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Kilty's English Statutes, 1811
Volume 143, Page 6   View pdf image
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vi                                                             INTRODUCTION.

    In civil cases, it has been, from the nature of the proceedings, and the want of indexes pointing to the
different subjects, more difficult to ascertain the grounds upon which my selections have been made;
and although the record books have been frequently resorted to with success, I have had to consider,
also, the nature of the subjects, and the law authorities thereon, and to refer to the usage and practice
generally known in proof of the extention of many of the statutes.
    The knowledge of what was the practice, must for want of books of reports necessarily depend in
some degree on information, or what may be called tradition, which, when it could be obtained, I
have availed myself of; and I have been furnished by the clerk of the court of appeals, with some
cases which have not yet been reported.
    I think it proper also to mention, that among the papers which were put into my hands, of the late
John Ducket, Esq. who had projected some report on the English statutes, I found a copy of a letter
from Samuel Chase, Esq. at present one of the judges of the supreme court of the United States, to
the late judge Tilghman, in answer to some enquiries made by him on the subject, which I have
been informed several copies were distributed.  The following part of that letter is here inserted:
" It is a general principle, that the first settlers of Maryland brought with them all English statutes
made before the charter, and in force at the time, which were applicable to the local and other circumstances
of the province, and the courts of justice always decided the applicability of any statute,
and of consequence its extension.  I have understood that the judges under the old government laid
it down as a general rule, that all statutes for the administration of justice, whether made before or
since the charter, so far as they were applicable, should be adopted by them."
    Several statutes, (to the number of forty) during both periods, are then particularly mentioned
therein, as having extended, together with all the statutes relative to distresses for rent, and all the
statutes respecting ejectments--as 4 Geo. 2, ch. 28--11 Geo. 2, ch. 10--with the observation, that
other statutes had been received in our courts upon the general principle which had been suggested--
which observation is verified by there being nearly two hundred statutes which are considered proper
to be incorporated, and upwards of three hundred not proper to be incorporated, that had extended.
    The particular statutes mentioned by Mr. Chase, are referred to, in the notes on them respectively.
    It appears from an examination of the proceedings of the government, that the question as to the
application and extension of the English statutes, was taken up at the first session of Assembly of
which we have any record, and continued in various ways to be agitated, to a period so late as the
year 1771.  The views of the proprietors, and their adherents, having been to discourage the extention
of those statutes, in order that their power of assenting to laws might become more important
and the country party having been unwilling that such statutes should be particularly enumerated, so
as to limit the courts in their power of judging of the consistency of them with the good of the province:
a power which was essential to the proper discharge of their duties, and which had been expressly
given by several acts of Assembly.
    There are three distinct modes by which the English statutes may have been in force in the province.
    1.  By the express declaration of the parliament.
    2.  By declarations contained in the provincial acts of Assembly.
    3.  By having been introduced and practised by the courts of law and equity, which is the most
important in judging of those that are to be retained under the provision in the declaration of rights.
    In the late case of " Whittington and Polk," in the general court, the following was a part
of the opinion given: " None of the English statutes which passed anterior to the first emigration

 

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Kilty's English Statutes, 1811
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