sor, or in some other legislative act, and have been transmitted to the present times, through express legislative enactments, of which the records are lost, or that they have been implicitly recognised by this or that act of parliament. But in respect to a great mass of the common law, having reference to matters, that were not known in such remote times, and have not been alluded to in the statutes, this theory is plainly a fictitious assumption. And though it is a maxim of the common law, that a fiction of law shall never work any wrong, yet it would be evidently dangerous, to make it the only basis of a law designating crimes and assigning punishments. Another objection to the same theory is, that it supposes the courts either to contravene or to repeal and enact statutes; for, in the thousand decisions of the courts already overruled, doubted or modified, this theory supposes some six or seven hundred acts of the legislature, more or less, to be involved, and if all these decisions, while they remained unimpeached, were demonstrative evidence of the existence of so many statutes, then the courts have by overruling them in effect repealed so many statutes, and enacted others in their stead, or if, according to the doctrine of sir William Blackstone above quoted, the overruling decisions are proof that those overruled were "not law," and that the rules embodied in the overruling decisions were and always have been law, unless these shall be overruled in their turn, it follows, necessarily, that from the earliest antiquity down to the time of pronouncing the overruling decisions, the courts had been contravening the statute law. In this case, as in many others, a fiction in law is the prelude to a dilemma. The position, then, that the rules and maxims of the common law are a body of statutes, ought to be abandoned, and we must stop at the position of sir William Blackstone, who states what is the prevailing doctrine on this subject. This doctrine is not that the legislature assents universally to the rules and pre

cedents of the common law, and puts them on the footing of statutes, but that it invests the courts or consents to their being invested with authority, within certain limits and subject to certain restrictions, to determine the law. In case of a statute, the courts must necessarily determine its construction; so in respect to the unwritten law, they must determine on the existence of a custom; but this is not the same in effect, as if the legislature had itself used the very language adopted by the courts in announcing their determinations.

The inquiries, whence does the common law derive its authority, and what are its constituent parts, and its limits, though they have an intimate bearing upon our own jurisprudence, as well as that of England, yet do not bear to the same extent, and in exactly the same way, in the two cases. The difference arises from the circumstance, that the constitution of this commonwealth, in the article already cited, gives an express sanction to, and explicitly adopts, the common law as a part of the law of this state. So that in regard to our own jurisprudence, we are at no loss to find whence the common law derives its authority. But when we come to the inquiry, in what respects, to what extent, and with what exceptions and modifications the common law of England has been adopted, we are necessarily led into an investigation of the foundations, principles, constituent parts, and limits of the common law of England, in order, when it has been ascertained of what it consists, to select that part of it which has been so adopted by our constitution.

In making such selection, the constitution gives no other designation of what has been so adopted, than the general description, "All the laws which have been adopted, used and approved in the province, colony, or state of Massachusetts Bay, and usually practised on in the courts of law, such parts only excepted as are repugnant to the rights and

liberties contained in this constitution." As there are no regular reports of our jurisprudence further back than from a period of about twenty years after the adoption of the constitution, we have no direct contemporary evidence of the law so adopted, approved and usually practised upon in the courts, excepting the known practice of the courts in 1780, the records of the courts previous to that time, and some few written memoranda and oral traditions. Nor has it ever in our subsequent jurisprudence under the constitution been deemed necessary, when a question has arisen at common law, to go back and show, by some historical evidence, that the rule in question had in fact been specifically adopted, approved or practised on in the courts, before the date of the constitution, the construction put upon the constitutional provision in question being as above stated, that the common law of England generally, as far as it was applicable to our condition, and had not been superseded by the constitution and legislation of the commonwealth, was thus made a part of its laws. So that to ascertain this part of the unwritten law, it is necessary, first, to ascertain that of England; then to see how much of it that is applicable in this commonwealth has been superseded by the constitution and statutes.

An extensive mass of materials is thus presented for examination and analysis. Numerous digests, treatises, and volumes of reports, are occupied wholly with the jurisprudence in relation to crimes and punishments; all of which must be examined, though they are necessarily to a greater or less extent, repetitions of the same doctrines. And as far as they coincide and agree in the statement and construction of those doctrines, the mass of materials to be wrought up is thereby in effect diminished, but as far as they differ, the labor is increased in proportion to the number. It is necessary, also, to examine the decisions in this branch of jurisprudence, scattered through our own reports,

and the English reports; and also through those of other states, where the points decided are applicable in our own jurisprudence. The commissioners consider it to be their duty to consult the penal codes of greatest reputation; for though these are not direct authority for what is our common law, yet being the results of the experience of other civilized communities, and of the laborious study of learned men, they afford essential assistance in analyzing our own law on the same subjects, and especially in suggesting amendments. A digest of the penal laws of other states or other countries, particularly of those of Scotland, may be useful in the same way.

As the constitution only adopts the common law in force in 1780, the query may be suggested, whether any English reports or treatises subsequent to that period need to be examined. That they should be consulted, there can be no doubt, since they are evidence as we have seen of what the common law of England was, as well before as since that period. Indeed, according to the description of that law already quoted, the latest report of a decided case upon any point is the best evidence of what the law has been from the beginning. Whether this be so or not, such a report is undoubtedly often evidence of what the law has been for a long period. So an act of the British parliament, subsequent to 1780, declaratory of the common law, has been considered by our supreme court as evidence of more or less weight to show what was the common law.'

The part of the common law of England, thus adopted by the constitution, does not constitute the whole of the common law of this commonwealth, in the broad sense of that expression as comprehending all the unwritten law, or in other words all that is not the statute law. It has been said, that "the usage of the country establishes and makes

1 Bull v. Loveland, 10 Pickering's Reports, p. 13.

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the law of the country." This proposition is unquestionably true in the qualified sense, in which it was no doubt intended. This will be evident in the example of one of our own statutes upon a subject entirely unknown to the English law. For to give it any effect it must be expounded; some construction must be put upon its language; and for this purpose, as far as the statute itself or some other one does not afford the means of interpretation, the common use of language must be resorted to, not merely to fix the meaning of particular words, but often to determine the sense of entire clauses and provisions. This is a species of unwritten law, which must exist in all communities, and no less in civil than in criminal jurisprudence. For instance, a statute passed in England about a century after the first emigration to this state, establishing the negotiability of promissory notes, was practically adopted into our jurisprudence, previously to the date of the constitution, and thus became a part of our unwritten law. The few statutory provisions in this commonwealth, in relation to this commercial contract, and the few words, in which the contract itself is usually expressed, constitute the written law as between the parties to it. And yet to find out all that such a contract imports, it is necessary to read through a large volume. So a penal statute fixes the relations and obligations existing between the parties to it, namely the community on one side, and each citizen of the state on the other, and to find out all the relations and obligations thus created, much must be learned which the statute itself, though it may suggest, does not, and ordinarily cannot, fully express.

Another extensive branch of unwritten law is included under the title of practice, that is, the rules and forms of proceedings and usages of the courts, which in all their

1 Commonwealth v. Deack and others, Mass. Reports, vol. i. p. 61.