Mercer
once prevailed on the Virginia Assembly to declare a different doctrine
in some resolutions. These met universal disapprobation in this, as well
as the other States, and if I mistake not, a subsequent Assembly
did something to do away the authority of their former unguarded
resolutions. In this case, as in all others, the true principle will
be quite as effectual to establish the just deductions. Before the
revolution, the nation of Virginia had, by the organs they then thought
proper to constitute, established a system of laws, which they divided
into three denominations of, 1. common law; 2. statute law; 3. chancery:
or if you please, into two only, of 1. common law; 2. chancery. When
by the Declaration of Independence, they chose to abolish their former
organs of declaring their will, the acts of will already formally and
constitutionally declared, remained untouched. For the nation was not
dissolved, was not annihilated; its will, therefore, remained in full
vigor: and on the establishing the new organs, first of a convention,
and afterwards a more complicated legislature, the old acts of national
will continued in force, until the nation should, by its new organs,
declare its will changed. The common law, therefore, which was not
in force when we landed here, nor till we had formed ourselves into a
nation, and had manifested by the organs we constituted that the common
law was to be our law, continued to be our law; because the nation
continued in being, and because, though it changed the organs for
the future declarations of its will, yet it did not change its former
declarations that the common law was its law.
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