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The History of Law is the History of Our Race
I don’t know where this came from.  But it looks like something from a Right Wing web site.   The history of law is the history of our race, and the embodiment of its experience. It is the most unerring monument of its wisdom and of its frequent want of wisdom. The best thought of […]

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May 21, 2020

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I don’t know where this came from.  But it looks like something from a Right Wing web site.


 

The history of law is the history of our race, and the embodiment of its experience. It is the most unerring monument of its wisdom and of its frequent want of wisdom. The best thought of a people is to be found in its legislation; its daily life is best mirrored in its usages and customs, which constitute the law of its ordinary transactions.

 

There never has existed, and it is entirely safe to say that there never will exist, on this planet any organization of human society, any tribe or nation however rude, any aggregation of men however savage, that has not been more or less controlled by some recognized form of law. Whether we accept the fashionable, but in this regard wholly unsupported and irrational theory of evolution that would develop civilization from barbarism, barbarism from savagery, and the existence of savage men from a simian ancestry, or whether we adopt the more reasonable theory, sustained by the uniform tenor of all history, that barbarism and savagery are merely lapses from a primordial civilization, we find man at all times and under all circumstances, so far as we are informed by the records which he has left, living in society and regulating his conduct and transacting his affairs in subordination to some rules of law, more or less fixed, and recognized by him to be binding upon him, even though he has oftentimes been in rebellion against some of their provisions.

 

The recognition of the existence of law outside of himself, and yet binding upon him, is inherent in man’s nature, and is a necessity of his being. And this is as much as to say that the very existence of human society is dependent upon law imposed by some superior power. While from our present standpoint the ultimate finite existence is that of the individual, and all true philosophy recognizes that society exists for the individual, and not the individual for society, yet it is also true that the individual is intended to exist in society, and that he must in many things subordinate his own will to that of society, and inasmuch as society can not exist without law, it is a necessary deduction of reason that the existence of law is coeval with that of the human race.

 

The system of trial by jury is thought to be a product of the Common Law; and it has been sought to show that it was indigenous in England and traceable back to Alfred the Great and to Anglo-Saxon times. The supposed Anglo-Saxon origin of the jury system has been completely disproved by Messrs. Pollock and Maitland in their excellent history of early English Law, who have distinctly traced it to the Franks, from whom it was borrowed by William the Conqueror or his immediate Norman successors for their own selfish purposes, and not with any view to the improvement of the law of England. There are those who find its real source in the system of judices selected by the praetor in the Roman Law for the determination of the facts in legal controversies when he himself had settled the law applicable thereto. But, however it originated, the system of trial by jury, which was not of much importance before the days of the Stuarts, or indeed before the latter part of the Eighteenth Century, when it first assumed the important part in the administration of justice which it yet retains, has become one of the most cherished features of our American Jurisprudence. In fact, notwithstanding that the institution existed in England at least as farback as the reign of Richard I, it would seem as if its present function in the administration of the law had only been fully developed first in our colonial times in America.

 

In the days of the Plantagenets and Tudors, and to a more limited extent in the time of the Stuarts and early Hanoverians, the jury was not the independent body which it is commonly supposed to have been; and it could not therefore have been the bulwark of liberty, or in any way instrumental in the promotion of human freedom. The jury was summoned by the sheriff according to his own will and pleasure from the freeholders or Norman landholders of each county; and the sheriff was the appointee from year to year of the sovereign. It is not quite apparent, therefore, how the jurymen could have been other than creatures of the royal pleasure, whenever the sovereign, or his ministers, or his favorites, thought proper for their own purposes to intervene in their selection. And, in fact, in the history of England, for 700 years from the Norman Conquest down to the reign of George III, the intelligent inquirer seeks in vain for any evidence of the development of human liberty through the instrumentality of the jury system. It is absurd in the extreme, therefore, to speak of the system of trial by jury as the bulwark of liberty. That the system served that purpose in the latter part of the Eighteenth, and during the early part of the Nineteenth Century may be admitted. Indeed, one of the best evidences of its efficacy in that regard is the fact that, among the nations governed by the Code Napoleon, wherever constitutional institutions have been established, the system of trial by jury to a greater or less extent has also been introduced.

 

Immediately upon the Declaration of Independence, indeed a month before that document was promulgated, the first formal enunciation of the principle was made in June of 1776, in the first Constitution adopted by the State of Virginia, which was the first of all our State constitutions. There, in the very first clause of that fundamental ordinance it was stated that “the legislative, executive and judiciary departments of the State shall be separate and distinct, so that neither exercise the powers properly belonging to the other.” And the principle so enunciated was promptly adopted by all the other States, and finally fashioned our Federal Constitution. Possibly it might not be difficult to trace the source of the theory back to the Roman Republic, which had the Comitia Centuriata and a Senate to make laws, Consuls to execute and enforce them, and Praetors to administer them in the daily transactions of the people. And possibly it would be possible to trace it still farther back – to the Republican Commonwealth of Athens, which had its Assembly of the People to make laws, the Archons to carry them into effect, and the High Court of the Areopagus, the governmental institution of the ancient world, to administer justice.

 

Our modern American law system is based on centuries of English principles regarding right and wrong. This English common law system combines with U.S. case decisions and statutes to form what we know as law. This lesson examines the origins and definitions associated with the American law system.

Law Defined

What is law? As students of the law, when we want to define a particular legal term there are a few sources we can legitimately look to. As with other subjects, let’s start with the dictionary. When we want to define a legal term, we will look to Black’s Law Dictionary. This is an important tool for attorneys and law students. This dictionary serves as the leading standard authority for defining legal terms and has been published since 1891. Black’s defines law as ‘that which is laid down, ordained, or established?.’

It’s important to note that although Black’s Law Dictionary is a helpful tool, it is not, itself, law. The United States Supreme Court plays the final controlling role in defining legal terms. Through the case of United States Fidelity and Guaranty Co. v. Guenther, the Supreme Court states that: ‘Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.’

This is a reliable and thorough definition of law, but there are many accepted definitions for what constitutes law. Generally speaking, laws are rules that the people in a society believe are important enough for the society to enforce. Law comes from an organized government, but our laws are designed so that they typically reflect what the majority of the people feel is just or right.

People make law, and it is made to reflect how the people feel about certain actions or conduct, such as murder, stealing or cheating on taxes. There is a purposeful and strong connection between law and that society’s morality. This is a theme you will see often in business law and also throughout all other areas of the law.

The Origin of Law

So where does law come from? In America, our law system came from Great Britain. The settlers of the original thirteen colonies came from Europe, and they brought with them their own set of rules and principles to be used in their new society.

The English common law was the system of law in England at that time and was quickly adopted throughout the colonies. The English common law is rooted in centuries of English history. Much of the common law was formed in the years between the Norman Conquest of England in the early 11th century and the settlement of the American colonies in the early 17th century.

The English Common Law

The English common law is based on a cultural system of settling disputes through local custom. The early tribes of England each held their own set of customs, but this system became increasingly formalized as those early tribal peoples came together and organized. These ancient customs are the basic principles that eventually became part of the American system of justice.

Under English common law, disputes between two parties were handled on a case-by-case basis. However, the decision-maker did not act without guidance. The decision-maker was required to look to similar, previously decided cases and use those established guidelines and traditions. The customs of England were built upon and expanded for centuries, all through court decisions. By carrying forward and preserving these customs, the courts assured that the law was truly ‘common’ to all.

For example, imagine that Smith and Jones own land adjacent to one another. Smith intends to build a barn on his own land, near his border with Jones. However, Smith inadvertently builds his barn on Jones’s land. Jones claims ownership of the barn, and the two end up arguing their positions in court.

Let’s say the court decides that Smith owns the barn that he built, and now also owns that small portion of land that the barn occupies. This is now the rule to be applied for those cases coming after Smith and Jones. From that moment forward, all landowners must be careful not to allow others to build permanent fixtures on their land. Otherwise, the rule now states they could lose ownership of that portion of their land. Scenarios like this created a gradual development of an extensive system of laws, even though these rules were mostly unwritten at that time.

Blackstone’s Contribution

Shortly before the American Revolution in the last half of the 18th century, Sir William Blackstone published Commentaries on the Laws of England as a complete overview of the English common law. This publication spanned four volumes!

Blackstone described the English common law as an ancient collection of unwritten maxims and customs upon which English judicial decisions were made. Judicial decisions are decisions made by a court and are also known as case law. Therefore, Blackstone defined the English common law at that time as a large collection of cases.

Blackstone’s Commentaries were crucial during the formation of the United States of America. Our Founding Fathers were looking to establish a government, and they had no other viable reference to written law. The U.S. adopted this system of common law, and it is still used today.

A common law system is essentially a legal system that follows the rules set in previous cases. This is the current legal structure of the United States, England and many other territories. But this is not to say that our common law exists exactly as it did in Blackstone’s time. Our law is ever-changing. The American common law system began with the adoption of Blackstone’s English common law, but today, it includes centuries of subsequent American law.

Development of the American Law System

In the United States, we have several different types of laws that make up our American common law system. Many of our laws are made through judicial decisions. This judge-made, or court-made, law is case law.