Foundations of U.S. Law

Author:Jeffrey Lehman, Shirelle Phelps
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English Law

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The system of law that has developed in England from approximately 1066 to the present.

The body of English law includes legislation, COMMON LAW, and a host of other legal norms established by Parliament, the Crown, and the judiciary. It is the fountain from which flowed nearly every facet of U.S. law during the eighteenth and nineteenth centuries.

Many of the concepts embodied in the U.S. Constitution?such as the separation and delegation of powers between three branches of government and the creation of an elective national assembly representing the will of the people?trace their roots to English law. Fundamental legal procedures applied in the U.S. civil and criminal justice systems also originated in England. The jury system, for example, slowly matured into its modern form over several hundred years of English history. The antecedents of many substantive areas of U.S. law, including the ubiquitous system of state and federal taxation, may be found in English history as well.

The story of English CONSTITUTIONAL LAW prior to the American Revolution, which is inextricably intertwined with the development of English law as a whole during this period, can be told in three parts: the centralization of power in the monarchy, the creation of Parliament as a limitation on the absolute power asserted by the monarchy, and the struggle for supremacy between Parliament and the monarchy. In large part, the American Revolution resulted from Parliament's failure to check the monarchy's sovereignty and establish itself as the supreme lawmaking body representing the people of England and its colonies.

When William, duke of Normandy, also known as William the Conqueror, vanquished England in 1066, there was no English law as the Americans of 1776 came to know it. No national or federal legal machinery had yet been contemplated. Law was a loose collection of decentralized customs, traditions, and rules followed by the Anglians and Saxons, among others. Criminal cases were indistinguishable from civil cases, and both secular and spiritual disputes were resolved at the local level by community courts. Trials in the modern sense did not exist, nor did juries. Guilt and innocence were determined by compurgation and ordeal.

Compurgation was a ritualistic procedure in which accused persons might clear themselves of an alleged wrongdoing by taking a sworn oath denying the claim made against them, and corroborating the denial by the sworn oaths of 12 other persons, usually neighbors or relatives. If an accused person failed to provide the requisite number of compurgators, he or she lost. The number of compurgators was the same as the number of jurors later impaneled to hear criminal cases under the common law. In the United States, the SIXTH AMENDMENT to the Constitution required that all criminal trials be prosecuted before 12 jurors?until 1970, when the Supreme Court ruled that six-person juries were permissible (Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446).

Trial by ordeal was a superstitious procedure administered by clerics who subjected accused persons to physical torment in hopes of uncovering divine signs of guilt or innocence. The most common forms of ordeal involved boiling or freezing waters and hot irons. In the ordeal of freezing water, accused persons were thrown into a pool to see if they would sink or float. If they sank, the cleric believed they were innocent, because the water would presumably reject someone with an impure soul. Of course, persons who sank to the bottom and drowned during this ordeal were both exonerated of their alleged misbehavior, and dead.

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Battle was another form of primitive trial that was thought to involve divine intervention on behalf of the righteous party. The combatants were armed with long staffs and leather shields, and fought savagely until one party cried, "Craven," or died.

Trial by battle, though in many ways as barbaric as trial by ordeal, foreshadowed modern trials in several ways. The combatants fought in an adversarial arena before robed judges who presided over the battle. The accused person was required to put on a defense, quite literally in the physical sense, against an opponent who was trying to prove the veracity of his or her claims. Some parties to a battle, particularly women, children, and older individuals, were entitled to hire stronger, more able champions to fight on their behalf. This last practice sheds light on the more recent phrase hired guns, which is sometimes used to describe U.S. trial attorneys.

DR BONHAM'S CASE

Dr. Bonham's Case, 8 Co. Rep. 114 (Court of Common Pleas [1610]), stands for the principle that legislation passed by the English Parliament is sub-ordinate to the common-law decisions made by trial and appellate court judges, and any statute that is contrary to "common right and reason" must be declared void (Thorne 1938).

The decision in this case, which was written by SIR EDWARD COKE sitting as chief justice for the Court of Common Pleas in England, spawned the concept of JUDICIAL REVIEW under which courts of law, as the primary oracles of the COMMON LAW in the British and U.S. systems of justice, are authorized to invalidate laws enacted by the executive and legislative branches of government. The power of judicial review, which was first recognized by the U.S. Supreme Court in MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, is invoked by courts every day across the United States but has since been rendered obsolete in England.

Bonham's Case arose from a dispute regarding the unlicensed practice of medicine. Dr. Thomas Bonham had received a degree in physic medicine from the University of Cambridge. In 1606, Bonham was discovered practicing such medicine in London without a license, and was summoned to appear before the censors at the London College of Physicians, who maintained jurisdiction in that city over the practice of medicine.

Bonham was examined by the college censors in a number of areas regarding his professional practice, and provided answers "less aptly and insufficiently in the art of physic" (Stoner 1992, 49). As a result, Bonham was determined unfit to practice medicine in this field, and was ordered to desist from such practice in London. When Bonham was later discovered flouting this order, he was arrested and placed in the custody of the censors.

Bonham refused to undergo further examination. As a graduate of Cambridge, he asserted that the London College of Physicians had no jurisdiction over him and thus possessed no authority to arrest or fine him. Promising to continue his practice of physic medicine if released, Bonham was immediately jailed.

The case came before the Court of Common Pleas when Bonham claimed that his continued detention by the college amounted to FALSE IMPRISONMENT. As a defense, the college relied on its statute of incorporation, which authorized it to regulate all physicians in London and to punish practitioners not licensed by the college. The statute also entitled the college to one-half of all the fines imposed by it.

The Honorable Justice Coke, also a Cambridge graduate, sided with his fellow alumnus. After singing the praises of their alma mater, Coke argued that because the college censors were entitled to receive a portion of the fine they imposed on Bonham, the statute made them prosecutor, plaintiff, and judge in the dispute: "The censors cannot be judges, ministers and parties; judges ? give sentence or judgment; ministers ? make summons; and parties ? have moiety [half] of the FORFEITURE, because no person may be a judge in his own cause ? and one cannot be judge and attorney for any of the parties." Coke suggested that the impartiality of a judge is compromised when the judge is also the plaintiff who will benefit financially from any fines imposed on the defendant, or the prosecutor who is the advocate responsible for seeking such fines. Although the parliamentary statute in question clearly contemplated that London College would wear all three of these hats, Coke observed,

[I]t appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.

Coke placed the judiciary in the middle of what was becoming a titanic struggle for power between Parliament and the ruler of England. Until the seventeenth century, the English monarchy enjoyed nearly absolute power over all political and legal matters that concerned the country as a whole. Despite the growing popularity and importance of Parliament during the fifteenth and sixteenth centuries, the monarchy's autocratic power, which King James I (1603?25) asserted was divine in origin, included the prerogative to enact laws without parliamentary consent.

By the close of the seventeenth century, however, the pendulum of power had swung in favor of Parliament. The Glorious Revolution of 1688 subordinated the power of the English Crown and judiciary to parliamentary...

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