v. May, 12 P. F. S. 206. In May v. May the husband's proposition was to allow his wife to return to his house and occupy a small sleeping-room, have the care of her children, and eat at his table, but on the condition that she was denied all control of the house; she was required to take a position in the family subordinate to a servant who had treated her unkindly. This, in connection with proof of actual physical violence and assault, was allowed to go to the jury on the question whether the wife was justified in withdrawing from the husband's house. Counsel also cited Butler v. Butler, 1 Pars. 329, and Cheatham v. Cheatham, 10 Nev. 296. The principal case states the general rule as intelligently and concisely as any authority we have seen.

Somewhat analogous to the above is Kestler v. Kestler, 31 N. J. Eq. 197. This was an action by the wife alleging desertion. The evidence showed that the parties had occupied the wife's house; the wife complained of nothing but that the husband was jealous of her, and taunted her with infidelity; that she ordered him to leave her house, and he therefore left it. This was held not to amount to a desertion on his part. The court say: "It is urged, by her counsel, that such conduct on the part of the defendant would have justified the petitioner in leaving him, and if she had done so, for that cause, and had remained away three years, without overtures for her return on his part, accompanied with promises of better conduct, she would have been entitled to a divorce, on the gound of desertion." But they continue: "Under the circumstances, he cannot be found guilty of desertion from the time when he left her house. She not only consented to his leaving, but insisted on his doing so, and it does not appear that his conduct was such toward her as to justify her in separating herself from him, had he refused to leave her. The circumstances are not such as to entitle her to a divorce. Jennings v. Jennings, 2 Beas. 38; Moores v. Moores, 1 C. E. Gr. 275; Belton v. Belton, 11 id. 449." So far as we can find, this case is without any exact precedent. Soper v. Soper, 29 Mich. 305, is somewhat like it in principle. It was there held that a quarrel, in which the husband suffered as much as the wife, was no ground for a suit by the latter for a separation.

The case of Rylands v. Fletcher has kept the English courts in trouble ever since it was decided. It has been cited as authority for a recovery in about every case where injury has resulted from any thing maintained on a defendant's land, although not accompanied by negligence. The exchequer division have just found fresh occasion to distinguish it again, in Box v. Jubb, decided in February last, 41 L. T. (N. S.) 97. The defendants were owners and occupiers of a reservoir which was supplied with water from a main drain, such supply entering the reservoir by an inlet, and the surplus water from the reservoir passing through an outlet into the drain at a lower level, and both inlet and outlet being furnished with proper doors or sluices so as (when required) to close the communication between the

reservoir and the drain. Owing to the emptying of a large quantity of water from the reservoir of a third person (over whom or whose acts the defendants had no control) into the drain at a point above the defendants' premises, and to an obstruction in the drain, at a point below their premises, caused by circumstances over which the defendants had no control, and without their knowledge, the water from the drain was forced through the doors (which were shut at the time) into the defendants' reservoir, and an overflowing of water there from on to the plaintiff's premises was thereby occasioned. But for such obstruction the overflowing would not have happened, as the defendants' reservoir, and its communications with the drain, and the doors or sluices were all constructed and maintained in a proper manner so as to prevent the overflowing of the reservoir under ordinary circumstances. No negligence or wrongful act was attributable to either party. Held, following the decision of the Court of Appeal in Nicholls v. Marsland, 35 L. T. Rep. (N. S.) 725, that the defendants were not, under the circumstances, liable to the plaintiff for the damage caused by the overflow of the water from their reservoir. Kelly, C. B., said: "It is contended, however, on the part of the plaintiff, that the defendants were bound to render their reservoir secure against being caused to overflow by the pressure to which it was thus subjected. The question then is whether they were thus bound. I am of opinion that they were not; they could not be expected to anticipate that which did, in fact, occur. I need not refer to the authorities which have been cited. It is right for me to say that no case has ever decided that which we have been invited by Mr. Bray, on the part of the plaintiff in the present instance, to hold." Pollock, B., concurring, rested his decision on Nicholls v. Marsland, supra, and to some extent on Nugent v. Smith, L. R., 1 C. P. Div. 423. Distinguishing Rylands v. Fletcher, he says: "The decision in Rylands v. Fletcher does not say, nor did any one, who had judicially to consider that case, say that a mill-owner, having an ordinary mill dam well built, is liable for damage done by water which he did not collect, but which got into his mill dam by the act of a stranger." "In Rylands v. Fletcher the cause of the mischief was the wrongful act of the defendants in making a reservoir under such circumstances that the collection of the water itself caused the flooding of the plaintiff's mine; whereas, in the present case, the water collected by the defendants was harmless; the water which overflowed, or which caused the overflow, was not collected by the defendants, but was added, or added itself, and not by the defendants, or by their means, to the water collected by the defendants." The doctrine of Rylands v. Fletcher will hardly obtain in this country. The present state of decisions in regard to it is thus expressed in Simonton v. Loring, 68 Me. 164: "This doctrine has received a quasi approval in Ball v. Nye, 99 Mass. 582; Wilson v. New Bedford, 108 id. 261, 266; S. C., 11 Am. Rep. 352, 356. While it has been criticised in Swett v. Cutts, 50 N. H. 437; S. C., 9 Am. Rep. 276; Brown v. Collins, 53 N. H. 442; S. C., 16 Am. Rep. 372; and utterly denied in Losee v. Buchanan, 51 N. Y. 476, 486; S. C., 10 Am. Rep. 623, 632." To the cases approving that doctrine may be added Cahill v. Eastman, 18 Minn. 324; S. C., 10 Am. Rep. 184, 187; and to those opposed, Marshall v. Welwood, 38 N. J. 339; S. C., 20 Am. Rep. 394.

MR. JUSTICE CURTIS.*

HE first volume of this work contains a copious

brother, George Ticknor Curtis; and the second is devoted to a selection from such of his principal productions as are not contained in the Reports, and are not readily accessible in other forms. The biographical portion of the work has been executed not only with literary skill, but with great judgment and good taste. In its kind of literature it is a masterpiece. It deals with every portion of the subject's life, from his early boyhood; his college days and his studies for the bar; his early professional labors, and his rapid rise to professional eminence; his political views and his occasional expressions of them; his brief but distinguished judicial career; his retirement from the bench, and the seventeen years that followed of incessant occupation with the interests of individuals, private corporations, municipalities and States, comprising a clientage such as have followed but few lawyers of any age or country.

The events of such a life are chiefly in its works. Benjamin Robbins Curtis was born in Watertown, Mass., Nov. 4, 1809. His father was a supercargo and master in the merchant marine, and died abroad at an early age, leaving a widow, with two sons who became in due time respectively the subject and the author of this very interesting biography. The mother was a beautiful woman of singular sweetness and gentleness of manner and disposition, with an inborn refinement that circumstances showed not to be inconsistent with the highest courage and energy. If few mothers have manifested such confidence in the future of their children as to expend the last penny of a very small inheritance in their education, still fewer perhaps have been so amply repaid for a seeming sacrifice that proved to be the wisest of investments. In the whole range of biography we know not where to look for a more tender and touching tribute of filial piety, or one more entirely well deserved, than is contained in the opening chapters of the work before us. And it is pleasant to know that such a woman as they describe was spared to her children till she had reached the age of four score years, to be the witness of the results of her patient watching, her unwearied labor, and her self-denying generosity.

The two sons were educated at Harvard College, where the elder, Benjamin Robbins, graduated in 1829. He began his professional studies immediately at the Cambridge Law School, and was induced by business consideration to complete them in a private office at Northfield, Massachusetts, where he had a favorable opportunity of supplementing his acquisitions in the theory of the law by their practical application to the incidents of real life. Before his admission to the bar he managed for some months a very considerable country prac

A Memoir of Benjamin Robbins Curtis, LL. D., with some of his Professional and Miscellaneous Writings. Edited by his son, Benjamin R. Curtis. Boston: Little, Brown & Co., 1879. 2 vols., pp. 490-440.

tice, and was married and embarked in a lucrative professional business in Boston at the age of six and twenty.

A very characteristic letter to his uncle, Mr. George Ticknor, on the subject of removing from Northfield to the city is a study for every young lawyer. In this letter he quotes a remark that he had once heard from an eminent jurist, when asked if a certain person was a "good lawyer." "No," was the reply, "he has always had too much business to be a good lawyer." Mr. Curtis was afraid that the absorbing duties of an extensive and diversified practice would give him a dexterity in handling the instruments of the law without increasing his attainments in the science, and believed that by his removal to Boston he would find more leisure for study and a better opportunity for obtaining books, and profiting by the advice of eminent jurists and lawyers. In all this he was not disappointed. He

found himself at once in association with eminent members of the bar and of the bench, and entered at once on the duties and investigations involved in the judicial adjustment of important questions of commercial and constitutional law. But his "much business" was never too much for him, and the more clients he had the better lawyer he became, for every case presented to him received his patient, but rapid and exhaustive, study; a study rendered comparatively easy by his systematic habits and by his thorough preliminary education.

In this work his years rolled on, his reputation and his acquisitions in legal knowledge accumulating with every year. The Massachusetts Reports from 1836 to 1851- from the eighteenth of Pickering to the seventh of Cushing, inclusive — abound in his arguments of cases involving questions of great diversity in every branch of law and equity. During this period it does not appear that he was at any time engaged in the argument of cases before the Supreme Court of the United States. So that his first appearance there was as one of its justices. His selection for this high office by President Fillmore was due exclusively to the reputation he had established as a lawyer — "juris, legumque peritus.” He had no special claims on any political party, which are too often the make-weights in these appointments, State or Federal. Indeed he had never held an office save that of a member of the lower house of the State Legislature, which he had accepted in order to assist in effecting some contemplated reforms in the practice of the courts.

While

in this body, however, he showed what he would have been capable of accomplishing if his tastes and professional duties had admitted of his taking an active part in public affairs. The Legislature to which he had been elected became famous for the coalition between the Democratic and Free Soil parties, by which, in consideration of the election of Mr. Boutwell as governor, the Democrats agreed to elect Mr. Charles Sumner senator of the United States. Mr. Curtis was requested by his colleagues to prepare an address to the people of Massachusetts setting forth the circumstances of this transaction with a suitable commentary. The consummate

ability with which he discharged this duty evinced an aptitude for political discussion in no degree inferior to his logical skill in preparing a legal argument or a judicial opinion. If there existed no other evidence of his ability in this direction, we consider that this single document would be sufficient to establish a reputation for statesmanship of the highest order. Of equal merit and power as political disquisitions were his speech at Faneuil Hall at the constitutional meeting of Nov. 26, 1850; the address to the citizens of Massachusetts in December, 1860; and his second speech at Faneuil Hall at the Union-Savers' " meeting of February 5, 1861. It is idle to speculate on what might have been the result if the policy of Mr. Crittenden and his friends had prevailed at this important crisis of our affairs; but the calm and judicial presentation of their case by the author of the dissenting opinion in the Dred Scott case is a document of historical value and importance.

One of the most interesting chapters in this biography is devoted to an inside history of the so-called "decision" which the biographer regards as the precipitating cause of our civil war. The original opinion in the Dred Scott case was prepared by Judge Nelson, and if this opinion had stood as that of the majority for which it was written, it would have called for no expression of judicial views on the constitutionality of the Missouri Compromise Act. But after this opinion was written, a motion was made in a conference of the court for a re-argument of the case at the next term. This motion prevailed. Judge Nelson's opinion was set aside, and two questions were framed by the chief justice to be argued de novo at the bar. These questions involved the facts set up in the plea to the jurisdiction, and the power of the court to take notice of and determine the citizenship of the plaintiff on those facts, after that plea had been overruled by the Circuit Court, and the defendant had been ordered to plead to the merits. If the facts could be noticed, and amounted to proof in law that Scott was not a citizen, the court had no jurisdiction. If on the facts Scott should be held to be a citizen, then the merits could be gone into and the validity of the Missouri Compromise restriction became a question before the court. On this basis the case was re-argued. It was held that Scott was not a citizen, but the court notwithstanding assumed jurisdiction of the merits.

This result was brought about by the influence of Mr. Justice Wayne, who had convinced himself that the "peace and harmony of the country" required a judicial decision" to the effect that Congress had no constitutional power to prohibit the introduction of slavery in the territories. With his impulsive and impassioned ways of treating such a question he succeeded even in magnetizing Judge Taney, who could only have been mastered by Judge Wayne's appeal to his feelings-to that kindness and benevolence toward all human beings which so eminently distinguished that great jurist and Christian gentleman. It was not surprising that Judge Wayne should have carried Judge Grier and

Judge Catron with him—they had a good many of the same qualities of mind and disposition that were conspicuous in their sanguine and enthusiastic colleague. But Judge Taney's nature was different, and he for once sank his judicial in his political character, because he thought the end that seemed to him desirable justified the means by which he proposed to attain it. The circumstances attending the preparation of his opinion in this case, and the changes in it subsequent to its reading in conference and its delivery from the bench, or even for the first time made public in his correspondence with Judge Curtis, form a very interesting chapter in judicial history.

There is a brief reference in one of the chapters to Judge Curtis' agricultural experience on a three hundred acre farm that he purchased in middle life among the Berkshire hills in Massachusetts. His biographer says that the judge knew how to raise good crops and fatten marketable steers to a profit. There was a time when Massachusetts lawyers were addicted to these pursuits, and we should like to see them return. The Adamses were good farmers, all of them more or less. Josiah Quincy and John Lowell were quite as proud of their farming as of their professional achievements and valued their essays and addresses on agricultural topics as highly as their legal opinions or speeches at Faneuil Hall. Mr. Webster was the only one of his immediate contemporaries at the bar who took an interest in these matters sufficiently marked to render it a feature in his life, but Mr. Webster was a thorough farmer, and we should have liked to hear something more of Judge Curtis' agricultural tastes and pursuits by way of warning or encouragement to those professional gentlemen who require that "employment without labor" which declining years may best find in the fields and the farm.

The appendix to the first volume of this work contains a list of the cases argued by Mr. Curtis before the Supreme Judicial Court of Massachusetts from 1836 to 1851, with a notice of the topics treated in them; and a similar list of cases from 1857 to 1874. It contains a list of his opinions in the Supreme Court of the United States, and of the cases argued by him before that tribunal after his retirement from the bench. The second volume embraces among other papers his Bowdoin prize dissertations; a very able article on the Debts of the States, first published in the North American Review for 1844, but of interest and importance at the present time; his report of the commissioners on the reform of legal proceedings in Massachusetts; a very valuable opinion on the question "Are juries judge of the law?" the dissenting opinion in the Dred Scott case; the pamphlet on Executive Power, first published in October, 1862; and his argument in defense of President Johnson. All the papers in the volume are of permanent judicial and historical interest, and render it an important professional and political text-book.

These volumes address themselves to a large circle of readers. To lawyers and students of the profession they are especially valuable, but they are

full of interest for all intelligent citizens. Moral, religious, independent, courageous, learned, laborious and able, eloquent in the eloquence of logic and truth, a great lawyer and a great judge, who wore the robe as spotlessly as the ermine, we think that Benjamin Robbins Curtis fills the measure of a great man; and that his name will deservedly rank in tradition and history among the Marshalls and Taneys of our bench, and the Pinkneys, Johnsons and Websters of our bar. J. O. S. OBSERVATIONS ON THE PARTICULAR JURISPRUDENCE OF NEW YORK.

INTRODUCTION.

The pointed remark of Ortolan (Intr. to History of Rom. Law), that " Every historian ought to be a jurist, every jurist, a historian," is not inapplicable to the student of the jurisprudence of New York. The history of New York, though comparatively short, is complex; it enters largely into the construction and application of the legal systems now administered here. In some cases the history of a law is indispensable to its perfect comprehension, in others, always an important auxiliary.

That the systems of law, now applied in the administration of justice in New York, are even more composite in character than those systems applied in England to purely English controversies, admits of little doubt, for that which is vaguely and indiscriminately termed common law in both countries, is here often one thing, there, another.* Here the common law of England is akin to law of foreign original, "jus receptum;" in England it is the law founded on custom, the consuetudinary law, properly jus moribus constitutum. I propose, hereafter, to observe this distinction upon which depend important truths.

The student of New York jurisprudence will admit that the several civil governments, and even the various political parties which have controlled New York from its origin, have each made its mark upon the character of the legislation; to regard the laws of New York as a uniform system would be to ignore the irresistible logic of facts. In the space of two hundred years New York has been governed by three separate powers and by four distinct species of governments: the States General of Holland; as a proprietary, or count palatine under the brother of Charles Second; as a Royal Province of England, and as a State of the United States. Disregarding the minor, or more subtle, subdivisions of these governmental periods, it is not difficult to trace the influence which each government has had on the body of the law: the mark left by the Dutch government is considered trifling; but an analysis of the New York reports shows it must not be ignored in an account of the whole. The ducal period, as that in which the first portion of the English law was introduced, is most important to the completed edifice. Under the royal domination came by fragments other portions of English law, until at last the provincial law reached that condition in which it was adopted bodily by the framers of the "State" government. Since 1777 the primal law of English original

*The term common law is used by different writers in different ways. By one, as the law administered in the common-law courts, to distinguish it from the extensive system of chancery. By another writer as referring to the laws founded on English custom; by still another to distinguish the whole body of English law from the Roman outgrowth. Many other illustrations may be given. Bentham says: "The next time you hear a lawyer trumpeting forth his common law, call upon him to produce a common law. Let him look for it till dooms-day, no such object will he find."

has been augmented by still other laws of English origin, and finally by laws promulged and imposed by the sovereign authorities, created by virtue of what we term" the Constitutions," or those instruments which bind the people of New York together, not only as a "State", but as a member of the Federal scheme.

We often hear the system of law mainly administered in New York prior to the year 1846, termed “the English common law," to distinguish it from an artificial system supposed to have been introduced by the Codes of practice and the Constitution of 1846. The expression is not strictly accurate; at least, it does not tend to clearly convey the facts. Since the first establishment of courts of justice on the English plan, New York has had an idiosyncratic or peculiar legal system of its own. This system is nearly allied to the English original, which of all the European originals predominates, but still it is sui generis. The existing jurisprudence of New York (and I now refer to New York in its more sovereign attitude and not as subordinate to the Federal scheme) has been influenced by every touch of the reins of government. Lord Bacon thus beautifully expresses the idea I would wish to convey: "For there are in nature certain fountains of justice whence all civil laws are derived, but as streams, and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the region and governments where they are planted, though they proceed from the same fountains." Advancement of Learning, Book II.

We have only to glance at a few of the reported cases in order to perceive that the Roman-Dutch law and the polity of New Netherland remain of more importance to our jurisprudence than they are commonly esteemed. In the recent Elevated Railway cases we find counsel contending that the title to certain streets in Old New York should be determined by the law of New Netherland in force when those streets were first dedicated to the public use. The Court of Appeals, in the year

1867, held that a public highway on Long Island, opened prior to the conquest of New Netherland, was via publica of the civilians and that the soil thereof, by the civil law rule, belonged to the government and, consequently, that upon its non-use as a highway it did not revert to the adjoining owners under the common-law rule. This decision affects every Dutch road in the State, and there are several. Chancellor Kent did not hesitate to say, that the powers of a certain Long Island Dutch town to take land as a corporation were by the civil law complete, and that the civil law, in that case, determined the question. The Supreme Court of New York has pronounced the ground-briefs of the Dutch to be valid sources of title to lands in this State, though unsupported by an English confirmation; and also, that at the establishment of the State government every inch of ground in New York was held either under a Dutch ground-brief or under a crown patent. We find, even as far distant as Delaware, that the ground-briefs, granted by the Director-General of New Netherland, are recognized as valid titles to land in that State. (Celebrated Peapatch Case, 1 Wallace, Jr., Reports.) Refer to the Canal cases in Wendell's reports and it is there argued by distinguished counsel that certain riparian rights and the rights to increment by alluvion or avulsion were by reason of Dutch titles involved, to be determined by the ancient law of New Netherland or the Roomsch Hollandsche Recht, as it stood in the year 1614. It is not impossible, therefore, that certain urban or praedial servitudes connected with Dutch briefs may hereafter be determined wholly by the old law of New Netherland. There are several parcels of land in New York reported to be now held under Dutch grants, the original fee or title having descended by inheritance. It would be difficult to perceive how these Dutch grauts could be interpreted or construed by the rules of English original, which were set in

force at a later day. These few instances, with their many suggestive ramifications, are sufficient to demonstrate the importance of certain rules of the law of New Netherland to our subject. I shall endeavor to indicate which portion of the law of New Netherland is yet recognized by the courts of this State and what rights in action are now affected by that law.

Although e decisions and judicial opinions, delivered in courts of justice, are not always the most correct exponents of a history of the remote past, yet because they influence the current of popular action they are important to an account of the present; they are important, also, in relation to the English doctrine "stare decisis," and as bases of popular reasoning: for example, the courts have pronounced the "Habeas Corpus act" (31 Car. II), a statute vastly extending the liberty of the subject: the decision is historically wrong, but as inculcating and re-enforcing a great doctrine long dormant, it is a premise of public value. Decisions upon historical facts ought to be weighed by historical evidences and not by considerations of judicial policy. It will therefore be necessary to distinguish those decisions which are of historical value from the few which conflict with the facts (I do not refer to the merely speculative philosophy) of history. An investigation of New York history, from a legal standpoint, will lead us beyond the few Roman-Dutch law rules which obtain, to consider the rules and theories under which the law of New Netherland gave place to law of English fashion and original. It will require us to consider also what portions of the English law have prevailed here and how far these affect our present jurisprudence.

It must be self-evident, that the great mass of law of English original, now in force in America, has been introduced in some method consonant with some system of jurisprudence. Justice Story, adopting the phraseology of Blackstone, says: "If an uninhabited country is discovered and planted by British subjects, the English laws are said to be immediately in force there; for the law is the birth-right of every subject, so that wherever they go they carry their laws with them; and the new-found country is governed by them." This last may be termed, for convenience, the colonial introduction theory. It is said, there is a distinct mode by which law of English original has been introduced into conquered or ceded provinces of the English: by express promulgation of the sovereign or its ministers. These two modes named are often contradistinguished by writers. There can be little doubt but that the colonial introduction theory is repugnant to the philosophy and logic of jurisprudence. An attempt to apply it in practice must result in a species of ex post facto judicial legislation, amply demonstrating the hardship and injustice of the theory, if it be taken literally or without considerable limitations. Justice Story,immediately after repeating the colonial introduction theory, states that it is "a proposition full of vagueness "and perplexity for it must still remain a question of "intrinsic difficulty to say what laws are, or are not, "applicable to their" (the Colonists) "situation."

*

It is not, perhaps, "easy to settle what parts of "the English law are or are not in force in any such "colony until either by usage or judicial determina"tion they have been recognized as of absolute force." This single remark by Justice Story enables us to at once detect the fallacy in the colonial introduction theory. For how can laws not determined be laws or be in force? What possible legal sanction can there be to the so-called laws which are not determined to be in force? Why plainly none. And where there is no legal sanction there is properly no law. If the English laws alluded to in the colonial introduction theory required to be determined by the judicial ministers of the sovereign in order to be in force in the colonies, when so determined the English laws were set as colo

nial laws in the improperly legislative mode; when they were so set legal sanctions had attached to them and they had all the attributes of positive laws. I submit with confidence, therefore, that before the English laws were so set as laws in the colonies, they cannot be said to have been in force there. How the colonial introduction theory has crept into the text of English commentators it is not easy to determine; from their citations of early English cases, it would seem that the theory is a mere variation of the rule: that the lex fori prevails in the absence of proof of that foreign law which affects the subject-matter of the action. The theory in question has been followed in this State, but without other reason than convenience, for with labor it would have been possible to have traced, with the accuracy of the conveyancer, the legislative title to every law in actual or potential force here.

When the colonial introduction theory is applied to practice in this country, it means little more than that, in the absence of positive laws to guide the administrations of justice, the analogies of the jurisprudence of the English common law control the juristic legislators. But this last principle depends on a positive law or rather it grows out of the political constitutions which have, in some manner, invariably been accorded to the English colonies: it does not depend on a mere opinion of English commentators (jus prudentibus compositum), nor is it an abstraction from the underlying principles of English jurisprudence. In the absence of a positive enactment (in some controlling manner) there is not, nor has there ever been, any principle of law binding on the colonies or requiring them to adopt or to set in force law of English original; or to speak more finitely, requiring the colonial judicial legislators to borrow from English jurisprudence rather than from any other enlightened system which is in accord with natural law. That there has been such positive enactment in New York I believe I shall be able to show in the progress of these papers. It would seem that Blackstone, Stephens and Broom, of the English commentators, must have observed the fallacy in the colonial introduction theory when practically applied to the American colonies, for they state that the colonies were acquired by conquest from the Indians, and that the English common law was introduced here by express enactment. Attributing to the writers named their usual accuracy upon a scientific subject, we may seize on their admission, that the English law was introduced here by express enactment. As the clause, that the American colonies were acquired by conquest from the Indians, is independent of that clause concerning enactment, we are then at liberty to reject the theory of acquisition by a technical conquest, for the truer doctrine of Justice Marshall, that the colonies (except New York and Lower Canada) were acquired by England by virtue of discovery and occupation and not by a technical conquest, as the Indians had no national existence to conquer. We may without hypercriticism maintain that the inconsistencies of the English commentators furnish additional proof of the fallacy in the colonial introduction theory. When Blackstone wrote his commentaries the only English colonies of importance were in America and there, if anywhere, one should see the colonial introduction theory reduced to practice, but Blackstone says, in substance, that in America the English law was introduced by legislation, the English plantations here being conquests from the natives.

One more remark on the theory in question: May not the English commentators, in their statement that the English Colonists, when settled in uninhabited lands, were immediately subject to English laws, have confounded the underlying principles of the jurisprudence of the common law with those principles of natural law (the jus naturale et gentium of the