of the United States of America
By: Stephen
A. Coston, Sr.
The Law Of England Favored In Pre-Revolutionary America
Americans like to think that they invented the best legal system in the world. They are proud of the accomplishments of their particular jurisprudence and the safeguards for fairness and the administration of justice in general. Moreover, most Americans desire to trace the roots of our magisterial system back to the American Revolution where it is believed a legal system emerged that would guaranty our present freedoms due to the yoke of British bondage we had just emerged from.
As popular as these sentiments are, they are; nevertheless, inaccurate and naive. Our legal system was not invented by our forefathers anymore than the colonists initially wanted to be freed from same. Anyone who has studied the origins of the American Revolution knows that in the very beginning the Colonies protested, not that they were subject to British law, but that the freedoms and protections that they had enjoyed since their inception due to British law and Kingly decree had been taken away!
In fact, it seems clear that in the Authorizing Grant Charters along with the Instructions For Government (of the American Colonies) as outlined by His Majesty King James VI Of Scotland I Of England, many of the legal precepts set forth in the above were either suspended, altered, negated or otherwise made to naught by the British Government under King George III. This suspension of legal rights and privileges is, by the admission of our own forefathers, the true etiological origin of the discontent with British rule of the American Colonies, not that we objected to British law, only the misapplication of same.
Now I know that taxation and representation was, and is, a big issue for most Americans. It is instructive to note; however, that the intent of the laws and ordinances as set forth by His Majesty King James VI Of Scotland I Of England were to provide the colonists with every protection of English law and also to protect them from undue taxation!
It was the intent of James VI & I that all persons in the colonies were to be considered British subjects, and thus afforded all the protections of English law. When the Declaration Of Independence noted that Great Britain had suspended the application of normal British law in the colonies and that their appeals for justice and redress to their grievances which were made to the British legal system went unheard, then this was a violation of The Second Charter of May 23, 1609, which opened with the words "James, by the grace of God [King of England, Scotland, France and Ireland, defender of the faith, etc.] To all whom these presents shall come, greeting. The Second Charter specifically states that "And that they and their successors shall be from henceforth, forever enabled to take, acquire and purchase, by the name aforesaid (license for the same from us, our heirs or successors first had and obtained) any manners of lands, tenements and hereditaments, good and chattels and to plead and to be impleaded before any of our judges or justices, in any of our courts, and in any actions or suits whatsoever."
In short, the initial authorizing documents that served as the basis for the founding of the American colonies were highly prized and esteemed by colonists, and were, unfortunately, subsequently abandoned by the government of George III. These documents , and the laws of England which they carried within them, serve as the basis for the laws of the United States even to this day.
Great Britain's Statutory Legacy in American Jurisprudence
Where exactly do the bulk of our laws come from anyway, here in the United States? This is a question that most people including lawyers are perplexed by. However, in the volumes of American Law History this question is clearly answered in exquisite detail.
Even a cursory examination of standard legal works reveals that England (and Scotland) had a tremendous impact upon the origin and development of American Law. For example, Black's Law Dictionary lists many aspects of British law that clearly have no jurisdiction in Current American law. Definitions of this type include "Divine Right Of Kings, Royal Burghs, Royal Courts Of Justice, Royal Grants, Royal Honors, Royal Prerogative, Royal Titles Act, 1901; Royalty, Royal Assent, Knights Of The Thistle, Knights Of The Post, Knights Of The Shire, Kipper-Time, Kirby's Quest, Kirk, Knight, Knightenguild, Knighthood, King, King Can Do No Wrong, King-Craft, King's Advocate, King's Counsel." This is but a very small sampling of how English and Scottish civil law has continued to influence and shape our American legal culture up to this day.
As far as the etiology of our American legal system goes, West's Florida Digest 2d, Volume 5 gives us a clear picture of our legal history. This volume notes that the "Common Law Of England" is in full force today, where there is no existing law that contradicts same, or when it is not in opposition to the U.S. or State Constitution or otherwise prohibited. Also, the term "Common Law Of England" does not refer solely to that developed in English courts, but has been expanded on by American courts as well.
It is a little known fact that the United States has adopted portions of English law, going all the way back to July 4, 1776. These laws were adopted by the United States and have been in effect from the beginning of our nation and are still in force today! Moreover, the origin of British common law, and subsequently that of our own American legal system which has been derived from Great Britain, has as its basis a Christian philosophy.
This is in keeping with the purpose for which our nation was founded, as expressed in the Royal Charters given by His Majesty King James VI & I. Consequently, we find that our American legal system relied heavily upon the laws of England, which had been in effect for hundreds of years, before the Americas were even discovered!
Therefore, it should be evident that our "Common Law" in these United States comes from, in majority but not exclusively, from Great Britain!
One example of where the English common law had to be overridden in American law can be seen in the "Benefit of Clergy" . Since the United States Government has no state church as Great Britain does (Anglican), and due to the fact we are no longer a colony, dominion or protectorate of England, the codified laws pertaining to this aspect of law had to be abolished by statute.
Scope of British Influence Upon American Jurisprudence
When describing the etiology of American Jurisprudence quite often legal scholars refer back to our model system, namely, that of Great Britain. The scope then of British influence upon our American Judiciary mainly resides in historical and etiological terms. For example, when attempting to formulate the origins of our present "Chancery Jurisdiction" legal authors quite correctly describe our systems in terms of the predecessor legal model which resided in pre-modern colonial America. Central to any core explanation of this system; however, was also the central figure of the monarchy, which was, of course, the king. This factor; however, conjures up a sticky point for most Americans, and this is the concept of the peerage system.
The King was primary in this system, and so he was in the legal realm as well, at least initially.
In citing the ancient English common law, references abound to British precedents that are recorded in history with a veritable litany of knights and lords of the peerage. For example one can find references to Sir Joseph Jekyll, the Court of equity in England, Lord Redesdale & etc. Sometimes the parallels between American practice and British practice are so close that they are cited as exemplars of a particular action. To illustrate, in Florida Chancery Jurisprudence Including Pleading & Practice by Richard H. Armstrong, and William P. Donahue, pages 4 and 5 it notes: "In the courts of common law, both of England and America, there are certain prescribed forms of action, to which the party must resort to furnish him a remedy" And sometimes we are so succinct in our definition of common law that our English counterparts cite us as exemplars of their own system. A case in point is as cited in Florida Chancery Jurisprudence Including Pleading & Practice by Richard H. Armstrong, and William P. Donahue, page 5: "The article from the American Encyclopedia was written by Judge Story, and of it Professor Park, of King's College, of London, in his introductory lecture on equity, said: 'The editors of the Encyclopaedia Americana have stated the real case with regard to what we call courts of equity, much more accurately than I can find it stated in any English law book.'"
Additional evidence of how the common law of England has been retained in the main here in the United States can be found in another standard stalwart legal publication known as A Treatise On Equity Jurisprudence As Administered In The United States Of America; Adapted For All the States & To The Union Of Legal And Equitable remedies Under The Reformed Procedure by John Norton Pomeroy, LL.D., 4th Edition by John Norton Pomeroy, JR., A.M., LLB., Vol. 1, pages xi to xiii: " the equitable jurisprudence as it now administered by the courts of the United States, and of all those states in which the principles of equity, originally formulated by the English Court of Chancery, have been adopted and incorporated into the municipal law they would apply with equal force to a large portion of the American states;."
In Section I on "Equity Jurisprudence" the Introductory Chapter, such material is covered to include:
The origin of Equity in the English law.
- Statute of Edward I concerning new writs.
- Original powers of the King's council.
- Jurisdiction of grace transferred to the Chancellor; Statute 24 Edward III.
- Abolition of the court in England and in many American states.
Previewing this document, with special emphasis upon British influence into our American legal system, one finds a wealth of information to compare the two similar legal systems. I say similar, and not identical because that is exactly the case. England still has a state church and ecclesiastical law has no direct counterpart here in the United States. However, this being the case, despite the differences there is substantial common ground, especially in common law, between the two legal schemes.
The legislative workings of both the American and British courts is fundamentally the same, being driven mainly by judgments and opinions which are provided by superior courts in individual cases where matters of law are either in conflict, unclear or otherwise in doubt or dispute.
When tracing the roots of the English forensic system with a view to clarifying our modern day relationship to same, one can easily find citations to none other than William the Conqueror and Edward I. This is illustrative of the important role monarchs played in the legislative process. Suffice it to say then the American and British legal systems, though they have their difference, nevertheless, are still common systems.
Due to the age that common law has been in effect some have argued that the common law should be repealed on the basis that there is no longer any necessity for this antiquated hold over from England. However, legal decisions have consistently struck down such flawed reasoning. {See Fla. 1973. Statute proving for common law crimes could not be considered repealed or inoperative on the basis that there was no longer any necessity for the statute. F.S.A. § 775.01. State v. Egan, 287 So.2d1. This brings us to our next section.}
Case Law
This case concerned a divorce, and the custody of a minor child, along with an accounting of certain properties acquired during the marriage in question. A controversy ensued over the resultant estate and it then reached the Florida Supreme Court. The point of law in question was the conveyance of a portion of the estate. The case is cited as:
STRAUSS v. STRAUSS. Supreme Court of Florida, Special Division B. July 29, 1941. Rehearing denied September 16, 1941.
"6. Common Law. The common law draws its substance from Christianity, and the Christian concept of right and wrong, or right and justice, motivates every rule of equity."
After the common law was defined and applied, the necessity arose to explain the equity of the decision and what basis it had. In doing this the wording is as follows: "Every system of law known to civilized society generated from or had as its complement one of the three well known systems of ethics, pagan, stoic, or Christian. The common law draws its subsistence from the latter, its roots go deep into that system, the Christian concept of right and wrong or right and justice motivates every rule of equity. It is the guide by which we dissolve domestic frictions and the rule by which all legal controversies are settled."
Here, then, is a significant example of where our common law, derived from England and which served as our model, directly affects the decisions rendered in this country up to this century. Not only is the common law related as our heritage, but the Christian system which it was founded upon. This is significant for a number of reasons. This country was founded by a Christian King from England named James. It is only fitting and proper then that his legacy live on, albeit quietly and subtly in the laws of our land.
The next case we want to look at is the case of STATE OF FLORIDA, Appellant, v. William C. EGAN, Appellee, No. 43364, in the Supreme Court of Florida, December 12, 1973. There was a decision by a lower court that attempted to strike down the common law in the State of Florida due to it supposedly being too vague and not in force today. However, this decision was decisively overturned by the Florida Supreme Court which not only upheld the common law but cited its importance to the American legal system and its relevance to jurisprudence today.
"The Supreme Court, Boyd, J., held that statute providing in part that common law of England in relation to crimes shall be of full force in the state remained in force, and was not void for vagueness, and such statute could not be considered inoperative on theory of lack of any necessity for such statute; the common law is in effect except insofar as it has been modified or superseded by statute"
"Statute providing that common law of England in relation to crime shall be of full force in the state where there is no existing provision by statute on the subject was not void for vagueness." F.S.A. § 775.01.
In defining the perimeters of "Common Law" and the boundaries thereof as they apply in American judiciary, the justices stated: "The words used in statute providing that the 'common law of England' in relation to crime shall be of full force in the state where there is no existing provision by statute on the subject refer to common law, not only as declared by the English courts, but also as declared by courts of the American states." F.S.A. § 775.01.
Justice Boyd noted that this case came before the Court on appeal from the County Court of Broward County, specifically Judge McCauley of the trial court level. Judge McCauley passed an order on the validity of Section 775.01 Florida Statutes, 1971, F.S.A. giving his court jurisdiction of the appeal under appropriate regulations. Three infractions of common law was committed which is legally known as nonfeasance. There was a motion to dismiss the charges which were filed challenging the constitutionality of Section 775.01, Florida Statutes, F.S.A. by reason of vagueness and ambiguity. The lower court then did on January 23, 1973, strike down Section 775.01 on the ground that it was "in violation of Sections 9 and 16 of the Constitution of the State of Florida."
The Florida Supreme court noted that there are no grounds for obsolescence of the Section, and that the legislative antecedents of Section 2.01, Florida Statutes, expressly made the common law of England a part of the law of this jurisdiction, and that for more than 100 years this common law has been in effect in his jurisdiction except of course where modified by law or statute. This is supported by Wester v. Rigdon in Coleman v. State which noted "The common law of England in effect on July 4, 1776, was adopted as the law of Florida and declared to be of full force and effect in his state by the Act of November 6, 1829, § 1 (Comp.Gen.Laws 1927 § 87). This was done by statute and such adoption has been held to have been legal and binding and of full force and effect for more than one hundred years."
The Florida Supreme Court states that the statute is clear and cites same as follows: "The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this state where there is no existing provision by statute on the subject."
In further comment on the lower court's ruling the Florida Supreme Court states: "What is there, then, about the above quoted statute that is vague? The statute simply makes the common law of England in relation to crimes, with certain exceptions, the law of this state."
The Florida Supreme Court goes on to note that the common law of England is not such an exclusive term as to exclude American definition as to what the common law is. The Florida Supreme Court then takes judicial notice of Section 775.01 noting that the courts cannot usurp the legislative process. The justices put it this way:
"The court has no more right to abrogate the common law than it has to repeal the statutory law under our constitutional system of government, however, courts cannot legislate. They cannot abrogate, modify, repeal, or amend rules long established and recognized as parts of the law of the land ... Our answer to this line of argument is that a legislative enactment may be repealed only by further legislation and not by time or changed conditions the courts of this country must enforce it until repealed by the legislature as this Court said in Ripley v. Ewell, 'When the common law is clear we have no power to change it.'"
As to the lower court's assertion that there was no longer any necessity for the common law the Florida Supreme Court states "This argument seems strange. This is so because the instant case affords an excellent example of the necessity of resorting to the common law for the proper crime with which to charge a defendant."
The Florida Supreme Court goes further to cite specific cases in which the common law was crucial to deciding the merits of cases before them [Ducksworth v. Boyer; Parkin v. State].
In conclusion, the Florida Supreme Court upheld the common law in these words: "As we today uphold the validity of Section 775.01, we also, by way of caveat, re-emphasize its proper application"
The appelle was subsequently charged with the crime and convicted according to common law. The opinion ends this way: "Accordingly, the order of the trial court is quashed, and the cause remanded for further proceedings consistent herewith. It is so ordered." CARLTON, C. J., AND ROBERTS, MCCAIN AND DEKLE, J.J., CONCUR.
Rules of Evidence & Common Law
Common law touches many aspects of our judicial system, but one of the most profound affects comes in regard to rules of evidence. For example, one specific area which common law addresses is the principle of the Requirement Of First-Hand Knowledge/The Opinion Rule with regard to expert testimony.
SCOPE OF COMMON LAW AT STATE LEVEL
Common law in the State of Florida covers a wide range of aspects to include but not be limited to the following: covenants in warranty deed, crimes, evidence, guardian and wards, construction of law, husband's liability for wife's torts (now abrogated), Judicial Notice Act, marriage (common law marriages nullified), punishments, securities law, statutory laws, trademark rights and trusts and so on.
SCOPE OF COMMON LAW AT FEDERAL LEVEL
Common law is not only applicable at the state level, but is also recognized at the federal level. Such aspects that federal law recognizes are specifically the adoption of the common law from England, the time adopted, the general scope and limitation of the common law along with legislative modifications. Principles of criminal law and miscellaneous points are also addressed. The United States Code Service [Lawyers Edition] also is a source for consultation with respect to the reach of common law. (See 42 USCS The Public Health & Welfare §§4371-5500, 1989, page 221. See also General Index A-C, 1995 Edition USCS, page 732 for common law particulars in codified applicable U.S. law). Also, USCS {Constitution/Amendments 6-12} also make pointed reference to common law; see "Suits at common law."
Summary
This study has been only cursory, but nevertheless, sufficient to establish the author's premise, namely, that our present form of American law practice has a model in the British legal system. It was our mentor, and the British system still has great influence upon us. We owe a debt of gratitude to England and Scotland for our rich legal heritage. Even though the British legal system is linked with the honors system in that judges are routinely knighted upon taking office, this does not dispel our links with the body of law in common that joins our two nations.
Speaking of debts of gratitude I would be remiss in my social graces if I did not pause briefly to recognize the invaluable assistance of firms, without whose help this article would not be written. Firstly, to the law firm of Bacon, Bacon, Johnson, Goddard & Brown., P.A. I have spent many wonderful hours in their library, and have made good friends with many of the books on their shelves. Their generous assistance, in the form of providing both legal research resources along with the use of the copy machine, is much appreciated.
Last, but not least, to the law firm of Joseph J. Sorota, P.A., who has kindly allowed me to rummage through his books and use his copy machine. He is a good boss also for my wife.
With my thanks then to the aforementioned, and my admiration of British and American law, I will part company with the considerate reader's mind only to leave one last thought thereupon. When you see our legal system in action, remember, it has a history and a heritage far beyond our revolution. Despite our differences with Great Britain, we nevertheless depend on their legal system as a model for our own. To the kings and queens that nurtured this system we owe so much!
© 1997 Stephen A. Coston, Sr. All rights reserved . No part of this shall be reproduced, stored in a retrieval system, or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission from the Author and Publisher. KonigsWort Inc. 7245 34th Ave. N. St. Petersburg, FL. 33710
Note: More questions about this great King? Let's get the facts straight! We highly
suggest, "King James, Unjustly Accused?" by Stephen A.
Coston, Sr. You can get it from A.V. Publications Corp.,
P.O. Box 280, Ararat, VA 24053, 1-800-435-4535 OR call 1-800-659-1478. You can write
Mr. Coston at 7245 34th Ave. N. St. Petersburg, FL 33710.
To learn more about King James VI & I check out:
His Majesty King James VI & I
Page
Home
King James, The Judicial Heritage of the United States of America