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English Common Law and American Law (A Digression)

Promoted from Diaries.

This post is based upon a comment I made on my earlier post. The person I was originally replying to was banned before I could hit send. I hadn’t intended to write this as a diary post originally, but at the suggestion of acat (and a little inkling I had while writing the comment as well), I am going to post it here with a little extra elaboration. I don’t plan on making this as thorough as Part I, but I would like to lay these things out. This isn’t my planned Part II. Rather, it is a digression to explain some things.

To help us understand the meaning of the phrase “natural born citizen” in the United States Constitution, let us look at what James Madison, who was the “author” of the work, had to say (quote is from Part I):

It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.

22 May 1789Papers 12:179–82

Now, let us compare this meaning with two sources. The first is Emerich de Vattel’s definition from his book The Law of Nations:

“The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”

The second is this passage from William Blackstone’s Commentaries on the Laws of England, dated 1765:

Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

1:354, 357–58, 361–62

If you’re like me, have eyes, are not blinder than a Texas cave salamander, and possess a brain capable of intelligent thought, you can see that Madison and Blackstone’s thoughts go very well together. This shouldn’t come as a surprise. William Blackstone is the most cited English source by the Founding Fathers, and he is third overall, behind St. Paul (secular nation–what?) and Montesquieu. The Online Liberty Fund has the list here. Emerich de Vattel comes in at a puny 29th, right below Niccolo Machiavelli (nice company there).

The Texas Cave Salamander: Blind, hard of hearing, and doesn't hold up well in sunlight. An excellent visual representation of Birthers

While the fact that Madison is the author of the Constitution ought to therefore put any debate over this clause to an end, Birthers, as I implied above, aren’t known for their intelligence, so we continue.

Birthers have also quoted this statement from George Mason in Virginia’s Convention to ratify the Constitution:

The common law of England is not the common law of these states.

But let’s look at the fuller context of the quote:

If, in the course of an unsuccessful…war, we should be compelled to give up part of our territories, or undergo subjugation if the general government could not make a treaty to give up such a part for the preservation of the residue, the government itself, and consequently the rights of the people, must fall. Such a power must, therefore, rest somewhere. For ray own part, I never heard it denied that such a power must be vested in the government. Our complaint is, that it is not sufficiently guarded, and that it requires much more solemnity and caution than are delineated in that system. It is more guarded in England. Will any gentleman undertake to say that the king, by his prerogative, can dismember the British empire? Could the king give Portsmouth to France? He could not do this without an express act of Parliament — without the consent of the legislature in all its branches. There are other things which the king cannot do, which may be done by the President and Senate in this case. Could the king, by his prerogative, enable foreign subjects to purchase lands, and have an hereditary indefeasible title? This would require an express act of Parliament.

Though the king can make treaties, yet he cannot make a treaty contrary to the constitution of his country. Where did their constitution originate? It is founded on a number of maxims, which, by long time, are rendered sacred and inviolable.Where are there such maxims in the American Constitution? In that country, which we formerly called our mother country, they have had, for many centuries, certain fundamental maxims, which have secured their persons and properties, and prevented a dismemberment of their country. The common law, sir, has prevented the power of the crown from destroying the immunities of the people. We are placed in a still better condition — in a more favorable situation than perhaps any people ever were before. We have it in our power to secure our liberties and happiness on the most unshaken, firm, and permanent basis. We can establish what government we please. But by that paper* we are consolidating the United States into one great government, and trusting to constructive security. You will find no such thing in the English government.The common law of England is not the common law of these states. I conceive, therefore, that there is nothing in that Constitution to hinder a dismemberment of the empire.

*=The attendants of this convention frequently referred to the Constitution as “that paper”.

So, Mr. Mason is comparing the Constitution of the United States negatively with the common law and the English Constitution. This should not be surprising, given that he was an Anti-Federalist.

And they neglect as well what others in attendance at the convention had to say. Mason’s fellow Anti-Federalist Patrick Henry’s asserted on Monday, June 16, 1788:

When our government was first instituted in Virginia, we declared the common law of England to be in force.

That system of law which has been admired, and has protected us and our ancestors, is excluded by that system. Added to this, we adopted a bill of rights. By this Constitution, some of the best barriers of human rights are thrown away. Is there not an additional reason to have a bill of rights? By the ancient common law, the trial of all facts is decided by a jury of impartial men from the immediate vicinage. This paper speaks of different juries from the common law in criminal cases; and in civil controversies…excludes trial by jury altogether. There is, therefore, more occasion for the supplementary check of a bill of rights now than then. Congress, from their general, powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence — petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our bill of rights? — “that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Are you not, therefore, now calling on those gentlemen who are to compose Congress, to prescribe trials and define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more you depart from the genius of your country. That paper tells you that the trial of crimes shall be by jury, and held in the state where the crime shall have been committed. Under this extensive provision, they may proceed in a manner extremely dangerous to liberty: a person accused may be carried from one extremity of the state to another, and be tried, not by an impartial jury of the vicinage, acquainted with his character and the circumstances of the fact, but by a jury unacquainted with both, and who may be biased against him. Is not this sufficient to alarm men? How different is this from the immemorial practice of your British ancestors, and your own! I need not tell you that, by the common law, a number of hundredors were required on a jury, and that afterwards it was sufficient if the jurors came from the same county. With less than this the people of England have never been satisfied. That paper ought to have declared the common law in force.

In this business of legislation, your members of Congress will loose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting cruel and unusual punishments. These are prohibited by your declaration of rights. What has distinguished our ancestors? — That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law.

George Nicholas said in a reply (it should be noted that it begins sarcastically) that same day:

But, sir, this Constitution is defective because the common…law is not declared to be in force! What would have been the consequence if it had? It would be immutable. But now [the common law] can be changed or modified as the legislative body may find necessary for the community. But the common law is not excluded. There is nothing in that paper to warrant the assertion.

Nicholas isn’t just some random guy, either. He was a member of the Virginia House of Delegates, attorney general of Kentucky, and a friend of Madison. He was also apparently known as a rather rotund person. Madison, it is said, laughed until he cried at the same convention when someone called Mr. Nicholas a “plum pudding with legs”.

And then there are what are known as reception statutes, some incorporated into state Constitutions, some not.

The Constitution of Delaware of 1776 states the following:

ART. 25. The common law of England, as-well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention.

The Constitution of New Jersey from the same year:

XXII. That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter; and that the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever.

New York’s Constitution of 1777:

XXXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.

The Northwest Ordinance of the Articles of Confederation:

Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law.

Virginia’s current legal code states the following:

§ 1-200. The common law.
The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.
(Code 1919, § 2, § 1-10; 2005, c. 839.)

And:

§ 1-201. Acts of Parliament.
The right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, shall still be saved, insofar as the same are consistent with the Bill of Rights and Constitution of this Commonwealth and the Acts of Assembly.
(Code 1919, § 3, § 1-11; 2005, c. 839.)

Granted those are from 1919, but here’s a 1776 statute from the same state (admittedly, I cannot find the original legal code from 1776, but this shows up repeatedly in other sources demonstrating what a reception statute is):

“And be it further ordained that the common law of England, all statutes or acts of parliament made in aid of the common law prior to the fourth year of the reign of King James the First, and which are of a general nature, not local to that kingdom, together with the several acts of the general assembly of this colony now in force, so far as the same may consist with the several ordinances, declarations and resolutions of the general convention, shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony.”

From North Carolina’s legal code:

§ 4-1. Common law declared to be in force.
All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State. (1715, c. 5, ss. 2, 3, P.R.; 1778, c. 133, P.R.; R.C., c. 22; Code, s. 641; Rev., s. 932; C.S., s. 970.)

And this is not limited to the thirteen colonies either.

From California’s code section 22.2:

22.2. The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.

From Missouri’s legal code, section 1.010:

Common law in force–effect on statutes.
1.010. The common law of England and all statutes and acts of parliament made prior to the fourth year of the reign of James the First, of a general nature, which are not local to that kingdom and not repugnant to or inconsistent with the Constitution of the United States, the constitution of this state, or the statute laws in force for the time being, are the rule of action and decision in this state, any custom or usage to the contrary notwithstanding, but no act of the general assembly or law of this state shall be held to be invalid, or limited in its scope or effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law, or with such statutes or acts of parliament; but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.

I could go on and on (after all, every state but Louisiana uses English common law as the basis of its institutions), but I believe this should be sufficient.

To accompany Mr. Nicholas’s quote from earlier, I think this might help illuminate the role of the common law in the United States, especially until the end of the 19th century:

The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them and adopted only that portion which was applicable to their situation.

–Justice Joseph Story, Van Ness v. Pacard

Somewhat unrelated to the rest of this post, but still relevant to my earlier posting, I’d like to point this out: any references to the law of nations in our Founding Fathers’ works ought to take into account that Blackstone himself wrote a chapter of his commentaries titled “Of Offenses Against the Law of Nations”.

Part II will be up as soon as I finish it.

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