All of us are actually aware that before 1775 and the First Continental Congress, there was a system of justice built upon law existing in the Colonies. If asked “What was that law?” our immediate reaction would be the “Common law.” And so it was.
But here we are 200 years later and it seems to me that we suffer from a great lack of understanding of our legal antecedents. In fact, we really have to struggle for a recognizable definition of the term “Common Law.” If we are asked about its origins we retreat into what seems the simplest of answers: “The British Common Law.” Manifestly, such a reply gives rise to several questions. “Is there an American Common Law?” What are its parameters? Is it limited strictly to the substantive law or does it include the procedural as well? How about the constitutional law? Are there any of our sacred constitutional rights which were actually common law rights before the Bill of Rights? It seems strange that many of these questions remain without ready answer. Certainly the history of our constitutional law is not so difficult to obtain; its studies proliferate.
The late historian Daniel Boorstin, once Librarian of Congress, has said that “looking at the history of American law is like looking into a Dark Continent.”1 “Unfortunately,” said Boorstin, “lawyers in America insist mere historians are not qualified to chronicle a history of the American law.” While that has a ring of truth, the fact is that the history of our law and a serious consideration of the Common Law is yet to be published in this country. In fact, a scant number of words on the Common Law exist. Since we lawyers spend much time giving lip service to the beauty and meaning of the Common Law, it might be wise if we take a glance at its background to determine its origin. So let’s give it a cursory look, within the limitations of this space and our resources.
Unlike Gaul, early North American was divided into 13 parts. Colonists populating the 13 Colonies came almost entirely from England. These people came here to escape something. They were refugees of sorts to a rather unpleasant and hostile land. Proof of the lack of enthusiasm for emigration is demonstrated in the fact that no part of the royal hierarchy was ever known to come to these shores unless it was to escape the hangman. Reasons for emigration were simple: survival. Puritans fled persecutions of the Cavaliers and came to New England; the Cavaliers came to Virginia to escape Cromwell; the Catholics came to Maryland; the Quakers came to Pennsylvania; the debtors came to Georgia, and so on. Primarily, these people came to avoid something. Each man had to recognize the fact that he was here permanently. There would be no trip back to the old home for a Christmas weekend. People coming here and bringing their wives and families recognized that they and their progeny would live out their lives in this wilderness. Of necessity, they had to know that there would be the need for a legal system. Also apparent is that coming from England, they would envision a legal system similar to the only one they had known before leaving home. Obviously they foresaw the courts with juries and judges.
There were no members of the legal profession who came with the earliest colonists. The 17th century was the time of turmoil for the bar in England. Lawyers for the most part were involved in the preliminaries of the struggle which would become the “Glorious Revolution.” The profession suffered heavily in many ways during that revolution: lawyers were unwilling and in many cases unable to leave the mother country to join the refugees who were leaving England in ever increasing numbers.
Lacking an indigenous legal system, the colonists, being religious folk, had their legal needs taken care of by their pastors who would settle small disputes; civil officials were left to handle the crimes that were committed against them. The colonies continued to grow. By the end of the 17th century, some had been established for nearly 100 years. Obviously, commercial systems had become sophisticated and an improved legal system was necessary. The legal system that had actually developed was not unlike that of England. But the system simply operated without trained lawyers and judges. It is also true that use of legal precedent was sparse or non-existent.
Any knowledge of these early colonies leads us to the simple fact that the training ground for lawyers, as it existed in England, was not present in colonial America. Lawyers, at least the lawyers who counted (the barristers), had not come to America.
The way in which a barrister was educated was the only accepted manner of legal education at that period of time. This method, in use even now, was quite ingenious. A budding barrister was admitted to practice before the court only after he had spent a term at an Inn of Court. The Inns of Court were under the control of “benchers,” who prescribed a course of study based on a particular term or a period of time in which a certain number of meals were eaten (an Inn being exactly what the word implies). One would eat so many meals and at the same time converse with lawyers concerning law while eating and thus become educated. Can you imagine dining with a lawyer who did not discuss his cases?
Obviously, in the colonies this method was impossible, since there were no communities in existence of any size so that lawyers could group together. The distances were so great in the colonies that it was literally impossible for lawyers to travel from one colony to another to conduct legal discussions. It is hard to imagine a lawyer from Charleston, South Carolina coming to Philadelphia to discuss the rule in the “Six Carpenters Case.” But the truth is, legal education as it was known in England could not be accomplished during the early colonial period. As a result, legal education and with it the influence of the English Common Law, did not exist in the New World.
It is of course a fact that the same learning could have been accomplished by books. However, there was a grave paucity of books in the colonies up until the time of the American Revolution. One need go no further than the eminent John Adams, Boston lawyer, to determine that he had a problem his entire life in attempting to find sufficient books to study. Jefferson complained that in his time as a lawyer in Virginia, there were only four reports of Virginia cases in existence in the state and that the Attorney General Had possession of those.
The fact is that the scarcity of books was not a problem limited to the colonies. In England there were few law books that had been printed in the 17th century. In fact, American law students today have probably read every case that was printed up to the time the Mayflower left England. The cases have all been reprinted in American law textbooks. Even if there were books in profusion, you can readily see that problems of space and time would prevent law books from being brought to the colonies. It is very difficult to imagine someone asking the pilgrims to unload one of the Mayflower’s holds containing important foodstuffs to make way for law books. That did not happen and would not happen.
A singular study is John Adams, who, while crying that he was without sufficient books to study the law, raised a particular furor over the appointment of Thomas Hutchinson, a non-lawyer, to the position of Chief Justice of Massachusetts by the King. Adams’ objection was that the appointment of a non-lawyer would destroy the profession. Yet Hutchinson had the best library in Massachusetts and had read more law than any lawyer in Massachusetts, including Adams. After Hutchinson’s ascension to the post it became a partisan battle between Adams and the Chief Justice, spurring Adams on to find cases that Hutchinson had not read. In one memorable instance, while defending the state legislature, Adams felt that he had triumphed in citing a case with which Hutchinson was unfamiliar. However the final blow was dealt by Hutchinson: he dismissed Adams’ precedent with the words “that sir is merely the crabbed Whig reasoning of Lord Coke.” Adams was devastated.2
Although by 1750 the Glorious Revolution was now 100 years distant and the legal profession had begun to blossom, books were still not in vogue. In 1750, 130 years after the pilgrims arrived in Massachusetts, there were only 150 volumes of reports of cases existent in England. No one knows how many of those were in use in the United States.
Truly for the profession it was a time of new beginning. In the early 18th century specific law books necessary for concentrated study began to appear. The first abridgement appeared in the 1730’s. The first law encyclopedia appeared in the late 1770’s. The first digest appeared in the 1760’s. Finally, in 1761, Blackstone’s Commentary was published. It is not known whether or not the abridgements, digests, and encyclopedia ever found any use in the colonies, but it is certain that Sir William Blackstone’s outline of the Common Law was widely received in America. No less an authority than Edmund Burke told the Commons that in the year 1780, there were more copies of Blackstone’s Commentaries in print in American than in England. Blackstone had finally given lawyers the ability to study the contour and the pattern of English Common Law and English legal thinking. American lawyers finally obtained the background enabling them to quote the English law. This did not take place on a large scale until well after the American Revolution. English law was more likely to be quoted in the 19th century, by Abraham Lincoln or Andrew Jackson, than by the lawyers in colonial Virginia or Massachusetts Bay Colony.
Even if the lawyers had books — even if they had legal learning — they had to contend with American judges, most of whom were unlearned in the law and often illiterate. It is said that Chief Justice Livermore of the State of New Hampshire refused to accept the quote of a citation in any case. According to legend, the Chief Justice believed that the reasoning of he and his associate justices were far more important “than that of the pages of must old law books.” Mr. Justice Dudley of the same state described the demurrer as the “bar’s device to avoid justice.” All in all, these lawyers and the judges working in cooperation with the lawyers in colonial times managed to forge a system of law which was devoid of British precedence and almost entirely British influence. Substantive law in early America was necessarily in large part common sense, the natural law and morality. So the answer to our original question is: Yes, there is a common law which is American, not English, not foreign, and it is that common law which we celebrate.
But one singular question remains when discussing the Common Law. It is really limited to some decisions which make up some small portion of our substantive law or does it go further and permeate the law in other areas? Once you look at the accomplishments of lawyers in the early American colonies, you find what is a most clear-cut answer.
Oppressed men and women came here with an interpretation and dread of the English law as it existed at home. When Penn and his Quakers departed from England the final benediction was offered by George Fox, the founder of Quakerism. This person, the gentlest of men, prayed “that his charges would be free from the scourge of lawyers.” Certainly he did not hope that they would be free from any institution which would guarantee their rights as well as those privileges afforded them as human beings. That prayer was offered rather in the hope that his charges would be free from an elitist system which would restrain the use of the law and the courts’ power in favor of those well born. Historically in Britain, the only persons who could plead a case in court were the barristers, the “well born gentlemen.” Therefore court presentations were always limited to one point of view. Judges could come only from the ranks of the barristers. The courts were obviously gentrified, bench and bar alike. The people fleeing to the colonies, away from such preferential treatment of others, despised this system of elitism.
To counter the possibility of this happening in America, it became an article of legal faith that any person admitted as a practicing lawyer could appear before the court. Indeed, it was not “taxation without representation,” but the issue of who would use the courts that was the first political confrontation of the emerging America. The final result was that persons of every belief and situation in the political spectrum began to use the court system. The courts were open for everyone. When the colonists accepted that fact, the idea that the elite barrister system was now abrogated, it gave birth to a concept of the law for the benefit of all the people and what a difference it made!
In the early 18th century, Andrew Hamilton’s great victory in the John Peter Zenger case was a starting point. Zenger was tried for seditious libel in New York. Hamilton, an octogenarian, went to New York from Philadelphia and, though appearing before a Crown court, established a freedom of the press for America — not just freedom of the press good for that time, but a freedom of the press which was far more extensive than that which exists in Britain even today. A decade later, James Otis rose in court in Boston to argue against the writs of assistance. A writ of assistance was a permanent search warrant given in the King’s name. His brilliant rhetoric and tactics destroyed forever the King’s right to a writ of assistance, establishing a right in America that men are exempt from unreasonable search and seizure.
But it was John Adams himself whose action set the standards for lawyers in America for all time to come. In 1770 the British had taken to quartering troops into individuals homes in Boston. The tactic was unprecedented and unpopular in the colonies. It is easy to see why! The soldiers who were being forced upon small homes were the same soldiers described by the British Army as the “scum of Europe.” Imagine the outrage of any householder when he found these men ordering his wife and children about tin their own homes. The soldiers’ unpopularity grew until one night at the end of 1770, a group of them were set upon by a mob in Boston. The Redcoats fired shots which killed several Americans and thus the Boston Massacre set in motion the train of events leading to revolution.
At that time, however, it remained an outrage and a criminal act only. The army deserted the soldiers, willingly giving them up, and ordering them tried by civilian courts — that is, a court made up of patriot judges and jurors. Adams, at the request of the soldiers’ friends, undertook their defense. In so doing, he set the standards for future American lawyers — every man deserves a defense regardless of his crime. He went to work before one of the most hostile juries possible — his own people — and yet he was able to win acquittal for these “lobster backs.” A significant milepost in American legal history.
There are many other examples, but it is obvious that the American common law includes more than simply some dry and prosaic piece of substantive law. It permeates the adjective law — that is, the procedural law — and obviously it had established a number of principles which were later codified by the Bill of Rights. Edmund Burke in his famous address, “On Conciliation with America” said “Americans, more than any other people on earth, had an interest in law, they read the law and they had a genius for the law,” and he predicted that this attitude toward American law would remain and inspire this nation to greatness.3 Americans have responded to the law as no other people in history. Throughout all of our history, our high and low points have been marked by legal proceedings. The Declaration of Independence itself is the most brilliant legal brief ever penned, arguing our case for separation from the mother country. The Constitution stands by itself. The Civil war finds its boundaries in the Dred Scott Affair and the 13th, 14th and 15th Amendments. The Korean War, the Vietnam War, Watergate, and even the Iran Contra Affair found their way into our courts. It is the law which is the great engine of this superb republic raising it above other nations, insuring the guarantees of freedom and liberty in a way that has never been known.
I continually hear complaints by people about the fact that there are too many lawyers in this country. There are, they say, 2,000 lawyers for every lawyer in Japan. Japan, however, escaped from a feudalistic system less than 100 years ago. Compare that with our marvelous history: is there any wonder that we find many more lawyers here than in Japan? Americans have always taken to the law — that is what makes this country great. The pride of every lawyer and judge now serving within that system.
1 Daniel Boorstin, The Americans, The Colonial Experience. Random House. (New York 1958)
3 George Otto Trevelyan: The American Revolution. Edited by Richard D. Morris. David McKay Co. New York 1965.