laws, and treaties, is the highest utterance of law in relation

to state powers and administration.

be discussed in the next chapter.

Its general features will

(4) The Common Law of England -The Common Law of England, which is the law of immemorial custom, so far as it is not repugnant to the principles of the Constitution, is in force in West Virginia, except in those respects wherein it has been altered by act of the Legislature. The Common Law has existed in England time out of mind; or, as the law books put the phrase, it has existed "time whereof the memory of man runneth not to the contrary."

(5) Certain Statutes of Parliament Prior to 1607.—The right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament made in aid of the Common Law, prior to the fourth year of the reign of James I, (the year of the settlement of Jamestown, 1607) of a general nature, not local to England, if consistent with our own Constitution and laws, are in force.

(6) The Equity System of England. The principles and rules of the Common Law were very precise in their nature, exceedingly technical in practice, and inflexible in their application to particular cases. Unusual cases must necessarily arise under any system of law, growing out of special and peculiar circumstances, to which the rigid and strict rules of every-day law, if applied, would work injustice. The king had from time immemorial, sometimes administered justice in person, assisted by his counsellors. So in extraordinary cases application was made to the king for relief in order that he might "mitigate the rigor of the Common Law." Finally the chancellor came to act in place of the king. From these beginnings the courts of equity have been developed. There is a large body of Roman as well as English law that enters into equity practice. It is difficult to define equity. It may be said, "It is the application of the principles of right and justice to the legal adjustment of differences, where the law,

by reason of its universality, is deficient." A simple illustration of the deficiency of fixed law is given by Sir William Blackstone, the great commentator on English law. It so plainly illustrates the distinction between law and equity that it is reproduced here. "There was a law that those who in a storm forsook the ship, should forfeit all property therein; and that the ship and lading should belong entirely to those who stayed in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease, was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession and claimed the benefit of the law. Now here all the learned agree that the sick man is not within the reason of the law.” Therefore while the law construed to the letter would give him ship and cargo, equity and good conscience would not do All this great system of English equity, reenforced by American equity, is a part of the judicial system of West Virginia.

80.

(7) Decision of English Courts Prior to 1607.-The English courts had the right to state the meaning of the laws of England; and their decisions upon such of those laws as we have adopted, rendered prior to their adoption, are binding as precedents upon us as well as upon English subjects.

(8) Acts and Resolutions of the Legislature.--The Legislature of a State has the right to pass any law that it is not prohibited by its own Constitution from passing, provided it be not contrary to the Federal Constitution, laws and treaties. These laws may be found in the Codes, and in the acts of the Legislature. In 1868 a Code was compiled by direction of the Legislature, which included all legislation of a general character to that date. Other editions have been printed from time to time since, and a new edition, compiling all general laws to date, was issued in 1900. But the private or special laws are not included in the Code; they are found in the acts of each session,

(9) By-Laws and Ordinances of Public Corporations.-The by-laws and ordinances of such public corporations as exist in aid of state government, such as cities, towns, counties, school districts, have the force of local laws. Most of the well-regulated cities and towns have a volume of printed laws and ordinances.

(10) Decisions of the Supreme Court of Appeals.-The decisions of the Supreme Court of Appeals upon any question of law, when concurred in by three out of the four judges, are binding authority upon all inferior courts in the State in cases raising a similar question. If the appellate court is evenly divided on a case coming up from a circuit court, the judgment of the circuit court is affirmed; but the case is not binding as a precedent These decisions are printed in a series of volumes called the "West Virginia Reports."

CHAPTER XXXIV.

THE STATE: THE CONSTITUTION.

1. General Features.-It is proposed in this chapter to give a general outline of the framework and structure of the state Constitution without going into an extended analysis of details. State constitutions usually may be cast into two main parts, namely, a bill of rights and a frame of government; but to these two features there may be added a third, which embraces those portions that are essentially fixed statutes. Our own constitution contains fourteen articles, one hundred and ninety-three sections, and about thirty-five large octavo pages set in long primer type. Measured by the standard of the Constitution of the United States it is more than twice as long.

2. The Bill of Rights.-A bill of rights usually precedes the state Constitution or forms its first article; but with us it is thrown in as the third article. Our Bill of Rights is derived from those rights and privileges that have been secured to Englishmen by four documents chiefly, familiar in English history, namely: the Magna Charta, which the barons compelled King John to grant at Runnymede in 1215; the Petition of Right, which the Commons exacted from Charles I in 1628; the Habeas Corpus Act passed by Parliament in 1679; and the Bill of Rights, which was passed by parliament with the sanction of William and Mary on their accession to the throne in 1689 after the Revolution that forced the retirement of James II. Our Bill of Rights contains twenty sections, but there is no close connection between any two or more of them. They are mere formal statements or rather abstract principles.

In fact most of these principles grew out of conditions existing under the old monarchy that are no longer present under our system, and the violation of these principles would scarcely be attempted now even if the Constitution were silent on the subject. Although it may be possible that they are no longer essentially necessary, it cost much blood and treasure to establish and maintain them, and they are cherished by posterity as monuments to the "eternal vigilance" of our ancestors, which was the "price of liberty." No adequate summary of the Bill of Rights can be attempted here. The document itself should be carefully read and studied. In general terms it may be stated that it declares the principles of democracy, of personal liberty, security of property, freedom of conscience, freedom of speech and of the press, the right of popular assembly, legal rights-civil and criminal, prohibits certain laws, forbids test oaths, defines the status of the civil and military power, and establishes the fundamental rights of citizens.

3. The Frame of Government.-All the cther articles except the third relate to the fundamental structure of the state government. A mere outline alone is attempted. Article 1 treats of the relation of the State to the United States. It is perhaps a needless but harmless repetition of principles that are firmly established under the Federal Constitution and laws. The fourth section, however, provides for the division of the State into Congressional districts to be composed of contiguous counties, as nearly equal in population as may be. Article II is entitled "The State." It defines the counties; recognizes the citizens as the repository of the powers of government; defines who are citizens and declares their right to equal representation; fixes the property rights of aliens; defines treason and regulates the trial and punishment thereof; adopts the Great Seal of the State and prescribes its custodian; and makes regulations respecting writs, grants, commissions and indictments. Article IV relates to the election of officers and the