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The question raised by the demurrer to the information is as follows: Is the above-mentioned provision of the English law included in the common law as the term is used in Section 4 of the Act of June 30, 1906, establishing this Court? This calls for an interpretation of the term as used in the statute.
Chief Justice Marshall, in a ruling made during the trial of Aaron Burr, held that the term "common law" referred to
those general principles and those general usages which are to be found, not in the legislative acts of any particular State, but in that generally recognized and long-established law which forms the substratum of the laws of every State. (Hinckley, American Consular Jurisdiction in the Orient, p. 51-3.)
This is an accurate general definition of the term common law as it existed in the United States at the time the eminent jurist gave this opinion, but in order to meet the practical demands of the situation which now confronts the newly established United States Court for China, it is necessary to descend more into detail and to define the meaning of the term with greater particularity.
When our ancestors came to the New World they claimed the common law of England as their birthright and brought it with them, except such parts as were judged inapplicable to their new conditions. The common law of England is the unwritten law as distinguished from the written or statute law, and in its ordinary acceptation includes those general customs which pervade the whole realm, and particular laws which have been by degrees added thereto.
The common law as introduced into the United States embraces those general principles of the common law of England and those English statutes passed in aid thereof, which were applicable to the new conditions and circumstances existing in the American colonies at the date of the change of sovereignty. (Mr. Justice Story in Petterson v. Winn, 5 Peters 242; see also Commonwealth v. Knowlton, 2 Massachusetts 530.) This is also the view taken by Prof. Bishop in his recent work on Criminal Law, wherein he says:
The common law of England as modified by statutes and including the law as administered under the equity, admiralty, and ecclesiastical tribunals, travelled with the original colonists to this country; and here so much of it as was adapted to their altered situation and circumstances, yet no more, became and thenceforward constituted our American common law, but when it was thus adopted by us we were not a nation. Not even the Revolution, but the Constitution of the United States gave us nationality. The Revolution and the Constitution did not annihilate any law with which they were not in conflict. The laws existing when each transpired remained such in their several localities,
and so they would have done if the colonies and the States had been politically annihilated. The result is that the United States has no common law within the territorial limits of the States, and all unwritten law within them is State law, yet in reason it is obvious that there are circumstances under which, not a national common law, but the somewhat varying local laws of each of the several States constitute an unwritten rule for the tribunals of the United States. (Bishop, New Criminal Law, vol. 1, sec. 190-2; Minor, Institutes 34.)
In America the United States courts, when called upon to interpret and apply the common law, are not confronted with the difficulty which now confronts this Court, because there a United States Court has only to administer the common law of the State or States in which the matter pending before the court originated. The common law of each State is usually well defined. Here we have the situation of a United States Court sitting outside the territorial limits of the States and outside the territorial limits of the Nation itself, which is called upon to interpret and apply the common law.
It is readily seen that this gives rise to difficulties which do not exist in the United States courts sitting in America. The difficulty was recognized by the Honorable Caleb Cushing, who as commissioner negotiated the Treaty of July 3rd, 1844, and who subsequently, as Attorney-General of the United States, delivered an opinion upon the meaning of the term "common law" as used in the Act of Congress of August 11th, 1844, which was passed pursuant to said Treaty. The term "common law" is used in the statute of August 11th, 1848, in the same sense in which it is used in the statute of June 30th, 1906.
In the above-mentioned opinion Mr. Cushing discusses the subject as follows:
The common law: In this respect, the statute furnishes a code of laws for the great mass of civil or municipal duties, rights, and relations of man, such as, within the United States, are of the resort of the courts of several States. Some general code in these respects became necessary, because the law of the United States, that is, the federal legislation, - does not include those matters, and, of itself, would be of no avail towards determining any of the questions of property, succession and contract, which constitute the staple matter of ordinary life. For such of the States as were founded in whole or chief part by colonists from Great Britain and Ireland, or their descendents, the law of England, as it existed in each of those States at the time of their separation from Great Britain, with such modifications as that law had undergone by the operation of colonial adjudication, legislation, or usage, became the common law of such independent State. Meantime, in addition to many changes, differing among themselves, which the common law underwent in each of the colonies before it became a State, that common law has been yet more largely changed by the legislation and judicial constitution of each of the States. Hence, it was not enough to enact that the
common law should intervenue to supply, in China, deficiencies in the law of the United States. For the question would be sure to arise: What common law? The common law of England at the time when the British colonies were transmuted into independent republican States? Or the common law of Massachusetts ? Or that of New York, or Pennsylvania, or Virginia? For all these are distinct, and in many important respects diverse, common law." (Opinions of AttorneysGeneral of the United States, vol. 7, pages 503-4.)
The foregoing brilliant discussion of the subject by Mr. Cushing at once indicates the difficulties of, and the necessity for, a definite and comprehensive interpretation of the term as used in the law. For the reasons pointed out in the foregoing discussions, it is well-nigh impossible to include in a single statement a definition of the common law which will be comprehensive enough to cover the entire field.
It is believed, however, that the authorities warrant the following holding: The term "common law" as used in the statute is interpreted to mean those principles of the common law of England and those statutes passed in aid thereof, including the law administered in the equity, admiralty and ecclesiastical tribunals, which were adapted to the situation and circumstances of the American colonies at the date of the transfer of sovereignty as modified, applied and developed generally by the decisions of the State courts and by the decisions of the United States courts, and incorporated generally into the statutes and constitutions of the States.
I hold, therefore, that the above-mentioned English statute is a part
Judge of the United States Court for China.
SHANGHAI, March 6, 1907.
A History of Diplomacy in the International Development of Europe. By David Jayne Hill, LL.D., Vol. 1.1 The Struggle for Universal Empire, with maps and tables. London: Longsmans, Green & Co. pp. xxiii, 481. 1905.
To many who have had the pleasure of listening to Doctor Hill, in his discourses on European diplomatic history, this first volume of A History of European Diplomacy will be a welcome and treasured book. It is the first of a series of six volumes upon the subject, and is written in that clear and beautiful style always characteristic of Doctor Hill's speech and writings. His presentation and analysis of historical facts and incidents, and the proofs upon both sides of controverted questions, are presented fairly and justly. One feels in reading this book that the author's treatment of his subject, of persons and groups, and of events, is calm and judicial, as distinguished from that of one having a preconceived theory or partisan bias. There is an abundance of facts submitted, carefully and laboriously gathered from original sources, marshalled in proper order and sequence, with due weight given to each, and logical conclusions are drawn from the facts presented. Doctor Hill is a student and has written his book for students. He not only states
his premises and proofs, but at the end of each chapter gives a full "list of authorities, documentary and literary," thus enabling the reader to investigate original sources for himself, and adding immeasurably to the value of the work to students. It is also worthy of note that the book contains very excellent maps, so placed that they can be unfolded and glanced at constantly while reading the text. The use of maps in reading history tends to fix the matter clearly in the mind, and his arrangement of the maps makes it possible to look at the field without. delaying the reading. This feature shows the careful attention to details characteristic of a master mind.
The author begins his work by clearly defining his field of inquiry, to which he strictly adheres. He starts with the "root of the matter." In reference to this he says,
' Volume II. was reviewed by Dr. Needham in the April issue of this JOURNAL.
It is, in truth, in the wealth of materials that a writer on diplomatic history finds his chief embarrassment. With the conviction that history is of value in proportion as it affords explanation, it has seemed best to adhere closely to the main current of casualty in the development of the existing system of European relations. It is, accordingly, as the title indicates, the history of diplomacy only as related to the international development of Europe as a whole, which constitutes the subject of the present work.
As in the study of the Roman law, one is likely to begin with the codification of Justinian, forgetting that behind that splendid work there are years of growth and development, creating law by customs and judicial opinions, settling controversies which made the Code of Justinian possible, so,
it is customary to regard the Congress and Peace of Westphalia as the starting point of European diplomacy. The truth is, that the Congress and Peace of Westphalia, while furnishing the international code of Europe, were the fruits of a long period of preparation whose movements provide the only key to the meaning of that code.
Therefore, Doctor Hill again says,
It is necessary, * if one would thoroughly comprehend the diplomacy of modern times, to return to the real point of origin of those elements which together constitute the present public law and international usages of Europe, and to trace their development step by step, down to the period of their final organization as a system.
This first volume, complete in itself, is designated "The Struggle for Universal Empire"; the second volume treats of "The Establishment of Terrritorial Sovereignty," and these "may be regarded as indicating the foundations of modern diplomacy." This first volume begins with the practical unity of Europe under the Roman Empire. Surrounded by barbarian peoples, there was small opportunity for the exercise of the art of diplomacy except in a minor way between the cities and provinces constituting the Empire. After noting the extent and imperial power of this Empire, its gradual decadence, and finally its dismemberment and reorganization into small kingdoms, there begin the development and practice and the art of diplomacy, tending to bring about peace and war; for it must be remembered that diplomacy has not always been the handmaid of peace.
The rise and spread of Christianity, the marvelous organization of the Roman Catholic Church, its influence over the broken fragments of the Roman Empire and the barbarian nations to which it sent missionaries, is told dispassionately and with great fidelity to the truths of history.