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The Common Law Tradition - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Common Law Tradition

Most of the delegates to the Philadelphia Convention, active in colonial affairs before the Revolution, understood not only the British government of the North American colonies, but also the British legal system; some had occupied public office before the Americans declared their independence. With few exceptions, the fifty-five delegates had paid close attention to the eighteenth-century Constitution of Britain and to English law; and about half of them had been judges or lawyers who were deeply read in Sir William Blackstone’s monumental treatise Commentaries on the Laws of England. A great compendium of learning on constitutional principles, the rights of Englishmen, and the laws of property, the Commentaries were based on Blackstone’s lectures at Oxford University. They soon became the bible of the legal profession. First published in 1765, the work was enormously popular among American lawyers, so much so that as many copies were sold in the colonies as in the mother country. American colonial leaders repeatedly drew from this timely and authoritative source in challenging the policies of the English government and drafting their own fundamental laws. The indictment of George III in the Declaration of Independence is amply supported by Blackstone’s description of the rights of Englishmen, and it was for these rights, among others, that the patriots were contending. Such terms in the American Constitution as “crimes and misdemeanors,” “ex post facto laws,” “judicial power,” “due process,” and “levying war” were used in the same sense in which Blackstone had employed them. In like manner, most of the early State constitutions drafted in 1776 were influenced by the Commentaries, and these in turn were copied in part by the newer States joining the Union. Thus the language of both the Federal and State constitutions in the United States cannot fully be understood without reference to the English common law. And Blackstone’s classic, which is still being reprinted today, has generally been accepted as the best exposition of that law.

Prominent American lawyers such as James Iredell of North Carolina, who later served on the Supreme Court of the United States, and John Dickinson of Pennsylvania (and later Delaware), who received his legal training in England and was a delegate to the Federal Convention, were also acquainted with the judicial opinions and legal writings of Blackstone’s predecessor—the great Sir Edward Coke (pronounced Cook). Before Blackstone’s Commentaries appeared, English and American lawyers relied heavily upon Coke’s Reports and his four-volume Institutes of the Laws of England to learn the principles of the common law; and even after the Commentaries came into use, Coke’s writings were still thought necessary for a complete mastery of property law. What particularly interested American lawyers in the eighteenth century were Coke’s judicial opinions of the early seventeenth century, which supported the supremacy of the law, and his opposition to the King’s interference in judicial affairs in defense of the principle of an independent judiciary. Coke had challenged the claims and pretensions of the Stuart kings and had helped to prepare the way for the independence of both Parliament and the English courts. More than a century later, the Americans found Coke’s arguments useful in challenging the doctrines of legislative supremacy and the claims of Parliament respecting control and domination of colonial affairs. In Dr. Bonham’s Case (1610), for example, Coke asserted that the common law controlled even acts of Parliament—a dictum that would prove useful to James Otis of Massachusetts when he argued in the famous Writs of Assistance Case of 1761 that Parliament had no right to authorize British customs officials to issue general search warrants (without naming any persons). “An Act against the Constitution is void,” declared Otis. “An Act against natural equity is void. … [and the] Courts must pass such Acts into disuse.” Otis repeated this argument in his formal treatise Rights of the British Colonists Asserted and Proved (1764), which contended that parliamentary supremacy was limited by the English Constitution and “the laws of God,” and that taxation without representation was therefore unconstitutional.

“There is no jewel in the world comparable to learning,” wrote Coke, and “no learning so excellent both for prince and subject as knowledge of laws; and no knowledge of any laws (I speak of human) so necessary for all [social classes] and for all causes concerning goods, lands, or life, as the common laws of England.” The common law that Coke so greatly admired had evolved over the centuries as a body of legal principles for determining the rights and duties of individuals respecting their personal security and property. It was judge-made law, developed not by parliamentary statutes or royal edicts of the King but by the King’s judges, through the accumulation of judicial decisions. The American system of property and contract law, to cite just two examples, may be traced back to general rules based on common sense, habit, and custom that gradually evolved in the English courts. Sir Matthew Hale, an eminent English judge of the seventeenth century, boasted that the common law was superior to other legal systems because it is “not the product of the wisdom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience, and observation, of many ages of wise and observing men.”

The different system of jurisprudence called civil law (or Roman law), on the other hand, is derived from legislative enactment. It was based originally upon the system of laws administered in the Roman Empire, particularly as set forth in the compilation of the Emperor Justinian 529. The jurisprudence of continental Europe, Latin America, and many other parts of the free world is based upon the civil law. The ecclesiastical and administrative courts of England, including the infamous Court of Star Chamber, also applied the civil law, which relied upon different rules of evidence and tried cases before a judge without a jury. The legal system of the State of Louisiana is also based in part on the civil law because of the influence of the French in that region before Louisiana became a part of the United States. In 1804 Napoleon Bonaparte, Emperor of France and military dictator over much of Europe, reduced the enormously complex and disorganized body of ancient civil law to a single written code. The Code Napoleon was widely copied or utilized and soon displaced the Justinian Code and other earlier codifications. It serves today as the modern expression of the civil law.

The English common law runs all the way back to Anglo-Saxon days in England, but it did not begin to take shape until late in the twelfth century during the reign of Henry II. It passed into North America with the coming of the first English settlers to the New World, and over the centuries was incorporated into the American system of laws by legislation and judicial decisions.

In England, the common law is an essential part of the English Constitution. In America, the common law is not mentioned in the written Constitution of 1787, but common law principles underlie much of our “invisible” or “unwritten” constitution. Some provisions of the Constitution, such as the one referring to “contract” in Article 1, Section 10, presume the existence of the common law and cannot be understood properly without reference to it. Although most of Anglo-American common law has been superseded by State constitutions and laws, it is still recognized in courts of law and may even serve as a rule of decision.

This is more true in State courts than in those at the Federal level, because Federal courts are not courts of general or common law jurisdiction. At the time of the Constitutional Convention in Philadelphia, and for some forty years later, Americans debated whether England’s common law should remain effective in the United States. Opponents of the common law argued that the Revolution had terminated application of English legal concepts to America. In the period immediately following the American Revolution, there was much opposition to everything English, including the common law; and in the early nineteenth century some American lawyers favored legislative codification of the common law along the French model. Much of this opposition stemmed from the fact that American law reports and legal treatises were scarce, and it was difficult even for lawyers to know what the law was and what features of the English common law had been adapted to American circumstances. The impetus to abandon the common law collapsed in the early nineteenth century, however, when great American legal scholars and jurists such as Joseph Story and James Kent began publishing books on American law.

Sir Francis Bacon, Coke’s great political rival, was another important English jurist and legal writer who had a great following in the American colonies. In addition to his famous Essays and philosophical works, Bacon published a number of books on the law, including Elements of the Common Law and Maxims of the Law. Among lawyers, Bacon was probably best known for his genius at stating the principles and philosophy of the law in concise, memorable, and quotable aphorisms, and for his efforts as Lord Chancellor to strengthen equity jurisprudence and check the power of the common law judges. Equity, or chancery as it is sometimes called, denotes fairness, and consists of a body of rules outside of the common law that are intended to produce justice. It begins where the law ends; it supplements the common law. Under the common law, for example, there could be no relief in the way of compensation for a wrong committed against an individual until the injury had actually occurred. This worked a hardship in some cases, however, if an individual was permitted to engage in dangerous activity or was in possession of hazardous property or material likely to produce injury. Equity courts in England, like ecclesiastical and administrative courts, were separate from the common law courts, and were empowered to grant relief where the courts of law were unable to give it or had made the law so technical that it failed to promote the “King’s justice.” Equity courts thus had the power to issue injunctions (orders forbidding a party to do some act) in order to prevent an injury from occurring. In some instances they were allowed, in effect, to circumvent rulings of the common law courts by providing remedies that the common law courts could not give. As Lord Chancellor under James I, Sir Francis Bacon presided over the equity courts as the “Keeper of the King’s Conscience.” In this role he frequently came into conflict with Sir Edward Coke, who headed up the common law courts.

After the American colonies gained independence, most of the States, with the notable exception of New York, combined law and equity in one court, abolished separate courts of chancery, and extended the judicial power to both law and equity. The Framers modeled the Constitution along the same lines. Since 1789, when the first Judiciary Act was passed by Congress, Federal judges have thus been required to have some knowledge of Anglo-American equity law in order to carry out their duties. Because the equity power is not defined in the Constitution and tends to expand the power and jurisdiction of the Federal courts, it has played a significant role in the growth of judicial power, especially in recent times. Indeed, some Anti-Federalists warned that the fusion of law and equity in the Supreme Court might degenerate into arbitrary judicial discretion, allowing the judges to exceed their powers and ignore the law in the name of “justice.” The equity jurisprudence we inherited from England is limited by general rules, however, and it does not authorize the judges to rule as they please. Its proper application thus requires judicial self-restraint.

It is noteworthy that the first great constitutional quarrel between the English and the Americans, prompted by the Stamp Act of 1765, was based on a claim that the statute violated both constitutional and common law rights. The Act provided a stamp tax on the issuance of college diplomas, licenses, commercial paper, deeds of property, leases, and land grants, and on sales of newspapers, pamphlets, and printed advertisements. Even sales of playing cards and dice were subjected to the tax. The Act further stipulated that prosecutions for violations of the law would be tried not at common law, as constitutional custom dictated, but in vice-admiralty courts. These were administrative courts which relied on the civil law and did not use juries. Lord North’s administration was persuaded that the Act would not be enforced in the regular courts of law because local juries would sympathize with colonial defendants.

The Stamp Act was repealed before it could be enforced, but not before Americans loudly protested. Among the most cherished common law rights in both England and America was the right of trial by jury, which had traditionally provided an essential check on government and protected the rights of property and individual liberty. Trial without jury, Maryland legislators argued during the Stamp Act crisis, “renders the Subject insecure in his Liberty and Property.” The New York assembly asserted that trial by jury was “essential to the Safety” of the “Lives, Liberty, and Property” of British subjects, and the Virginia House of Burgesses echoed these sentiments, insisting that it was “the surest Support of Property.” Speaking for the citizens of Braintree, Massachusetts, John Adams declared that the Stamp Act was “unconstitutional” because “we have always understood it to be a grand and fundamental principle of the Constitution that no freeman should be subject to any tax to which he has not given his own consent, either in person or by proxy.” But, said Adams, “the most grievous innovation of all is the alarming extension of the power of courts of admiralty. In these courts, one judge presides alone. No juries have any concern there.” The denial of jury trials, he concluded, “is directly repugnant to the Great Charter itself; for, by that charter, ‘no freeman shall be taken, or imprisoned, or disseized of his freehold … but by the lawful judgment of his peers, or by the law of the land.’ ”

Thus the Stamp Act, here at the outset of the constitutional struggle that led to the American Revolution and the Philadelphia Convention, threatened two basic constitutional rights—the right to be taxed only by consent and the right to trial by jury. More than any other law of Parliament, this Act eroded the colonists’ faith in British rule, and from this point on relations between the mother country and her rebellious colonies steadily deteriorated; and with each new statutory effort by Parliament to discipline and subdue the colonies came another assault on the common law and the constitution. Seeking not new rights but merely the preservation of those threatened or denied by a headstrong Parliament, the Americans slowly and reluctantly came to the conclusion that only by declaring their independence and establishing their own constitutions, laws, and bills of rights could they enjoy the constitutional and common law “rights of Englishmen.”