The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
A recognized system of jurisprudence had, under the circumstances
and from the causes which had been stated, begun to grow up
before the Revolution. It might fairly be called American, but
it was thoroughly English by heredity, and had been shaped by a
long succession of English influences, and steadied by the firm
hand of English power.
The Revolutionary War made everything connected with the law of
England distasteful to the people at large. The lawyers knew its
value: the community did not. Public sentiment favored an
American law for America. It was quickened by the unfriendly
feeling toward the mother country which became pronounced toward
the close of the eighteenth century and culminated in the War of
1812. Several of the States, New Jersey leading off, passed
statutes forbidding the citation, in the argument of causes, of
any decisions of the English courts made since the Declaration of
Independence. Under one of these Henry Clay, in 1808, was
stopped by the Supreme Court of Kentucky when reading in argument
from an opinion of Lord Ellenborough;[Footnote: Hickman _v._
Boffman, Hardin's Rep., 348, 364.] but after a few years,
legislation of this kind, while it might remain formally
unrepealed, was treated as obsolete both by court and
bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436
(1799); Morehead and Brown, "Digest of the Statutes of Kentucky,"
I, 613 (1807).]
In courts held by unlearned judges, also, English law-books were
lightly considered. One of this kind was Chief Justice
Livermore, of New Hampshire. Shortly after the close of the
Revolution, while presiding on the bench, he stopped a lawyer who
was reading from one with the inquiry whether he thought that the
members of the court did not "understand the principles of
justice as well as the old wigged lawyers of the dark ages
did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.]
But whether cited or not from their original sources, the settled
doctrines of English law were sure in the end to permeate both
bar and bench in every State.
The Roman law and the law of nations were studied in preparation
for admission to the American bar more generally and more
thoroughly in the years immediately preceding and following the
Revolutionary era than they have been since.[Footnote: See
Chap. XXIII.] The law student was also set then to reading more
books on English law than he is now.[Footnote: See Report of the
American Bar Association for 1903, p. 675.] He learned his
profession by the eye and not by the ear. His only lectures were
the occasional arguments on a demurrer or writ of error which he
might hear in the court room, and these were a reiteration of
rules laid down in English law-books.
The reason why he read more of Roman law than is now required in
legal education was mainly that there was more time for it, since
of English law reports there were then few, and of American none.
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