State v. Mairs & Mairs

The court in delivering their opinion expressed no opinion upon the queston that had been raised with regard to the extension of the statute, but gave several reasons which had induced them to waive deciding that question upon a motion like the present. They were, however, of opinion that [338] in a case of mnihem it was discretionary with the court whether to bail or not; that it must depend on the circumstances of each individual case whether they should exercise that discretion or not, but that where the wounding is enormous, and there is no pretence of innocence, it would be improper to admit the prisoners to bail.

Prisoners remanded.

Note. — From the peculiar connection which formerly existed hetween the colonies now constituting a large part of the United States with Great Britain; from the circumstance that the common law of England was adopted almost universally among us, and that many of the acts of parliament were recognized as part of our law, questions have frequently arisen, and probably will continue to arise, how far these statutes have any obligatory force among us. Different opinions have been entertained and expressed upon this subject by judges of equal ability and worth; but upon a question of this kind, so completely anomalous in its nature, the grounds for the decision of' which are so scattered, obscure, and remote, we cannot be surprised if political feelings have sometimes mingled in the consideration and influenced the opinion that has been adopted. In the year 1782, it was declared by McKean, Chief Justice of Pennsylvania, an able, independent and profound lawyer, that “ all statutes made since the settlement of Pennsylvania have no force there, unless the colonies are particularly named; and all statutes made before that settlement have no *389 force, unless convenient and adapted to the circumstances of the country.” 1 Dall 67, 74, 5.

In an old edition of Blackstone’s Commentaries, in the possession of the editor, we find the following MS. note, which we have reason to believe authentic: “Chief Justice Kinsey, on the subject of the extension of the statutes of Great Britain in New Jersey, is of opinion that the statutes subsequent to the settlement of the colony do not extend. Chief Justice Brearly, (the immediate predecessor of Mr. Kinsey,) was to opinion that the statutes prior to the surrender of the government to Queen Anne, (Learning & Spicer’s collection 609,) which was the 15th of April, 1702, do extend.”

From an abstract of a special verdict in the case of Calvert’s lessee v. Eden et al., it appears that in Maryland the rule that has been adopted is, that “ all statutes antecedent to the settlement of the province, so far as suited the condition, situation and circumstances” of the inhabitants, were adopted. 2 Harris and McHenry 284. This would appear to exclude all statutes passed subsequent to the settlement, a construction which is negatived by an opinion of Hanson, J., in the case of Moore’s lessee v. Pearce, 2 Harris and M’Hen. 241, where he says, “ agreeably to the rules [339] which prevailed in our provincial court respecting the adoption of English statutes, I am satisfied that the 7 Geo. II., c. 20, makes a part of our law under the constitution.” He does not, however, state what those rules are, nor do the reports of earlier decisions, in that state, enable us to ascertain them. The statute of 11 Ceo. II., relative to the payment of rent, extended also to Maryland, lb. 290.

It would seem, from a comparison of these opinions, that the prevailing idea is, that the statutes of British parliament, as such, have no force with us; but so far as they have been practiced under, they have become a part of our common law, and are authority. Nor is this idea in any degree contradicted by a circumstance which must occur to every lawyer, upon reflection, viz., that in examining the particular English statutes, a very large proportion of them will be found to have been adopted, much larger indeed, than it can be supposed would have been sanctioned, had they been individually submitted to the choice of the people, or their representatives. It is to be recollected, however, that before the Revolution, it was customary for the gentlemen of the bar, and the judges, to receive their legal education in England, where they were instructed equally in the common and statute law, and insensibly introduced much of the latter into the provinces.

The idea that none of the British statutes have any other force in the United Stales than such as is derived from having been adopted by ourselves, is sanctioned by an ingenious publication of Judge Wilson, of the Supreme Court of the U. S., as early as the year 1774, (3 Wils. Works 203,) in which the same idea is very ably supported, and the whole question fully investigated.