CHAPTER V. THE LAWS. THE laws of the United States are, generally speaking, the same as those of England; but in the civil as well as in the penal code, numerous and excellent improvements have been introduced; for where the people alone is sovereign, abuses are reformed as soon as they are remarked. In other countries, men are always to be found bigoted in favour of every thing that is ancient, and who consider precedent, however bad, as the safest rule of conduct. Such men are always opposed to reformation, however obvious, and however advantageous to the commonwealth. But the Government of the United States is Republican; and consequently the common law of England, which was transplanted to the colonies by the first settlers, has, from principle as well as from circumstances, been to a certain degree altered. "We shall not institute this comparison boastingly, however justly we may pride ourselves upon the improvement which we have made in this country upon the common law, properly so called-with whatever emotions of honest exultation we might reasonably point to those improvements. For we apprehend that oftentimes, when professional men among us are bestowing exalted praise upon the - common law, they lose sight of the important fact, that the common law of England is radically different from the system that bears the same name in America. The common law, properly speaking, is that in which Hale, and Holt, and Mansfield, and Ellenborough abjudicated,-which Coke and Blackstone commented upon, which upholds England's government, by king, lords, and commons,-which marks out the jurisdiction of the Courts of Chancery, King's Bench, Common Pleas, and Exchequer,-which fixes the rules for the descent of property,-which engendered and perpetuates the rotten borough principles of representation, which authorized the tenure of knights' service, with the rest of the antiquated burdens of the feudal system: for all these things, with a thousand others of the same stamp, are among the peculiar discriminating qualities of the common law, inherent in its very essence, but irreconcileably at war with all our dearest institutions. It is the common law of Virginia, of Massachusetts, of New York, or of Pennsylvania, which Americans must intend when they eulogize the common law; and we unite heart and band with them in their warmest expressions of veneration for this law; since light does not differ more from darkness, than does this from the common law as flourishing on its native English soil.”* ✦ North American Review, July 1823. The whole of this article, on the subject of the laws of Massachusetts, is well The Americans have greatly mitigated the seve rity of the penal code, so much so indeed, that executions are extremely rare; and besides this, so mild is the system adopted by the executive power, that the President generally remits the punishment, unless the crime committed be of uncommon atrocity. Although one cannot but admire the humanity that prompts the saving a fellow creature's life, yet I think myself, that the law ought to have its course, and that punishment should, in all cases, follow condemnation; for when a criminal is led to hope that he may escape by the humanity of the President, the terror of the law has less influence upon evil doers, and crime is thereby, to a certain degree, encouraged. A great improvement is just about to be made in American jurisprudence; viz. the abolition of imprisonment for debt. Even at present, in most of the States, imprisonment for debt exists more in name than in reality. By the insolvent laws, which are perhaps too much in favour of the debtor, his person in ten, or at most in thirty days, is for ever released, on a surrender of his property to a trustee appointed by the court. In the mean time, on giving sufficient security, he is entitled to perfect freedom within the prison bounds, which fre quently comprise half the town or county in which worth the perusal of those, who wish for copious information on the subject of the common law, as at present in force in the United States. he resides. There are not perhaps, during the year, in any one State, more than ten instances of actual incarceration. The forms of English practice are strictly ob served, as relates to the distinction of actions ; but the severity of pleading has been mitigated in every State, by statutes of amendment. Still, however, sufficient of the antiquated jargon remains, to justify the reproach, that the improvements in the administration of justice have not been in any way proportionate to those in government and politics. As an instance of this, I may mention, that in the nineteenth century, John Doe and Richard Roe are still retainers in court, to the disgrace of a nation, which professes to have shaken off the prejudices of the mother country. Yet it must be acknowledged, that important advances have been made in the principles, if not in the practice of the law. Entails have been abolished in every State. A man may, indeed, make any will that he pleases; but if he die intestate, his property is equally divided amongst his children, without distinction of age or sex. Many persons therefore make no wills; they say, "the State has made one for us, and will see it executed." Now it is the opinion of David Hume, that to the division of property occasioned by the Reformation, and to the prevalence of democratical opinions under the commonwealth, Great Britain owes that vigour of natural character, by which * she has ever since been so eminently distinguished. It is clear therefore, that, as the subdivision of property prevails to a greater extent in the United States, the happiness of the Americans is propor tionally secure... In both civil and criminal prosecutions for libel or slander, the truth of the allegation is admitted as a reason for acquittal. In every State, but that of Virginia, real estate is not liable for debt. There are of course no game laws. The judges generally hold their offices during good behaviour; and in a few States, until they attain the age of sixty. To secure the exercise of their independence and impartiality, their salaries, which are too inadequate in most instances, cannot be diminished during their continuance in office. The United States are indebted to England for the principal part of their law books; the decisions of the superior courts of that country being con> sidered authority. In some States, the common law and chancery jurisdiction are given to the same court, but în most of them, to separate courts. The principles of law, marking the difference between the two jurisdictions, are strictly observed. 1 It is nearly useless to mention, that since there is no exclusive national church, ecclesiastical courts are unknown. "The judicial power of the United States is |