In their twenty-eight page piece, Brandeis and Warren chastised the journalists o f their day, particularly photojournalists, for prying into people’s private lives in search oqawdry and alluring “news,” and then made a cogent plea for the law to recognize a right to privacy and to impose liability in tort for these and other types of invasions of privacy. They got what they wanted–and more. (Bratman 624)

Much of their argument focused on limiting the public dissemination of private details of a person’s life, a goal that many find to conflict with First Amendment protections of speech and the press. But Warren and Brandeis saw the right to privacy as articulating an existing principle that had already been applied in many other contexts without constitutional problems: protections of one’s home, prohibitions of the publication of one’s private papers, and prohibitions against slander and libel.

Warren and Brandeis began their article by discussing the well-settled protections afforded by the common law to both people and property. The argued that the law had responded to “social, political, and economic changes” by expanding what it protected, such that the law now protected not just against battery, but the threat of battery (assault), as well as assaults on reputation (slander and libel) and even intangible “products of the mind,” like copyright and goodwill (Bratman 630).

The starting point of their critique of existing protections is the press:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and the vicious, but has become a trade. … To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. (Warren and Brandeis 196)

Warren and Brandeis proceed to reason that privacy deserves protection through analogy to existing law. Thus, the rights to “intellectual and artistic property” were “instances and applications of a general right to privacy.” In the case of copyright, for example, what is protected is not the quality of the writing or its artistic value: the “existence of the right [does not] depend upon the nature or value of the thought or emotion … [as] the same protection is accorded to a casual letter or an entry in a diary.” Thus, just because a photograph of me does not have artistic value does not mean it should not be protected, since its protection arises from being me, not from the effort invested by the photographer nor from its potential status as an important commentary on life. Even if I send a letter to someone else, they do not have the write to publish it without my consent. The underlying goal is to allow an individual to control the dissemination of what is, fundamentally, theirs. But it is not a property right in the traditional sense, and is not about physical possession or trespass:

The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality (205).

And the invasion of privacy, they continue, is like the “injuries sustained … by an attack upon reputation … or a violation of honor.” In each case the injury is non-physical, but real, and similar injuries are already punishable by law. In short, “existing law affords a principle which may be invoked to protect the privacy of the individual” (206).

“Roman law” by Eugene Yurevich. CC BY-NC-ND 2.0.

It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to “pure” common law (see, e.g., Civil law and courts of equity: the common law is hybrid law and Civil law’s influence on American common law: the appeal).

Another interesting story of the influence of civil law involves a push early on in the history of the United States to bring in civil law approaches, in part as a means to distinguish American law from English law, as well as to help unify the laws of disparate states. Then as now, too, civil law–which emphasizes statutory rules over judicial lawmaking–was seen to reduce the potentially arbitrary power of an unelected judiciary.

In “The Attraction of the Civil Law in Post-Revolutionary America,” Peter Stein quotes Sir Henry Maine as saying in 1856 that the Unites States was not part of “the common-law camp,” but instead had ceased to adhere to the single English (or New English) common-law model by 1825 (403). Instead, claimed Maine, Roman law was “fast becoming the lingua franca of universal jurisprudence” as many newer American states were looking to it for their “substratum” instead of English common law (404).

Early legal education, both in America and in England, contained civil-law materials, including Justinian’s Digests and Institutes, along with treatises (in English translation) on international and natural law by Grotius and Pufendorf, among others (405). Also, many early American legal educators were Scots, and Scotland is a civil-law country (405). James Madison, John Adams, and Thomas Jefferson all engaged with the civil-law tradition in their educations (405–06).

Unlike the perceive chaos of the common law, “[i]n eighteenth century eyes the civil law was associated with order, clarity and coherence” (406). After the Revolution, there was a sense that the United States needed its own legal approach based on the best the world had to offer:

efforts should be made to develop a particular American jurisprudence, which would not be a slavish imitator of the English common law, but would be eclectic–selecting the best principles and methods from whatever system they might be found in (407).

Additionally, although the common law had been seen as a check to the King’s power, it was also viewed with “considerable distrust … as an English product and a corresponding sympathy for things French” (410). Is it any wonder, then, with this desire to create a new nation, along with the positive perception of civil law, that civil law influenced early American jurists?

In the early part of the nineteenth century, American judges cited approvingly to both English legal precedent and to civil law treatises: “in New York, at least, they adopted a policy of eclecticism, considering the common-law and civil-law authorities respectively and then choosing one or the other” (409).

Especially in the areas of commercial law, maritime law, and international law, the civil law was particularly influential. English commercial law was revolutionized by Lord Mansfield in the period just before and after the Revolution, but his influence had little impact initially on the new nation (412). Instead, jurists turned to well-developed mercantile principles in civil law. In maritime and international law, Roman law–since so many European nations based their system on it–had especially force, and continue to do so today (421).

Although English precedent and English cases were used extensively in early America, early nineteenth century jurists lacked today’s judges antipathy to foreign precedent and approaches. Caleb Cushing wrote in the early 1800s:

The common, civil, and customary law of Europe have each precisely the same force with us in this branch; that is, our courts study them all, and adopt from them whatever is most applicable to our situation, and whatever is on the whole just and expedient, without considering either of course obligatory (422).

But by 1850, writes Stein, civil law had faded from American consciousness. Why?

1. The most zealous champions of the civil law held high office, but their ideas “never permeated down to the humdrum practitioner of the law.”
2. Codifiers of American law continued to turn to civil law statutes as models, but not to its general unifying principles; they looked instead to its practical implementations (like the Code Napoleon), and drew on English thinkers like Jeremy Bentham instead of Justinian.
3. Historians of Roman law then took over, emphasizing “questions of learned jurisprudence” and not “point[s] of great practical import.” (432)

Nonetheless, even though Stein sees the 1840s as the decline of civil law’s influence in America, I see point 2, above, as indicative that it continued to play a role in the development of American statutes–but one that is less obvious and more subtle than direct cites to civil-law authorities by American judges.

For this reason, Bracton’s thirteenth-century treatise On the Laws and Customs of England “reflected the canonist [i.e., the civil law] rule … that ‘one must judge not by examples but by reasons’” (see “The Transformation of English Legal Science” by Harold Berman and Charles Reid, Jr., ):

Cases, that is, judicial decisions, could be used to illustrate legal principles, but were not themselves an authoritative source of law. … If a judge did not approve of a previous decisions, or even of a previous custom of the court, he might say it was wrong and disregard it. (445)

In the seventeenth century, this began to change. Edward Coke began some of the first modern compendiums of judicial decisions, connecting the reasoning for new cases to the authority granted by previous decisions. But this was still not binding precedent, and Coke “would reach out for anything said by a judge in an earlier case if it seemed to him to reflect a true legal principle” (447). In other words, Coke made precedent more authoritative, but the ultimate search was still for universal principles. 

The eighteenth century jurist Matthew Hale saw prior decisions as evidence of the true principle or rule (448). But judicial decisions themselves “did not make a Law properly so-called, (for that only the King and Parliament can do)” (448). In other words, judges “do not ‘make’ laws, but ‘find’ them in the received legal tradition, and ‘declare’ them” (448). Modern judicial precedent–strict stare decisis, requiring lower courts to follow previous decisions (but not dictum)–did not emerge until the nineteenth century. Before this, it was a “line of cases” that mattered, not a particular holding. Judicial custom matters because it involves multiple decisions over time. Thus, in 1762, Lord Mansfield still maintained that “[t]he reason and spirit of cases make law; not the letter of particular precedents” (449).

Berman and Reid summarize the development of precedent as follows:

1. common lawyers had always discussed cases and opinions, and did not simply look to written statutes;
2. but prior to the sixteenth century, they had “no doctrine of precedent,” and only in the seventeenth century developed a version of persuasive authority largely confined to procedure and custom;
3. Coke and others challenged the King by using pre-Tudor precedents, and thus brought precedent forward as an important part of common-law decisions;
4. but common-law courts avoided binding precedent still, and looked to prior decisions to extract the principles of judicial custom, but began to apply precedent to both procedural and substantive matters;
5. at the end of the seventeenth century, common-law courts continued to develop doctrines involving precedent, especially distinguishing dicta from holdings to extract principles that could apply to the past and the future: “the principle of precedent was a dynamic and not a static one” (450).

Berman and Reid further tie the development of precedent to scientific and empirical developments of the Enlightenment as well. Even as Robert Boyle and Isaac Newtown emphasized reason and evidence in their scientific pursuits, so too did English jurists seek the “professional verification and acceptance of empirical observation” (450). Thus, repeated applications of similar approaches became good empirical evidence for the validity of a rule, “just as the repeated confirmation of the results of scientific experiments by physicists and chemists was treated as proof of the probable truth of their findings” (451).

Sir William Blackstone (1723–1780) via Wikimedia

One reason to examine the reception of English common law in the American colonies is the reliance by modern originalists (like Antonin Scalia) on the generalized understandings of what the Constitution meant in light of its common-law context. But finding that stability may not be as easy as it might seem, at least in part because jurists of the time were, in many ways, as sophisticated as we are today in arguing with, against, and around precedent–which itself was hardly either stable or fixed.

In Towards a Common Law Originalism, Bernadette A. Meyler writes:

A certain self-consciousness, furthermore, characterized common law jurisprudence of the seventeenth and eighteenth centuries, a self-consciousness that undermines the view–expressed by Justice Scalia, among others–that we became aware judges made rather than discovered law only with the legal realists. … [But] this distinction may not entirely hold up; early common lawyers were hardly less disingenuous than their contemporary counterparts. (7)

Key in Meyler’s analysis are three points: (1) that the originalist approach rejects the jurisprudence of the common law, but endorses William Blackstone’s summation of particular precepts of eighteenth-century common law; (2) the falsity of the claim that, at the time of the Founding, the common law was “uniform throughout the nation (rather than different from state to state)” (a quote from Scalia, although to be fair he is speaking of the prevailing view in the early 18th century, not necessarily his view of that time); and (3) common law jurists of the seventeenth and eighteenth century centuries–although perhaps purporting to “discover” rather than “create” law–in fact engaged in fairly self-conscious processes of law-making when participating in common law adjudication (8).

Blackstone

According to Meyler, Justice Scalia relies heavily on Blackstone’s Commentaries:

Scalia consistently emphasizes eighteenth-century English common law, and the work of Blackstone, only secondarily alluding to any developments in the colonies or the states, and generally for the purpose of confirming or substantiating the applicability of Blackstone’s statements. (11; see, e.g., 518 U.S. 415, 452)

But the Commentaries were not “simply a synopsis of existing doctrine”: first, Blackstone intended them for a lay audience; second, “he aimed through them to show legislators the problems with the state of the common law so that they might be inclined to exercise their statutory authority in amending it” (12).

Thomas Jefferson, for example, wrote that the Commentaries were “nothing more than an elegant digest of what [students] will have acquired from the real fountains of the law” (18; “Letter to Judge Tyler”). Additionally, in the 1760s, “the common law itself was on the wane, and parliamentary supremacy had been definitively established” (12). In relation to the United States, Blackstone wrote at a time when the American colonies had already substantially received English common law: “as a result, Blackstone’s vision of the relationship between statutory and common law may not accurately represent the indigenous American tradition” (12).

The Uniformity of the Common Law

Justice Scalia has emphasized that specific common law meanings are generally identifiable:

[Scalia] established a fairly strong presumption of common law unity, suggesting that litigants must argue strenuously for the proposition that a single common law meaning did not inhere in a term or phrase because of divergent or conflicting strands … This emphasis on a singular original meaning is correlated with an account of the common law at the time of the Founding as a monolithic body unaffected by statutory developments. (13–14)

Meyler goes on to explain that “writings from the Founding era and materials from the states in the period following ratification demonstrate that the common law occupied a disunified field  in late eighteenth century” (17). In other words, there was not a singular understanding of the law; the so-called “common” law was not entirely held in common at all. Thomas Jefferson, John Adams, and James Madison all critically discussed the common law of their era (18). Jefferson, for example, debated whether Christianity was a part of the common law, and maintained that it was not (19). Adams argued about the temporality of the common law, and “insisted on the return to an early seventeenth-century version of the common law, that in place before the accession of Charles I” (21). He also “resisted the notions that the common law had been introduced wholesale into America,” and instead argued that only the common law that was adapted to the American context had been imported (22).

James Madison wrote a report on the basis of the common law in 1799–80, and asked several key questions that are also applicable to any uniform understanding of Constitutional meaning through reliance on the common law:

1. Is it to be the common law with or without the British statutes?
2. Is it to be the date of the eldest or the youngest of the Colonies? Or are the dates to be thrown together and a medium deduced? Or is our independence to be taken for the date?
3. Is, again, regard to be had to the various changes in the common law made by the local codes of America? (25)

While Madison went on to reject the idea of federal common law in 1824, he did endorse the necessity of interpreting the Constitution on the basis of “the Common law because it borrows therefrom terms which must be explained by Com. Law authorities” (25). For Madison, the key was that the common law helped explain concepts and terms. It provided “an interpretive tool for understanding constitutional phrases, [but] it could not … entirely dictate the meaning of many of the Constitution’s clauses” (26).

Additionally, the laws–even the “common laws”–differed between various colonies and between the colonies and England (27). There were even attempts to abrogate the “Common Law of England” on several grounds, including that the “the common law did not boast uniformity even in England” and the “disparity … between American and English versions of the common law” (28).

In effect, the common law provided useful background information to help define and understand terms and meanings, but it was not fixed enough to provide a firm foundation for a uniform, consistent interpretation of the Constitution.

Sophisticated Common Lawyers

Common lawyers at the in the eighteenth century were aware of “the mutability of common law”:

To achieve a thoroughgoing originalism, it is thus necessary to acknowledge that the flexibility of the common law method was not unknown to the Founding generation and instead provided the backdrop for the U.S. Constitution itself (33).

Key eighteenth century legal theorists–Coke, Hale, and Blackstone–based its authority both on reference to natural or universal law, as well as the historicity and popular acceptance of common law (36). Thus, precedents helps evaluate particular problems, but it takes interpretation in evaluating specific questions (40).

Suggesting the importance of contemporary acceptance in the authority of the common law, and not its universality, the English historian Matthew Hale “insisted that the continued acceptance rather than the origin of the common law was essential in endowing it with authority” (41):

This release from grounding the authority of the common law in its immemoriality enabled Hale to explicitly acknowledge legal change and to write the first account of the common law that openly presented itself as a history and spoke of the common law’s extraordinary emergencies.

If, in originalist fashion, one goes back to look at the understandings of the Founders, the result is not fuzzy view into a fixed understanding of the common law, but rather a fuzzy view into an equally fuzzy, quite sophisticated and rather (post)-modern view of the common law as mutable through time and dependent on popular acceptance for at least part of its authority.

1. that English common law was in force in the colonies from the time of the first English settlement;
2. that, quoting Paul S. Reinsch, the colonies “underwent ‘a period of rude, untechnical popular law, followed, as lawyers became numerous and the study of law prominent, by the gradual reception of most of the rules of English common law’”;
3. or instead, citing Julius Goebel, that the colonists instead adopted the “customary law of the local courts the colonists had known in England” and not the common law “of the king’s courts at Westminster.”

Before discussing the historical record, Stoebeck first bookends the problem by noting that, first, “there was no common law in America on 12 May 1607″ and, second, there are case reports and so on available post-Revolution that provide solid insight on where “common-law reception … must have stood on Independence Day” (395–96).

A lack of lawyers

In the 17th century, there was a paucity of lawyers in the colonies. There were very few English-trained lawyers in Massachussetts, only three were known to be in Connecticut, one in Maine, thirty-some-odd in Virginia, two in Maryland, and none anywhere else (405). With no law schools, no real bar, and no real apprenticeship possibilities, there were likely few, if any, American-trained colonial lawyers either. Kermit Hall’s 1989 book reinforces this:

Antilawyer sentiment was pervasive elsewhere as well, and the “ancient English prejudice against lawyers secured new strength in America.” The framers of the Fundamental Constitutionsof the Carolinas in 1669 declared it a “base and vile thing to plead for money or reward.” Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. (Hall 21–22)

As a result of the limited availability of trained lawyers, Stoebeck suggests that it’s unlikely that the colonists would have adopted or used the complex English common-law system in anything other than a limited manner.

What law?

Even when charters of the new colonies referenced the laws of England, Stoebeck points out, there is an additional problem: which laws of England? According to Edward Coke, a 17th-century jurist, lists fourteen types of law in England: “the law of the crown, law of parliament, law of nature, statute law, customs, ecclesiastical law, etc., of which the ‘common law of England’ was only one” (397).

Even contemporary discussions of the “common law” in the 17th century often did not clearly distinguish what was meant. Colonists, for example, would clamor for the protections of the “common law of England” when resisting unpopular or autocratic actions by English or colonial governments. They were not, however, advocating for the “king’s law,” nor for the common-law writ system, but rather for what we might consider today to be Constitutional protections, like a right to a trial by jury (410).

Every colony is different

Stoebeck explores the complexities of the various colonies, each of which has a different foundation story and a different relationship with England. Virginia, for example, was founded by an English corporation and intended to benefit investors back in England, while Massachusetts was founded by religious dissidents who often preferred Biblical precedent. As a result, it’s hard to speak of a single “reception” in America.

1700 is a turning point

Nonetheless, Stoebeck suggests that the turn of the eighteenth century marked a turning point for all the colonies (407, 410). The 1696 Navigation Act, for example, imposed much more clearly English legal control over admiralty jurisdiction in the colonies (408). The Privy Council began examining court procedures and the Council of Trade and Plantations began to exert pressure to codify colonial laws (409). (I should note, too, that the first Virginia Slave Code dates from 1705, and other slave codes were enacted from the 1660s into the early 1700s.)

Conclusions

Stoebeck clearly rejects the first theory of common-law adoption (that it was applied from the moment of settlement), since most of his historical discussions involve the complex ways in which English common law was not in use in the colonies before the Revolution. But beyond that, his account explores a variety of paths that each different colony took. Some more quickly adopted English practices than others, and all began to do so more at the turn of the 18th century, but none fully adopted English practice until late in the century (if they even did then). Some did apply more local custom and practice as used at home in England, others used indigenous procedures and approaches, and all codified distinct statutory laws.

But whatever their path, by the end of the 18th century the colonies–now the United States–explicitly adopted English common law (even if what that was, exactly, wasn’t always clear) through statute or in their Constitutions, and jurists used English precedent into the 19th century (and occasionally today, too).

Stoebeck ends his account by saying,

The reception process had been very much an indigenous affair, for the English home government had acted only haltingly to impose adoption of the common law.

And, finally, he says,

The post-Revolutionary evidence makes it nigh conclusive that Chief Justice Daniel Horsmanden spoke not only  for New York but of colonial America when he said in 1765 that the court applied the common law ‘in the main.’”

Thus, the end of the reception story is “secure,” even if the story of the process “has some missing planks.”

Image via Wikipedia

As I noted earlier in Civil law’s influence on American common law: the appeal, the Roman civil law tradition (which prevails in Europe) has had a larger impact on American jurisprudence than is generally acknowledged. Indeed, although the United States considers itself a common-law country, we in fact use a system that combines common (judge-made, customary, adversarial, precedent-focused) with civil (usually statute-based and inquisitorial) law, but which in England focused on “equity” or fairness and justice.

The American legal system directly drew on the English one.  As noted above, the English legal system was really (at least) two parts: common law (the King’s Bench, Court of Common Pleas, etc.) and equity (the Courts of Chancery). The various new states, along with the federal court system, variously integrated or continued this separation–but generally emphasized the common law as the protector of the common man. This was the case even though the courts of equity had been for centuries the protector of principles of justice and fairness, while common-law courts had been seen as interested only in formal mechanisms through its rigid system of “writs.”

The relationship, though, was complex and not at all as simple as this. Common-law courts gave jury trials to those accused, and guaranteed the right to confront an accuser, while the courts of equity had no juries and took evidence in secret. Despite relying on judge-made precedents, the common-law courts became associated with Parliament against the King, while the equity courts (especially the notorious Star Chamber) dispensed royal justice (an appeal to equity was an appeal to the conscience of the king). Common-law juries refused to convict those they considered unjustly accused (especially for political reasons), regardless of the law (now called “jury nullification”). Common-law judges began to enforce both judge-made customary law and the statutes of Parliament.

Lawyers in the equity system in England were known as “civilians,” and historically had been trained in canon law. Canon law was the law of the Catholic Church, and derived from Roman civil law. With the break from Rome by Henry the VIII, the equitable system moved from an appeal to King and Pope to an appeal only to the King–but the sense of connection to Rome continued for many, and likely contributed to generally Protestant America’s suspicions of English equity.

Despite this suspicion, courts of equity were adopted into the American system in various ways. Some states kept distinct courts, others merged them, but all kept the remedies (typically, injections) afforded by the system as a necessary complement to the common-law remedies (typically, monetary awards only for non-criminal trials–though the common-law system gave us habeus corpus as a remedy against abuses of equity’s jailing of people for refusing to obey injunctions).

In effect, in both England and America, there has been an uneasy back-and-forth between courts of law and court of equity. Even when these have been merged into one body, there has been a continuing balancing and negotiation between common law’s methods and equity’s methods.

Civil law gave us the appeal to equity. Common law gave us habeas corpus and the jury. Equity gave us straightforward complaints written in the vernacular. Common law gave us the adversarial battle between attorneys. Equity gave us discovery.

In short, despite everything I was led to believe in law school, the United States (and England, for that matter) really has a hybrid civil/common-law system.

Related articles

• Civil law’s influence on American common law: the appeal (inpropriapersona.com)
• Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial (ssrn.com)

“Corpus Iuris Civilis 1663″ from Yale Law Library, used under a Creative Commons license

In “Salamanders and Sons of God,” an article in The Many Legalities of Early America, Mary Sarah Bilder writes about the “Culture of Appeal in Early New England,” and situatesthe embrace of the right to appeal by New Englanders within the larger English and Roman legal tradition. English law in the sixteenth and seventeenth centuries was based on common law, a system that relied not on statute but rather on custom, and

in which pleas to the judiciary required addressing “reason”–“the faculty acquired by training that extracted some workable rules from a formless body of immemorial knowledge”–rather than appealing on the basis of what any ordinary person could claim was justice, equity or mercy (Bilder 51).

In the traditional common-law system, there were no appeals. There were various “writs”: the “writ of false judgment,” the “writ of attaint,” and the “writ of error,” but each of them involved horizontal appeals, not appeals to a higher authority. The common law was what judges, ruling on the basis of reason, thought it was, not what a king or higher authority said it was, so appealing to a higher authority made no sense. No new evidence or hearing was permitted on these writs, but only a review of the complex rules and procedures of the common law:

A party who felt that “manifest injustice” had occurred had to find justice by “proof of a technical error (verbal or procedural) in the previous trial” (52).

Alongside the common-law courts in England, another system of of equitable courts existed as well. This system grew out of the ecclesiastical courts, themselves developed in the tradition of the Justinian code–in other words, civil law. In this system, which handled cases  “involving marriage and separation, probate and intestate estates, and slander and defamation,” among others, the goal was justice, and the procedures were more flexible (55). This system conducted appeals “in English, with depositions and interrogatories” and “was understood as a rehearing of both law and fact” (55). It drew on “an equitable theory of justice arising from medieval Roman canon law” (55). When Henry VIII replaced the Pope in England, he took on the Pope’s role as the ultimate appellate judge for courts of equity.

The appeal also took root in the corporate bodies of trading organizations. Formed by royal charter or patent, these trading corporations were authorized to maintain their own court systems, but with the right to appeal to the Crown guaranteed. Thus, Massachusetts and Virginia, both formed as corporations, were established with the right to appeal embedded into their systems. But the appeal remained even as the corporate structure disappeared, and was used as a means to establish and maintain a central authority.

Justice was important to Puritans. Thus, despite the historical connections to the hated Papacy, the Puritans embraced the “appeal to God” and its more secular variants as checks on injustice. Many “colonists thought equity was the point of the justice system,” and “colonial court systems did not separate equate courts like chancery from common-law courts” (68). (Interestingly, the combination of equity and common law meant that, for example, juries were required for appeals as well as for initial trials when the appeal involved matters of fact. )

In short then, the appeal represents the strong influence that the civil law has had on the common-law system. Today I often hear civil and common law described as opposite, distinctive, almost incommensurable systems, when in fact it appears that in actuality the modern American (and English, Australian, etc.) common law system is deeply indebted to the civil law tradition.

Neither Virginia nor New England established their initial legal approaches on English common law. Instead, Virginia sought to pay its investors by extracting maximum labor from local inhabitants “through intimidation and brutality,” not English law (8). New England, on the other hand, looked to “the law of God, not the law of England” as they sought to unify religion and the state and create their religious utopia (8). Maryland, on the other had, sought to protect its initial Roman Catholic settlers by immediately adopting English law and insisting on its protections as more and more Protestants immigrated.

As the need to reassure English investors–who provided Virginia tobacco farmers the capital they needed–that they could recoup their debts grew, Virginia adopted English law. The interest was commercial, and the goal was to create predictability for investors, not to create fairness or justice for its inhabitants. As a result, the bulk of seventeenth century court cases in Virginia revolved around debt collection.

As the importance of protection Roman Catholics lessened and as Maryland began to adopt the plantation practices of Virginia, so too it began to adopt the focus on “black-letter law” that Virginia emphasized as well. Thus rule of law in Maryland joined Virginia’s approach of committing “to government by clear, unchanging dictates that would guarantee the certainty and predictability needed to entrepreneurial investment” (11).

The New England colonies differed in purpose and approach. They were founded on Puritan religious goals that emphasized the importance of religious involvement and the unity of church and state (53). Their farming did not consist of tobacco plantations, but rather emphasized  yeoman farmers who lived close to town and community. Their religion required adherence to community norms (which were strict), but also emphasized justice for both servants and masters. Self-restraint was key, and the community reigned in its most powerful members through increasingly codified laws. Religious belief was fundamental to the different outcome and approach in New England:

Puritanism and its related ideal of harmonious community … kept seventeenth-century Massachusetts from becoming the debt-ridden outpost of British colonialism that Virginia became (63).

New England cared about commerce, but debt collection was never a central concern of its courts. Instead, New England courts dealt with land titles, road building, and schools, as well as the collection of taxes that accompanied a focus on community and community building. English common law provided the backdrop to New England’s laws, but its colonists insisted on codification to increase fairness and reign in abuses by its leadership.

In fact, English common law provided the backdrop to all these American colonies, but “on the ground” social forces “gave legislation a preeminence in American law that it had lacked in England” (131). Religious values gave New England’s colonies a distinct approach that strongly differed from approaches fostered by the economic conditions of Virginia and Maryland. By 1660, there was a distinctly “American” feel to each of these areas approaches to law, but there was not yet a unifying power above all of them that would draw them closer together.

Image via Wikipedia

In The Magic Mirror, Kermit Hall and Pater Karsten write:

The [Plymouth] colony’s first trained lawyer, Thomas Lechford, did little to instill enthusiasm. He was disbarred for trying to influence a jury. Antilawyer sentiment was pervasive elsewhere as well, and the “ancient English prejudice against lawyers secured new strength in America.” The framers of the Fundamental Constitutions of the Carolinas in 1669 declared it a “base and vile thing to plead for money or reward.” Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. Early lawyers were often laymen helping friends or women serving the legal interests of absent husbands. (Hall 21–22)

Still, despite the opposition to lawyers–perhaps arising from the complex and seemingly arbitrary rules of the early common-law system–the complexity of colonial legal life (each part of the colonies tended to have its own legal rules which more-or-less approximated some part of the very complex English system), and the importance of smoothing out trade, meant that lawyers became increasingly valued. Although there were no law schools, a “rough apprenticeship” process, along with self-teaching, emerged to prepare attorneys.

But unlike in England, according to Hall and Karsten, there was never sufficient legal business to justify splitting the profession into barristers and solicitors. Instead, “American lawyers survived as generalists” (Hall 22).

It was not until after the Revolution that some moves to formalize legal training emerged, but even though Harvard, Yale and Columbia started legal training in the mid-nineteenth century, it wasn’t until the late nineteenth and early twentieth century that the law school system as we know it today developed.

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