Origins and Characteristics of the Law and Legal Systems in the U.S.
The Origins and Characteristics of the Law
and Legal Systems in the United States
The origins and characteristics of the law and legal systems of the United States
It is a commonplace observation to state that the Declaration of Independence and The Constitution of the U.S. are the origin of and provide the characteristics of the legal systems of the U.S. But in order to truly understand the ideas behind these landmark legal documents one must delve deeper into history. What of the texts that influenced America's Founding Fathers? Most may know that the Magna Charta, the English charter from the year 1215, was an influence. But the English weren't the only influential opinion-makers for revolutionary Americans. The Scottish and the French were too. The Scottish Declaration of Arbroath, for example, has been linked by scholars as an influence on Thomas Jefferson, one of the primary authors of the Declaration of Independence. The democratic ideal of gaining the "consent of the governed" to make a government legitimate can be traced to the Medieval scholar John Duns Scotus by other scholars. The French Englightenment thinker, Charles-Louis de Secondat, baron de La Brede et de Montesquieu, author of The Sprit of the Laws, a favorite of many of the founders, was also a major influence.
Main Body
"But what do we mean by the American Revolution? Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people." -- John Adams
It is a commonplace observation to state that the Declaration of Independence and The Constitution of the U.S. are the origin of and provide the characteristics of the legal systems of the U.S. But in order to truly understand the ideas behind these landmark legal documents one must delve deeper into history. What of the texts that influenced America's Founding Fathers? Most may know that the Magna Charta, the English charter from the year 1215, was an influence. But the English weren't the only influential opinion-makers for revolutionary Americans. The Scottish and the French were too. The Scottish Declaration of Arbroath, for example, has been linked by scholars as an influence on Thomas Jefferson, one of the primary authors of the Declaration of Independence. The democratic ideal of gaining the "consent of the governed" to make a government legitimate can be traced to the Medieval scholar John Duns Scotus by other scholars. The French Englightenment thinker, Charles-Louis de Secondat, baron de La Brede et de Montesquieu, author of The Sprit of the Laws, a favorite of many of the founders, was also a major influence.
1. Discuss how modern law evolved from English common law.
One of the drivers of the Revolution, and thus of American law and jurisprudence, was John Adams. He attended Harvard College, thinking he would be a minister. But when he graduated he gravitated to the law. He studied under Worcester lawyer John Putnam for two years, from 1756 to 1758, and apprenticed to be an attorney. Putnam charged him a fee of $100, payable whenever he could find it "convenient."
"He read law at night moving fast -- not too fast, he later thought -- through Wood's four-volume Institute of the Laws of England, Hawkins's Abdrigment of Coke's Institutes, Salkheld's hefty Reports, Coke's Entries, and Hawkins' massive, two-volume, Pleas of the Crown," writes historian David McCullough in his Pulitzer Prize winning book, John Adams (Simon & Schuster, 2001). "Can you imagine any drier reading?' he would one day write to Benjamin Rush, heavily underscoring the question."
After completing his studies, he returned home to Braintree, Mass., and moved in with his parents, as he completed his final studies for the bar examination. "I've read Gilbert's first section of feuds, this evening, but I am not master of it,' he recorded in his diary on Oct. 5, 1758, referring to Sir Geoffrey Gilbert's Treatise on Feudal Tenures," writes McCullough. "Rose about sunrise. Translated Justinian."
Justinian was a Roman emperor in late antiquity (483-565 A.D.). He is most famous for his judicial reforms, including a complete rewrite of the Roman legal code. The most famous works of the emperor include the Codex Justinianus, the Digesta or Pandectae, the Institutiones, and the Novellae.
Founding Fathers who were also lawyers -- Thomas Jefferson and James Madison, who attended the College of William & Mary in Williamsburg -- also read law for the bar, down the coast, in their native Virginia. They would have read similar books as part of their studies, for they considered themselves Englishmen initially, like most other colonists, before the Revolution.
"I rejoiced that I was an Englishman and gloried in the name of Britain," writes McCullough, of a letter that Adams wrote to a friend.
So it is clear from the historian McCullough that English law, and even ancient Roman law, had an impact on the thinking of the founders. English law is clearly one of the sources of American law and the American legal system, and helped shape the characteristics of that system. So was Roman law. Other sources note this as well, including Law in America: A short history by Lawrence M. Friedman...
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