This much the colonists did know: that a legislature could be just as tyrannical as a king, and that in fact it was often more difficult to deal with an entire assembly of tyrants than with one. The reign of Oliver Cromwell following the execution of Charles I in plunged England into a state of despotic rule that far surpassed the excesses of the Stuart kings and taught the Anglo-Americans the hard lesson that unchecked power can lead to tyranny no matter who wields it. As we noted earlier, the Glorious Revolution of —89 was an important turning point in English constitutional history. As a result of this bloodless revolt against the monarchy, Parliament became the real sovereign of Great Britain, and parliamentary supremacy became a permanent fixture of the English Constitution.
The system adopted was, in effect, a limited or constitutional monarchy.
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Parliamentary sovereignty was formally established in the famous Act of Settlement of , which confirmed the right of Parliament to determine the line of succession to the throne. King George was no innocent bystander, to be sure, but the man in charge was Lord North, the Tory leader of the majority party in Parliament.
During the eighteenth century, it should be noted, there were two political parties competing for power in Parliament, the Whigs and the Tories. These parties came into existence as a result of the constitutional and religious struggles of the seventeenth century, and by the names Whig and Tory were commonly used to designate respectively those members who opposed the Stuart claim that sovereignty resided exclusively in the Crown and those who supported it. The Whigs found support for their constitutional theories advocating a limited or constitutional monarchy in the writings of John Locke, whereas the Tories tended to rely on the works of Sir Robert Filmer, Thomas Hobbes, and the proponents of royal absolutism to support a doctrine of non-resistance that favored a strong monarchy.
The Whigs emerged victorious in the Revolution of and were able to dominate Parliament until These reforms, altering the constitutional relationship between Great Britain and the colonies and weakening the political rights of the colonists, led directly to the American Revolution. There were many British who joined with the Americans and agreed with colonial leaders that Parliament had overstepped its bounds. Though a monarchist, the great English jurist and legal scholar Sir William Blackstone sided with the Americans in the great constitutional debate between the mother country and the colonies.
So too did a number of Whigs in the House of Commons, especially the Irish statesman Edmund Burke, who became the most ardent champion of the American cause. So popular was Burke in America that in the New York Assembly hired him to represent the colony and defend its interests as its London agent. As a result of his leadership in opposing the doctrines of the French Revolution, Burke would later become the principal architect of the conservative political tradition that came into being in the next century, and the founder of a political movement in Great Britain that led eventually to a major party realignment in which the Whigs and Tories were supplanted by the Liberal and Conservative parties.
In his celebrated Speech on American Taxation , Burke assailed the repressive tax measures enacted by Parliament in retaliation for the Boston Tea Party. Nobody will be argued into slavery. Blinded by power, believing they could crush the American insurgents, Lord North and his ministers, as well as most members of Parliament, ignored Burke and his small circle of Whig supporters.
Within weeks, the first shots of the war were fired at Lexington and Concord. History, of course, proved Burke right, and as a piece of political and constitutional wisdom his famous Speech on Conciliation has endured down to our time. Most of the delegates to the Philadelphia Convention, active in colonial affairs before the Revolution, understood not only the British government of the North American colonies, but also the British legal system; some had occupied public office before the Americans declared their independence.
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They soon became the bible of the legal profession. First published in , the work was enormously popular among American lawyers, so much so that as many copies were sold in the colonies as in the mother country. American colonial leaders repeatedly drew from this timely and authoritative source in challenging the policies of the English government and drafting their own fundamental laws. In like manner, most of the early State constitutions drafted in were influenced by the Commentaries, and these in turn were copied in part by the newer States joining the Union.
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Thus the language of both the Federal and State constitutions in the United States cannot fully be understood without reference to the English common law. Coke had challenged the claims and pretensions of the Stuart kings and had helped to prepare the way for the independence of both Parliament and the English courts. In Dr. The American system of property and contract law, to cite just two examples, may be traced back to general rules based on common sense, habit, and custom that gradually evolved in the English courts.
The different system of jurisprudence called civil law or Roman law , on the other hand, is derived from legislative enactment.
It was based originally upon the system of laws administered in the Roman Empire, particularly as set forth in the compilation of the Emperor Justinian ad The jurisprudence of continental Europe, Latin America, and many other parts of the free world is based upon the civil law. The ecclesiastical and administrative courts of England, including the infamous Court of Star Chamber, also applied the civil law, which relied upon different rules of evidence and tried cases before a judge without a jury.
The legal system of the State of Louisiana is also based in part on the civil law because of the influence of the French in that region before Louisiana became a part of the United States. In Napoleon Bonaparte, Emperor Edition: current; Page: [ 35 ] of France and military dictator over much of Europe, reduced the enormously complex and disorganized body of ancient civil law to a single written code.
The Code Napoleon was widely copied or utilized and soon displaced the Justinian Code and other earlier codifications. It serves today as the modern expression of the civil law. The English common law runs all the way back to Anglo-Saxon days in England, but it did not begin to take shape until late in the twelfth century during the reign of Henry II. It passed into North America with the coming of the first English settlers to the New World, and over the centuries was incorporated into the American system of laws by legislation and judicial decisions. In England, the common law is an essential part of the English Constitution.
Although most of Anglo-American common law has been superseded by State constitutions and laws, it is still recognized in courts of law and may even serve as a rule of decision. This is more true in State courts than in those at the Federal level, because Federal courts are not courts of general or common law jurisdiction. Opponents of the common law argued that the Revolution had terminated application of English legal concepts to America. In the period immediately following the American Revolution, there was much opposition to everything English, including the common law; and in the early nineteenth century some American lawyers favored legislative codification of the common law along the French model.
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Much of this opposition stemmed from the fact that American law reports and legal treatises were scarce, and it was difficult even for lawyers to know what the law was and what features of the English common law had been adapted to American circumstances. The impetus to abandon the common law collapsed in the early nineteenth Edition: current; Page: [ 36 ] century, however, when great American legal scholars and jurists such as Joseph Story and James Kent began publishing books on American law.
In addition to his famous Essays and philosophical works, Bacon published a number of books on the law, including Elements of the Common Law and Maxims of the Law. Among lawyers, Bacon was probably best known for his genius at stating the principles and philosophy of the law in concise, memorable, and quotable aphorisms, and for his efforts as Lord Chancellor to strengthen equity jurisprudence and check the power of the common law judges.
Equity, or chancery as it is sometimes called, denotes fairness, and consists of a body of rules outside of the common law that are intended to produce justice. It begins where the law ends; it supplements the common law. Under the common law, for example, there could be no relief in the way of compensation for a wrong committed against an individual until the injury had actually occurred.outer-edge-design.com/components/arsenal/3817-mobile-instagram.php
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This worked a hardship in some cases, however, if an individual was permitted to engage in dangerous activity or was in possession of hazardous property or material likely to produce injury. In some instances they were allowed, in effect, to circumvent rulings of the common law courts by providing remedies that the common law courts could not give. After the American colonies gained independence, most of the States, with the notable exception of New York, combined law and equity in one court, abolished separate courts of chancery, and extended the judicial power to both law and equity.
The Framers modeled the Constitution along the same lines.
Since , when the first Judiciary Act was passed Edition: current; Page: [ 37 ] Edition: current; Page: [ 38 ] by Congress, Federal judges have thus been required to have some knowledge of Anglo-American equity law in order to carry out their duties. Because the equity power is not defined in the Constitution and tends to expand the power and jurisdiction of the Federal courts, it has played a significant role in the growth of judicial power, especially in recent times.
Its proper application thus requires judicial self-restraint. It is noteworthy that the first great constitutional quarrel between the English and the Americans, prompted by the Stamp Act of , was based on a claim that the statute violated both constitutional and common law rights.
The Act provided a stamp tax on the issuance of college diplomas, licenses, commercial paper, deeds of property, leases, and land grants, and on sales of newspapers, pamphlets, and printed advertisements. Even sales of playing cards and dice were subjected to the tax.
The Act further stipulated that prosecutions for violations of the law would be tried not at common law, as constitutional custom dictated, but in vice-admiralty courts. These were administrative courts which relied on the civil law and did not use juries. The Stamp Act was repealed before it could be enforced, but not before Americans loudly protested.
Among the most cherished common law rights in both England and America was the right of trial by jury, which had traditionally provided an essential check on government and protected the rights of property and individual liberty. In these courts, one judge presides alone. No juries have any concern there. Thus the Stamp Act, here at the outset of the constitutional struggle that led to the American Revolution and the Philadelphia Convention, threatened two basic constitutional rights—the right to be taxed only by consent and the right to trial by jury.
In responding to the radical policies and innovative constitutional doctrines of King George and his Tory ministers, the Americans were also much attracted to John Hampden and Algernon Sidney, whose names were virtually synonymous with constitutional liberty. Hampden was the leader of a local tax revolt that shook the foundations of royal absolutism in seventeenth-century England. In the Petition of Right of , the King had bound himself never again to imprison any person except Edition: current; Page: [ 40 ] Edition: current; Page: [ 41 ] by due process of law, never again to circumvent the regular courts through court martial trials by commissions, never again to quarter soldiers in private homes without the consent of the householder, and never again to raise money without the consent of Parliament.
These writs, however, had been imposed only on the port towns of England because their purpose was to raise money for ships of the Royal Navy.