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Common Law and English Statutes Adopted in American Founding
Era
nolu chanApril 28, 2012
TABLE OF CONTENTS
002. Table of source material
007. The Law of Nations per Kents Commentaries
011. The Common Law per Kents Commentaries
013. State by State Review, adoption of law in the Founding
Era
033. Appendix of Source Material
607. End.
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TABLE OF SOURCE MATERIAL
All listed source material is incorporated within this document
and hypertext linksgo to the appended material without leaving this
document.
Miscellaneous:
Commentaries on American Law by James Kent (Kents
Commentaries),Vol I, 12th Ed., Edited by Oliver Wendell Holmes, Jr.
(1896)
[033] Part I, Of the Law of Nations; Lecture I, Of the
Foundation and History of the Law of Nations, pp. 1-23.
[056] Part I, Of the Law of Nations; Lecture II, Of the Duties
of Nations in a State of Peace, pp. 24-71.
[104] Part III, Of the Various Sources of the Municipal Law of
theSeveral States; Lecture XXI. Of Reports of Judicial Decisions;
Source of the Common Law, pp. 640-668.
[133] Patrick Henry, Debates and Other Proceedings of the
Convention of Virginia, 2nd Ed., pp. 316-17.
Constitutions:
[135] Connecticut 1776[137] Delaware 1776[143] Georgia 1777[150]
Maryland 1776[162] Massachusetts 1780[180] New Hampshire 1776[182]
New Jersey 1776[187] New York 1777[199] North Carolina 1776[205]
Pennsylvania 1776[214] Rhode Island 1842 (superseded charter of
1643)[225] South Carolina 1776[231] Virginia 1776
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Acts And Statutes
[234] Georgia, Act of February 25, 1784, An Act for reviving and
enforcing certain Laws therein mentioned.
[236] New Hampshire, Laws of the State of New Hampshire,
passedJanuary session, 1943; pp. 231-33, 259.
[240] North Carolina, Act of 1715, Chap. 5, An act for the
moreeffectual observing of the Queens peach, and establishing a
good and lasting foundation of government in North Carolina.
[241] North Carolina, Act of 1778, Chap. 133, An act to enforce
suchparts of the statute and common laws as have been heretofore
inforce and use here, and the acts of Assembly made and passedwhen
this territory was under the government of Great Britain, andfor
reviving the several acts therein mentioned.
[243] Pennsylvania, Act of 1777, An Act to revive and put in
force suchand so much of the late laws of the province on
Pennsylvania, as isjudged necessary to be in force in this
commonwealth, and torevive and establish the Courts of Justice, and
for other purposestherein mentioned.
[248] Rhode Island, Act of April, 1700, An Act, for putting in
Force theLaws of England in all Cases, where no Particular Law of
thisColony hath Provided a Remedy.
[249] Rhode Island, Act of 1750 (1749?), a bill for introducing
into thiscolony, such of the statutes of England, as are agreeable
to theconstitution, and make report of their doings, the greatest
part ofwhom, presented what followeth; [list of English statutes]
andall and every of the statutes, aforesaid, be, and they are
herebyintroduced into this colony, and shall be in full force
therein, untilthe General Assembly shall order otherwise.
[251] South Carolina, Act of 1712, An Act to put in force in
thisProvince the Several Statutes of the Kingdom of England or
SouthBritain, therein particularly mentioned.
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[434] Virginia, Statute 1-200, The Common Law, (Code 1919, 2,
1-10; 2005, c. 839.)
[435] Vermont, Act of November 4, 1797, An Act, adopting
thecommon law of England, and declaring that all persons shall
beequally entitled to the benefit and privilege of law and
justice.
[436] District of Columbia, Act of February 27, 1801, An
Actconcerning the District of Columbia.
[442] District of Columbia, Act of March 3, 1801, An
Actsupplementary to the act intituled An act concerning the
Districtof Columbia.
[445] District of Columbia, Act of May 3, 1802, An Act
additional to,and amendatory of, an act, intituled An act
concerning theDistrict of Columbia.
[450] Northwest Territory, Act of July 14, 1795, A Law declaring
whatlaws shall be in force.
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Court Opinions:
[451] Crawford v. United States, 29 S.C.R. 260, 212 U.S. 183
(1909),(from the Court of Appeals of the District of Columbia)
[461] Dion v. Cheshire Mills, 92 NH 414 (1943)
[465] Ferguson v. Georgia, 365 U.S. 570 (1961) (from the
SupremeCourt of Georgia)
[494] Morriss Lessee v. Vanderen, S. Ct. of Pennsylvania, 1
Dallas (Pa) 64, (1782)
[499] Patterson v. Winn, 5 Peters 233, 30 U.S. 233 (1831) (from
the Circuit Court of Georgia)
[509] Respublica v. Mesca et al, Court of Oyer and Terminer at
Philadelphia, 1 Dallas (Pa) 73 (1783)
[512] Straffin v. Newell, Superior Court, Chatham County,
Georgia,T.U.P.C. 172 (1808)
[513] The Will of Sarah Zane, Opinion of the Circuit Court of
the UnitedStates, Eastern District of Pennsylvania (1833)
[585] Wells v. Pierce, 27 N.H. 503 (1853)
[597] United States v. Worrall, U.S. Circuit Court, District
ofPennsylvania, 2 Dallas (Pa) 384 (1798)
[607] End.
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The Law of Nations per Kents Commentaries
Kents Commentaries at page 1:
PART I.
OF THE LAW OF NATIONS.
LECTURE I.
OF THE FOUNDATION AND HISTORY OF THE LAW OFNATIONS.
When the United States ceased to be a part of the British
empire, andassumed the character of an independent nation, they
became subject tothat system of rules which reason, morality, and
custom had establishedamong the civilized nations of Europe, as
their public law. During thewar of the American revolution,
Congress claimed cognizance of allmatters arising upon the law of
nations, and they professed obedience tothat law, according to the
general usages of Europe. (a) By this law weare to understand that
code of public instruction which defines therights and prescribes
the duties of nations, in their intercourse with eachother.1
(a) Ordinance of the 4th December, 1781, relative to
maritimecaptures. Journals of Congress, vii. 185, The English
judges havefrequently declared that the law of nations was part of
thecommon law of England. Triquet v. Bath, 3 Burr. 1478;Heathfleld
v. Chilton, 4 ib. 2015; and it is well settled that thecommon law
of England, so far as it may be consistent with theconstitutions of
this country, and remains unaltered by statute, isan essential part
of American jurisprudence. Vide infra, 841, 472,473.
For other definitions, see Wheat. pt. 1, c. 1, Danas note,
9;1Aust. Jur. lect. 6, 3d ed. 231.
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International Law is probably the better title. Wheat.Danas
note, 7; Woolsey, Introd. 19; Abdys Kent, 4; Twiss,Law of Nat. pt.
1, 85; cf. Aust. Jur. lect. 5, 3d ed. 177; post,51, n. (b). The ju
s g e n tium of the Roman lawyers is nowunderstood to have meant
something very different fromthe modern international law. It was a
collection ofrules and principles, determined by observation to
becommon to the institutions which prevailed among thevarious
Italian tribes. The ju s natu rale , or Law ofNature, is simply the
ju s g e n tium , seen in the light ofa peculiar theory. The
confusion between JusGentium, or law common to all nations, andin
te rnatio nal law is entirely modern. Maine, Anc. Law,c.3, Am. ed.
pp. 48, 50. See Aust. Jur. lect. 31 J Gaii. Inst. 1, 1.
Kents Commentaries at page 2:
There has been a difference of opinion among writers, concerning
thefoundation of the law of nations. It has been considered by some
as a meresystem of positive institutions, founded upon consent and
usage; whileothers have insisted that it was essentially the same
as the law of nature,applied to the conduct of nations, in the
character of moral persons,susceptible of obligations and laws. We
are not to adopt either of thesetheories as exclusively true.
Kents Commentaries at page 3:
There is a natural and a positive law of nations. By the former,
everystate, in its relations with other states, is bound to conduct
itself withjustice, good faith, and benevolence; and this
application of the law ofnature has been called by Vattel the
necessary law of nations, becausenations are bound by the law of
nature to observe it; and it is termed byothers the internal law of
nations, because it is obligatory upon them inpoint of
conscience.
Kents Commentaries at page 16:
Grotius has, therefore, been justly considered as the father of
the law ofnations. He arose like a splendid luminary, dispelling
darkness andconfusion; and imparting light and security to the
intercourse of nations.
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Kents Commentaries at page 18:
The most popular and the most elegant writer on the law of
nations isVattel, whose method has been greatly admired. He
professed to havefollowed the voluminous work of Wolff on the Law
of Nature andNations, and to be enlightened and guided by his
learning, with muchimprovement upon the doctrine and arrangement of
his great master.He has been cited, for the last half-century, more
freely than anyone ofthe public jurists; but he is very deficient
in philosophical precision. Histopics are loosely and often
tediously and diffusively discussed, and he isnot sufficiently
supported by the authority of precedents, whichconstitute the
foundation of the positive law of nations.
Kents Commentaries at page 19:
We now appeal to more accurate, more authentic, more precise,and
more commanding evidence of the rules of public law, by areference
to the decisions of those tribunals to whom, in everycountry, the
administration of that branch of jurisprudence isspecially
intrusted. We likewise appeal to the official documentsand
ordinances of particular states, which have professed toreduce into
a systematic code, for the direction of their owntribunals, and for
the information of foreign powers, the law ofnations on those
points which relate particularly to the rights ofcommerce and the
duties of neutrality.
Kents Commentaries at page 24: [*21]
Nations are equal in respect to each other, and entitled to
claim equalconsideration for their rights, whatever may be their
relative dimensionsor strength, or however greatly they may differ
in government, religion,or manners. This perfect equality, and
entire independence of all distinctstates, is a fundamental
principle of public law. It is a necessaryconsequence of this
equality that each nation has a right to governitself as it may
think proper, and no one nation is entitled todictate a form of
government or religion, or a course of internalpolicy, to another.
No state is entitled to take cognizance or noticeof the domestic
administration of another state, or of what passeswithin it as
between the government and its own subjects.
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Kents Commentaries at page 68: [*44]
A consul is not such a public minister as to be entitled to the
privilegesappertaining to that character, nor is he under the
special protection ofthe law of nations. He is entitled to
privileges to a certain extent, such asfor safe-conduct, but he is
not entitled to the just gentium. Vattel thinks (b)that his
functions require that he should be independent of the
ordinarycriminal jurisdiction of the country, and that he ought not
to be molested,unless he violates the law of nations by some
enormous crime; and that,if guilty of any crime, he ought to be
sent home to be punished. (c) Butno such immunities have been
conferred on consuls by the modernpractice of nations; and it may
be considered as settled law, that consulsdo not enjoy the
protection of the law of nations, any more than otherpersons who
enter the country under a safe-conduct. In civil and criminalcases
they are equally subject to the laws of the country in which
theyreside. (d) The same doctrine, declared by the public jurists,
has beenfrequently laid down in English and American courts of
justice. (a) Itseems, however, from some decisions in France,
mentioned by Mr.Warden, (b) that foreign consuls cannot be
prosecuted before a Frenchtribunal, for acts done by them in
France, by order of their government,and with the authorization of
the French government, and that, ingeneral, a consul cannot be
prosecuted without the previous consent ofhis government. Consular
privileges are much less extensive in Christianthan in Mahometan
countries. In the latter they cannot be imprisonedfor any cause
whatever, except by demanding justice against them of thePorte, (c)
and they partake very considerably of the character andimportance
of resident ministers. They are diplomatic agents under thename of
consuls, and enjoy the rights and privileges which the OttomanPorte
recognizes in relation to the foreign ministers resident
atConstantinople. (d) By treaty, an entire immunity is usually
given to thepersons, domestics, and effects of the resident
consuls, and no consulsreside with the Barbary states but under the
protection of treaties. (e)
Considering the importance of the consular functions, and the
activitywhich is required of them in all great maritime ports, and
the approachwhich consuls make to the efficacy and dignity of
diplomatic characters, itwas a wise provision in the Constitution
of the United States which gaveto the Supreme Court original
jurisdiction in all cases affecting consuls, aswell as ambassadors
and other public ministers; and the federaljurisdiction is
understood to be exclusive of the state courts. (f) (x)l
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Source of the Common Law per Kents Commentaries
Kents Commentaries at 643-644: [*472-473]
But though the great body of the common law consists of
acollection of principles, to be found in the opinions of sages
ordeduced from universal and immemorial usage, and
receivingprogressively the sanction of the courts, it is,
nevertheless, true,that the common law, so far as it is applicable
to our situation andgovernment, has been recognized and adopted, as
one entiresystem, by the constitutions of Massachusetts, New York,
NewJersey, and Maryland. It has been assumed by the courts
ofjustice, or declared by statute, with the like modifications, as
thelaw of the land in every state. It was imported by our
colonialancestors, as far as it was applicable, and was sanctioned
by royalcharters and colonial statutes. (a) It is also the
established doctrine, thatEnglish statutes, passed before the
emigration of our ancestors, andapplicable to our situation, and in
amendment of the law, constitute apart of the common law of this
country. (b) (x)
Kents Commentaries at 645-646 [*473-474]
2. Force of Adjudged Cases. The best evidence of the commonlaw
is to be found in the decisions of the courts of justice,contained
in numerous volumes of reports, and in the treatisesand digests of
learned men, which have been multiplying from theearliest periods
of the English history down to the present time. (c)The reports of
judicial decisions contain the most certain evidence, andthe most
authoritative and precise application of the rules of thecommon
law. Adjudged cases become precedents for future casesresting upon
analogous facts, and brought within the same reason; andthe
diligence of counsel, and the labor of judges, are constantly
required,in the study of the reports, in order to understand
accurately theirimport, and the principles they establish. But to
attain a competentknowledge of the common law in all its branches
has now become avery serious undertaking, and it requires steady
and lasting perseverance,in consequence of the number of books
which beset and encumber the
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path of the student. (d) The grievance is constantly growing,
for thenumber of periodical law reports and treatises which issue
from theEnglish and American press is continually increasing; and
if we wish toreceive assistance from the commercial system of other
nations, and tobecome acquainted with the principles of the Roman
law, as receivedand adopted in continental Europe, we are in still
greater danger ofbeing confounded, and of having our fortitude
subdued, by theimmensity and variety of the labors of the
civilians. (a)
Kents Commentaries at 648-649: [*476-477]
A solemn decision upon a point of law, arising in any given
case,becomes an authority in a like case, because it is the highest
evidencewhich we can have of the law applicable to the subject, and
the judgesare bound to follow that decision so long as it stands
unreversed, unlessit can be shown that the law was misunderstood or
misapplied in thatparticular case. If a decision has been made upon
solemn argument andmature deliberation, the presumption is in favor
of its correctness; andthe community have a right to regard it as a
just declaration orexposition of the law, and to regulate their
actions and contracts by it. Itwould therefore be extremely
inconvenient to the public, if precedentswere not duly regarded and
implicitly followed. It is by the notoriety andstability of such
rules that professional men can give safe advice to thosewho
consult them; and people in general can venture with confidence
tobuy and trust, and to deal with each other. If judicial decisions
were tobe lightly disregarded, we should disturb and unsettle the
greatlandmarks of property. When a rule has been once deliberately
adoptedand declared, it ought not to be disturbed, unless by a
court of appeal orreview, and never by the same court, except for
very cogent reasons, andupon a clear manifestation of error; and if
the practice were otherwise, itwould be leaving us in a state of
perplexing uncertainty as to the law. (a)The language of Sir
William Jones (b) is exceedingly forcible on thispoint. No man,
says he, who is not a lawyer, would ever know howto act; and no man
who is a lawyer would, in many instances, knowwhat to advise,
unless courts were bound by authority as firmly as thePagan deities
were supposed to be bound by the decrees of fate.
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STATE BY STATE REVIEWADOPTION OF LAW IN THE FOUNDING ERA
1. Connecticut
Constitution of Connecticut 1776.
PARAGRAPH 1. Be it enacted and declared by the Governor,
andCouncil, and House of Representatives, in General Court
assembled, Thatthe ancient Form of Civil Government, contained in
theCharter from Charles the Second, King of England, andadopted by
the People of this State, shall be and remain theCivil Constitution
of this State, under the sole authority of thePeople thereof,
independent of any King or Prince whatever. Andthat this Republic
is, and shall forever be and remain, a free,sovereign and
independent State, by the Name of the STATE OFCONNECTICUT.
2. Delaware
Constitution of Delaware 1776.
ART. 24. All acts of assembly in force in this State on the
15thday of May last (and not hereby altered, or contrary to
theresolutions of Congress or of the late house of assembly of
thisState) shall so continue, until altered or repealed by the
legislatureof this State, unless where they are temporary, in which
case theyshall expire at the times respectively limited for their
duration.
ART. 25. The common law of England, as well as so muchof the
statute law as has been heretofore adopted in practicein this
State, shall remain in force, unless they shall be alteredby a
future law of the legislature; such parts only excepted as
arerepugnant to the rights and privileges contained in
thisconstitution, and the declaration of rights, &c., agreed to
by thisconvention.
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3. Georgia
Constitution of Georgia 1777.
The Constitution of Georgia did not address this issue. It
wasaddressed in Statute law and by judicial opinion.
Georgia, Act of February 25, 1784
3. Sec. I. Be it enacted, &c. That all and singular the
several acts,clauses, and parts of acts, that were in force and
binding on theinhabitants of the said province, on the 14th day of
May, in theyear of our Lord 1776, so far as they are not contrary
to theconstitution, laws, and form of government now established
inthis state, shall be, and are hereby declared to be in full
force,virtue, and effect, and binding on the inhabitants of this
state,immediately from and after the passing of this act, as fully
andeffectually, to all intents and purposes, as if the said acts,
and eachof them, had been made and enacted by this general
assembly,until the same shall he repealed, amended, or otherwise
altered bythe legislature: And also the common laws of England,
andsuch of the statute laws as were usually in force in the
saidprovince, except as before excepted.
Straffin v. Newell, Superior Court, Chatham County, Georgia,
T.U.P.C. 172 (1808)
I shall decide upon the second ground only. At the trial,
theprotest of the master of the vessel was admitted as evidence
inchief. Now the protest of the master is not evidence per se; it
canonly be used in a court governed by the rules of the commonlaw,
to impeach the testimony of the master himself, or asincidentally
corroborative of the log-book. There was therefore amisdirection of
the judge, on this point of the evidence.
In this case the plaintiff is the administrator of the master,
whichought to have suggested an invincible objection to
theadmissibility of the protest. 2 Esp.Rep. 489; 7 D. and E.
werecited by Davis and Berrien.
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This court is governed by the rules and principles of the
commonlaw, so far as they are permitted to operate by our
constitutionand laws. The case therefore cited from 1 Dallas, p. 6,
militatingwith those rules and principles, cannot be received as
authority.
Rule made absolute.
Patterson v. Winn, 5 Peters 233, 240 30 U.S. 233 (1831) (from
the Circuit Court of Georgia), Justice Story:
The common law is the law of Georgia; and the rules ofevidence
belonging to it are in force there, unless so far asthey have been
modified by statute, or controlled by asettled course of judicial
decisions and usage. Upon thepresent question, it does not appear,
that Georgia has everestablished any rules at variance with the
common law; though itis not improbable, that there may have been,
from the peculiarorganization of her judicial department, some
diversity in theapplication of them, in the different circuits of
that state, acting,as they do, independent of each other, and
without any commonappellate court to supervise their decisions. We
think it clear,that by the common law, as held for a long period,
anexemplification of a public grant, under the great seal,
isadmissible in evidence, as being record proof of as high anature
as the original. It is a recognition, in the most solemnform, by
the government itself, of the validity of its owngrant, under its
own seal; and imports absolute verity, asmatter of record.
The authorities cited at the bar fully sustain this
doctrine.There was, in former times, a technical distinction
existing on thissubject, which deserves notice. As evidence,
suchexemplifications of letters-patent seem to have been
generallydeemed admissible. But where, in pleading, a profert was
made ofthe letters-patent, there, upon the principles of pleading,
theoriginal, under the great seal, was required to be produced; for
aprofert could not be of any copy or exemplification. It was to
curethis difficulty that the statutes of 3 Edw. VI., c. 4, and 13
Eliz., c.6, were passed, by which, patentees, and all claiming
under them,were enabled to make title in pleading, by showing forth
an
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exemplification of the letters patent, as if the original
werepleaded and set forth. These statutes being passed, before
theemigration of our ancestors, being applicable to oursituation,
and in amendment of the law, constitute a part ofour common law. A
similar effect was given by the statute of 10Ann., c. 18, to copies
of deeds of bargain and sale, enrolled underthe statute of Hen.
VIII., when offered by way of profert inpleading; and since that
period, a copy of the enrolment of abargain and sale is held as
good evidence as the original itself. 1Phil. Evid., ch. 5, 2, p.
208-302; ch. 8, 2, p. 352-6; 408-11; Bac.Abr. title Evidence, F. p.
610, 644, 646; Com. Dig. Evidence, A,2; 1 Stark. Evid. 33, p. 152;
2 Saund. Plead. & Evid. 638; PagesCase, 5 Co. 53; 12 Vin. Abr.
tit. Evidence, A, b, 25, p. 97; A, b,33, p. 114; 1 Saund. 189, note
2. Such, then, being the rule ofevidence of the common law, in
respect to exemplifications,under the great seal, of public grants,
the application of it to thecase now at bar will be at once
perceived; since, by the laws ofGeorgia, all public grants are
required to be recorded in theproper state department.
Ferguson v. Georgia, 365 U.S. 570 (1961) (from the Supreme Court
of Georgia)
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The State of Georgia is the only State indeed, apparentlythe
only jurisdiction in the common law world to retainthe common law
rule that a person charged with a criminaloffense is incompetent to
testify under oath in his ownbehalf at his trial. Georgia in 1866
abolished by statute thecommon law rules of incompetency for most
other persons.However, the statute, now Georgia Code 38-416,
expresslyretained the incompetency rule as to persons charged in
anycriminal proceeding with the commission of any indictableoffense
or any offense punishable on summary conviction. . . .Two years
later, in 1868, Georgia allowed the criminal defendantto make an
unsworn statement. The statute enacted for thatpurpose, as amended,
is now Georgia Code, 38-415, andprovides:
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In all criminal trials, the prisoner shall have the right to
make tothe court and jury such statement in the case as he may
deemproper in his defense. It shall not be under oath, and shall
havesuch force only as the jury may think right to give it. They
maybelieve it in preference to the sworn testimony in the case.
Theprisoner shall not be compelled to answer any questions
oncross-examination, should he think proper to decline to
answer.
4. Maryland
Constitution of Maryland 1776.
III. That the inhabitants of Maryland are entitled to thecommon
law of England, and the trial by jury, according to thecourse of
that law, and to the benefit of such of the Englishstatutes, as
existed at the time of their first emigration, andwhich, by
experience, have been found applicable to their localand other
circumstances, and of such others as have been sincemade in
England, or Great Britain, and have been introduced,used and
practised by the courts of law or equity; and also to actsof
Assembly, in force on the first of June seventeen hundred
andseventy-four, except such as may have since expired, or have
beenor may be altered by acts of Convention, or this Declaration
ofRights subject, nevertheless, to the revision of, andamendment or
repeal by, the Legislature of this State: and theinhabitants of
Maryland are also entitled to all property, derivedto them, from or
under the Charter, granted by his MajestyCharles I. to Ccilius
Calvert, Baron of Baltimore.
5. Massachusetts
Constitution of Massachusetts 1780 (quote from Chapter VI)
ART. V. All writs, issuing out of the clerks office in any of
thecourts of law, shall be in the name of the commonwealth
ofMassachusetts; they shall be under the seal of the court
fromwhence they issue; they shall bear test of the first justice of
thecourt to which they shall be returnable who is not a party, and
besigned by the clerk of such court.
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ART. VI. All the laws which have heretofore been adopted,used,
and approved in the province, colony, or State ofMassachusetts Bay,
and usually practised on in the courts oflaw, shall still remain
and be in full force, until altered orrepealed by the legislature,
such parts only excepted as arerepugnant to the rights and
liberties contained in thisconstitution.
ART. VII. The privilege and benefit of the writ of habeas
corpusshall be enjoyed in this commonwealth, in the most free,
easy,cheap, expeditious, and ample manner, and shall not
besuspended by the legislature, except upon the most urgent
andpressing occasions, and for a limited time, not exceeding
twelvemonths.
6. New Hampshire
Constitution of New Hampshire 1776
The Constitution of New Hampshire did not address this issue.It
was addressed in Statute law and by judicial opinion.
New Hampshire, Laws of the State of New Hampshire, passed
Januarysession, 1943; pp. 231-33, 259.
[233] 6. Common Law Lien. When any factor, or any third partyfor
the account of any such factor, shall have possession of goodsand
merchandise, such factor shall have a continuing general lien,as
set forth in section 1 of this chapter, without recording thenotice
and posting the sign provided for in this chapter.
[233] 7. Construction. This act is to be construed liberally
tosecure the beneficial interest and purposes thereof. A
substantialcompliance with its several provisions shall be
sufficient for thevalidity of a lien and to give jurisdiction to
the courts to enforcethe same. Nothing in this chapter shall be
construed asaffecting or limiting any existing or future lien at
commonlaw or any rights at common law, or any right given by
anyother statute or provision of the Revised Laws.
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[259] 13-a. Register Authorized. In addition to his common
lawand statutory powers the attorney general shall have
theauthority to prepare and maintain a register of all public
trustsheretofore or hereafter established or active in the
state.
Wells v. Pierce, 27 N.H. 503, 512 (1853)
Equity, as a great branch of the law of their native country,
wasbrought over by the colonists, and has always existed as a
partof the common law, in its broadest sense, in NewHampshire.
Dion v. Cheshire Mills, 92 NH 414 (1943)
except for the brief period 1682 to 1699 we never had
separatecourts of chancery. At all other colonial periods,
equitypractice was in the common-law courts, as now, and evenwhen
there was a court of chancery, the common-law Court ofCommon Pleas
undertook in one instance to exercise equityjurisdiction. Barefoot
v. Wadley, supra.
7. New Jersey
Constitution of New Jersey 1776
XXI. That all the laws of this Province, contained in the
editionlately published by Mr. Allinson, shall be and remain in
full force,until altered by the Legislature of this Colony (such
onlyexcepted, as are incompatible with this Charter) and shall
be,according as heretofore, regarded in all respects, by all
civilofficers, and others, the good people of this Province.
XXII. That the common law of England, as well as so muchof the
statute law, as have been heretofore practised in thisColony, shall
still remain in force, until they shall be alteredby a future law
of the Legislature; such parts only excepted,as are repugnant to
the rights and privileges contained inthis Charter; and that the
inestimable right of trial by jury shallremain confirmed as a part
of the law of this Colony, withoutrepeal, forever.
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8. New York
Constitution of New York 1777
XXXV. And this convention doth further, in the name and by
theauthority of the good people of this State, ordain,
determine,and declare that such parts of the common law of
England,and of the statute law of England and Great Britain, and
ofthe acts of the legislature of the colony of New York, astogether
did form the law of the said colony on the 19th dayof April, in the
year of our Lord one thousand seven hundredand seventy-five, shall
be and continue the law of this State,subject to such alterations
and provisions as the legislature of thisState shall, from time to
time, make concerning the same. Thatsuch of the said acts, as are
temporary, shall expire at the timeslimited for their duration
respectively. That all such parts of thesaid common law, and all
such of the said statutes and actsaforesaid, or parts thereof, as
may be construed to establish ormaintain any particular
denomination of Christians or theirministers, or concern the
allegiance heretofore yielded to, and thesupremacy, sovereignty,
government, or prerogatives claimed orexercised by, the King of
Great Britain and his predecessors, overthe colony of New York and
its inhabitants, or are repugnant tothis constitution, be, and they
hereby are, abrogated and rejected.And this convention doth further
ordain, that the resolves orresolutions of the congresses of the
colony of New York, and ofthe convention of the State of New York,
now in force, and notrepugnant to the government established by
this constitution,shall be considered as making part of the laws of
this State;subject, nevertheless, to such alterations and
provisions as thelegislature of this State may, from time to time,
make concerningthe same.
9. North Carolina
Constitution of North Carolina 1776
The Constitution of New Hampshire did not address this issue.It
was addressed in Statute law.
-
North Carolina, Act of 1715, Chap. 5
2. Be it therefore enacted by the authority aforesaid, and it is
hereby enactedand declared, That the common law is, and shall be,
in force, inthis government, except such part in the practice, in
theissuing and return of writs, and proceedings in the court
ofWestminster, which for want of several officers cannot beput in
execution; which ought to be supplied by rules of thegeneral court
of this government, being first approved of by thegovernor and
council, which shall be good in law, from time totime, till it
shall be altered by act of assembly.
3. And be it further enacted and declared by the authority
aforesaid, Thatall statute laws of England, providing for the
privileges ofthe people, as also, all statute laws made for
limitation ofactions, and preventing of vexatious law suits, and
forpreventing immorality and fraud, and confirminginheritances and
titles of land, are and shall be in force here,although this
province, or the plantations in general, are nottherein named.
North Carolina, Act of 1778, Chap. 133
An act to enforce such parts of the statute and common laws
ashave been heretofore in force and use here, and the acts
ofAssembly made and passed when this territory was under
thegovernment of the late proprietors and the crown of
GreatBritain, and for reviving the several acts therein
mentioned.
1. WHEREAS doubts may arise, upon the revolution ingovernment,
whether any and what laws continue in force here:for prevention of
which,
2. Be it enacted, &c. That all such statutes, and such parts
ofthe common law, as were heretofore in force and use withinthis
territory, (b) and all the acts of the late generalassemblies
thereof, or so much of the said statutes, commonlaw, and acts
assembly, as are not destructive of, repugnantto, or inconsistent
with the freedom and independence of thisstate, and the form of
government therein established, and which
-
have not been otherwise provided for, in the whole or in part,
notabrogated, repealed, expired, or become obsolete, are
herebydeclared to be in full force within this state.
10. Pennsylvania
Constitution of Pennsylvania 1776
The Constitution of New Hampshire did not address this issue.
Itwas addressed in Statute law. There is a provision using
anoteworthy turn of phrase.
SECT. 42. Every foreigner of good character who comes to
settlein this state, having first taken an oath or affirmation of
allegianceto the same, may purchase, or by other just means
acquire, hold,and transfer land or other real estate; and after one
yearsresidence, shall be deemed a free denizen thereof, and
entitled toall the rights of a natural born subject of this state,
except that heshall not be capable of being elected a
representative until aftertwo years residence.
Pennsylvania, Act of 1777, An Act to revive and put in force
such and somuch of the late laws of the province on Pennsylvania,
as is judged necessaryto be in force in this commonwealth, and to
revive and establish the Courts ofJustice, and for other purposes
therein mentioned.
II. Be it therefore enacted, and it is hereby enacted, That each
and everyone of the laws or acts of General Assembly, that were in
forceand binding on the inhabitants of the said be province on
thefourteenth day of May last, shall be in force from and binding
onthe inhabitants of this state from and after the tenth day
ofFebruary next, as fully and effectually, to all intents and
purposes,as if the said laws, and each of them, had been made or
enacted bythis General Assembly; and all and every person and
personswhomsoever are hereby enjoined and required to yield
obedienceto the said laws, as the case may require until the said
laws or actsof General Assembly respectively shall be repealed or
altered, oruntil they expire by their own limitation; and the
common lawand such of the statute laws of England as have
heretoforebeen in force in the said province, except as is
hereafterexcepted.
-
Morriss Lessee v. Vanderen, S. Ct. of Pennsylvania, 1 Dallas
(Pa) 64, (1782)
It is the opinion of the court, however, that the common lawof
England has always been in force in Pennsylvania; that allstatutes
made in Great Britain, before the settlement ofPennsylvania, have
no force here, unless they are convenient andadapted to the
circumstances of the country; and that all statutesmade since the
settlement of Pennsylvania, have no force here,unless the colonies
are particularly named. (c) The spirit of the actof assembly passed
in 1718 supports the opinion of the court.
The statute of limitations, 32 Hen. VIII, c. 2, has always
beenreceived in Pennsylvania.
Respublica v. Mesca et al, Court of Oyer and Terminer at
Philadelphia, 1Dallas (Pa) 73 (1783)
The Chief Justice delivered the opinion of the court as
follows:
MCKEAN, C. J. The point before the court has been wellargued;
and on a full consideration of the subject, we now findlittle
difficulty in pronouncing our decision. The first legislatureunder
the commonwealth, has clearly fixed the rule,respecting the
extension of British statutes, by enacting thatsuch of the statutes
as have been in force in the lateprovince of Pennsylvania, should
remain in force, till alteredby the legislature; and it appears in
evidence, that the 28 Edw.III, c. 13, has been in force in the late
province, since a trial permedietatum lingu was allowed in the case
of a burglary committedby one Ottenreed, in the mansion-house of
Mr. Clifford.
United States v. Worrall, U.S. Circuit Court, District of
Pennsylvania, 2Dallas (Pa) 384 (1798)
[392] The prosecution against Henfield was not expressly on
thetreaty, but on the law of nations, which is a part of thecommon
law of the United States; and the power of indictingfor a breach of
treaty, not expressly providing the means ofenforcing performance
in the particular instance, is itself a
-
common-law power. Unless the judicial system of the UnitedStates
justified a recourse to common law, against anindividual guilty of
a breach of treaty, the offence, where nospecific penalty was to be
found in the treaty, would,therefore, remain unpunished.
The Will of Sarah Zane, Opinion of the Circuit Court of the
United States,Eastern District of Pennsylvania (1833)
The first law passed on the change of government, declaredthe
province laws in force till altered or repealed; also thecommon law
and such parts of the statute laws of Englandas had been before in
force.And so much of any law or actof Assembly as declares, orders,
directs, commands any matter orthing repugnant to, or inconsistent
with the constitution, ishereby declared not to be revived, but
shall be null and void, andof no force or effect. 1 Dallas Laws,
722.
11. Rhode Island
Constitution of Rhode Island 1842. (superceded charter of
1663)
Sec 13. No man in a court of common law shall be compelled
togive evidence criminating himself.
Rhode Island, Act of April 30, 1700, An Act, for putting in
Force the Lawsof England in all Cases, where no Particular Law of
this Colony hathProvided a Remedy.
Be it Enacted by the General Assembly, and by the Authority of
the same,That in all Actions, Matters, Causes and things
whatsoever, whereno Particular Law of this Colony is made to Decide
andDetermine the same; that then and in all such Cases the laws
ofEngland shall be put in Force to Issue, Determine and Decide
thesame. Any Usage, Custom or Law to the contrary
hereofnotwithstanding.
Rhode Island, Act of 1750 (1749?), a bill for introducing into
this colony,such of the statutes of England, as are agreeable to
the constitution....
-
Whereas, this Assembly, at their session in October
last,appointed a committee, to prepare a bill for introducing into
thiscolony, such of the statutes of England, as are agreeable to
theconstitution, and make report of their doings, the greatest part
ofwhom, presented what followeth:
We, the subscribers, being appointed to report what statutes
ofGreat Britain are, and ought to be in force in this colony,
doreport as followeth: that the following statutes, viz.:
The statute of Merton, concerning dower.
The statute of Westminster the first, as far as it concerns
bail.
The statute of Glocester.
The statute of Westminster the second, de donis
conditionalibus.
The statutes of the 1st Henry V., of additions.
The statues of partition, in general.
The statutes of the 32 Henry VIII., concerning leases, saving
andexcepting the last paragraph of the said statute.
The statutes of 21 James I., chapter 16th, for limiting real
actions;and that of 32 Henry VIII., chapter 2d.
The statutes of James and Elizabeth, and all statutes that
concernbastardy, as applicable to the constitution of this
colony.
All statutes that are against criminal offenders, so far as they
aredescriptive of the crime; and where the law of this colony
hathnot described and enjoined the punishment, then that part of
thestatute that relates to the punishment, also; always saving
andexcepting such statutes, as from the nature of the
offencesmentioned in them, are confined to Great Britain, only.
The statute of Henry III., commonly called the statute of
uses.
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The statute of 29 Charles II., commonly called the statute
offrauds and perjuries.
The statutes of 22 and 23 Charles II., chapter 10th,
fordistributing the estates of intestates.
The statute of 3 and 4 William and Mary, chapter 14th.
The statute of 4 and 5 Anne, chapter 16th, relating to
jointtenants, and tenants in common.
That part of the statute of Anne, that subjects lessees that
holdover their term against the will of the lessor, to the payment
ofdouble rent, during the lime they hold over.
All statutes relating to the poor, and relating to masters and
theirapprentices ; so far as they are applicable in this colony,
andwhere we have no law of the colony.
All which statutes, we are humbly of opinion have
heretoforebeen, and still ought to be in force in this colony.
D. UPDIKE, J. HONEYMAN, JR., J. ALPIN.
And this Assembly, having taken the said report
intoconsideration, do vote and resolve, that all and every of
thestatutes, aforesaid, be, and they are hereby introduced intothis
colony, and shall be in full force therein, until theGeneral
Assembly shall order otherwise.
12. South Carolina
Constitution of South Carolina 1776
XXIX. That the resolutions of this or any former congress ofthis
colony, and all laws now of force here, (and not herebyaltered,)
shall so continue until altered or repealed by thelegislature of
this colony, unless where they are temporary, in
-
which case they shall expire at the times respectively limited
fortheir duration.
South Carolina, Act of 1712, An Act to put in force in this
Province theSeveral Statutes of the Kingdom of England or South
Britain, thereinparticularly mentioned.
I. Be it enacted by the Most Noble Prince, Henry Duke
ofBeaufort, Lord Palatine, and the rest of the true and
absoluteLords and Proprietors of this Province, by and with the
adviceand consent of the rest of the members of the General
Assembly,now met at Charlestown, for the Southwest part of this
Province,and by the authority of the same, That the several
statutes, andthe several paragraphs and sections, or numbers of
theparagraphs of the several statutes of the Kingdom ofEngland,
entituled as followeth, and made and enacted in suchyears of the
reigns of the Kings and Queens of England, asbefore the titles of
the several statutes is in this Act set down, andas the same are
distinguished and divided into paragraphs andsections or numbers,
by Joseph Keble of Grays Inn, Esq., in hisStatutes at Large, from
Magna Charta to the end of the reign ofKing Charles the Second, and
continued, with the addition of allthe statutes made in the reign
of King James the Second, andKing William and Queen Mary, to the
end of the last sessions ofParliament, May the third, 1695, in the
seventh year of the reignof his late Majesty, King William the
third, in two volumes,printed at London, in the year of our Lord
one thousand sixhundred ninety and five, and as the same are
further continued ina third volume of the Statutes at Large,
beginning with theseventh and eighth years of the reign of the late
King William thethird, and continued to the end of the last session
of Parliament,March the fourteenth, 1704, in the fourth year of the
reign of herpresent Majesty, Queen Anne, printed at London in the
year ofour Lord one thousand seven hundred and six, together with
anAddenda to the said third volume, beginning with the fourth
yearof the reign of her present Majesty Queen Anne, and continuedto
the end of the last session of Parliament, April the first, 1788,in
the seventh year of her said present Majesties reign, printed
atLondon in the year of our Lord one thousand seven hundred
andeight, and the statutes printed since the said third volume and
the
-
addenda, being statutes made in the seventh and eighth years
ofher present Majesties reign, at the Parliament summoned to beheld
at Westminster, the eighth day of July, Anno Dom. 1708, inthe
seventh year of her Majesties reign, and by several writs
ofprorogation begun and holden on the sixteenth day ofNovember,
1708, being the first session of the said Parliamentand from thence
continued by several prorogations to thefifteenth day of November,
1709, being the second session of thesaid Parliament, which
statutes were printed at London by herMajesties printers, in the
years 1708, 1709 and 1710; are and arehereby to be in as full
force, power and virtue as if the samehad been specially enacted
and made for this Province, or asif the same had been made and
enacted therein by anyGeneral Assembly thereof, (that is to say,)
[continues for another180 pages]
13. Virginia
Constitution of Virginia 1776
The Constitution of Virginia did not address this issue. It
wasaddressed in Statute law and at the Constitutional Conventionof
Virginia in 1788.
Patrick Henry, Debates and Other Proceedings of the Convention
ofVirginia, 2nd Ed., pp. 316-17.
When our government was first instituted in Virginia, we
declaredthe common law of England to be in force.
Virginia, Statute 1-200, The Common Law, (Code 1919, 2,
1-10;2005, c. 839.)
1-200. The common law.
The common law of England, insofar as it is not repugnantto the
principles of the Bill of Rights and Constitution ofthis
Commonwealth, shall continue in full force within the
-
same, and be the rule of decision, except as altered by
theGeneral Assembly.
(Code 1919, 2, 1-10; 2005, c. 839.)
14. Vermont
Vermont Act of November 4, 1797; An Act, adopting the common law
ofEngland, and declaring that all persons shall be equally entitled
to thebenefit and privilege of law and justice.
Sect. 1. It is hereby enacted by the General Assembly of the
State ofVermont, That so much of common law of England, as
isapplicable to the local situation, and circumstances, and isnot
repugnant to the constitution, or to any of the acts of
thelegislature of this state, be, and hereby is adopted law,within
this state; and all courts are to take notice thereof, andgovern
themselves accordingly.
1 V.S.A. 271, common law adopted
271. Common law adopted
So much of the common law of England as is applicable tothe
local situation and circumstances and is not repugnantto the
constitution or laws shall be laws in this state andcourts shall
take notice thereof and govern themselvesaccordingly.
15. District of Columbia
District of Columbia, Act of February 27, 1801, An Act
concerning theDistrict of Columbia. [2 Stat. 103]
SECTION 1. Be it enacted by the Senate and House of
Representatives ofthe United States of America in Congress
assembled, That the laws ofthe state of Virginia, as they now
exist, shall be and continuein force in that part of the District
of Columbia, which wasceded by the said state to the United States,
and by themaccepted for the permanent seat of government; and that
the
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laws of the state of Maryland, as they now exist, shall be
andcontinue in force in that part of the said district, which
wasceded by that state to the United States and by them acceptedas
aforesaid.
District of Columbia, Act of March 3, 1801, An Act supplementary
to theact intituled An act concerning the District of Columbia. [2
Stat. 115]
SEC. 2. And be it further enacted, That all indictments shall
run inthe name of the United States, and conclude, against the
peaceand government thereof. And all fines penalties and
forfeituresaccruing under the laws of the states of Maryland
andVirginia, which by adoption have become the laws of
thisdistrict
District of Columbia, Act of May 3, 1802, An Act additional to,
andamendatory of, an act, intituled An act concerning the District
ofColumbia. [2 Stat. 193]
Be it enacted by the Senate and House of Representatives of the
United Statesof America in Congress assembled, That the circuit
court of thecounty of Washington, in the territory of Columbia,
shall havepower to proceed in all common law and chancery
causeswhich now are, or hereafter shall be instituted before it, in
whicheither of the parties reside without the said territory, in
the sameway that non-residents are proceeded against in the general
courtor in the supreme court of chancery in the state of
Maryland.
SEC. 2. And be it further enacted, That the circuit court of
thecounty of Alexandria, in the district of Columbia, shall
havepower to proceed in all common law and chancery causeswhich now
are, or hereafter shall be instituted before it, in whicheither of
the parties are non-residents of said district of Columbia,in the
same way, and under the same regulations observed by thedistrict
court or by the high court of chancery in Virginia, inproceeding
against non-residents.
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16. Northwest Territory
Northwest Territory, Act of July 14, 1795, A Law declaring what
laws shall bein force.
The common law of England, all statutes or acts of theBritish
parliament made in aid of the common law, prior tothe fourth year
of the reign of King James the first (andwhich are of a general
nature, not local to that kingdom) andalso the several laws in
force in this Territory, shall be therule of decision, and shall be
considered, as of full force, untilrepealed by legislative
authority, or disapproved of by congress.
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[This page intentionally left blank]
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http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+1-200
1-200. The common law.
The common law of England, insofar as it is not repugnant to the
principles of theBill of Rights and Constitution of this
Commonwealth, shall continue in full forcewithin the same, and be
the rule of decision, except as altered by the GeneralAssembly.
(Code 1919, 2, 1-10; 2005, c. 839.)
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Dion v. Cheshire Mills, 92 NH 414 (1943)
Supreme Court of New Hampshire
May 4, 1943
Paul L. Dionv.Cheshire Mills
Syllabus by the Court
In case by a workman against his master for personal injuries
with plea in bar that plaintiff hadelected to receive compensation
under the workmens compensation act the plaintiff byreplication
alleged that the said election was induced by defendants fraud. The
plaintiffs motionthat the issue of fraud be submitted to a jury was
rightly denied as that issue was for the court,being in effect the
plaintiffs application for affirmative relief in equity by
cancellation.
In such case the plaintiffs further replication that he was
mentally and physically incapable ofmaking an alleged election with
understanding raised an issue for the jury, for in this instance
theplaintiff is seeking defensive relief, not that affirmative
relief by way of cancellation which hemay have only in equity.
The early history of the extent and manner in which equity
jurisdiction was exercised either by acourt of chancery or by
courts of common law during our colonial and provincial periods
dispelssome misconceptions entertained in later decisions which
nevertheless reached correct results.
Case, for negligence. The defendant pleaded in bar that the
plaintiff had elected his statutoryremedy under the compensation
act, the provisions of which had been accepted by the defendant.In
replication the plaintiff alleged that his election and acceptance
were induced by thedefendants fraud and that he signed papers
evidencing his election because of such fraud.
The plaintiff moved that all issues be consolidated for trial by
jury. This motion was denied, andthe trial Justice ruled that the
issue whether or not the plaintiff elected to accept compensation
betried by the court. To these rulings the plaintiff excepted.
Transferred on the plaintiffs bill ofexceptions by Lorimer, J.
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Opinion of the Court, Page, J.
The question whether the issues should be consolidated was for
the court, and no reason appearswhy his decision in that respect
should be overruled. Genest v. Company, 75 N.H. 365. Thequestion
was raised at the hearing on the motion whether the effect of the
rulings made would notbe to deprive the plaintiff of his
constitutional right to trial by jury, and that question is before
us.
Some confusion has arisen because of the fact that both law and
equity take jurisdiction overissues of fraud. The plaintiff
referred in argument to the phrase used by counsel in Hoitt
v.Holcomb, 23 N.H. 535, 544, concurrent jurisdiction. If by that
phrase it be understood, as heldby that case, that fraud may be a
defence at law as well as in equity, the phrase is harmless.
Uponthe authority of that case it is also clear that fraud is a
defence to an unsealed instrument as wellas to a bond, and the
instrument now involved may be supposed to be unsealed. It is also
true, aspointed out in argument, that insanity is a defence to a
proceeding on a contract, whether theproceeding be at law or in
equity. Burke v. Allen, 29 N.H. 106, 114. It has also been held
thatwhere a defence is well pleaded in law, it is improper for the
party so pleading to beginproceedings in equity to try out the
issue already properly joined at law. Sullivan &c. Company
v.Stowell, 80 N.H. 158. Such a party cannot have relief in equity
if he can obtain it at law. Miller v.Scammon, 52 N.H. 609.
Yet to speak of equity and law having concurrent jurisdiction
over fraud may be quite misleading.In connection with defences
grounded on fraud, its use may be precise enough. Usually,
asapplied to defences, the two jurisdictions are concurrent. The
real test of the question ofjurisdiction is the capacity in which
the court acts upon an issue. Since our courts act both at lawand
in equity, there is room for confusion in this regard, unless there
be careful consideration ofthe nature of the relief sought. The
nature of the relief is the key to the jurisdiction.
It does not help to declare the substantive law that fraud
vitiates a contract. That substantive lawis identical in both law
and equity, but the jurisdictional question is not thereby
answered. It isclear enough that where the execution of a release
is denied by the plaintiff, a court of law hasjurisdiction. But
where the execution of an instrument is admitted, but sought to be
avoided forfraud, it is equally clear that the vitiating of the
contract, except as a matter of defence to anaction on it, belongs
to equity. It is not enough to say that fraud vitiates a contract
at both law andequity. That is true, but it does not follow, as has
too often and too easily been concluded, that inall situations the
jurisdictions are concurrent.
Relief sought from a contract or an instrument induced by fraud
will belong to equity or to law inaccordance with its nature. If a
plaintiff has been deprived of money or chattels by a
contractfraudulently procured, he may rescind the contract and
recover in an action at law his money orhis chattels; or he may
bring an action of deceit at common law and recover money damages.
Butif he wishes the cancellation of the instrument and restoration
to his original position, or if hedesires to have the instrument
reformed, he has no remedy at law and must proceed in
equity.Pomeroy, Equity Jurisprudence (5th ed.), s. 872. The rule
thus announced is the rule concerningfraud, just as it was declared
in McIsaac v. McMurray, 77 N.H. 466, to be the rule
concerninginstruments made under a mutual mistake of fact. The
distinction proposed by the plaintiffscounsel, both in the trial
court and here, does not exist.
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With these principles in mind, confusion may be avoided. The
plaintiff has sued the defendantfor damages at law. The defendant
has pleaded an election by the plaintiff which is a completebar on
its face to the prosecution of the plaintiffs action. The plaintiff
has filed a replicationasserting that he executed a written
election which is invalid because obtained by the defendantsfraud.
Though called by a common-law name his replication is in substance
something else. Itis not a defence, legal or equitable, to an
action brought by the defendant. The plaintiff does notseek
defensive relief at all; he is seeking affirmative relief by way of
cancellation, which hecannot have at law, and may have only in
equity. Until the instrument is cancelled, he has noright at law.
The law leaves him where his signature left him, without any
affirmative reliefexcept in equity. We are dealing with no defence,
but with an affirmative claim that ispreliminary to such legal
rights as the plaintiff may have.
The rulings below did not deprive the plaintiff of the right to
trial by jury of legal issues, as wasthe case in Baird v. Company,
39 Cal. App. 512, cited by the plaintiff. In King v. Company,
156Minn. 494, also cited by the plaintiff, the ruling sought by the
defendant would have had thateffect. The ruling below did not
involve a failure to recognize fraud as a legal defence as was
thecase in Greenberg v. Company, 283 N. Y. S. 619, or so-called
equitable estoppel as a defence atlaw, which was the case in
Watkins v. Company, 9 Wash. (2d) 703. There was no refusal of
theconstitutional right to have issues at law decided by a
jury.
For many years it has been well settled here that in equity
there is no constitutional right to trialby jury. That question
needs no examination anew except for the fact that our older cases
have insome degree misconceived our equity practice prior to the
Revolution. In the end themisconceptions have resulted in no
serious error, but it may be well enough to dispel some thathave
come to light during research into colonial practice. For example,
it is not true, as suggestedin Wells v. Pierce, 27 N.H. 503, 512,
that during the years of our jurisdictional union
withMassachusetts, 1641-1679, the General Court of that
Commonwealth had original chanceryjurisdiction to the exclusion of
our inferior courts of law.
During that union a statute made a clear provision in connection
with the subject of trial by jurythat if there be matter of
apparent equity, as the forfeiture of an obligation, breach of
Covenantwithout damage, or the like, the Bench shall determine such
matters of equity. Colonial Laws ofMassachusetts, 1660 (1889 ed.),
167.
The practice without jury is clear. Cutt v. Rawlins, 2 Province
Deeds, 185 (County Court, 1672);Petition of David Cambell , 1 Court
Papers, 633; Leavitt v. Dearing, 2 Court Papers, 343 (Courtof
Associates, 1673). The practice in equity without jury continued
after New Hampshire becamea royal province, whether under the Cutt
Commission (Scammon v. Jones, 5 Court Papers, 335),or under
Cranfield (Martin v. Waldron, 8 Court Papers, 51; Barefoot v.
Wadley, 1 ProvincePapers, 469), or under Governor Allen (Young v.
Gilman, 10 Court Papers, 93, 94).
There is no foundation for the supposition in Wells v. Pierce,
27 N.H. 503, 512, that the judiciaryact of 1692 remained law and
that the Governor and Council were a court of chancery of
originaljurisdiction (they were a court of appeals) until the
Revolution. It is true that the provision for acourt of chancery
was not expressly repealed, but the judiciary act of 1699 (1 Laws
N.H. 660)
-
impliedly, though not expressly, repealed the provisions of the
act of 1692 for all common-lawcourts. The act of 1699 contained no
provision at all for a chancery court. Instead of that itrevested
in the common-law civil courts a chancery jurisdiction similar to
that practiced duringthe union with Massachusetts, when there were
no separate equity courts. That jurisdiction wassomewhat enlarged
in 1743. 2 Laws N.H. 725. The acts of 1699 and 1743 are found in
allappropriate compilations after they were passed prior to 1792,
but the provision of 1692 for aseparate court of chancery is never
found. For almost a century the act of 1699 was construed ashaving
repealed the act of 1692. No contrary suggestion was made until two
generations after thecolonial period.
Frequently during the period from 1699, the common-law courts
exercised chancery jurisdiction,just as they had done from 1641 to
1679. Two typical cases will suffice. In 1760, Libbey v.Waldron
came up in the Superior Court on a writ of review. It was an action
on a bond for 500pounds. The jury returned a verdict of forfeiture,
which at common law would mean a judgmentfor 500 pounds unless the
court gave affirmative relief in equity. The court chancered the
bondand gave judgment for slightly more than one-tenth of the penal
sum. Superior Court Judgments,D, 66. The other case, Cunningham v.
Holland, in 1766, involved a bond for 200 pounds.According to the
record the Court are of opinion, that there is due 131 pounds 15
shillings.They added an order for further affirmative relief by the
release of a mortgage given to secure thebond. Superior Court
Judgments, E, 381. Never is there a suggestion that an equitable
issue wassubmitted to a jury. Just as during the seventeenth
century, denial of trial by jury in equity wasthe rule during all
the subsequent colonial period. Such issues as were submitted to
the jury afterthe adoption of the Constitution were either framed
in the discretion of the court for theenlightenment of the Judges
consciences or under such a total misapprehension of
colonialpractice as once misled this court (Marston v. Brackett, 9
N.H. 336, 349) into saying that thepractice in equity prior to the
Constitution gave parties the right to trial by jury. Such use of
thejury in the words of the Constitution (Bill of Rights, Art. 20)
was heretofore otherwise used andpracticed.
The unsupported supposition in Marston v. Brackett was seriously
doubted, upon betterinformation of our legal history, but with
still too little knowledge of it, in Wells v. Pierce, supra,and
Copp v. Henniker, 55 N.H. 179, 211. The latter case was understood,
without considerationand perhaps erroneously, to have overruled the
Marston case. Bellows v. Bellows, 58 N.H. 60;Proctor v. Green, 59
N.H. 350, 351. The result was supported by a construction of
thesupposedly unrepealed act of 1692 in State v. Saunders, 66 N.H.
39. In spite of misconceptions,the result was correct.
The truth is that during our pre-constitutional period there is
no trace of trial by jury of equitableissues, but every evidence
that it was always denied, and that except for the brief period
1682to 1699 we never had separate courts of chancery. At all other
colonial periods, equitypractice was in the common-law courts, as
now, and even when there was a court ofchancery, the common-law
Court of Common Pleas undertook in one instance to exerciseequity
jurisdiction. Barefoot v. Wadley, supra.
-
U.S. Supreme Court
Ferguson v. Georgia, 365 U.S. 570 (1961)
No. 44
Argued November 14-15, 1960Decided March 27, 1961
365 U.S. 570
APPEAL FROM THE SUPREME COURT OF GEORGIA
Syllabus
The Georgia Code, 38-416, makes a person charged with a criminal
offense incompetentto testify under oath in his own behalf at his
trial; but 38-415 gives him the right to makean unsworn statement
to the jury without subjecting himself to cross-examination. At
thetrial in a state court in which appellant was convicted of
murder, his counsel was denied the rightto ask him any questions
when he took the stand to make his unsworn statement.
Held: this application of 38-415 denied appellant the effective
assistance of his counsel at acrucial point in his trial, and it
violated the Due Process Clause of the Fourteenth Amendment.Pp. 365
U. S. 570-596.
215 Ga. 117, 109 S.E.2d 44, reversed.
-
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The State of Georgia is the only State indeed, apparently the
only jurisdiction in thecommon law world to retain the common law
rule that a person charged with a criminaloffense is incompetent to
testify under oath in his own behalf at his trial. Georgia in
1866abolished by statute the common law rules of incompetency for
most other persons. However, thestatute, now Georgia Code 38-416,
expressly retained the incompetency rule as to personscharged in
any criminal proceeding with the
365 U. S. 571
commission of any indictable offense or any offense punishable
on summary conviction. . . .Two years later, in 1868, Georgia
allowed the criminal defendant to make an unsworn statement.The
statute enacted for that purpose, as amended, is now Georgia Code,
38-415, and provides:
In all criminal trials, the prisoner shall have the right to
make to the court and jury suchstatement in the case as he may deem
proper in his defense. It shall not be under oath, and shallhave
such force only as the jury may think right to give it. They may
believe it in preference tothe sworn testimony in the case. The
prisoner shall not be compelled to answer any questions
oncross-examination, should he think proper to decline to
answer.
In this case, a jury in the Superior Court, Douglas County,
Georgia, convicted the appellant ofmurder, and he is under sentence
of death. After the State rested its case at the trial,
theappellants counsel called him to the stand, but the trial judge
sustained the States objection tocounsels attempt to question him.
To the argument that to deny counsel the
right to ask the defendant any questions on the stand . . .
violates . . .[Amendment] VI . . . [and] the Fourteenth Amendment
to the Constitution of theUnited States . . . [because] it deprives
the defendant of the benefit of his counselasking him questions at
the most important period of the trial . . . ,
the trial judge answered that, under 38-415,
. . . you do not have the right to do anything more than
instruct your client as tohis rights, and . . . you have no right
to question him on direct examination.
In affirming the conviction and sustaining this ruling, the
Supreme Court of Georgia said:
The constitutional provisions granting to persons charged with
crime the benefitand assistance of counsel confer only the right to
have counsel perform
365 U. S. 572
those duties and take such actions as are permitted by the law,
and to requirecounsel to conform to the rules of practice and
procedure, is not a denial of the
-
benefit and assistance of counsel. It has been repeatedly held
by this court thatcounsel for the accused cannot, as a matter of
right, ask the accused questions ormake suggestions to him when he
is making his statement to the court and jury.
215 Ga. 117, 119, 109 S.E.2d 44, 46-47.
On appeal brought here under 28 U.S.C. 1257(2), we noted
probable jurisdiction. 362 U.S. 901.
The only question which the appellant properly brings before us
is whether this application by theGeorgia courts of 38-415 denied
the appellant the guiding hand of counsel at every step in
theproceedings against him, Powell v. State of Alabama, 287 U. S.
45, 287 U. S. 69, within therequirements of due process in that
regard as imposed upon the States by the FourteenthAmendment. See
also Chandler v. Fretag, 348 U. S. 3.
Appellant raises no question as to the constitutional validity
of 38-416, the incompetencystatute. However, decision of the
question which is raised under 38-415 necessarily
involves1consideration of both statutes. Historically, these
provisions have been intertwined.
365 U. S. 573
For 38-416 is a statutory declaration of the common law rule
disqualifying criminaldefendants from testifying, and 38-415, also
with its roots in the common law, was anattempt to mitigate the
rigors of that incompetency.
The disqualification of parties as witnesses characterized the
common law for centuries.Wigmore traces its remote origins to the
contest for judicial hegemony between the developingjury trial and
the older modes of trial, notably compurgation and wager of law.
See 2 Wigmore,Evidence, pp. 674-683. Under those old forms, the
oath itself was a means of decision. SeeThayer, Preliminary
Treatise on Evidence, pp. 24-34. Jury trial replaced decision by
oath withdecision of the jurors based on the evidence of witnesses;
with this change: [T]he party wasnaturally deemed incapable of
being such a witness. 2 Wigmore, p. 682. Incompetency of theparties
in civil cases seems to have been established by the end of the
sixteenth century. See 9Holdsworth, History of English Law, p. 194.
In time, the principal rationale of the rule becamethe possible
untrustworthiness of the partys testimony; for the same reason,
disqualification wasapplied in the seventeenth century to
interested nonparty witnesses.2
Its firm establishment for criminal defendants seems to have
come somewhat later. In thesixteenth century, it was necessary for
an accused to conduct his own defense,
365 U. S. 574
since he was neither allowed to call witnesses in his behalf nor
permitted the assistance ofcounsel. 1 Stephen, History of the
Criminal Law of England, p. 350. The criminal trial of thisperiod
has been described as
-
a long argument between the prisoner and the counsel for the
Crown, in whichthey questioned each other and grappled with each
others arguments with theutmost eagerness and closeness of
reasoning.
Stephen, supra, p. 326. In the process, the defendant could
offer by way of explanation materialthat would later be
characterized as testimony. 2 Wigmore, p. 684. In the seventeenth
century,however, he was allowed to call witnesses in his behalf;
the right to have them sworn wasaccorded by statute for treason in
1695 and for all felony in 1701. 7 Will. III, c. 3; 1 Anne, St.
2,c. 9. See Thayer, supra, pp. 157-161, and n. 4; 2 Wigmore, pp.
685-686. A distinction was drawnbetween the accused and his
witnesses they gave evidence, but he did not. See 2 Wigmore,
pp.684-685, and n. 42; 9 Holdsworth, supra, pp. 195-196. The
general acceptance of the interestrationale as a basis for
disqualification reinforced this distinction, since the criminal
defendantwas, of course, par excellence an interested witness. The
old common law shuddered at the ideaof any person testifying who
had the least interest. State v. Barrows, 76 Me. 401, 409.
SeeBenson v. United States, 146 U. S. 325, 146 U. S. 336-337.
Disqualification for interest was thus extensive in the common
law when this Nation was formed.3 Bl.Comm. 369. Here, as in
England, criminal defendants were deemed incompetent as3witnesses.
In Rex v. Lukens, 1 Dall. 5, 1 U. S. 6, decided in 1762, a
Pennsylvania court refused
365 U. S. 575
to swear a defendant as a witness, holding that the issue there
is question must be proved byindifferent witnesses. Georgia, by
statute, adopted the common law of England in 1784, and the rules
of evidence belonging to it [were] in force there. Doe v. Winn, 5
Pet. 233,30 U.S. 241. Georgia therefore followed the incompetency
rule for criminal defendants longbefore it was given statutory form
by the Act of 1866. See Jones v. State, 1 Ga. 610; Roberts v.State,
189 Ga. 36, 40-41, 5 S.E.2d 340, 343.4
Broadside assaults upon the entire structure of
disqualifications, particularly the disqualificationfor interest,
were launched early in the nineteenth century in both England and
America.Bentham led the movement for reform in England, contending
always for rules that would notexclude, but would let in the truth.
See Rationale of Judicial Evidence, bk. IX, pt. III, c. III(Bowring
ed.), pp. 393-406. The basic ground of the attack was, as Macaulay
said, that
[A]ll evidence should be taken at what it may be worth, that no
considerationwhich has a tendency to produce conviction in a
rational mind should be excludedfrom the consideration of the
tribunals.
Lord Macaulays Legislative Minutes, 1835, pp. 127-128. The
qualification in civil cases ofnonparty witnesses despite interest
came first. See Lord Denmans Act of 1843, 6 & 7 Vict., c.85.
The first general exception in England for party witnesses in civil
cases was the CountyCourts Act of 1846, 9 & 10 Vict., c. 95,
although there had
365 U. S. 576
-
been earlier grants of capacity in certain other courts. Best
Evidence (Lely ed. 1893), pp. 158-159. Lord Broughams Act of 1851,
14 & 15 Vict., c. 99, virtually abolished the incompetency
ofparties in civil cases.5
365 U. S. 577
The qualification of criminal defendants to give sworn evidence
if they wished came last. Thefirst statute was apparently that
enacted by Maine in 1859 making defendants competentwitnesses in
prosecutions for a few crimes. Maine Acts 1859, c. 104. This was
followed in Mainein 1864 by the enactment of a general competency
statute for criminal defendants, the first suchstatute in the
English-speaking world. The reform was largely the work of John
Appleton of theSupreme Court of Maine, an American disciple of
Bentham. Within 20 years. most of the Statesnow comprising the
Union had followed Maines lead. A federal statute to the same
effect wasadopted in 1878, 20 Stat. 30, 18 U.S.C. 3481. Before the
end of the century, every State exceptGeorgia had abolished the
disqualification.6
Common law jurisdictions outside the United States also long ago
abolished the disqualification.This change
365 U. S. 578
came in England with the enactment in 1898 of the Criminal
Evidence Act, 61 & 62 Vict., c. 36.7Various States of Australia
had enacted competency statutes even before the mother country,
asdid Canada and New Zealand. Competency was extended to defendants
in Northern Ireland in1923, in the Republic of Ireland in 1924, and
in India in 1955.8
The lag in the grant of competency to the criminally accused was
attributable in large measure toopposition from those who believed
that such a grant threatened erosion of the privilege
againstself-incrimination and the presumption of innocence.
[I]f we were to hold that a prisoner offering to make a
statement must be swornin the cause as a witness, it would be
difficult to protect his constitutional rights inspite of every
caution, and would often lay innocent parties under unjust
suspicionwhere they were honestly silent, and embarrassed and
overwhelmed
365 U. S. 579
by the shame of a false accusation. . . . [It would result in] .
. . the degradation ofour criminal jurisprudence by converting it
into an inquisitory system, from whichwe have thus far been happily
delivered.
People v. Thomas, 9 Mich. 314, 320-321 (concurring opinion). See
also Ruloff v. People, 45 N.Y.213, 221-222; People v. Tyler, 36
Cal. 522, 528-530; State v. Cameron, 40 Vt. 555, 565-566;
1Am.L.Rev. 443; Maury, Validity of Statutes Authorizing the Accused
to Testify, 14 Am.L.Rev.753.9
-
The position of many who supported competency gave credence to
these fears. Neither Benthamnor Appleton was a friend of the
privilege against self-incrimination. While Appleton
justified10competency as a necessary protection
365 U. S. 580
for the innocent, he also believed that incompetency had served
the guilty as a shield, and thusdisserved the public interest.
Competency, he thought, would open the accused to
cross-examination, and permit an unfavorable inference if he
declined to take the stand to exculpatehimself.11
This controversy left its mark on the laws of many jurisdictions
which enacted competency. Themajority of the competency statutes of
the States forbid comment by the prosecution on thefailure of an
accused to testify, and provide that no presumption of guilt should
arise from hisfailure to take the stand. The early cases
particularly emphasized the importance of suchlimitations. See,
e.g., Staples v. State, 89 Tenn. 231, 14 S.W. 603; Price v.
Commonwealth, 77Va. 393; State v. Taylor, 57 W.Va. 228, 234-235, 50
S.E. 247, 249-250. Cf. 1 Cooley,Constitutional Limitations (8th
ed.), pp. 658-661. See generally, Reeder, Comment Upon Failureof
Accused to Testify, 31 Mich.L.Rev. 40. For the treatment of the
accused as a witness inCanada, see 12 Can.Bar Rev. 519, 13 Can.Bar
Rev. 336; in Australia, see 6 Res Judicatae 60; andin Great
Britain, see 2 Taylor, Evidence (12th ed.) 864-865; 51 L.Q.Rev.
443; 58 L.Q.Rev. 369.
Experience under the American competency statutes was to change
the minds of many who hadopposed them. It was seen that the
shutting out of his sworn evidence could be positively hurtfulto
the accused, and that innocence
365 U. S. 581
was in fact aided, not prejudiced, by the opportunity of the
accused to testify under oath. AnAmerican commentator discussing
the Massachusetts statute in the first year of its operation
said:
We have always been of opinion that the law permitting criminals
to testifywould aid in the detection of guilt; we are now disposed
to think that it will beequally serviceable for the protection of
innocence.
1 Am.L.Rev. 396. See also 14 Am.L.Reg. 129.
This experience made a significant impression in England, and
helped to persuade Parliament tofollow the American States and
other common law jurisdictions in granting competency tocriminal
defendants. In the debates of 1898, the Lord Chancellor quoted a
distinguished Englishjurist, Russell Gurney:
[A]fter what he had seen there [in America], he could not
entertain a doubt aboutthe propriety of allowing accused persons to
be heard as witnesses on their ownbehalf.
-
54 Hansard, supra, p. 1176. Arthur Balfour reported to the
Commons that
precisely the same doubts and difficulties which beset the legal
profession in thiscountry on the suggestion of this change were
felt in the United States, but theresult of the experiment, which
has been extended gradually from State to State, isthat all fears
have proved illusory, that the legal profession, divided as they
werebefore the change, have now become unanimous in favor of it,
and that no sectionof the community, not even the prisoners at the
bar, desire to see any alterationmade in the system.
60 Hansard, supra, pp. 679-680.12
365 U. S. 582
A particularly striking change of mind was that of the noted
authority on the criminal law, SirJames Stephen. Writing in 1863,
Stephen opposed the extension of competency of defendants.He argued
that it was inherent that a defendant could not be a real
witness:
[I]t is not in human nature to speak the truth under such a
pressure as would bebrought to bear on the prisoner, and it is not
a light thing to institute a systemwhich would almost enforce
perjury on every occasion.
A General View of the Criminal Law of England, p. 202.
Competency would put a dangerousdiscretion in the hands of
counsel.
By not calling the prisoner, he might expose himself to the
imputation of a tacitconfession of guilt, by calling him, he might
expose an innocent man to a cross-examination which might make him
look guilty.
Ibid. Allowing questions about prior convictions would
indirectly put the man upon his trial forthe whole of his past
life. Id., p. 203. Twenty years later, Stephen, after many years
experienceon the criminal bench, was to say:
I am convinced by much experience that questioning, or the power
of givingevidence is a positive assistance, and a highly important
one, to innocent men, andI do not see why, in the case of the
guilty, there need by any hardship about it. . . .A poor and
ill-advised man . . . is always liable to misapprehend the true
nature ofhis defence, and might in many cases be saved from the
consequences of his ownignorance or misfortune by being questioned
as a witness.
1 Stephen, History of the Criminal Law of England, pp. 442,
444.
In sum, decades ago, the considered consensus of the
English-speaking world came to be thatthere was no rational
justification for prohibiting the sworn testimony of the accused,
who aboveall others may be in a position to meet the prosecutions
case. The development of the unsworn
-
statement practice was itself a recognition of the harshness of
the incompetency rule. While itsorigins
365 U. S. 583
antedated the nineteenth century, its strong sponsorship by
English judges of that century is13explained by their desire for a
mitigation of the rigors of that rule. Baron Alderson said:
I would never prevent a prisoner from making a statement, though
he hascounsel. He may make any statement he pleases before his
counsel addresses thejury, and then his counsel may comment upon
that statement as a part of the case.If it were otherwise, the most
monstrous injustice might result to prisoners.
Reg. v. Dyer, 1 Cox C.C. 113, 114. See also Reg. v. Malings, 8
Car. & P. 242; Reg. v. Walkling, 8C. & P. 243; Reg. v.
Manzano, 2 F. & F. 64; Reg. v. Williams, 1 Cox C.C. 363. Judge
Stephenssponsorship of the practice was especially influential. See
Reg. v. Doherty, 16 Cox C.C. 306. Seealso Reg. v. Shimmin, 15 Cox
C.C. 122; 60 Hansard, supra, p. 657. It became so well
establishedin England that it was expressly preserved in the
Criminal Evidence Act of 1898.14
365 U. S. 584
The practice apparently was followed in this country at common
law in a number of States, andreceived statutory recognition in
some. Michigan passed the first such statute in 1861; unlike
theGeorgia statute of 1868, it provided that the prisoner should be
subject to cross-examination onhis statement. See People v. Thomas,
9 Mich. 314. The Georgia Supreme Court, in one of the15early
365 U. S. 585
decisions considering the unsworn statement statute, stressed
the degree of amelioration expectedto be realized from the
practice, thereby implicitly acknowledging the disadvantages for
thedefendant of the incompetency rule. The Court emphasized
the broad and liberal purpose which the legislature intended to
accomplish. . . .This right granted to the prisoner is a modern
innovation upon the criminaljurisprudence of the common law,
advancing to a degree hitherto unknown theright of the prisoner to
give his own narrative of the accusation against him to thejurors,
who are permitted to believe it in preference to the sworn
testimony of thewitnesses.
Coxwell v. State, 66 Ga. 309, 316-317.16
But the unsworn statement was recognized almost everywhere else
as simply a stop-gap solutionfor the
-
365 U. S. 586
serious difficulties for the accused created by the incompetency
rule.
The system of allowing a prisoner to make a statement had been
introduced as amere makeshift, by way of mitigating the intolerable
hardship which occasionallyresulted from the prisoners not being
able to speak on his own behalf.
60 Hansard, supra, p. 652.
The custom grew up in England out of a spirit of fairness to
give an accused,who was otherwise disqualified, an opportunity to
tell his story in exculpation.
State v. Louviere, 169 La. 109, 119, 124 So. 188, 192. The
abolition of the incompetency rulewas therefore held in many
jurisdictions also to abolish the unsworn statement practice. In
suchcases, the unsworn statement of an accused becomes secondary to
his right of testifying underoath, and cannot be received. State v.
Louviere, supra, 169 La. at 119, 124 So. at 192.
The privilege was granted to prisoners because they were
debarred from givingevidence on oath, and for that reason alone.
When the law was changed and theright accorded to them to tell
their story on oath as any other witness the reasonfor making an
unsworn statement was removed.
Rex v. Krafchenko, [1914] 17 D.L.R. 244, 250 (Man.K.B.).17
Where the practice survives outside America, little value has
been attached to it.
If the accused does not elect to call any evidence or to give
evidence himself, hevery often makes an unsworn statement from the
dock.
365 U. S. 587
It is well understood among lawyers that such a statement has
but little evidential valuecompared with the sworn testimony upon
which the accused can be cross-examined. . . .
Rex v. Zware, [1946] S.A.L.R. 1, 7-8.
How is a jury to understand that it is to take the statement for
what it is worth, ifit is told that it cannot regard it as evidence
[i.e., proof] of the facts alleged?
68 L.Q.Rev. 463. The unsworn statement
is seldom of much value, since it is generally incoherent and
leaves open manydoubts which cannot be resolved by
cross-examination.
-
69 L.Q.Rev. 22, 25. The right of a prisoner to make an unsworn
statement from the dock stillexists . . . but with greatly
discounted value. 1933 Scots Law Times 29. Commentators andjudges
in jurisdictions with statutory competency have suggested
abrogation of the unswornstatement right. See 94 Irish Law Times,
March 5, 1960, p. 56; 68 L.Q.Rev. 463; Rex v.McKenna, [1951] Q.S.R.
299, 308.
Georgia judges, on occasion, have similarly disparaged the
unsworn statement.
Really, in practice it is worth, generally, but little if
anything to defendants. Ihave never known or heard of but one
instance where it was supposed that theright had availed anything.
It is a boon that brings not much relief.
Bird v. State, 50 Ga. 585, 589.
The statement stands upon a peculiar footing. It is often
introduced for the merepurpose of explaining evidence, or as an
attempt at mitigation; the accused and hiscounsel throw it in for
what it may happen to be worth, and do not rely upon it asa
substantive ground of acquittal.
Underwood v. State, 88 Ga. 47, 51, 13 S.E. 856, 858.
The unsworn statement has anomalous characteristics in Georgia
practice. It is not treated asevidence or like the testimony of the
ordinary sworn witness.
The statement may have the effect of explaining, supporting,
weakening, orovercoming the evidence, but still it is something
365 U. S. 588
different from the evidence, and to confound one with the other,
either explicitlyor implicitly, would be confusing, and often
misleading. . . . The jury are to dealwith it on the plane of
statement, and not on the plane of evidence, and may derivefrom it
such aid as they can in reaching the truth. The law fixes no value
upon it; itis a legal blank. The jury may stamp it with such value
as they think belongs to it.
Vaughn v. State, 88 Ga. 731, 739, 16 S.E. 64, 66. Because the
statement is not evidence, even thecharge in the strict terms of
the statute favored by the Georgia Supreme Court, see Garrett
v.State, 203 Ga. 756, 765, 48 S.E.2d 377, 383; Emmett v. State, 195
Ga. 517, 541, 25 S.E.2d 9, 23,calls attention to the fact that the
defendant is not under oath. Moreover, charge after chargegoing
beyond the terms of the statute has been sustained. Thus, in
Garrett v. State, supra, the trialjudge instructed that, while the
defendants were allowed to make a statement,
they are not under oath, not subject to cross-examination, and
you are authorizedto give to their statement just such weight and
credit as you think them entitled toreceive.
-
In Emmett v. State, 195 Ga. at 540, 25 S.E.2d at 22, the
instruction was that the statement mightbe believed in preference
to the sworn testimony if you see proper to give it that weight and
th