numerous, that but few can or will pursue rigidly the precept of Lord Coke, by tracing them with all their modifications to their fountain head. The age of digests amd abridgments has arrived; and these, which were intended as mere guides for the student, have become in his hands what the itinerary often is in the hands of the traveller. Both of them too often put a stop to inquiry and research, at the very point at which these ought to begin; and by their aid the student relies upon decisions which he never read, and the traveller describes countries which he never saw.

There are many causes which will always conspire to prevent the laws of any country from taking the rank of a science, and to render the study of them rather an exercise of memory, than an effort of reason in the application of general principles to particular cases. The want of certain fixed and (if we may be pardoned the expression) mathematical truths in legislation, and the constant necessity of varying and modifying the laws of any country so as to accommodate them to the various states of society, their different degrees of civilization and refinement, and their various exigencies, may be named amongst the most prominent causes of those discordant rules and principles, which disfigure every known system of laws. Men, in view of a present evil or an impending danger, lose sight of every thing else, in their efforts to escape it: and so it is with communities in their legislation. If their laws either produce or fail to correct any particular evil, of which they are made sensible by its actual operation upon them; or if they find them inconvenient or oppressive in their effects upon any particular district or portion of the community, their whole aim is directed to and limited by the correction of the evil actually felt. In applying the remedy, they look not beyond the present evil; not even to the similar cases which must, in the course of events, require the application of a similar remedy and they do not even pause to contemplate the consequences of the change they introduce. Their course of correction, on such occasions, is like that of the musician, who tunes a particular key without sounding it in consonance with the rest, so as to produce harmony amongst the whole. The result is, that their legislation is continually deformed by local or partial enactments, which are at war with the symmetry of the whole system, and which oftentimes in the effort to amend, "like the new piece

of cloth put into an old garment, only serve to make the rent worse." The modern systems of codification may obviate this for a time; but these ever operating causes soon destroy their uniformity, and call for the renewal of the process.

In proportion as the laws of any country become a mere collection of arbitrary and unconnected rules and maxims, so will the study of them be rendered difficult and disheartening. When these are arbitrary and conventional, it is difficult to obtain complete mastery over them, even if within view and reach; but the difficulty is much enhanced, when the sources from which they are to be drawn are various, their origin is involved in obscurity, and their common application to the same subject draws them into conflict.

There is scarcely any state in the Union, in which the latter causes of difficulty and embarrassment exist to so great a degree as in Maryland. Its laws consist of the emanations from three distinct systems: The usages and laws of England, the mother country: The usages and laws of the provincial or ante-revolutionary government of Maryland, and the laws of its present state government. And these, too, are subject to certain modifications and restrictions, flowing from the eminent dominion of the Constitution of the United States. The difficulties do not consist merely in collating these, and in determining the result of their common operation. This labour would be comparatively light. But when we come to the application of the usages and laws of England, we find that even where they have not been superseded by provincial or state legislation, there are yet many of them, which, from their very nature, and as accommodated to a state of society unknown to the colonists of Maryland, are wholly inapplicable; and others, which although applicable, have never been expressly or impliedly adopted. Hence, before this application can be made, it becomes necessary to determine, by enquiry into the usages of the people of Maryland, the decisions and practice of our Courts of Justice, the provisions of our Constitution and Declaration of Rights, and the acts of our Provincial and State Legislatures,-"what portions of the common and statute law of England are in force in this State." It is manifest, that, at the time of the colonization of Maryland, there were many portions of the laws of England, which

were wholly inapplicable to the condition of the colonists. Thus, as all the lands in the State were held in free and common socage, the numerous rules relative to the rights and incidents of the other species of tenure, were wholly inapplicable; as there were no established orders of nobility, all the laws relating to their peculiar rights and immunities, were also inoperative; and, as the commerce of the colonists was very limited, there were many commercial and revenue regulations, which were wholly unsuited to their condition. To these, might be added many other instances of the absurdity of introducing, in mass, the laws of the mother country as the laws of the colony. As has been justly cbserved by Chief Justice Buchanan, in delivering the opinion of our Court of Appeals in the case of the State vs. Buchanan and others, "They were in the predicament of a people discovering and planting an uninhabited country; and as they brought with them the rights and privileges of native Englishmen, they consequently brought with them all the laws of England, which were necessary to the preservation and protection of those rights and privileges. And hence, it cannot be questioned, that they brought with them all the laws of the mother country, so far as they were applicable to their situation and the condition of an infant colony." (1) Such is the rule of right reason, and the doctrine of the English law, as to its colonies generally, (2) which, in the particular instance, were sustained and enforced by the provisions of the charter, under which Maryland was colonized. (3) Although this is the common principle which sanctions the introduction, both of the common and statute law, yet the tests of their applicability are somewhat different, and we shall therefore consider severally the question of their application.

(1) 5th Harris and Johnson's Reports, 356.

(2) 1st Blackstone's Comm. 107, 2 P. Wms. 75, 2d Salk. 411.

(3) The 10th section of the charter of Maryland declares, that all the subjects of the English crown transplanted to the province and their descendants in any degree, born within the province, shall be esteemed natives, and liegemen of the king, as of his kingdom of England and Ireland; and shall in all things be held, reputed and treated, as the liegemen of the king born within the kingdom of England; and shall have and enjoy all privileges, franchises and liberties of the kingdom of England in the same manner as its liege subjects born within said kingdom, without the hindrance or molestation of the crown. This provision, which placed the colonists in point of liberty and privilege

(1) Of the introduction and present operation of the Common Law.

The sources and character of the English common law have been already fully illustrated in the thousand treatises and decisions of the last two centuries. It has had its apologists and its accusers, arrogating to it every excellence, or denying it all merit. By some, it has been styled, "the perfection of the reason," and considered as the thirty-nine articles of the law, which it were heresy to doubt. Others have denounced it as a system of harsh and arbitrary rules and technical refinements, originating in a barbarous age, which sits like a straight-jacket upon the enlightened and expanding reason of modern days. And there are those who aspire to the privilege "of shooting folly as it flies," who ridicule its technicalities and unbending rules, as if they were not inseparable from a science, and as if they were mere jargon and mystery, serving, like Mokanna's veil, to cloak deformity.. Whatever may have been the origin of those rules and principles, which constitute what is called "the common law," whether they were the emanations of some system of positive laws long since lost, or were built up by the judicial legislation of ages, introducing and adapting principles to the cases as they arose, they are to be admired for some of the very reasons which have been urged against them. Unlike the statute law, they do not limit and restrict their operation by defined cases, beyond which they must not go even when a similar evil calls them. They are a collection of principles unrestricted by cases, except where the restriction of the case is itself the restriction of the principle. The statute law is a definition of cases the common law, when properly applied, a definition of principles. In the former, the cases enumerated limit the remedy; in the latter, however new in instance the case may be, the old principles, if appropriate, will apply themselves. With the common law lawyer, "the ancient ways and land marks," upon which it is his pride to stand, are the long received and well-as

upon the most favoured footing of the native subject, was relied upon in all their after controversies with the proprietary and his governors, as entitling them, not only to the benefit of all such English statutes, as they found conducive to their welfare, and protective of their rights; but also to the full advantage of all those privileges and securities, which the English constitution and laws threw around the people of England, for the protection of their liberties.

certained doctrines which inform and animate the system, and describe the general character of the rights it gives, and the remedies by which it protects them. He refers to the treatises which are received as evidence of it, and to the decisions of the courts which record its application, not for the skeleton of the case, but for the vital principle which is embalmed in it.

Such a system of principles, if well defined and sufficiently extensive, has in some respects evident advantages over one which rests upon positive regulations, applicable only to specific cases. It may have less certainty; but even this objection ceases, when, as in the case of the common law, the applications of the principles have been so frequent and diversified, as to assign them all their distinctive features. And whilst they are, in the general, sufficiently definite to prevent a misapplication of them, they bring within their operation every case, however new in its facts and circumstances, which in its nature and tendencies falls within their range. They make a kind of Linnaean system of principles, with all their generic and specific distinctions, as illustrated by their past application to the recorded cases: so that when any new case arises, we examine it, as we would a new plant, merely that we may discover these distinctions, if present, and classify it accordingly. Such a classification is a classification by attributes, whilst that of positive law is too frequently by facts and circumstances. Now the facts and circumstances, which surround human transactions, even when they spring from the same motives, or tend to the same end, may be infinitely diversified. They are but the dress of the intent, or the modes by which it acts itself out; and they may take whatever form ingenuity or caprice may suggest. The modes, by which an intent is accomplished, have no necessary connexion with it; and therefore they cannot be relied upon as the characteristics of the intent. Defining an intent by the surrounding circumstances, is like describing a man by his dress, which he may change at pleasure. It is manifest, therefore, that all rules which are intended to operate upon, regulate, or apply human intents, will best accomplish their purpose, by describing the intent, to which they relate by its inherent qualities and attributes; whilst they leave the latter to be collected from the circumstances of any particular case, not as necessary ingredients of the definition of the intent, but as facts which may serve to display the existence of the defining qualities.