Civilization in the United States: An inquiry by thirty Americans
General
Civilization in the United States: An inquiry by thirty Americans
United States -- Civilization
The Common Law became somewhat more popular when the principles of
individual rights which had blocked Stuart oppression were used
against George III. After the Revolution, however, it suffered with
all things English. Many lawyers had been Loyalists. The commercial
depression turned the bar into debt collectors. The great decisions of
Lord Mansfield which laid the foundations of modern business law were
rejected by Jefferson and many other Americans because of that judge’s
reactionary policy towards the Colonies. Many States actually passed
legislation forbidding the use of English cases as authorities in our
courts. The enforcement of the Common Law of sedition and criminal
libel by judges, many of whom had been educated in England, identified
the Common Law with the suppression of freedom of speech. Nevertheless,
the old simple Colonial rules were insufficient to decide the complex
commercial questions which were constantly arising, especially in
maritime transactions. Aid had to be obtained from some mature system
of law.
At this moment a rival to the Common Law presented itself in the
Napoleonic code of 1804, attractive to the populace just because it
was French, and to many of the bar because of its logical arrangement
and because unlike English lawyers they were widely read in Roman and
modern Continental law. For a time it was actually doubtful whether
the legal assistance which American judges needed would be drawn
from England or France. French writers were cited in the courts and
Livingston drafted a code on the Napoleonic model for Louisiana. The
English law had, however, one great advantage. It was written in our
own language. Furthermore, a group of exceptionally able judges such
as Joseph Story and James Kent, by their decisions and writings,
virtually imported the great bulk of the Common Law into this country
and reworked it to meet American conditions. Nevertheless, this law was
something that came from outside and had not grown up altogether from
the lives and thoughts of our own people, so that it has never meant to
Americans what English law means to Englishmen, for whom it is as much
a product of their own land as parliamentary government or the plays of
Shakespeare.
Public-domain text, read in full here on John Shaqi.
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