The American Constitution and the English Common Law
Supreme Court cases interpreting the Constitution make frequent forays into legal history. Not just U.S. history, but to English Common Law. For example, a case decision involving an ordinance prohibiting the open carrying of weapons such as hatchets and swords in England in the 17th century was recently cited in a case by the Supreme Court in a discussion concerning the constitutionality of open carry laws for handguns in the United States. In another example, Justice Antonin Scalia, in explaining the origins of the right of a felon “to be confronted with the witnesses against him” described how this language, “comes to us on faded parchment with a lineage that traces back to the beginnings of Western Culture.”
When the Supreme Court analyzes a current law through the prism of a case decided in England before the American nation was formed in 1776, it is more than a curiosity. It is looking back at the Common Law, not just because it is fun to page through dusty old books, rather because those magistrates propounded commonly accepted principles of self-governance. Acceptable not to just to high barons and lords, but rather to all people, be they prince or pauper. As stated in one old English case (Dr. Bonham’s Case from 1610 repeatedly cited by the United States Supreme Court as foundational to its power of Judicial Review), “When an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common Law will control it and adjudge such act to be void.” That phrase “common right and reason” is important.
Clearly, the American Revolution was a point of divergence from the English Common Law. Still,
understanding the development of Common Law in England can be invaluable to understanding the foundations of Constitutional Law. It’s a clear example of the genius of Western Culture in the development of effective self-governance.
First, what is Common Law?
Common Law, as described by the U.S. Supreme Court in a 1981 case “comprises the body of principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgements and decrees of courts recognizing, affirming, and enforcing such usages and customs, particularly the ancient unwritten law of England.”
A Common Law is a law accepted by all citizens: it enshrines customary usage and fairness for everyone be they king or commoner. As such it connects its adherents to each other and to the past, it reaches across class lines and heritage, it joins present and future. It is knowable, predictable, stabilizing. Legal outcomes can be anticipated by baron or pauper.
It is more than the church, it is more than feudal rule, because there is no mystery to it, no hidden agenda. No pastor, bishop, no mayor, or sheriff and especially no judge is above the Common Law.
It binds a nation together. It develops from practice, acceptances, traditions, values that mature over tens of years not tens of minutes. It comes from what works in real life among real people. What is fair. Not to the socially elite, but to the common understanding of free persons about what is fair even if harsh, difficult and demanding. It accepts the fact that every person is responsible for their own conduct. It faults not the government or society for individual ills because the restraint of the Common Law on the governor or the neighbor makes a person free to act and speak, succeed or fail, within the constraints of their own legal responsibility.
There are elements and structures of the Common Law which dates to the time Anglo Saxon tribes fought uselessly against Viking raiders and suffered under many ineffective rulers until 1066 when the Battle of Hastings changed English history forever.
After the Norman Conquest, William the Conqueror was immediately succeeded by undistinguished leaders until in 1154 Henry II took the crown. This monarch was experienced, shrewd and cunning. And in the 35 years of his reign, he would forge the path to the formation of the English Common Law which helped lay the foundation for the development of American Constitutional law.
As Winston Churchill in his “History of the English-Speaking People” said, “England has had greater soldier-kings and subtler diplomatists than Henry II, but no man has left a deeper mark upon our laws and institutions. . . Henry II possessed an instinct for the problems of government and law, and it is here that his achievement lies. The names of his battles have vanished with their dust, but his fame will live with the English Constitution and the English Common Law.”
It was King Henry II who replaced feudal courts where the justice dispensed by local magistrates could be arbitrary, tempered by the power and practices of local barons. In their place he gradually created a system of royal courts which would administer a law Common to all England and all men.
The bait which Henry used to draw litigants to the new uniform system of royal courts was a new procedure for them—trial by jury.
In origin trial by jury was an instrument of administrative convenience. The King had the right to summon a body of men to consider any question concerning the royal interest.
The genius of Henry II was in seeing new possibilities for the use of what had been an administrative procedure.
It was understandable why Trial by jury became popular. As described by Churchill, “Until this time both civil and criminal cases had been decided through the oath, the ordeal, or the duel. The court would order one of the litigants to muster a body of men who would swear to the justice of his cause and whom it was hoped God would punish if they swore falsely; or condemn him, under the supervision of a priest, to carry a red-hot iron, or eat a morsel of bread, or be plunged in a pool of water.”
This was replaced by the Jury System. Cases were removed from the interested or ignorant lord or his steward. And armed with the King’s power to summon juries, swifter decisions were secured, and there was a strong Royal authority to enforce them.
And, therefore, the first principle of the Common Law was preserved, that law flowed from the people, and was not dictated by a local Feudal Lord.
The Common law rested largely on the unwritten custom of the land as declared by the inhabitants and interpreted, developed, and applied by the judges. As a result, Lawyers could only ascertain how the law applied by studying reports and records of ancient decisions. A century after Henry’s death they began to group themselves into professional communities in London, the Inns of Court, which were half colleges, half law-schools. Importantly, these organizations were predominantly secular. The presence of clerics learned in the laws of Rome and the Canon Law of the Roman Church was not encouraged. And just as importantly, they produced annual law reports, or “Year Books”, as they were then called, whose authority was recognized by the judges,
Here then was the origin of the law of Case Precedent. If a judge could be shown that a custom or something like it had been recognized and acted upon in an earlier and similar case, he would be more ready to follow it in the dispute before him. Just like our Supreme Court does every day it is in session. This slow but continuous growth of “case law” ultimately achieved the freedoms and rights for individual citizens enshrined in the American Declaration of Independence and Constitutionally guaranteed Bill of Rights.
As Churchill said, “This was because both sovereign and subject were in practice bound by the Common Law, and the liberties of Englishmen rested not on any enactment of the State, but on immemorial slow-growing custom declared by juries of free men who gave their verdicts case by case in open court.”
So here, it can be argued, is the connection to American Constitutional Law. The structure of the Constitution as a governing document was designed to make sure, as much as humanly possible, the laws that govern us, and the authority of the men and women who govern us, comes from principles Common and accepted to all free men and women. It’s a principle ancient, tested, and true, a principle which deserves the loyalty of every citizen, regardless of political persuasion.
For more writings by Phil Cline, visit philcline.com