The daily morning journal and courier. [volume] (New Haven, Conn.) 1894-1907, 1907-07-12
parker ON common
Law JURISDICTION
Statutes Inhexible and Can
not Be Expanded
BY Judicial De-
cisions.
LAW OVERABUNDANCE.
Objection of Those Who De
sire Justice Rather
Than Personal
Control.

To me it seems clear beyond ques-
ton, that neither in the Constitution,
nor in the Statutes enacted by con-
gress, nor in the Judgments of the SUI
preme court of the United States, can
there be found any substantial sup
port for the proposition that, since the
adoption Of the Constitution, the prin-
ciples of the common law have been
wholly abrogated touching such mat
tiers as are by that instrument placed
within the exclusive control of the Ma
tional government.
(Judge Shiras in Murray V, Chicago
& N. w. Ry. Coz
To whatever has required for its up
building the prolonged activity of
countless men, in one generation after
another whether expressed in uncon-
fined exertion Of physical labor which
produces for our establishment a pyra-
mid, a cathedral, or in endless mental
effort which evolves for our wonder
science, an art, system of law, men
have always paid respect. AS confer
red upon a system of law, that respect
has always, in Englsh-speaking eoun-
tries, been accorded to the common
law. Law exists for justice, and
Webster said; The common law is a
fountain of justice, perennial and per-
petuaL"
Rightly did he, as a representative
American, pay this tribute, for to the
founders of this government there
never had been another system of law.
They We're, in large measure, descend
ants of those Englishmen who. cen
turtles back, had ceaselessly petitioned
for recognition of their rights Of per-
son and property; had finally obtained
them, and from that foundation had
ever thereafter through their courts
received justice as their due. From an
absolute monarchy at times tyrannical
knowing no government but that of
force, strengthened by feudalism which
by tithes and servitudes exaeted, had
stified individual freedom of action
they eventually through public acclaim
the resulting reaction of long-con-
tinued suffering aroused the govern
ment to consideration of its security
and to the consequent realization that
the nations strength rested funda-
n mentally in the spirit of the people.
y From that government they wrested
= Arecognition of personal rights which
Awe have since cherished as inaliena-
bic.
A public spirit founded upon a re-
solve so Interchangeable as to wrest
from an unwilling sovereign a Magma
Charta warranted a student Of the
time in saying that the rights appeal
ed for rested universally in mems
souls. And so we think to-day Yet
ours is the benediction of years of
Judicial construction, both by the com
mon law courts Of Great Britain and
Of this country These courts have
always applied the original rights,
broadening their Interpretation and
application and evolving a system of
law whose just rules rest immemora-
BILE. We reason always in its terms
when we apply the standard of social
duty. Common law is only another
name for common justice.
No tribute can be other than meagre
to those Judges who through eight cen
turtles have labored almost unerringly
to bequeath us our system of law. 1t
was not easy for the earlier of them
to oppose the will of monarchs. Nor
was duty outlined clear without preee-
dent. We little appreciate their eff
forts, for to US to-day those decisions
lie plainly in the path of what we
please ourselves readily to discern as
their duty. Such precocity presents
the fallaey petitio pFincipii, for we
base our determination of their duty
on their determination Of such duty as
we find 1t in our present knowledge
built up from the decisions they made.
Suffice it to say, that to us, as law
yers. the common law has guarded
with its extending arm rights, in in
stances so varied as to pass our con-
ception of the requirements for which
passing time makes call upon sys-
tenn Of justice. AS product of both
logic and experience, its rules offer
justice to any situation now to be pre-
scented.
Imbued through inheritance with
the principles of right and Justice,
gained by so much effort by their an
eestors, our fathers came to this land
bringing with them the idea that
governments are instituted among
men deriving their just powers from
the consent Of the governed" and con-
tinuing their social relations under
the common law as they found it ap-
plicable to their situation Nor is
this merely a historical deduction. To
the colonists there was ever present.
from their immigration to the founding
of the government the great struggle
for justice, and the justice they claim
ed was that of the common law. Ed
mund Burke in his speech on "Concili-
alton with America" speaking of the
interest in and devotion to the COM
mon law by the colonists, said: Il
hear that they have sold nearly as
many of Blackstone's Commentaries
In America as in England The
Colonial congress on the 18th of
October, VA declared THAT our an
cestors who first settled these colon
les, were. at the time of their emf
grafton from the mother country, en-
titled to all the rights, liberties
and immunities Of free and natura
born subjects within the realm of Eng
land and THAT by such emigration
fhev nv no means forfeited. surrender