in full operation, the law of tenures & the ecclesiastical law excepted.
I find in 2 peer Williams, a memorandum dated August 1722 to the following effect. It was said by the Master of the Rolls to have been determined by the Lords of the privy council upon an appeal to the king in Council from the foreign plantations.
“1st: That if there be a new and uninhabited Country found out by English subjects; as the law is the birth-right of every subject, so wherever they go, they carry their laws with them, and therefore such new found Country is to be governed by the laws of England; though after such Country is inhabited by the English, acts of parliament made in England without naming the foreign plantations, will not bind them, &ca.”
This rule has been recognized by an adjudication of Ch: Jus: McKean, in this State who gave it as the opinion of the Court, that “the Common law of England has always been in force in Pennsylvania; & that all Statutes made in Great Britain, before the settlement of Pennsylvania, have no force here, unless the Colonies are particularly named.”
The several writers on the common law, enumerated in your letter, I have read though not recently, except some chapters in Reeve’s history & Hales history entire. In this latter work, I thought the ground work of Blackstone was to be seen; my edition is of 1792, with notes by Runnington, which are a very considerable improvement upon the original.
I have frequently referred to the preface in Fortescue, and been struck with the solemnity of the exordium. “The grand division of law is into the divine law, and the law of nature; so that the study of law in general is the business of men & angels. Angels may desire to look into both the one & the other; but they will never be able to fathom the depths of either, &ca. I shall read it with more attention hereafter. It will be a considerable work to discover [. . .] alterations, which have taken place in the Com: law by Statute, both in England and in our own Country; but my enquiries will be principally in this channel. The observations of Mr. Bayard did not escape me, and I expect to derive further assistance from the same gentleman by a recurrence to his speeches on the passage & subsequent attempts to repeal the sedition law.
The account of your Winter’s amusement contained in your favor of the 2d: March, was very pleasing to me, though I must be free to own, that in point of assiduity, I could not pretend to rival you, by enumerating the authors I have read, during the same period. If I can meet with the Memoirs of the Chevalier de Ravanne, I will read them. I have some idea of the profligacy of the Regents Court, from memoirs of the Duke de Richelieu, which was the first french work I ever read. It purports to have been written by the Duke himself, and is little more than a register of amours.
I am, with great attachment & respect, dear Sir / Your Son
Thomas B. Adams
MHi: Adams Papers.