Common Law and English Statutes Adopted in American Founding Era

Common Law and English Statutes
Adopted in American Founding Era

nolu chan
April 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.
TABLE OF SOURCE MATERIAL

All listed source material is incorporated within this document and hypertext links
go 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 the
Several 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]
[137]
[143]
[150]
[162]
[180]
[182]
[187]
[199]
[205]
[214]
[225]
[231]
Connecticut 1776
Delaware 1776
Georgia 1777
Maryland 1776
Massachusetts 1780
New Hampshire 1776
New Jersey 1776
New York 1777
North Carolina 1776
Pennsylvania 1776
Rhode Island 1842 (superseded charter of 1643)
South Carolina 1776
Virginia 1776
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, passed

January session, 1943; pp. 231-33, 259.
[240]
North Carolina, Act of 1715, Chap. 5, An act for the more

effectual 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 such

parts of the statute and common laws as have been heretofore in
force and use here, and the acts of Assembly made and passed
when this territory was under the government of Great Britain, and
for reviving the several acts therein mentioned.
[243]
Pennsylvania, Act of 1777, An Act to revive and put in force such

and so much of the late laws of the province on Pennsylvania, as is
judged necessary to be in force in this commonwealth, and to
revive and establish the Courts of Justice, and for other purposes
therein mentioned.
[248]
Rhode Island, Act of April, 1700, An Act, for putting in Force the
Laws of England in all Cases, where no Particular Law of this
Colony hath Provided a Remedy.
[249]
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, and make report of their doings, the greatest part of
whom, presented what followeth; [list of English statutes] and
all and every of the statutes, aforesaid, be, and they are hereby
introduced into this colony, and shall be in full force therein, until
the General Assembly shall order otherwise.
[251]
South Carolina, Act of 1712, An Act to put in force in this

Province the Several Statutes of the Kingdom of England or South
Britain, therein particularly mentioned.
[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 the

common law of England, and declaring that all persons shall be
equally entitled to the benefit and privilege of law and justice.
[436]
District of Columbia, Act of February 27, 1801, An Act

concerning the District of Columbia.
[442]
District of Columbia, Act of March 3, 1801, An Act

supplementary to the act intituled An act concerning the District
of Columbia.
[445]
District of Columbia, Act of May 3, 1802, An Act additional to,

and amendatory of, an act, intituled An act concerning the
District of Columbia.
[450]
Northwest Territory, Act of July 14, 1795, A Law declaring what

laws shall be in force.
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 Supreme

Court 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 United
States, Eastern District of Pennsylvania (1833)
[585]
Wells v. Pierce, 27 N.H. 503 (1853)
[597]
United States v. Worrall, U.S. Circuit Court, District of

Pennsylvania, 2 Dallas (Pa) 384 (1798)
[607]
End.
[This page intentionally left blank.]
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 OF
NATIONS.
When the United States ceased to be a part of the British empire, and
assumed the character of an independent nation, they became subject to
that system of rules which reason, morality, and custom had established
among the civilized nations of Europe, as their public law. During the
war of the American revolution, Congress claimed cognizance of all
matters arising upon the law of nations, and they professed obedience to
that law, according to the general usages of Europe. (a) By this law we
are to understand that code of public instruction which defines the
rights and prescribes the duties of nations, in their intercourse with each
other.1
(a) Ordinance of the 4th December, 1781, relative to maritime
captures. Journals of Congress, vii. 185, The English judges have
frequently declared that the law of nations was part of the
common law of England. Triquet v. Bath, 3 Burr. 1478;
Heathfleld v. Chilton, 4 ib. 2015; and it is well settled that the
common law of England, so far as it may be consistent with the
constitutions of this country, and remains unaltered by statute, is
an essential part of American jurisprudence. Vide infra, 841, 472,
473.
1
For other definitions, see Wheat. pt. 1, c. 1, Danas note, 9;

Aust. Jur. lect. 6, 3d ed. 231.
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 tiu m of the Roman lawyers is now
understood to have meant something very different from
the modern international law. It was a collection of
rules and principles, determined by observation to be
common to the institutions which prevailed among the
various Italian tribes. The ju s n atu rale , or Law of
Nature, is simply the ju s g e n tiu m , seen in the light of
a peculiar theory. The confusion between Jus
Gentium, or law common to all nations, and
in te rn atio n al law is entirely modern. Maine, Anc. Law,
c.3, Am. ed. pp. 48, 50. See Aust. Jur. lect. 31 J Gaii. Inst. 1,
1.
There has been a difference of opinion among writers, concerning the
foundation of the law of nations. It has been considered by some as a mere
system of positive institutions, founded upon consent and usage; while
others 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 these
theories as exclusively true.
There is a natural and a positive law of nations. By the former, every
state, in its relations with other states, is bound to conduct itself with
justice, good faith, and benevolence; and this application of the law of
nature has been called by Vattel the necessary law of nations, because
nations are bound by the law of nature to observe it; and it is termed by
others the internal law of nations, because it is obligatory upon them in
point of conscience.
Grotius has, therefore, been justly considered as the father of the law of
nations. He arose like a splendid luminary, dispelling darkness and
confusion; and imparting light and security to the intercourse of nations.

The most popular and the most elegant writer on the law of nations is
Vattel, whose method has been greatly admired. He professed to have
followed the voluminous work of Wolff on the Law of Nature and
Nations, and to be enlightened and guided by his learning, with much
improvement upon the doctrine and arrangement of his great master.
He has been cited, for the last half-century, more freely than anyone of
the public jurists; but he is very deficient in philosophical precision. His
topics are loosely and often tediously and diffusively discussed, and he is
not sufficiently supported by the authority of precedents, which
constitute the foundation of the positive law of nations.
We now appeal to more accurate, more authentic, more precise,
and more commanding evidence of the rules of public law, by a
reference to the decisions of those tribunals to whom, in every
country, the administration of that branch of jurisprudence is
specially intrusted. We likewise appeal to the official documents
and ordinances of particular states, which have professed to
reduce into a systematic code, for the direction of their own
tribunals, and for the information of foreign powers, the law of
nations on those points which relate particularly to the rights of
commerce and the duties of neutrality.
Kents Commentaries at page 24: [*21]
Nations are equal in respect to each other, and entitled to claim equal
consideration for their rights, whatever may be their relative dimensions
or strength, or however greatly they may differ in government, religion,
or manners. This perfect equality, and entire independence of all distinct
states, is a fundamental principle of public law. It is a necessary
consequence of this equality that each nation has a right to govern
itself as it may think proper, and no one nation is entitled to
dictate a form of government or religion, or a course of internal
policy, to another. No state is entitled to take cognizance or notice
of the domestic administration of another state, or of what passes
within it as between the government and its own subjects.
Kents Commentaries at page 68: [*44]

A consul is not such a public minister as to be entitled to the privileges
appertaining to that character, nor is he under the special protection of
the law of nations. He is entitled to privileges to a certain extent, such as
for 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 ordinary
criminal 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) But
no such immunities have been conferred on consuls by the modern
practice of nations; and it may be considered as settled law, that consuls
do not enjoy the protection of the law of nations, any more than other
persons who enter the country under a safe-conduct. In civil and criminal
cases they are equally subject to the laws of the country in which they
reside. (d) The same doctrine, declared by the public jurists, has been
frequently laid down in English and American courts of justice. (a) It
seems, however, from some decisions in France, mentioned by Mr.
Warden, (b) that foreign consuls cannot be prosecuted before a French
tribunal, for acts done by them in France, by order of their government,
and with the authorization of the French government, and that, in
general, a consul cannot be prosecuted without the previous consent of
his government. Consular privileges are much less extensive in Christian
than in Mahometan countries. In the latter they cannot be imprisoned
for any cause whatever, except by demanding justice against them of the
Porte, (c) and they partake very considerably of the character and
importance of resident ministers. They are diplomatic agents under the
name of consuls, and enjoy the rights and privileges which the Ottoman
Porte recognizes in relation to the foreign ministers resident at
Constantinople. (d) By treaty, an entire immunity is usually given to the
persons, domestics, and effects of the resident consuls, and no consuls
reside with the Barbary states but under the protection of treaties. (e)
Considering the importance of the consular functions, and the activity
which is required of them in all great maritime ports, and the approach
which consuls make to the efficacy and dignity of diplomatic characters, it
was a wise provision in the Constitution of the United States which gave
to the Supreme Court original jurisdiction in all cases affecting consuls, as
well as ambassadors and other public ministers; and the federal
jurisdiction is understood to be exclusive of the state courts. (f)l (x)
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 a
collection of principles, to be found in the opinions of sages or
deduced from universal and immemorial usage, and receiving
progressively the sanction of the courts, it is, nevertheless, true,
that the common law, so far as it is applicable to our situation and
government, has been recognized and adopted, as one entire
system, by the constitutions of Massachusetts, New York, New
Jersey, and Maryland. It has been assumed by the courts of
justice, or declared by statute, with the like modifications, as the
law of the land in every state. It was imported by our colonial
ancestors, as far as it was applicable, and was sanctioned by royal
charters and colonial statutes. (a) It is also the established doctrine, that
English statutes, passed before the emigration of our ancestors, and
applicable to our situation, and in amendment of the law, constitute a
part 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 common
law is to be found in the decisions of the courts of justice,
contained in numerous volumes of reports, and in the treatises
and digests of learned men, which have been multiplying from the
earliest periods of the English history down to the present time. (c)
The reports of judicial decisions contain the most certain evidence, and
the most authoritative and precise application of the rules of the
common law. Adjudged cases become precedents for future cases
resting upon analogous facts, and brought within the same reason; and
the diligence of counsel, and the labor of judges, are constantly required,
in the study of the reports, in order to understand accurately their
import, and the principles they establish. But to attain a competent
knowledge of the common law in all its branches has now become a
very serious undertaking, and it requires steady and lasting perseverance,
in consequence of the number of books which beset and encumber the
path of the student. (d) The grievance is constantly growing, for the
number of periodical law reports and treatises which issue from the
English and American press is continually increasing; and if we wish to
receive assistance from the commercial system of other nations, and to
become acquainted with the principles of the Roman law, as received
and adopted in continental Europe, we are in still greater danger of
being confounded, and of having our fortitude subdued, by the
immensity 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 evidence
which we can have of the law applicable to the subject, and the judges
are bound to follow that decision so long as it stands unreversed, unless
it can be shown that the law was misunderstood or misapplied in that
particular case. If a decision has been made upon solemn argument and
mature deliberation, the presumption is in favor of its correctness; and
the community have a right to regard it as a just declaration or
exposition of the law, and to regulate their actions and contracts by it. It
would therefore be extremely inconvenient to the public, if precedents
were not duly regarded and implicitly followed. It is by the notoriety and
stability of such rules that professional men can give safe advice to those
who consult them; and people in general can venture with confidence to
buy and trust, and to deal with each other. If judicial decisions were to
be lightly disregarded, we should disturb and unsettle the great
landmarks of property. When a rule has been once deliberately adopted
and declared, it ought not to be disturbed, unless by a court of appeal or
review, and never by the same court, except for very cogent reasons, and
upon a clear manifestation of error; and if the practice were otherwise, it
would 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 this
point. No man, says he, who is not a lawyer, would ever know how
to act; and no man who is a lawyer would, in many instances, know
what to advise, unless courts were bound by authority as firmly as the
Pagan deities were supposed to be bound by the decrees of fate.
STATE BY STATE REVIEW

ADOPTION OF LAW IN THE FOUNDING ERA
1.
Connecticut
Constitution of Connecticut 1776.
PARAGRAPH 1. Be it enacted and declared by the Governor, and
Council, and House of Representatives, in General Court assembled, That
the ancient Form of Civil Government, contained in the
Charter from Charles the Second, King of England, and
adopted by the People of this State, shall be and remain the
Civil Constitution of this State, under the sole authority of the
People thereof, independent of any King or Prince whatever. And
that this Republic is, and shall forever be and remain, a free,
sovereign and independent State, by the Name of the STATE OF
CONNECTICUT.
2.
Delaware
Constitution of Delaware 1776.
ART. 24. All acts of assembly in force in this State on the 15th
day of May last (and not hereby altered, or contrary to the
resolutions of Congress or of the late house of assembly of this
State) shall so continue, until altered or repealed by the legislature
of this State, unless where they are temporary, in which case they
shall expire at the times respectively limited for their duration.
ART. 25. The common law of England, as well as so much
of the statute law as has been heretofore adopted in practice
in this State, shall remain in force, unless they shall be altered
by a future law of the legislature; such parts only excepted as are
repugnant to the rights and privileges contained in this
constitution, and the declaration of rights, &c., agreed to by this
convention.
3.
Georgia
Constitution of Georgia 1777.
The Constitution of Georgia did not address this issue. It was
addressed 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 the
inhabitants of the said province, on the 14th day of May, in the
year of our Lord 1776, so far as they are not contrary to the
constitution, laws, and form of government now established in
this 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 and
effectually, to all intents and purposes, as if the said acts, and each
of them, had been made and enacted by this general assembly,
until the same shall he repealed, amended, or otherwise altered by
the legislature: And also the common laws of England, and
such of the statute laws as were usually in force in the said
province, 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, the
protest of the master of the vessel was admitted as evidence in
chief. Now the protest of the master is not evidence per se; it can
only be used in a court governed by the rules of the common
law, to impeach the testimony of the master himself, or as
incidentally corroborative of the log-book. There was therefore a
misdirection of the judge, on this point of the evidence.
In this case the plaintiff is the administrator of the master, which
ought to have suggested an invincible objection to the
admissibility of the protest. 2 Esp.Rep. 489; 7 D. and E. were
cited by Davis and Berrien.
This court is governed by the rules and principles of the common

law, so far as they are permitted to operate by our constitution
and laws. The case therefore cited from 1 Dallas, p. 6, militating
with 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 of
evidence belonging to it are in force there, unless so far as
they have been modified by statute, or controlled by a
settled course of judicial decisions and usage. Upon the
present question, it does not appear, that Georgia has ever
established any rules at variance with the common law; though it
is not improbable, that there may have been, from the peculiar
organization of her judicial department, some diversity in the
application of them, in the different circuits of that state, acting,
as they do, independent of each other, and without any common
appellate court to supervise their decisions. We think it clear,
that by the common law, as held for a long period, an
exemplification of a public grant, under the great seal, is
admissible in evidence, as being record proof of as high a
nature as the original. It is a recognition, in the most solemn
form, by the government itself, of the validity of its own
grant, under its own seal; and imports absolute verity, as
matter of record.
The authorities cited at the bar fully sustain this doctrine.
There was, in former times, a technical distinction existing on this
subject, which deserves notice. As evidence, such
exemplifications of letters-patent seem to have been generally
deemed admissible. But where, in pleading, a profert was made of
the letters-patent, there, upon the principles of pleading, the
original, under the great seal, was required to be produced; for a
profert could not be of any copy or exemplification. It was to cure
this 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
exemplification of the letters patent, as if the original were

pleaded and set forth. These statutes being passed, before the
emigration of our ancestors, being applicable to our
situation, and in amendment of the law, constitute a part of
our common law. A similar effect was given by the statute of 10
Ann., c. 18, to copies of deeds of bargain and sale, enrolled under
the statute of Hen. VIII., when offered by way of profert in
pleading; and since that period, a copy of the enrolment of a
bargain and sale is held as good evidence as the original itself. 1
Phil. 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; Pages
Case, 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 of
evidence of the common law, in respect to exemplifications,
under the great seal, of public grants, the application of it to the
case now at bar will be at once perceived; since, by the laws of
Georgia, all public grants are required to be recorded in the
proper 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, apparently
the only jurisdiction in the common law world to retain
the common law rule that a person charged with a criminal
offense is incompetent to testify under oath in his own
behalf at his trial. Georgia in 1866 abolished by statute the
common law rules of incompetency for most other persons.
However, the statute, now Georgia Code 38-416, expressly
retained the incompetency rule as to persons charged in any
criminal proceeding with the 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 such statement in the case as he may deem
proper in his defense. It shall not be under oath, and shall have
such force only as the jury may think right to give it. They may
believe it in preference to the sworn testimony in the case. The
prisoner shall not be compelled to answer any questions on
cross-examination, should he think proper to decline to answer.
4.
Maryland
Constitution of Maryland 1776.
III. That the inhabitants of Maryland are entitled to the
common law of England, and the trial by jury, according to the
course of that law, and to the benefit of such of the English
statutes, as existed at the time of their first emigration, and
which, by experience, have been found applicable to their local
and other circumstances, and of such others as have been since
made in England, or Great Britain, and have been introduced,
used and practised by the courts of law or equity; and also to acts
of Assembly, in force on the first of June seventeen hundred and
seventy-four, except such as may have since expired, or have been
or may be altered by acts of Convention, or this Declaration of
Rights subject, nevertheless, to the revision of, and
amendment or repeal by, the Legislature of this State: and the
inhabitants of Maryland are also entitled to all property, derived
to them, from or under the Charter, granted by his Majesty
Charles 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 the
courts of law, shall be in the name of the commonwealth of
Massachusetts; they shall be under the seal of the court from
whence they issue; they shall bear test of the first justice of the
court to which they shall be returnable who is not a party, and be
signed by the clerk of such court.
ART. VI. All the laws which have heretofore been adopted,
used, and approved in the province, colony, or State of
Massachusetts Bay, and usually practised on in the courts of
law, shall still remain and be in full force, until altered or
repealed by the legislature, such parts only excepted as are
repugnant to the rights and liberties contained in this
constitution.
ART. VII. The privilege and benefit of the writ of habeas corpus
shall be enjoyed in this commonwealth, in the most free, easy,
cheap, expeditious, and ample manner, and shall not be
suspended by the legislature, except upon the most urgent and
pressing occasions, and for a limited time, not exceeding twelve
months.
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 January
session, 1943; pp. 231-33, 259.
[233] 6. Common Law Lien. When any factor, or any third party
for the account of any such factor, shall have possession of goods
and merchandise, such factor shall have a continuing general lien,
as set forth in section 1 of this chapter, without recording the
notice and posting the sign provided for in this chapter.
[233] 7. Construction. This act is to be construed liberally to
secure the beneficial interest and purposes thereof. A substantial
compliance with its several provisions shall be sufficient for the
validity of a lien and to give jurisdiction to the courts to enforce
the same. Nothing in this chapter shall be construed as
affecting or limiting any existing or future lien at common
law or any rights at common law, or any right given by any
other statute or provision of the Revised Laws.
[259] 13-a. Register Authorized. In addition to his common law

and statutory powers the attorney general shall have the
authority to prepare and maintain a register of all public trusts
heretofore 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, was
brought over by the colonists, and has always existed as a part
of the common law, in its broadest sense, in New
Hampshire.
except for the brief period 1682 to 1699 we never had separate
courts of chancery. At all other colonial periods, equity
practice was in the common-law courts, as now, and even
when there was a court of chancery, the common-law Court of
Common Pleas undertook in one instance to exercise equity
jurisdiction. Barefoot v. Wadley, supra.
7.
New Jersey
Constitution of New Jersey 1776
XXI. That all the laws of this Province, contained in the edition
lately published by Mr. Allinson, shall be and remain in full force,
until altered by the Legislature of this Colony (such only
excepted, as are incompatible with this Charter) and shall be,
according as heretofore, regarded in all respects, by all civil
officers, and others, the good people of this Province.
XXII. That the common law of England, as well as so much
of the statute law, as have been heretofore practised in this
Colony, shall still remain in force, until they shall be altered
by a future law of the Legislature; such parts only excepted,
as are repugnant to the rights and privileges contained in
this Charter; and that the inestimable right of trial by jury shall
remain confirmed as a part of the law of this Colony, without
repeal, forever.
8.
New York
Constitution of New York 1777
XXXV. And this convention doth further, in the name and by the
authority 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 of
the acts of the legislature of the colony of New York, as
together did form the law of the said colony on the 19th day
of April, in the year of our Lord one thousand seven hundred
and seventy-five, shall be and continue the law of this State,
subject to such alterations and provisions as the legislature of this
State shall, from time to time, make concerning the same. That
such of the said acts, as are temporary, shall expire at the times
limited for their duration respectively. That all such parts of the
said common law, and all such of the said statutes and acts
aforesaid, or parts thereof, as may be construed to establish or
maintain any particular denomination of Christians or their
ministers, or concern the allegiance heretofore yielded to, and the
supremacy, sovereignty, government, or prerogatives claimed or
exercised by, the King of Great Britain and his predecessors, over
the colony of New York and its inhabitants, or are repugnant to
this constitution, be, and they hereby are, abrogated and rejected.
And this convention doth further ordain, that the resolves or
resolutions of the congresses of the colony of New York, and of
the convention of the State of New York, now in force, and not
repugnant 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 the
legislature of this State may, from time to time, make concerning
the 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 enacted
and declared, That the common law is, and shall be, in force, in
this government, except such part in the practice, in the
issuing and return of writs, and proceedings in the court of
Westminster, which for want of several officers cannot be
put in execution; which ought to be supplied by rules of the
general court of this government, being first approved of by the
governor and council, which shall be good in law, from time to
time, till it shall be altered by act of assembly.
3. And be it further enacted and declared by the authority aforesaid, That
all statute laws of England, providing for the privileges of
the people, as also, all statute laws made for limitation of
actions, and preventing of vexatious law suits, and for
preventing immorality and fraud, and confirming
inheritances and titles of land, are and shall be in force here,
although this province, or the plantations in general, are not
therein named.
North Carolina, Act of 1778, Chap. 133
An act to enforce such parts of the statute and common laws as
have been heretofore in force and use here, and the acts of
Assembly made and passed when this territory was under the
government of the late proprietors and the crown of Great
Britain, and for reviving the several acts therein mentioned.
1. WHEREAS doubts may arise, upon the revolution in
government, 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 of
the common law, as were heretofore in force and use within
this territory, (b) and all the acts of the late general
assemblies thereof, or so much of the said statutes, common
law, and acts assembly, as are not destructive of, repugnant
to, or inconsistent with the freedom and independence of this
state, and the form of government therein established, and which
have not been otherwise provided for, in the whole or in part, not
abrogated, repealed, expired, or become obsolete, are hereby
declared to be in full force within this state.
10. Pennsylvania
Constitution of Pennsylvania 1776
The Constitution of New Hampshire did not address this issue. It
was addressed in Statute law. There is a provision using a
noteworthy turn of phrase.
SECT. 42. Every foreigner of good character who comes to settle
in this state, having first taken an oath or affirmation of allegiance
to the same, may purchase, or by other just means acquire, hold,
and transfer land or other real estate; and after one years
residence, shall be deemed a free denizen thereof, and entitled to
all the rights of a natural born subject of this state, except that he
shall not be capable of being elected a representative until after
two years residence.
Pennsylvania, Act of 1777, An Act to revive and put in force such and so
much of the late laws of the province on Pennsylvania, as is judged necessary
to be in force in this commonwealth, and to revive and establish the Courts of
Justice, and for other purposes therein mentioned.
II. Be it therefore enacted, and it is hereby enacted, That each and every
one of the laws or acts of General Assembly, that were in force
and binding on the inhabitants of the said be province on the
fourteenth day of May last, shall be in force from and binding on
the inhabitants of this state from and after the tenth day of
February next, as fully and effectually, to all intents and purposes,
as if the said laws, and each of them, had been made or enacted by
this General Assembly; and all and every person and persons
whomsoever are hereby enjoined and required to yield obedience
to the said laws, as the case may require until the said laws or acts
of General Assembly respectively shall be repealed or altered, or
until they expire by their own limitation; and the common law
and such of the statute laws of England as have heretofore
been in force in the said province, except as is hereafter
excepted.
Morriss Lessee v. Vanderen, S. Ct. of Pennsylvania, 1 Dallas (Pa) 64,

(1782)
It is the opinion of the court, however, that the common law
of England has always been in force in Pennsylvania; that all
statutes made in Great Britain, before the settlement of
Pennsylvania, have no force here, unless they are convenient and
adapted to the circumstances of the country; and that all statutes
made since the settlement of Pennsylvania, have no force here,
unless the colonies are particularly named. (c) The spirit of the act
of assembly passed in 1718 supports the opinion of the court.
The statute of limitations, 32 Hen. VIII, c. 2, has always been
received in Pennsylvania.
Respublica v. Mesca et al, Court of Oyer and Terminer at Philadelphia, 1
Dallas (Pa) 73 (1783)
The Chief Justice delivered the opinion of the court as follows:
MCKEAN, C. J. The point before the court has been well
argued; and on a full consideration of the subject, we now find
little difficulty in pronouncing our decision. The first legislature
under the commonwealth, has clearly fixed the rule,
respecting the extension of British statutes, by enacting that
such of the statutes as have been in force in the late
province of Pennsylvania, should remain in force, till altered
by 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 per
medietatum lingu was allowed in the case of a burglary committed
by one Ottenreed, in the mansion-house of Mr. Clifford.
United States v. Worrall, U.S. Circuit Court, District of Pennsylvania, 2
Dallas (Pa) 384 (1798)
[392] The prosecution against Henfield was not expressly on the
treaty, but on the law of nations, which is a part of the
common law of the United States; and the power of indicting
for a breach of treaty, not expressly providing the means of
enforcing performance in the particular instance, is itself a
common-law power. Unless the judicial system of the United

States justified a recourse to common law, against an
individual guilty of a breach of treaty, the offence, where no
specific 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, declared
the province laws in force till altered or repealed; also the
common law and such parts of the statute laws of England
as had been before in force.And so much of any law or act
of Assembly as declares, orders, directs, commands any matter or
thing repugnant to, or inconsistent with the constitution, is
hereby declared not to be revived, but shall be null and void, and
of 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 to
give evidence criminating himself.
Rhode Island, Act of April 30, 1700, An Act, for putting in Force the Laws
of England in all Cases, where no Particular Law of this Colony hath
Provided 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, where
no Particular Law of this Colony is made to Decide and
Determine the same; that then and in all such Cases the laws of
England shall be put in Force to Issue, Determine and Decide the
same. Any Usage, Custom or Law to the contrary hereof
notwithstanding.
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 this
colony, such of the statutes of England, as are agreeable to the
constitution, and make report of their doings, the greatest part of
whom, presented what followeth:
We, the subscribers, being appointed to report what statutes of
Great Britain are, and ought to be in force in this colony, do
report 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 and
excepting 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 concern
bastardy, as applicable to the constitution of this colony.
All statutes that are against criminal offenders, so far as they are
descriptive of the crime; and where the law of this colony hath
not described and enjoined the punishment, then that part of the
statute that relates to the punishment, also; always saving and
excepting such statutes, as from the nature of the offences
mentioned in them, are confined to Great Britain, only.
The statute of Henry III., commonly called the statute of uses.
The statute of 29 Charles II., commonly called the statute of

frauds and perjuries.
The statutes of 22 and 23 Charles II., chapter 10th, for
distributing 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 joint
tenants, and tenants in common.
That part of the statute of Anne, that subjects lessees that hold
over their term against the will of the lessor, to the payment of
double rent, during the lime they hold over.
All statutes relating to the poor, and relating to masters and their
apprentices ; so far as they are applicable in this colony, and
where we have no law of the colony.
All which statutes, we are humbly of opinion have heretofore
been, 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 into
consideration, do vote and resolve, that all and every of the
statutes, aforesaid, be, and they are hereby introduced into
this colony, and shall be in full force therein, until the
General Assembly shall order otherwise.
12. South Carolina

Constitution of South Carolina 1776
XXIX. That the resolutions of this or any former congress of
this colony, and all laws now of force here, (and not hereby
altered,) shall so continue until altered or repealed by the
legislature of this colony, unless where they are temporary, in
which case they shall expire at the times respectively limited for
their duration.
South Carolina, Act of 1712, An Act to put in force in this Province the
Several Statutes of the Kingdom of England or South Britain, therein
particularly mentioned.
I. Be it enacted by the Most Noble Prince, Henry Duke of
Beaufort, Lord Palatine, and the rest of the true and absolute
Lords and Proprietors of this Province, by and with the advice
and 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, and
the several paragraphs and sections, or numbers of the
paragraphs of the several statutes of the Kingdom of
England, entituled as followeth, and made and enacted in such
years of the reigns of the Kings and Queens of England, as
before the titles of the several statutes is in this Act set down, and
as the same are distinguished and divided into paragraphs and
sections or numbers, by Joseph Keble of Grays Inn, Esq., in his
Statutes at Large, from Magna Charta to the end of the reign of
King Charles the Second, and continued, with the addition of all
the statutes made in the reign of King James the Second, and
King William and Queen Mary, to the end of the last sessions of
Parliament, May the third, 1695, in the seventh year of the reign
of his late Majesty, King William the third, in two volumes,
printed at London, in the year of our Lord one thousand six
hundred ninety and five, and as the same are further continued in
a third volume of the Statutes at Large, beginning with the
seventh and eighth years of the reign of the late King William the
third, and continued to the end of the last session of Parliament,
March the fourteenth, 1704, in the fourth year of the reign of her
present Majesty, Queen Anne, printed at London in the year of
our Lord one thousand seven hundred and six, together with an
Addenda to the said third volume, beginning with the fourth year
of the reign of her present Majesty Queen Anne, and continued
to the end of the last session of Parliament, April the first, 1788,
in the seventh year of her said present Majesties reign, printed at
London in the year of our Lord one thousand seven hundred and
eight, and the statutes printed since the said third volume and the
addenda, being statutes made in the seventh and eighth years of

her present Majesties reign, at the Parliament summoned to be
held at Westminster, the eighth day of July, Anno Dom. 1708, in
the seventh year of her Majesties reign, and by several writs of
prorogation begun and holden on the sixteenth day of
November, 1708, being the first session of the said Parliament
and from thence continued by several prorogations to the
fifteenth day of November, 1709, being the second session of the
said Parliament, which statutes were printed at London by her
Majesties printers, in the years 1708, 1709 and 1710; are and are
hereby to be in as full force, power and virtue as if the same
had been specially enacted and made for this Province, or as
if the same had been made and enacted therein by any
General Assembly thereof, (that is to say,) [continues for another
180 pages]
13. Virginia
Constitution of Virginia 1776
The Constitution of Virginia did not address this issue. It was
addressed in Statute law and at the Constitutional Convention
of Virginia in 1788.
Patrick Henry, Debates and Other Proceedings of the Convention of
Virginia, 2nd Ed., pp. 316-17.
When our government was first instituted in Virginia, we declared
the 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 repugnant
to the principles of the Bill of Rights and Constitution of
this Commonwealth, shall continue in full force within the
same, and be the rule of decision, except as altered by the

General Assembly.
(Code 1919, 2, 1-10; 2005, c. 839.)
14. Vermont
Vermont Act of November 4, 1797; An Act, adopting the common law of
England, and declaring that all persons shall be equally entitled to the
benefit and privilege of law and justice.
Sect. 1. It is hereby enacted by the General Assembly of the State of
Vermont, That so much of common law of England, as is
applicable to the local situation, and circumstances, and is
not repugnant to the constitution, or to any of the acts of the
legislature of this state, be, and hereby is adopted law,
within this state; and all courts are to take notice thereof, and
govern 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 to
the local situation and circumstances and is not repugnant
to the constitution or laws shall be laws in this state and
courts shall take notice thereof and govern themselves
accordingly.
15. District of Columbia

District of Columbia, Act of February 27, 1801, An Act concerning the
District of Columbia. [2 Stat. 103]
SECTION 1. Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That the laws of
the state of Virginia, as they now exist, shall be and continue
in force in that part of the District of Columbia, which was
ceded by the said state to the United States, and by them
accepted for the permanent seat of government; and that the
laws of the state of Maryland, as they now exist, shall be and

continue in force in that part of the said district, which was
ceded by that state to the United States and by them accepted
as aforesaid.
District of Columbia, Act of March 3, 1801, An Act supplementary to the
act intituled An act concerning the District of Columbia. [2 Stat. 115]
SEC. 2. And be it further enacted, That all indictments shall run in
the name of the United States, and conclude, against the peace
and government thereof. And all fines penalties and forfeitures
accruing under the laws of the states of Maryland and
Virginia, which by adoption have become the laws of this
district
District of Columbia, Act of May 3, 1802, An Act additional to, and
amendatory of, an act, intituled An act concerning the District of
Columbia. [2 Stat. 193]
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That the circuit court of the
county of Washington, in the territory of Columbia, shall have
power to proceed in all common law and chancery causes
which now are, or hereafter shall be instituted before it, in which
either of the parties reside without the said territory, in the same
way that non-residents are proceeded against in the general court
or in the supreme court of chancery in the state of Maryland.
SEC. 2. And be it further enacted, That the circuit court of the
county of Alexandria, in the district of Columbia, shall have
power to proceed in all common law and chancery causes
which now are, or hereafter shall be instituted before it, in which
either of the parties are non-residents of said district of Columbia,
in the same way, and under the same regulations observed by the
district court or by the high court of chancery in Virginia, in
proceeding against non-residents.
16. Northwest Territory

Northwest Territory, Act of July 14, 1795, A Law declaring what laws shall be
in force.
The common law of England, all statutes or acts of the
British parliament made in aid of the common law, prior to
the fourth year of the reign of King James the first (and
which are of a general nature, not local to that kingdom) and
also the several laws in force in this Territory, shall be the
rule of decision, and shall be considered, as of full force, until
repealed by legislative authority, or disapproved of by congress.
[This page intentionally left blank]
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 the
Bill of Rights and Constitution of this Commonwealth, shall continue in full force
within the same, and be the rule of decision, except as altered by the General
Assembly.
(Code 1919, 2, 1-10; 2005, c. 839.)

Supreme Court of New Hampshire
May 4, 1943
Paul L. Dion
v.
Cheshire Mills
Syllabus by the Court
In case by a workman against his master for personal injuries with plea in bar that plaintiff had
elected to receive compensation under the workmens compensation act the plaintiff by
replication alleged that the said election was induced by defendants fraud. The plaintiffs motion
that 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 of
making an alleged election with understanding raised an issue for the jury, for in this instance the
plaintiff is seeking defensive relief, not that affirmative relief by way of cancellation which he
may have only in equity.
The early history of the extent and manner in which equity jurisdiction was exercised either by a
court of chancery or by courts of common law during our colonial and provincial periods dispels
some misconceptions entertained in later decisions which nevertheless reached correct results.
Case, for negligence. The defendant pleaded in bar that the plaintiff had elected his statutory
remedy 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 the
defendants 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, and
the trial Justice ruled that the issue whether or not the plaintiff elected to accept compensation be
tried by the court. To these rulings the plaintiff excepted. Transferred on the plaintiffs bill of
exceptions by Lorimer, J.
Opinion of the Court, Page, J.

The question whether the issues should be consolidated was for the court, and no reason appears
why his decision in that respect should be overruled. Genest v. Company, 75 N.H. 365. The
question was raised at the hearing on the motion whether the effect of the rulings made would not
be 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 over
issues 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 held
by that case, that fraud may be a defence at law as well as in equity, the phrase is harmless. Upon
the authority of that case it is also clear that fraud is a defence to an unsealed instrument as well
as to a bond, and the instrument now involved may be supposed to be unsealed. It is also true, as
pointed out in argument, that insanity is a defence to a proceeding on a contract, whether the
proceeding be at law or in equity. Burke v. Allen, 29 N.H. 106, 114. It has also been held that
where a defence is well pleaded in law, it is improper for the party so pleading to begin
proceedings 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, as
applied to defences, the two jurisdictions are concurrent. The real test of the question of
jurisdiction is the capacity in which the court acts upon an issue. Since our courts act both at law
and in equity, there is room for confusion in this regard, unless there be careful consideration of
the 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 law
is identical in both law and equity, but the jurisdictional question is not thereby answered. It is
clear enough that where the execution of a release is denied by the plaintiff, a court of law has
jurisdiction. But where the execution of an instrument is admitted, but sought to be avoided for
fraud, it is equally clear that the vitiating of the contract, except as a matter of defence to an
action on it, belongs to equity. It is not enough to say that fraud vitiates a contract at both law and
equity. That is true, but it does not follow, as has too often and too easily been concluded, that in
all situations the jurisdictions are concurrent.
Relief sought from a contract or an instrument induced by fraud will belong to equity or to law in
accordance with its nature. If a plaintiff has been deprived of money or chattels by a contract
fraudulently procured, he may rescind the contract and recover in an action at law his money or
his chattels; or he may bring an action of deceit at common law and recover money damages. But
if he wishes the cancellation of the instrument and restoration to his original position, or if he
desires 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 concerning
fraud, just as it was declared in McIsaac v. McMurray, 77 N.H. 466, to be the rule concerning
instruments made under a mutual mistake of fact. The distinction proposed by the plaintiffs
counsel, both in the trial court and here, does not exist.
With these principles in mind, confusion may be avoided. The plaintiff has sued the defendant
for damages at law. The defendant has pleaded an election by the plaintiff which is a complete
bar on its face to the prosecution of the plaintiffs action. The plaintiff has filed a replication
asserting that he executed a written election which is invalid because obtained by the defendants
fraud. Though called by a common-law name his replication is in substance something else. It
is not a defence, legal or equitable, to an action brought by the defendant. The plaintiff does not
seek defensive relief at all; he is seeking affirmative relief by way of cancellation, which he
cannot have at law, and may have only in equity. Until the instrument is cancelled, he has no
right at law. The law leaves him where his signature left him, without any affirmative relief
except in equity. We are dealing with no defence, but with an affirmative claim that is
preliminary 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 was
the case in Baird v. Company, 39 Cal. App. 512, cited by the plaintiff. In King v. Company, 156
Minn. 494, also cited by the plaintiff, the ruling sought by the defendant would have had that
effect. The ruling below did not involve a failure to recognize fraud as a legal defence as was the
case in Greenberg v. Company, 283 N. Y. S. 619, or so-called equitable estoppel as a defence at
law, which was the case in Watkins v. Company, 9 Wash. (2d) 703. There was no refusal of the
constitutional 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 trial
by jury. That question needs no examination anew except for the fact that our older cases have in
some degree misconceived our equity practice prior to the Revolution. In the end the
misconceptions have resulted in no serious error, but it may be well enough to dispel some that
have come to light during research into colonial practice. For example, it is not true, as suggested
in Wells v. Pierce, 27 N.H. 503, 512, that during the years of our jurisdictional union with
Massachusetts, 1641-1679, the General Court of that Commonwealth had original chancery
jurisdiction 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 jury
that if there be matter of apparent equity, as the forfeiture of an obligation, breach of Covenant
without damage, or the like, the Bench shall determine such matters of equity. Colonial Laws of
Massachusetts, 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 (Court
of Associates, 1673). The practice in equity without jury continued after New Hampshire became
a 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 Province
Papers, 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 judiciary
act of 1692 remained law and that the Governor and Council were a court of chancery of original
jurisdiction (they were a court of appeals) until the Revolution. It is true that the provision for a
court 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-law
courts. The act of 1699 contained no provision at all for a chancery court. Instead of that it
revested in the common-law civil courts a chancery jurisdiction similar to that practiced during
the union with Massachusetts, when there were no separate equity courts. That jurisdiction was
somewhat enlarged in 1743. 2 Laws N.H. 725. The acts of 1699 and 1743 are found in all
appropriate compilations after they were passed prior to 1792, but the provision of 1692 for a
separate court of chancery is never found. For almost a century the act of 1699 was construed as
having repealed the act of 1692. No contrary suggestion was made until two generations after the
colonial 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 500
pounds. The jury returned a verdict of forfeiture, which at common law would mean a judgment
for 500 pounds unless the court gave affirmative relief in equity. The court chancered the bond
and 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 the
bond. Superior Court Judgments, E, 381. Never is there a suggestion that an equitable issue was
submitted to a jury. Just as during the seventeenth century, denial of trial by jury in equity was
the rule during all the subsequent colonial period. Such issues as were submitted to the jury after
the adoption of the Constitution were either framed in the discretion of the court for the
enlightenment of the Judges consciences or under such a total misapprehension of colonial
practice as once misled this court (Marston v. Brackett, 9 N.H. 336, 349) into saying that the
practice in equity prior to the Constitution gave parties the right to trial by jury. Such use of the
jury in the words of the Constitution (Bill of Rights, Art. 20) was heretofore otherwise used and
practiced.
The unsupported supposition in Marston v. Brackett was seriously doubted, upon better
information 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 consideration
and 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 the
supposedly 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 equitable
issues, but every evidence that it was always denied, and that except for the brief period 1682
to 1699 we never had separate courts of chancery. At all other colonial periods, equity
practice was in the common-law courts, as now, and even when there was a court of
chancery, the common-law Court of Common Pleas undertook in one instance to exercise
equity jurisdiction. Barefoot v. Wadley, supra.
U.S. Supreme Court
Ferguson v. Georgia, 365 U.S. 570 (1961)

No. 44
Argued November 14-15, 1960
Decided 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 incompetent
to testify under oath in his own behalf at his trial; but 38-415 gives him the right to make
an unsworn statement to the jury without subjecting himself to cross-examination. At the
trial in a state court in which appellant was convicted of murder, his counsel was denied the right
to 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 a
crucial 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 the
common law world to retain the common law rule that a person charged with a criminal
offense is incompetent to testify under oath in his own behalf at his trial. Georgia in 1866
abolished by statute the common law rules of incompetency for most other persons. However, the
statute, now Georgia Code 38-416, expressly retained the incompetency rule as to persons
charged 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 such
statement in the case as he may deem proper in his defense. It shall not be under oath, and shall
have such force only as the jury may think right to give it. They may believe it in preference to
the sworn testimony in the case. The prisoner shall not be compelled to answer any questions on
cross-examination, should he think proper to decline to answer.
In this case, a jury in the Superior Court, Douglas County, Georgia, convicted the appellant of
murder, and he is under sentence of death. After the State rested its case at the trial, the
appellants counsel called him to the stand, but the trial judge sustained the States objection to
counsels 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 the
United States . . . [because] it deprives the defendant of the benefit of his counsel
asking 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 to
his 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 benefit
and 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 require
counsel 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 that
counsel for the accused cannot, as a matter of right, ask the accused questions or
make 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 the
Georgia courts of 38-415 denied the appellant the guiding hand of counsel at every step in the
proceedings against him, Powell v. State of Alabama, 287 U. S. 45, 287 U. S. 69, within the
requirements of due process in that regard as imposed upon the States by the Fourteenth
Amendment. See also Chandler v. Fretag, 348 U. S. 3.
Appellant raises no question as to the constitutional validity of 38-416, the incompetency
statute.1 However, decision of the question which is raised under 38-415 necessarily involves
consideration 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 criminal
defendants from testifying, and 38-415, also with its roots in the common law, was an
attempt 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 developing
jury 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. See
Thayer, Preliminary Treatise on Evidence, pp. 24-34. Jury trial replaced decision by oath with
decision of the jurors based on the evidence of witnesses; with this change: [T]he party was
naturally deemed incapable of being such a witness. 2 Wigmore, p. 682. Incompetency of the
parties in civil cases seems to have been established by the end of the sixteenth century. See 9
Holdsworth, History of English Law, p. 194. In time, the principal rationale of the rule became
the possible untrustworthiness of the partys testimony; for the same reason, disqualification was
applied in the seventeenth century to interested nonparty witnesses.2
Its firm establishment for criminal defendants seems to have come somewhat later. In the
sixteenth 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 of
counsel. 1 Stephen, History of the Criminal Law of England, p. 350. The criminal trial of this
period has been described as
a long argument between the prisoner and the counsel for the Crown, in which
they questioned each other and grappled with each others arguments with the
utmost eagerness and closeness of reasoning.
Stephen, supra, p. 326. In the process, the defendant could offer by way of explanation material
that 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 was
accorded 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 drawn
between 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 interest
rationale as a basis for disqualification reinforced this distinction, since the criminal defendant
was, of course, par excellence an interested witness. The old common law shuddered at the idea
of any person testifying who had the least interest. State v. Barrows, 76 Me. 401, 409. See
Benson 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. 369.3 Here, as in England, criminal defendants were deemed incompetent as
witnesses. 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 by
indifferent 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 long
before 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 disqualification
for 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 not
exclude, 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 consideration
which has a tendency to produce conviction in a rational mind should be excluded
from the consideration of the tribunals.
Lord Macaulays Legislative Minutes, 1835, pp. 127-128. The qualification in civil cases of
nonparty 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 County
Courts 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. 158159. Lord Broughams Act of 1851, 14 & 15 Vict., c. 99, virtually abolished the incompetency of
parties in civil cases.5
365 U. S. 577
The qualification of criminal defendants to give sworn evidence if they wished came last. The
first statute was apparently that enacted by Maine in 1859 making defendants competent
witnesses in prosecutions for a few crimes. Maine Acts 1859, c. 104. This was followed in Maine
in 1864 by the enactment of a general competency statute for criminal defendants, the first such
statute in the English-speaking world. The reform was largely the work of John Appleton of the
Supreme Court of Maine, an American disciple of Bentham. Within 20 years. most of the States
now comprising the Union had followed Maines lead. A federal statute to the same effect was
adopted in 1878, 20 Stat. 30, 18 U.S.C. 3481. Before the end of the century, every State except
Georgia 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. 36.7
Various States of Australia had enacted competency statutes even before the mother country, as
did Canada and New Zealand. Competency was extended to defendants in Northern Ireland in
1923, 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 to
opposition from those who believed that such a grant threatened erosion of the privilege against
self-incrimination and the presumption of innocence.
[I]f we were to hold that a prisoner offering to make a statement must be sworn
in the cause as a witness, it would be difficult to protect his constitutional rights in
spite of every caution, and would often lay innocent parties under unjust suspicion
where 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 of
our criminal jurisprudence by converting it into an inquisitory system, from which
we 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; 1
Am.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 Bentham
nor Appleton was a friend of the privilege against self-incrimination.10 While Appleton justified
competency as a necessary protection
365 U. S. 580
for the innocent, he also believed that incompetency had served the guilty as a shield, and thus
disserved the public interest. Competency, he thought, would open the accused to crossexamination, and permit an unfavorable inference if he declined to take the stand to exculpate
himself.11
This controversy left its mark on the laws of many jurisdictions which enacted competency. The
majority of the competency statutes of the States forbid comment by the prosecution on the
failure of an accused to testify, and provide that no presumption of guilt should arise from his
failure to take the stand. The early cases particularly emphasized the importance of such
limitations. See, e.g., Staples v. State, 89 Tenn. 231, 14 S.W. 603; Price v. Commonwealth, 77
Va. 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 Failure
of Accused to Testify, 31 Mich.L.Rev. 40. For the treatment of the accused as a witness in
Canada, see 12 Can.Bar Rev. 519, 13 Can.Bar Rev. 336; in Australia, see 6 Res Judicatae 60; and
in 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 had
opposed them. It was seen that the shutting out of his sworn evidence could be positively hurtful
to 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. An
American 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 testify
would aid in the detection of guilt; we are now disposed to think that it will be
equally 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 to
follow the American States and other common law jurisdictions in granting competency to
criminal defendants. In the debates of 1898, the Lord Chancellor quoted a distinguished English
jurist, Russell Gurney:
[A]fter what he had seen there [in America], he could not entertain a doubt about
the propriety of allowing accused persons to be heard as witnesses on their own
behalf.
54 Hansard, supra, p. 1176. Arthur Balfour reported to the Commons that

precisely the same doubts and difficulties which beset the legal profession in this
country on the suggestion of this change were felt in the United States, but the
result of the experiment, which has been extended gradually from State to State, is
that all fears have proved illusory, that the legal profession, divided as they were
before the change, have now become unanimous in favor of it, and that no section
of the community, not even the prisoners at the bar, desire to see any alteration
made 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, Sir
James 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 be
brought to bear on the prisoner, and it is not a light thing to institute a system
which would almost enforce perjury on every occasion.
A General View of the Criminal Law of England, p. 202. Competency would put a dangerous
discretion in the hands of counsel.
By not calling the prisoner, he might expose himself to the imputation of a tacit
confession of guilt, by calling him, he might expose an innocent man to a crossexamination which might make him look guilty.
Ibid. Allowing questions about prior convictions would indirectly put the man upon his trial for
the whole of his past life. Id., p. 203. Twenty years later, Stephen, after many years experience
on the criminal bench, was to say:
I am convinced by much experience that questioning, or the power of giving
evidence is a positive assistance, and a highly important one, to innocent men, and
I 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 of
his defence, and might in many cases be saved from the consequences of his own
ignorance 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 that
there was no rational justification for prohibiting the sworn testimony of the accused, who above
all 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 its
origins
365 U. S. 583
antedated the nineteenth century,13 its strong sponsorship by English judges of that century is
explained 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 has
counsel. He may make any statement he pleases before his counsel addresses the
jury, 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, 8
C. & P. 243; Reg. v. Manzano, 2 F. & F. 64; Reg. v. Williams, 1 Cox C.C. 363. Judge Stephens
sponsorship of the practice was especially influential. See Reg. v. Doherty, 16 Cox C.C. 306. See
also Reg. v. Shimmin, 15 Cox C.C. 122; 60 Hansard, supra, p. 657. It became so well established
in 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, and
received statutory recognition in some. Michigan passed the first such statute in 1861; unlike the
Georgia statute of 1868, it provided that the prisoner should be subject to cross-examination on
his statement. See People v. Thomas, 9 Mich. 314.15 The Georgia Supreme Court, in one of the
early
365 U. S. 585
decisions considering the unsworn statement statute, stressed the degree of amelioration expected
to be realized from the practice, thereby implicitly acknowledging the disadvantages for the
defendant 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 criminal
jurisprudence of the common law, advancing to a degree hitherto unknown the
right of the prisoner to give his own narrative of the accusation against him to the
jurors, who are permitted to believe it in preference to the sworn testimony of the
witnesses.
Coxwell v. State, 66 Ga. 309, 316-317.16
But the unsworn statement was recognized almost everywhere else as simply a stop-gap solution
for 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 a
mere makeshift, by way of mitigating the intolerable hardship which occasionally
resulted 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 rule
was therefore held in many jurisdictions also to abolish the unsworn statement practice. In such
cases, the unsworn statement of an accused becomes secondary to his right of testifying under
oath, 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 giving
evidence on oath, and for that reason alone. When the law was changed and the
right accorded to them to tell their story on oath as any other witness the reason
for 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, he
very 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 value
compared 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, if
it 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 many
doubts 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 still
exists . . . but with greatly discounted value. 1933 Scots Law Times 29. Commentators and
judges in jurisdictions with statutory competency have suggested abrogation of the unsworn
statement 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. I
have never known or heard of but one instance where it was supposed that the
right 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 mere
purpose of explaining evidence, or as an attempt at mitigation; the accused and his
counsel throw it in for what it may happen to be worth, and do not rely upon it as
a 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 as
evidence or like the testimony of the ordinary sworn witness.
The statement may have the effect of explaining, supporting, weakening, or
overcoming the evidence, but still it is something
365 U. S. 588
different from the evidence, and to confound one with the other, either explicitly
or implicitly, would be confusing, and often misleading. . . . The jury are to deal
with it on the plane of statement, and not on the plane of evidence, and may derive
from it such aid as they can in reaching the truth. The law fixes no value upon it; it
is 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 the
charge 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 charge
going beyond the terms of the statute has been sustained. Thus, in Garrett v. State, supra, the trial
judge instructed that, while the defendants were allowed to make a statement,
they are not under oath, not subject to cross-examination, and you are authorized
to give to their statement just such weight and credit as you think them entitled to
receive.
In Emmett v. State, 195 Ga. at 540, 25 S.E.2d at 22, the instruction was that the statement might
be believed in preference to the sworn testimony if you see proper to give it that weight and that
place and that importance in the trial of this case. In Douberly v. State, 184 Ga. 573, 575, 192
S.E. 223, 225, the jury were told they might credit the statement provided they believe it to be
true. In Allen v. State, 194 Ga. 430, 436, 22 S.E.2d 65, 68, the charge was:
There is no presumption attached to the defendants statement. No presumption
that it is true, nor any presumption that it is not true. In other words, it goes to you
without a presumption either for or against him. You have the right to reject the
statement entirely if you do not believe it to be true.
In many cases, the trial judges have been sustained in specifically pointing out
365 U. S. 589
that defendants were not subject to the sanction for perjury with respect to their unsworn
statements. [I]f he failed to tell you the truth, he incurred no penalty by reason of such failure.
Darden v. State, 171 Ga. 160, 161, 155 S.E. 38, 40. [T]he defendants statement is not under
oath; no penalty is prescribed for making a false statement. . . . Klug v. State, 77 Ga. 734, 736.
Surely there can be no wrong in calling the attention of the jury to circumstances
which should impair the force of such testimony or which should enable them to
give it the weight to which it is entitled.
Poppell v. State, 71 Ga. 276, 278. See also Grimes v. State, 204 Ga. 854, 51 S.E.2d 797;
Thurmond v. State, 198 Ga. 410, 31 S.E.2d 804; Willingham v. State, 169 Ga. 142, 149 S.E. 887;
Millen v. State, 175 Ga. 283, 165 S.E. 226.
Because it is not evidence, the statement is not a foundation supporting the offer of corroborative
evidence. Champman v. State, 155 Ga. 393, 117 S.E. 321; Medlin v. State, 149 Ga. 23, 98 S.E.
551.
The statute is silent as to corroborating the mere statement of the accused, and,
while it allows the jury to believe it in preference to the sworn testimony, it seems
to contemplate that the statement shall compete with sworn testimony singlehanded, and not that it shall have the advantage of being reinforced by facts which
do not weaken the sworn evidence otherwise than by strengthening the statement
opposed to it.
Vaughn v. State, 88 Ga. 731, 736, 16 S.E. 64, 65. Similarly, the statement is not an independent
basis for authenticating and introducing documents. Sides v. State, 213 Ga. 482, 99 S.E.2d 884;
see also Register v. State, 10 Ga.App. 623, 74 S.E. 429. In the absence of a specific request, the
trial judge need not charge the law applicable to a defense presented by the statement but not
supported in sworn testimony. Prater v. State, 160 Ga. 138, 143, 127 S.E. 296, 298; Cofer v.
State, 213 Ga. 22, 96 S.E.2d 601; Willingham v. State, 169 Ga. 142, 149
365 U. S. 590
S.E. 887; Holleman v. State, 171 Ga. 200, 154 S.E. 906; Darby v. State, 79 Ga. 63, 3 S.E. 663. In
contrast, the trial judge may sua sponte instruct the jury to treat the accuseds explanation as not
presenting a defense in law;
[i]n proper cases, the jury, may be guarded by a charge from the court against
giving the statement an undue effect in favor of the prisoner. . . .
Underwood v. State, 88 Ga. 47, 51, 13 S.E. 856, 858; Fry v. State, 81 Ga. 645, 8 S.E. 308.
It is said that an advantage of substance which the defendant may realize from the distinction is
that the contents of his statement are not circumscribed by the ordinary exclusionary rules of
evidence. Prater v. State, 160 Ga. 138, 142-147, 127 S.E. 296, 298-300; Richardson v. State, 3
Ga.App. 313, 59 S.E. 916; Birdsong v. State, 55 Ga.App. 730, 191 S.E. 277; Tiget v. State, 110
Ga. 244, 34 S.E. 1023. However,
The prisoner must have some regard to relevancy and the rules of evidence, for it
was never intended that, in giving his narrative of matters pertaining to his
defense, he should attempt to get before the jury wholly immaterial facts or
attempt to bolster up his unsworn statement by making profert of documents,
letters, or the like, which, if relevant, might be introduced in evidence, on proof of
their genuineness.
Nero v. State, 126 Ga. 554, 555, 55 S.E. 404. See also Saunders v. State, 172 Ga. 770, 158 S.E.
791; Montross v. State, 72 Ga. 261; Theis v. State, 45 Ga.App. 364, 164 S.E. 456; Vincent v.
State, 153 Ga. 278, 293-294, 112 S.E. 120, 127.
The situations in which the Georgia cases do assimilate the defendant to an ordinary witness
emphasize the anomalous nature of the unsworn statement. If he admits relevant facts in his
statement, the prosecution is relieved of the necessity of proving them by evidence of its own.
The prisoners admission in open court, made as a part of his statement on the
trial, may be treated by
365 U. S. 591
the jury as direct evidence as to the facts.
Hargroves v. State, 179 Ga. 722, 725, 177 S.E. 561, 563.
It is well settled that the statement of a defendant to a jury is a statement made in
judicio, and is binding on him. Where the defendant makes an admission of a fact
in his statement, such admission is direct evidence, and the State need not prove
such fact by any other evidence.
Barbour v. State, 66 Ga.App. 498, 499, 18 S.E.2d 40, 41; Dumas v. State, 62 Ga. 58. And
admissions in a statement will open the door to introduction of prosecution evidence which
might otherwise be inadmissible. McCoy v. State, 124 Ga. 218, 52 S.E. 434. Admissions in a
statement at one trial are admissible against the accused in a later trial. Cady v. State, 198 Ga. 99,
110, 31 S.E.2d 38; Dumas v. State, supra. The prosecution may comment on anything he says in
the statement. Frank v. State, 141 Ga. 243, 277, 80 S.E. 1016. Although it has been held that the
mere making of a statement does not put the defendants character in issue, Doyle v. State, 77 Ga.
513, it is settled that
A defendants statement may be contradicted by testimony as to the facts it
narrates, and his character may be as effectively put in issue by his statement as by
witnesses sworn by him for this purpose.
Jackson v. State, 204 Ga. 47, 56, 48 S.E.2d 864, 870; Barnes v. State, 24 Ga.App. 372, 100 S.E.
788. The prosecution may introduce rebuttal evidence of alleged false statements. Johnson v.
State, 186 Ga. 324, 197 S.E. 786; Camp v. State, 179 Ga. 292, 175 S.E. 646; Morris v. State, 177
Ga. 106, 169 S.E. 495.
Perhaps any adverse consequences resulting from these anomalous characteristics might be in
some measure overcome if the defendant could be assured of the opportunity to try to exculpate
himself by an explanation delivered in an organized, complete and coherent way. But the Georgia
practice puts obstacles in the way of this. He
365 U. S. 592
must deliver a finished and persuasive statement on his first attempt, for he will probably not be
permitted to supplement it. Apparently the situation must be most unusual before the exercise by
the trial judge of his discretion to refuse to permit the defendant to make a supplemental
statement will be set aside. See Sharp v. State, 111 Ga. 176, 36 S.E. 633; Jones v. State, 12
Ga.App. 133, 76 S.E. 1070. Even after the State has introduced new evidence to rebut the
statement or to supplement its own case, leave to make a supplemental statement has been
denied. Fairfield v. State, 155 Ga. 660, 118 S.E. 395; Johnson v. State, 120 Ga. 509, 48 S.E. 199;
Knox v. State, 112 Ga. 373, 37 S.E. 416; Boston v. State, 94 Ga. 590, 21 S.E. 603; Garmon v.
State, 24 Ga.App. 586, 101 S.E. 757. If the subject matter of the supplementary statement
originates with counsel and not with the defendant, it has been held that this is sufficient reason
to refuse to permit the making of a supplemental statement. August v. State, 20 Ga.App. 168, 92
S.E. 956. And the defendant who may have a persuasive explanation to give has no effective way
of overcoming the possible prejudice from the fact that he may not be subjected to crossexamination without his consent, for he has no right to require cross-examination. Boyers v.
State, 198 Ga. 838, 844-845, 33 S.E.2d 251, 255-256. Of course, even in jurisdictions which
have granted competence to defendants, the prosecution may decline to cross-examine. But at
least the defendants in those jurisdictions have had the advantage of having their explanation
elicited through direct examination by counsel. In Georgia, however, as was held in this case,
counsel may not examine his client on direct examination except in the discretion of the trial
judge. The refusal to allow counsel to ask questions rarely seems to be reversible error. See, e.g.,
Corbin v. State, 212 Ga. 231, 91 S.E.2d 764; Brown v. State, 58 Ga. 212. This discretion is to be
sparingly exercised,
365 U. S. 593
but its exercise will not be controlled except in cases of manifest abuse. Whitley v. State, 14
Ga.App. 577, 578, 81 S.E. 797. Indeed, even where the defendant has been cross-examined on
his statement, it has been held that defense counsel has no right to ask a question, Lindsay v.
State, 138 Ga. 818, 76 S.E. 369. Nor may counsel call the attention of the defendant to a material
omission in his statement without permission of the trial court. Echols v. State, 109 Ga. 508, 34
S.E. 1038; Clark v. State, 43 Ga.App. 384, 159 S.E. 135.
This survey of the unsworn statement practice in Georgia supports the conclusion of a Georgia
commentator:
The fact is that, when the average defendant is placed in the witness chair and
told by his counsel or the court that nobody can ask him any questions, and that he
may make such statement to the jury as he sees proper in his own defense, he has
been set adrift in an uncharted sea with nothing to guide him, with the result that
his statement in most cases either does him no good or is positively hurtful.
7 Ga.B.J. 432, 433 (1945).18
365 U. S. 594
The tensions of a trial for an accused with life or liberty at stake might alone render him utterly
unfit to give his explanation properly and completely. Left without the guiding hand of
counsel, Powell v. State of Alabama, supra,
365 U. S. 595
p. 287 U. S. 69, he may fail properly to introduce, or to introduce at all, what may be a perfect
defense. . . . [T]hough he be not guilty, he faces the danger of conviction because he does not
know how to establish his innocence. Ibid. The treatment accorded the unsworn statement in the
Georgia courts increases this peril for the accused. The words of Cooley, J., in his opinion for the
Michigan Supreme Court in Annis v. People, 13 Mich. 511, 519-520, fit his predicament.
But to hold that, the moment the defendant is placed upon the stand, he shall be
debarred of all assistance from his counsel, and left to go through his statement as
his fears or his embarrassment may enable him, in the face of the consequences
which may follow from imperfect or unsatisfactory explanation, would, in our
opinion, be to make what the statute designed as an important privilege to the
accused a trap into which none but the most cool and self-possessed could place
himself with much prospect of coming out unharmed. An innocent man, charged
with a heinous offence and against whom evidence of guilt has been given, is
much more likely to be overwhelmed by his situation and embarrassed, when

called upon for explanation, than the offender who is hardened in guilt; and if he
is unlearned, unaccustomed to speak in public assemblies,
365 U. S. 596
or to put together his thoughts in consecutive order anywhere, it will not be surprising if his
explanation is incoherent, or if it overlooks important circumstances.19
We therefore hold that, in effectuating the provisions of 38-415, Georgia, consistently with the
Fourteenth Amendment, could not, in the context of 38-416, deny appellant the right to have
his counsel question him to elicit his statement. We decide no more than this. Our decision does
not turn on the facts that the appellant was tried for a capital offense and was represented by
employed counsel. The command of the Fourteenth Amendment also applies in the case of an
accused tried for a noncapital offense, or represented by appointed counsel. For otherwise, in
Georgia, the right to be heard by counsel would be of little worth. Chandler v. Fretag, 348 U.
S. 3, 348 U. S. 10.
The judgment is reversed, and the cause is remanded for proceedings not inconsistent with this
opinion.
Reversed and remanded.
FOOTNOTES:
1
It is suggested in the concurring opinions that we should nevertheless adjudicate the

validity of 38-416. Apart from the incongruity of passing upon the statute the appellant
expressly refrained from attacking, and disregarding his challenge to the statute he did
call in question, such a course would be disrespectful of the States procedures. For it
appears that the Georgia Supreme Court would not have entertained an attack on 38416, since the appellant did not offer himself to be sworn as a witness. See Holley v.
Lawrence, 194 Ga. 529, 22 S.E.2d 154; appeal here was dismissed on the express ground
that
the judgment of the court below rests upon a nonfederal ground
adequate to support it, namely, that the failure to tender such
testimony at the trial barred any later claim of the alleged
constitutional right. . . .
317 U. S. 317 U.S. 518.
Wigmore concludes that the principle of parties disqualification would have been the
direct root of the disqualification by interest in general. 2 Wigmore, p. 680.
[A]fter Cokes time, and probably under the influence of his
utterances, the rule for a party was extended by analogy to
interested persons in general.
Pp. 682-683. Coke listed a number of disqualifications: if the witness becometh
infamous, . . . [o]r if the witnesse be an infidell, or of nonsane memory, or not of
discretion, or a partie interested, or the like. I Coke Upon Littleton, 6.b.
There, Blackstone stated the then-settled common law rule to be that

[a]ll witnesses, of whatever religion or country, that have the use
of their reason, are to be received and examined, except such as are
infamous, or such as are interested in the event of the cause.
By the Act of February 25, 1784, the Georgia Legislature provided that the common laws
of England should remain in force in Georgia, so far as they are not contrary to the
constitution, laws, and form of government now established in this State. Princes Digest
(1837), p. 570. Section 3772 of the Code of 1863, which codified the statutory and
decisional law of the State, stated: Witnesses are incompetent . . . [w]ho are interested in
the event of the suit.
The history of the transition in one American jurisdiction is traced in Thayer, A Chapter
of Legal History in Massachusetts, 9 Harv.L.Rev. 1. The first American statute removing
the disability of interested nonparty witnesses seems to have been Michigans in 1846,
and Connecticut was first to abolish the general incapacity of parties in 1849. The Field
reforms in New York State were influential in leading other American jurisdictions to
discard the incapacity of both witnesses and parties in civil cases. For an account of the
development in the United States, see 2 Wigmore, pp. 686-695.
The preamble to the 1866 Georgia legislation expressed the legislative aim in extending
competency:
Whereas, the inquiry after truth in courts of justice is often
obstructed by incapacities created by the present law, and it is
desirable that full information as to the facts in issue, both in civil
and criminal cases, should be laid before the persons who are to
decide upon them, and that such persons should exercise their
judgment on the credit of the witnesses adduced for the truth of
testimony.
The first section of the Act forbade the exclusion of witnesses, by reason of incapacity
from crime or interest, or from being a party; it also contained a dead mans statute
proviso. The remaining sections enumerated the exceptions to the extension of
competency; they were, in effect, a statutory declaration that certain of the common law
incapacities should remain intact. See Roberts v. State, 189 Ga. 36, 5 S.E.2d 340; Wilson
v. State, 138 Ga. 489, 492, 75 S.E. 619, 620; Howard v. State, 94 Ga. 587, 20 S.E. 426.
The second section contained the original of 38-416, stating:
But nothing herein contained shall render any person who, in any
criminal proceeding, is charged with the commission of any
indictable offence, or any offence punishable on summary
conviction. competent or compellable, to give evidence for or
against himself, or herself, or shall render any person compellable
to answer any question tending to criminate himself or herself; or
shall in any criminal proceeding render any husband competent or
compellable to give evidence for or against his wife, or any wife
competent or compellable to give evidence for or against her
husband; nor shall any attorney be compellable to give evidence for
or against his client.
Ga. Laws 1866, pp. 138-139. Save for the provision as to the attorney-client privilege,
added during the debate in the Georgia Senate, see Senate Journal, Dec. 5, 1866, p. 266,
the second section was verbatim the same as III of Lord Broughams Act.
6
The dates on which the general competency statutes of the States were enacted are:
Alabama, 1885; Alaska, 1899; Arizona, 1871; Arkansas, 1885; California, 1866;
Colorado, 1872; Connecticut, 1867; Delaware, 1893; Florida, 1895; Hawaii, 1876; Idaho,
1875; Illinois, 1874; Indiana, 1873; Iowa, 1878; Kansas, 1871; Kentucky, 1886;
Louisiana, 1886; Maine, 1864; Maryland, 1876; Massachusetts, 1866; Michigan, 1881;
Minnesota, 1868; Mississippi, 1882; Missouri, 1877; Montana, 1872; Nebraska, 1873;
Nevada, 1867; New Hampshire, 1869; New Jersey, 1871; New Mexico, 1880; New York,
1869; North Carolina, 1881; North Dakota, 1879; Ohio, 1867; Oklahoma, 1890; Oregon,
1880; Pennsylvania, 1885; Rhode Island, 1871; South Carolina, 1866; South Dakota,
1879; Tennessee, 1887; Texas, 1889; Utah, 1878; Vermont, 1866; Virginia, 1886;
Washington, 1871; West Virginia, 1881; Wisconsin, 1869; Wyoming, 1877.
The current citations to these statutes are collected in the Appendix to this opinion, post,
p. 365 U. S. 596.
7
Parliament had enacted a number of specialized competency statutes prior to 1898, the
first in 1872. About 25 others had been passed by the time of the enactment of the general
competency statute. See 56 Hansard, Parliamentary Debates, 4th Series, pp. 977-978. The
most important was the Criminal Law Amendment Act of 1885, 48 & 49 Vict., c. 69,
which made defendants competent in certain felony prosecutions. Most of the other
statutes involved offenses created by regulatory legislation, which were generally
misdemeanors. See generally Best, supra, pp. 571-572; 2 Taylor, Evidence (12th ed.),
862-863.
Canada and New Zealand adopted competency statutes in 1893. Canada Evidence Act,
see Rev.Stat.Can. (1952), c. 307, 4(1); New Zealand Criminal Code Act, 398, see
N.Z.Repr.Stat., Evidence Act 1908, 5. For an account of the Australian development,
see 6 Res Judicatae 60. The statute in Northern Ireland is the Criminal Evidence Act
(Northern Ireland); the Irish statute is the Criminal Justice (Evidence) Act.
For the Indian statute, see Code of Criminal Procedure (Amendment) Act, 1955, 61, in
42 A.I.Rep. (1955), Indian Acts Section p. 91.
Opposition on this score was marked in Great Britain. Said one member of Parliament in
the 1898 debates:
[W]hy is this change to be made in the law? The English
Revolution is against it, three centuries of experience is against it,
and the only argument adduced in its favor is the suggestion that an
honest man is occasionally convicted of a crime of which he is
innocent. . . . [I]t would be a degradation to your great judicial
tribunals that, though a guilty man may not, an innocent man may
be placed in a position of embarrassment and peril
for the first
time under the British Constitution
far greater than any ancient
law designed.
56 Hansard, supra, pp. 1022, 1024. Said another:
[F]or centuries, the criminal law of England has been
administered on the principle that, if you want to hang a man, you
must hang him on somebody elses evidence. This is a Bill to hang

a man on his own evidence. . . .
Id. at 1030. There had been particular opposition on the part of Irish members, who
contended that competency would become a means of oppression of defendants there; as
a result, Ireland was excluded from the coverage of the Act. See 60 Hansard, supra, pp.
721-742. Other members were hostile because of fear that the statute would have an
adverse effect on laborers who became criminal defendants. See 60 Hansard, supra, pp.
546-547, 574-578.
10
11
See Bentham, Rationale of Judicial Evidence, bk. IX, pt. IV, c. III, pp. 445-468;
Appleton, The Rules of Evidence, pp. 126-134.
That then the accused, if guilty, should object being placed in an
attitude so dangerous to him, because he is guilty, is what might
have been expected. . . . His objection to testifying, is an objection
to punishment.
Appleton, supra, p. 131. See also State v. Cleaves, 59 Me. 298; cf. State v. Bartlett, 55
Me. 200, 215-221. For a note on Appletons role in the movement to extend competency,
see Thayer, A Chapter of Legal History in Massachusetts, 9 Harv.L.Rev. 1, 12. See also
14 Am.L.Reg. 705.
12
For other comments on the impact of the competency statutes, see Alverstone,
Recollections of Bar and Bench, pp. 176-180; Biron, Without Prejudice; Impressions of
Life and Law, p. 218; Train, The Prisoner at the Bar, pp. 205-211; Sherman, Some
Recollections of a Long Life, p. 234; 1933 Scots Law Times 29; 2 Fortnightly L.J. 41.
13
The origins probably lie in the necessity for the prisoner to defend himself during the
early development of English criminal law. See p. 365 U. S. 573, supra. Even after the
defendant was allowed to have witnesses in his behalf in England, he still had no right to
be heard by counsel, except for treason, until the act of 1836, and his participation in the
trial remained of major importance; as before, a prisoner was obliged, in the nature of
the case, to speak for himself. Reg. v. Doherty, 16 Cox C.C. 306, 309. Although the
practice developed in the eighteenth century of allowing counsel to advise the accused
during the trial and to cross-examine the Crowns witnesses, counsel was still not
permitted to address the jury. Stephen, supra, p. 424. The defendant continued to do this
in his own behalf. See 1 Chitty, Criminal Law (5th Am. ed.), p. 623; Bentham, supra, bk.
IX, pt. V, c. III, p. 496. See generally 26 Austral.L.J. 166.
14
Criminal Evidence Act, 1(h). Some English judges had sought to curtail the practice
after defendants were statutorily accorded full benefit of counsel by the act of 1836, 6 & 7
Will. 4, c. 114. In Reg. v. Boucher, 8 Car. & P. 141, Coleridge, J., held that because
defense counsel and addressed the jury, the accused could not make a statement. See also
Reg. v. Beard, 8 Car. & P. 142; Reg. v. Rider, 8 Car. & P. 539. In Reg. v. Taylor, 1 F. &
F. 535, Byles, J., said that the prisoner or his counsel would be permitted to address the
jury, but not both. At least a remnant of this judicial hostility to the statement lingered
almost until the time of the grant of competency. See Reg. v. Millhouse, 15 Cox C.C. 622.
In addition to its statutory preservation in Great Britain, it survives in other common law
jurisdictions recognizing the defendants competency. E.g., New Zealand, see Rex v.
Perry, [1920] N.Z.L.R. 21; Kerr v. Reg., [1953] N.Z.L.R. 75, 28 N.Z.L.J. 305; Australia,
see Rex v. McKenna, [1951] Q.S.R. 299; Ireland, see People v. Riordan, [1948] I.R. 416,
94 Irish Law Times, Feb. 20, 1960, p. 43, Feb. 27, 1960, p. 49, March 5, 1960, p. 55;
South Africa, see Rex v. de Wet, [1933] S.A.L.R. 68, 64 So.Afr.L.J. 374.
15
In some States recognizing the statement at common law, the defendant was confined to
arguing the law and commenting on the evidence of the witnesses; he could not state
facts. See Ford v. State, 34 Ark. 649; Wilson v. State, 50 Tenn. 232. In other States, the
prisoner appears to have been allowed more latitude. See People v. Lopez, 2
Edm.Sel.Cases, N.Y., 262. In Massachusetts, the right of a defendant with counsel to
make a statement seems to have been recognized only in capital cases. See the historical
review in Commonwealth v. Stewart, 255 Mass. 9, 151 N.E. 74, 44 A.L.R. 579; see also
Commonwealth v. McConnell, 162 Mass. 499, 39 N.E. 107; Commonwealth v. Burrough,
162 Mass. 513, 39 N.E. 184; Commonwealth v. Dascalakis, 246 Mass. 12, 32, 140 N.E.
470, 479. For other considerations of the common law statement, see State v. Taylor, 57
W.Va. 228, 50 S.E. 247; Hanoff v. State, 37 Ohio St. 178, 184-185 (dissenting opinion);
OLoughlin v. People, 90 Colo. 368, 384-385, 10 P.2d 543, 549; State v. Louviere, 169
La. 109, 124 So. 188; cf. Reg. v. Rogers, [1888] 1 B.C.L.R. pt. 2, p. 119. Alabama gave
the unsworn statement statutory sanction in 1882. Previously the right had been confined
there to an argument on the evidence, State v. McCall, 4 Ala. 643, but the statute was
construed to allow the statement of matters in the nature of evidence. See Blackburn v.
State, 71 Ala. 319; Chappell v. State, 71 Ala. 322. Wyoming gave a statutory right of
unsworn statement in 1869. See Anderson v. State, 27 Wyo. 345, 196 P. 1047; Florida, in
1866, gave the accused in the discretion of the court an opportunity to make a sworn
statement on which he could not be cross-examined. This was made an absolute right in
1870. See Miller v. Florida, 15 Fla. 577. All these States, of course, subsequently made
defendants fully competent.
16
It is doubtful how far the practice had been followed at common law in Georgia. See
Roberts v. State, 189 Ga. 36, 41, 5 S.E.2d 340, 343. Initially there seems to have been
considerable opposition to giving the unsworn statement statutory sanction. The bill that
became the predecessor of present 38-415 was originally tabled in the House and then
passed after reconsideration, and was originally defeated in the Senate. See House Journal
Aug. 8, 10, 13, 1868, pp. 158, 160, 173; Senate Journal, Oct. 3, 1868, p. 492. As passed,
it provided that, in cases of felony, the prisoner should have the right to make an unsworn
statement; he was not subject to cross-examination on it, and the jury was empowered to
give it such force as they thought right. Ga.Laws 1868, p. 24. In 1874, the right was
extended to all criminal defendants. Ga.Laws 1874, pp. 22-23. In 1879, the jury was
explicitly empowered to believe the statement in preference to the sworn testimony,

Ga.Laws 1878-1879, pp. 53-54, and the statute took its present form.
17
See also Clarke v. State, 78 Ala. 474; Harris v. State, 78 Ala. 482; Hart v. State, 38 Fla.
39, 20 So. 805; Copeland v. State, 41 Fla. 320, 26 So. 319; OLoughlin v. People, 90
Colo. 368, 10 P.2d 543.
In Wyoming, the defendant had the option to make an unsworn statement even after the
grant of competency, since the competency statute expressly preserved the statement. In
1925, the reservation of the right of statement was removed. See Anderson v. State, 27
Wyo. 345, 196 74. Massachusetts thus appears to be the only American jurisdiction still
explicitly allowing a defendant in some cases to give either sworn testimony or an
unsworn statement. See Commonwealth v. Stewart, 255 Mass. 9, 151 N.E. 74.
18
For other Georgia comments on the practice, see 17 Ga.B.J. 120; 15 Ga.B.J. 342; 14
Ga.B.J. 362, 366; 3 Mercer L.Rev. 335; cf. 5 Ga.B.J., Feb. 1943, p. 47. The Georgia Bar
Association has in the past supported a proposal in the legislature to make defendants
competent. See, e.g., 1952 Ga.Bar Assn.Rep. 31. Recent study of the problem by the
Associations Committee on Criminal Law and Procedure resulted in a report
recommending against change on grounds that it would
aid the prosecution and conviction of the defendant and would be
of no material benefit to any defendant in a criminal case. Those
who are on trial for their lives and liberty cannot possibly think and
testify as clearly as a disinterested witness, and of course, it is
agreed that a shrewd prosecutor could create, by expert crossexamination, in the minds of the jury, an unfavorable impression of
a defendant.
1957 Ga.Bar Assn.Rep. 182. However, since that time, the Committee has twice
recommended competency for criminal defendants, and has prepared draft legislation for
that purpose. See 1960 Ga.Bar Assn.Rep. 109, 115, 116, 119.
Georgias adherence to the rule of incompetency of criminal defendants contrasts with the
undeviating trend away from exclusion of evidence that has characterized the
development of the States law since the nineteenth century. The Code of 1863 indicates
that the limitations on and exceptions to disqualifications in the common law were
numerous even before the Act of 1866. See, e.g., 3772(5), 3779, 3780, 3781, 3782,
3783, 3785, 4563. The Georgia Arbitration Act of 1856 had made the parties competent
in arbitration proceedings. See Golden v. Fowler, 26 Ga. 451, 458. Judge Lumpkin
declared:
[A]s jurors have become more capable of exercising their
functions intelligently, the judges both in England and in this
country, are struggling constantly to open the door wide as possible
. . . to let in all facts calculated to affect the minds of the jury in

arriving at a correct conclusion. . . . Truth, common sense, and
enlightened reason alike demand the abolition of all those artificial
rules which shut out any fact from the jury, however remotely
relevant, or from whatever source derived, which would assist
them in coming to a satisfactory verdict.
Johnson v. State, 14 Ga. 55, 61-62.
A policy favoring the reception of evidence has consistently characterized the decisions
of the Georgia courts and Acts of the legislature since the 1866 Act. See, e.g., Blount v.
Beall, 95 Ga. 182, 22 S.E. 52; Myers v. Phillips, 197 Ga. 536, 29 S.E.2d 700; Manley v.
Combs, 197 Ga. 768, 781-782, 30 S.E.2d 485, 493-494; Sisk v. State, 182 Ga. 448, 453,
185 S.E. 777, 781; Berry v. Brunson, 166 Ga. 523, 531-533, 143 S.E. 761, 765; Polk v.
State, 18 Ga.App. 324, 89 S.E. 437; Watkins v. State, 19 Ga.App. 234, 91 S.E. 284. The
legislature has removed some of the exceptions retained in the 1866 Act. See Ga.Laws
1935, p. 120, allowing parties to testify in breach of promise actions. In 1957, the
legislature removed the incompetency of a wife to testify for or against her husband.
Ga.Laws 1957, p. 53, amending 38-1604. Ga.Code, 38-101 sums up this policy:
The object of all legal investigation is the discovery of truth. The
rules of evidence are framed with a view to this prominent end,
seeking always for pure sources and the highest evidence.
Moreover, in the case of defendants jointly tried, Georgia allows one codefendant to
testify as a sworn witness for the other, although his testimony may serve to acquit
himself if believed. See, e.g., Staten v. State, 140 Ga. 110, 78 S.E. 766; Cofer v. State,
163 Ga. 878, 137 S.E. 378. It may even be error in such a situation for the court to treat
such testimony as if it were an unsworn statement, and to fail to give sufficient emphasis
in the charge to the jury as to its effect as evidence. Staten v. State, supra; Burnsed v.
State, 14 Ga.App. 832, 82 S.E. 595; Roberson v. State, 14 Ga.App. 557, 81 S.E. 798; cf.
OBerry v. State, 153 Ga. 880, 113 S.E. 203. And a defendant is allowed to give sworn
testimony as to matters in his trial not going to the issue of his guilt. See Thomas v. State,
81 Ga.App. 59, 58 S.E.2d 213.
19
There, the Michigan Supreme Court reversed a conviction because the trial judge refused
to let counsel remind the defendant that he had omitted a material fact from his unsworn
statement. The quoted excerpt immediately follows an observation that the Michigan
statute permitting an unsworn statement evidently did not contemplate an ordinary direct
examination.
365 U.S. 570 app

APPENDIX TO OPINION OF THE COURT
Ala.Code, 1940, Tit. 15, 305.
Alaska Comp.Laws Ann.1949, 66-13-53.
Ariz.Rev.Stat.Ann., 1956, 13-163.
Ark.Stat.1947, 43-2016.
Cal.Pen.Code, 1323.5. See also Cal.Pen.Code, 1323; Cal.Const.Art. I, 13.
Colo.Rev.Stat.Ann.1953, 39-7-15.
Conn.Gen.Stat.1958, 54-84.
365 U. S. 597
Del.Code Ann.1953, Tit. 11, 3501.
Fla.Stat., 1959, 918.09.
Hawaii Rev.Laws 1955, 222-15.
Idaho Code Ann.1948, 19-3003.
Ill.Rev.Stat., 1959, c. 38, 734.
Ind.Ann.Stat.1956, 9-1603.
Iowa Code, 1958, 781.12. See also Iowa Code 781.13.
Kan.Gen.Stat.Ann.1949, 62-1420.
Ky.Rev.Stat.1960, 455.090.
La.Rev.Stat.1950, 15.461. See also La.Rev.Stat. 15.462.
Me.Rev.Stat.Ann.1954, c. 148, 22.
Md.Ann.Code 1957, Art. 35, 4.
Mass.Gen.Laws Ann., 1959, c. 233, 20.
Mich.Comp.Laws 1948, 617.64.

Minn.Stat., 1957, 611.11.
Miss.Code Ann.1942, 1691.
Mo.Rev.Stat., 1959, 546.260. See also Mo.Rev.Stat. 546.270.
Mont.Rev.Codes Ann.1947, 94-8803.
Neb.Rev.Stat.1956, 29-2011.
Nev.Rev.Stat.1957, 175.170. See also Nev.Rev.Stat. 175.175.
N.H.Rev.Stat.Ann.1955, 516.31. See also N.H.Rev.Stat.Ann. 516.32.
N.J.Rev.Stat.1951, 2A:81-8.
N.M.Stat.Ann.1953, 41-12-19.
N.Y.Code Crim.Proc. 393.
N.C.Gen.Stat.1953, 8-54.
N.D.Rev.Code 1943, 29-2111.
Ohio Rev.Code Ann.1953, 2945.43.
Okla.Stat.1951, Tit. 22, 701.
Ore.Rev.Stat.1953, 139.310.
Pa.Stat., 1930, Tit. 19, 681. See also Pa.Stat.Tit. 19, 631.
R.I.Gen.Laws Ann.1956, 12-17-9.
365 U. S. 598
S.C.Code 1952, 26-405.
S.D.Code 1939, 34.3633.
Tenn.Code Ann.1955, 40-2402. See also Tenn.Code Ann. 40-2403.
Tex.Code Crim.Proc.1948, Art. 710.

Utah Code Ann.1953, 77-44-5.
Vt.Stat.Ann.1959, 13-6601.
Va.Code Ann.1950, 19.1-264.
Wash.Rev.Code 1951, 10.52.040.
W.Va.Code Ann.1955, 5731.
Wis.Stat.1959, 325.13.
Wyo.Stat.1957, 7-244.
MR. JUSTICE FRANKFURTERs separate opinion for reversing

the conviction, in which MR. JUSTICE CLARK joins.
Georgia in 1784, adopted the common law of England, Act of February 25, 1784, Princes Digest
570 (1837). This adoption included its rules of competency for witnesses, whereby an accused
was precluded from being a witness in his own behalf. It is doubtful whether and to what extent
the common law privilege of an accused, barred as a witness, to address the jury prevailed in
Georgia, but it is a fair guess that the practice was far less than uniform. See Roberts v. State, 189
Ga. 36, 41, 5 S.E.2d 340, 343. While the common law rigors of incompetency were alleviated by
an enactment of 1866 because the inquiry after truth in courts of justice is often obstructed by
incapacities created by the present law, * Georgia retained the incompetency of an accused to
testify in his own defense. In 1868, for the first time a statutory provision granted the accused the
privilege of making an unsworn statement to the jury. Ga.Laws
365 U. S. 599
1868, p. 24. The sum of all this legislative history is that the defendant in a criminal prosecution
in Georgia was disqualified as a witness, but was given opportunity to say his say to the jury.
These two aspects of the legal situation in which Georgia placed the accused were made
consecutive sections of the penal code in 1895, Ga.Code 1895, 1010, 1011, and have thus
remained through their present form as 38-415 and 38-416.
(1) It would seem to be impossible, because essentially meaningless as a matter of reason, to
consider the constitutional validity of 38-415 without impliedly incorporating the Georgia law
which renders the defendant incompetent to present testimony in his own behalf under oath. This
is not a right to counsel case. As the Georgia Supreme Court correctly stated:
The constitutional provisions . . . confer only the right to have counsel perform
those duties and take such actions as are permitted by the law; and to require
counsel to conform to the rules of practice and procedure, is not a denial of the
benefit . . . of counsel.
215 Ga. 117, 119, 109 S.E.2d 44, 46. What is in controversy here is the adequacy of an
inextricably unified scheme of Georgia criminal procedure. The right to make an unsworn
statement, provided by 38-415, is an attempt to ameliorate the harsh consequences of the
incompetency rule of the section following. Standing alone, 38-415 raises no constitutional
difficulty. Only when considered in the context of the incompetency provision does it take on
meaning. If Georgia may constitutionally altogether bar an accused from establishing his
innocence as a witness, it goes beyond its constitutional duty if it allows him to make a speech to
the jury, whether or not aided by counsel. Alternatively, if 38-416 is unconstitutional
a legal
nullity a Georgia accused can insist on being sworn as a competent witness, and the privilege
also to
365 U. S. 600
make an unsworn statement without benefit of counsel would constitute an additional benefit of
which he may or may not choose to avail himself. If, as is the truth, 38-415 has meaning only
when applied in the context of 38-416s rule of incompetency, surely we are not so imprisoned
by any formal rule governing our reviewing power that we cannot consider the two parts of a
disseverable, single whole because petitioner has not asked us in terms to review both halves. It
is formalism run riot to find that the division into two separate sections of what is organically
inseparable may not, for reviewing purpose, be treated as a single, appealable unit. This Court, of
course, determines the scope of its reviewing power over a state court judgment.
(2) But if limitations on our power to review prevent us from considering and ruling upon the
constitutionality of the application of Georgias incompetency law
which alone creates the
significant constitutional issue
then I should think that what is left of this mutilation should be
dismissed for want of a substantial federal question. Considered in vacuo, 38-415 fails, as has
been pointed out, to present any reasonable doubts as to its constitutionality, for it provides only
an additional right. If appellant had, in fact, purposefully chosen not to be a witness, had agreed
to the validity of the incompetency provisions, and had intentionally limited his attack to 38415 as applied, he would be presenting an issue so abstract that the Court would not, I believe,
entertain it.
Perhaps the accused failed to offer himself as a witness because he thought it would be a futile
endeavor under settled Georgia law, while the opportunity to have the aid of counsel in making
an unsworn statement pursuant to 38-415 would be a discretionary matter for Georgia judges.
Since I cannot assume that appellant purposefully intended to waive his constitutional claim
concerning his incompetency though he may not explicitly have
365 U. S. 601
asserted this claim -- I have no difficulty in moving from the Courts oblique recognition of the
relevance to this controversy of 38-416 to the candid determination that that section is
unconstitutional.
* Ga.Laws 1866, p. 138.
MR. JUSTICE CLARK, whom MR. JUSTICE FRANKFURTER

joins, concurring.
Because, as applied by the Georgia court, 38-415 grants criminal defendants the opportunity to
make unsworn statements in their own behalf, but withholds from the same defendants the
assistance of their counsel in eliciting perhaps more effective statements, the Court today strikes
down that section. It is held to be unconstitutional in the context of 38-416, which renders
criminal defendants incompetent as witnesses at their own trials. The Court does not, however,
treat 38-416 as anything more substantial than context, and, while rendering its validity
doubtful, fails to pass upon its constitutionality. The Courts hesitancy to reach that question
appears to be due to appellants tactic at the trial, of offering his statement under 38-415 and, in
so doing, demanding the aid of his counsel, but not offering himself as a competent witness or
challenging his exclusion under 38-416. This has proven to be a perfect cast of appellants line,
for the Court has risen to the bait exactly as anticipated. The resulting advantage of the Courts
present holding to the criminal defendant in Georgia is obvious
as matters now stand, the
defendant may make an unsworn statement as articulate and convincing as the aid of counsel can
evoke, but the prosecution may not cross-examine.
It is true that merely to defeat such a result is insufficient justification for this Court to reach out
and decide additional constitutional questions otherwise avoidable. Nevertheless, the problem
appellant poses under 38-415 is so historically and conceptually intertwisted with the
365 U. S. 602
rule of 38-416 that not only must they be considered together, as the Court expressly
recognizes, but they must be allowed to stand or fall together, as a single unitary concept,
uncircumscribed by the accident of divisive codification. The section today struck down, 38415, is not even intelligible except in terms of the incompetency imposed by 38-416.* Were the
latter rule not codified, its proscription would have to be understood as 38-415s operative
premise of common law disability. The purported boon of 38-415 was founded on that
disability, against the hardships of which, nowhere else presently imposed, it was intended to at
least partially relieve. I would not withhold adjudication because of the fact of codification, nor
merely on account of the procedural dodge resorted to by counsel.
Reaching the basic issue of incompetency, as I feel one must, I do not hesitate to state that, in my
view, 38-416 does not meet the requirements of due process, and that, as an unsatisfactory
remnant of an age gone by, it must fall as surely as does its palliative, 38-415. Until such time
as criminal defendants are granted competency by the legislature, the void created by rejection of
the codified common law rule of Georgia may be filled by state trial judges who would have to
recognize, as secured by the Fourteenth Amendment, the right of a criminal defendant to choose
between silence and testifying in his own behalf. In the same manner, the state courts presently
implement other federal rights secured to the accused, and therefore the fact that a void of local
policy would be created is not an insuperable obstacle to the disposition I propose. Nor would
past convictions be automatically rendered subject to fatal constitutional attack unless, as
365 U. S. 603
was, in my view, done here, the proper challenge had been preserved by appropriate objection to
active operation of the concept embodied in the incompetency rule in either of its phases. In view
of the certain fact that criminal prosecutions will continue to be had in Georgia, and that some
defendant, if not appellant himself at his new trial, will demand the right to testify in his own
behalf, in strict compliance with the procedural standard adhered to today, we will sooner or later
have the question of the validity of 38-416 back on our doorstep. The result, predictably, will
be the same as that reached under 38-415 today. If that proves in fact to be the Courts future
disposition of the claim I anticipate, the stability of interim convictions may well be jeopardized
where related constitutional claims are preserved but, perhaps, not pressed. So too, on the reverse
side of the coin, there may well be interim convictions where, had defendants been permitted to
testify under oath in their own behalf, verdicts of acquittal would have been returned. This Court
should not allow the administration of criminal justice to be thus frustrated or unreasonably
delayed by such a fragmentation of the critical issue through procedural niceties made solely in
the hope of avoiding a controlling decision on a question of the first magnitude.
For these reasons, I deem it impractical as well as unwise to withhold for a future date a decision
by the Court on the constitutionality of 38-416.
Disagreeing with the distorted way by which the Court reverses the judgment, I join in its
reversal only on the grounds stated here and in the opinion of my Brother FRANKFURTER,
which I join.
* I agree with my Brother FRANKFURTER that, if 38-415 is to be isolated from the
incompetency provision of 38-416, what is left of this mutilation should be dismissed for want
of a substantial federal question.

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Common Law and English Statutes

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TABLE OF SOURCE MATERIAL

Acts And Statutes

Georgia, Act of February 25, 1784, An Act for reviving and

New Hampshire, Laws of the State of New Hampshire, passed

North Carolina, Act of 1715, Chap. 5, An act for the more

North Carolina, Act of 1778, Chap. 133, An act to enforce such

Pennsylvania, Act of 1777, An Act to revive and put in force such

South Carolina, Act of 1712, An Act to put in force in this

Virginia, Statute 1-200, The Common Law, (Code 1919, 2,

Vermont, Act of November 4, 1797, An Act, adopting the

District of Columbia, Act of February 27, 1801, An Act

District of Columbia, Act of March 3, 1801, An Act

District of Columbia, Act of May 3, 1802, An Act additional to,

Northwest Territory, Act of July 14, 1795, A Law declaring what

Crawford v. United States, 29 S.C.R. 260, 212 U.S. 183 (1909),

Dion v. Cheshire Mills, 92 NH 414 (1943)

Ferguson v. Georgia, 365 U.S. 570 (1961) (from the Supreme

Morriss Lessee v. Vanderen, S. Ct. of Pennsylvania,

Patterson v. Winn, 5 Peters 233, 30 U.S. 233 (1831)

Respublica v. Mesca et al, Court of Oyer and Terminer at

Straffin v. Newell, Superior Court, Chatham County, Georgia,

Wells v. Pierce, 27 N.H. 503 (1853)

United States v. Worrall, U.S. Circuit Court, District of

[This page intentionally left blank.]

The Law of Nations

For other definitions, see Wheat. pt. 1, c. 1, Danas note, 9;

International Law is probably the better title. Wheat.

Kents Commentaries at page 18:

Kents Commentaries at page 68: [*44]

Source of the Common Law

STATE BY STATE REVIEW

This court is governed by the rules and principles of the common

exemplification of the letters patent, as if the original were

[259] 13-a. Register Authorized. In addition to his common law

North Carolina, Act of 1715, Chap. 5

Morriss Lessee v. Vanderen, S. Ct. of Pennsylvania, 1 Dallas (Pa) 64,

common-law power. Unless the judicial system of the United

11. Rhode Island

Whereas, this Assembly, at their session in October last,

The statute of 29 Charles II., commonly called the statute of

12. South Carolina

addenda, being statutes made in the seventh and eighth years of

same, and be the rule of decision, except as altered by the

15. District of Columbia

laws of the state of Maryland, as they now exist, shall be and

16. Northwest Territory

[This page intentionally left blank]

Dion v. Cheshire Mills, 92 NH 414 (1943)

Opinion of the Court, Page, J.

U.S. Supreme Court

Ferguson v. Georgia, 365 U.S. 570 (1961)

MR. JUSTICE BRENNAN delivered the opinion of the Court.

54 Hansard, supra, p. 1176. Arthur Balfour reported to the Commons that

much more likely to be overwhelmed by his situation and embarrassed, when

It is suggested in the concurring opinions that we should nevertheless adjudicate the

There, Blackstone stated the then-settled common law rule to be that

must hang him on somebody elses evidence. This is a Bill to hang