State Law and Common Law

Americans of the Revolutionary generation approached the common law with the ambivalence inherent in the dual nature of the common law itself. In resisting British encroachments on their liberty, the colonists had claimed the common law as a source of liberties guaranteed to them as their birthright. The First Continental Congress had asserted Americans' entitlement to "the common law of England"; but when delegates met in Philadelphia thirteen years later to draft a federal constitution, they carefully avoided including the term in their final product. Those in 1774 had embraced the common law as a body of fundamental rights that existed above statute and royal prerogative, such as the right to a speedy trial and a trial by jury, to habeas corpus, or to be subject to no ex post facto laws. So understood, the common law allowed legal writers to import many "higher law" doctrines into practice and to oppose acts of the legislature or executive. Chancellor George Wythe of Virginia thus could declare void a state law discharging a private debt because the act was contrary to "unwritten or common law, that is, of the law of nature, called common law, because it is common to all mankind. … They are laws which men, who did not ordain them, have not power to abrogate." Indeed, states under the Articles of Confederation had set the common law against acts of the Confederation government, which they said were merely acts of an ordinary legislature.

At the same time, however, the common law was a body of unwritten law based on the steady accretion of procedures and definitions used by common law courts, and based on the ancient system of writs, commissions, and trial process. Such practices had developed over time in England, shaped by a discretionary judicial methodology that applied old principles to new cases and maintained the spirit of the common law by retaining its reasoning and rules. In this way, each colony's courts had developed and followed their own usages and their own ways of interpreting and applying age-old principles and procedures. Each colony thus had developed its own variant forms, creating its own common law alongside its particular statutory law.

The common law was a reliable source of law for new state courts at the crucial moment of rejection of British sovereignty. State legislatures knew that it would "take a considerable time to compile a body of laws suited to the circumstances of the country," declared the Virginia assembly in 1776 when it adopted the common law, "and it is necessary to provide some method of preserving peace and security in the mean time." To James Madison, the common law provided continuity and stood as a barrier against the idea "that the separation from G[reat] Britain threw us into a State of nature, and abolished all civil rights and obligations." Even so, as the newly independent states set about revising their legal systems, they recognized that the common law had to be purged of "what was inapplicable or unsuitable to us," as Thomas Jefferson described the process undertaken in Virginia in 1776. It was for this reason that the Constitutional Convention would not include the term "common law" in the new federal Constitution. As James Madison explained to George Washington, "if they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they would have done more, they would have brought over from G[reat] B[ritain] a thousand heterogeneous and antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is part of the common law." The states acted with the same caution.

Wary of the antirepublican influences in England's common law, therefore, only nine states expressly adopted the common law, either by statute or constitutional provision. The new states chose selectively from among the fundamental guarantees of the common law (such as criminal trial by jury) and from the writs, commissions, and procedures of its courts. The Massachusetts constitution of 1780, for example, avoided the term "common law" when it retained those "laws which have heretofore been adopted, used and approved in the province, Colony or State of Massachusetts Bay, and usually practiced on in the Courts of law." Others, such as New York and Pennsylvania, limited their reception of the common law to what had been adopted already. Virginia in 1776 included the common law among those laws declared to "be the rule of decision, and … in full force, until the same shall be altered by the legislative power," but all were to "consist with" rules, decisions, and resolutions already made by the Revolutionary convention.

As state law reformers undertook to revise their legal systems, they found in the common law many of the basic principles and procedures needed to make Americans a "people free, contented and united" under law and a terminology with settled meanings that would ensure consistency. How to separate these useful elements from their antirepublican features, and to make them "consist with" Revolutionary goals, was the reformers' challenge. Jefferson, who distrusted common law methods of adjudication that gave great authority to unelected judges in interpreting the law, was a member of a committee that considered a plan in 1776 to "reduce the common law, our own, and so much of the English statutes as we have adopted, to a text," or code. The group decided against the idea, recognizing that new terminology would only lead to more uncertainty and possibly the very ills they were trying to eradicate. A comprehensive new code, he wrote, would "have retained the same chaos of law lore from which we wished to be emancipated, added to the evils of the uncertainty which a new text and new phrases would have generated." Instead, the committee worked three years to produce a preliminary list of suggested bills, only a portion of which were enacted. Not until 1785, nine years after beginning its work, did it make a complete report, but only a third of its proposed laws were accepted. In doing so the legislature made some major revisions of particular common law rules (such as abolishing primogeniture and entail), but the force of tradition, the needs of continuity, and the association of the common law with fundamental rights had conferred on the common law a staying power there as in other states.

Despite the torrent of post-Revolutionary legislation and the absence of any uniformly explicit reception of the common law by the states, the common law remained a powerful force in state law. The system of common law adjudication, so distrusted by many, actually allowed judges to adapt the common law to the new needs of the new states. When Jesse Root of Connecticut wrote the introduction to his state's law reports in 1798, he pointed to judicial decision making as a way of "forming a system of jurisprudence congenial to the spirit of our own government." Root was referring to Connecticut's own government, just as the Virginia assembly in 1776 was referring to itself when it spoke of "the circumstances of the country" as the guide for lawmaking. Through case law made in state courts, the common law was reformed and given new meaning and legitimacy. The publication of such case law in law reports, moreover, made these decisions accessible to a wider public and diminished the sense of mystery once attached to the work of judges. Although state judges were hesitant about citing English common law in their decisions, its presence was evident. Congress, in fact, recognized the legitimacy and utility of state common law in the Judiciary Act of 1789, which made the "laws of the several states"—including the common law—the rules for decision in civil cases.

State common law thus weathered its first challenges in the new nation, but new challenges appeared in the 1800s. The common law was criticized for its alleged obscurity, foreignness, technicality, and slowness, all protected by an elitist judicial establishment said to stand against popular change. Many legal reformers in the first decades of the nineteenth century thus revived the demand for a comprehensive system of codification. Despite—or because of—these calls, defenders of the common law absorbed these criticisms and adjusted to many of them through statutory revision, pleading reform, and decisional rule making, and made the common law accessible through treatises and law reports. As their predecessors had done in the past, common law judges were able to respond to opponents by recasting doctrines while maintaining that they were only finding and extracting principles from the past. The abolition of common law writs in pleading by many states before the Civil War did not change the substance of state common law, which survived to offer the states not only a guide for conducting their legal systems, but for protecting them against incursion by the federal government.

See alsoConstitutionalism: State Constitution Making; Legal Culture; Liberty .

bibliography

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David Konig