Federal Judicial Precedent and the Common Law

 

The American Revolution was a rejection of monarchy and the British statutes adopted under the authority of the English Crown. It was a repudiation of the despotic practices of monarchical law and society. Consequently, all principles and laws consistent with that form of government were also rejected in favor of republicanism and our new national law – our Constitution. Some people have argued that, although we explicitly rejected the British monarchy and its feudal principles, we adopted the common law of England as part of our new national law.

English common law is mostly derived through a long series of court precedents from different cultures spanning many centuries. It is sometimes referred to as “unwritten” or “precedential” law. In order for the Founders to adopt English common law, they would have to accept the body of rulings of the English courts, whose judges were appointed by royalty and decided many of their cases according to the principles, traditions, and functions of their monarchical government. Such a notion ought to leave most people wondering why Americans would revolt against the British Crown, hold a Constitutional Convention, and then simply adopt the entire body of unwritten law from that previous tyrannical government.

Obviously, the answer is that they wouldn’t…and didn’t.

Our national law is our Constitution and the laws made in the pursuance thereof. The only laws from the previous government that could potentially be adopted and applied to our new one were those that were consistent with the new republican government, the Constitution, and the fundamental principles that gave way to both. Any that contradicted our new form of government and our Constitution, and the subsequent laws created by their authority, were wholly inapplicable.

Since our federal government is restricted by the document that created it and gave it authority, any laws enacted by that government must be in the form of a written statute passed by the legislature – where the power of the People and the States resides – and signed by the president. (See: Article I, Section 7 – The Constitution of the United States)

Nothing can become federal law without an explicit statute or constitutional amendment creating and enacting it. In the early days of our republic, this was a maxim recognized by our judiciary.

“It is attempted, however, to supply the silence of the Constitution and Statutes of the Union, by resorting to the Common law, for a definition and punishment of the offence which has been committed: But, in my opinion, the United States, as a Federal government, have no common law; and, consequently, no indictment can be maintained in their Courts, for offences merely at the common law. If, indeed, the United States can be supposed, for a moment, to have a common law, it must, I presume, be that of England; and, yet, it is impossible to trace when, or how, the system was adopted, or introduced. With respect to the individual States, the difficulty does not occur.”

“The United States must possess the common law themselves, before they can communicate it to their Judicial agents: Now, the United States did not bring it with them from England; the Constitution does not create it; and no act of Congress has assumed it. Besides, what is the common law to which we are referred? Is it the common law entire, as it exists in England; or modified as it exists in some of the States; and of the various modifications, which are we to select, the system of Georgia or New Hampshire, of Pennsylvania or Connecticut? Upon the whole, it may be a defect in our political institutions, it may be an inconvenience in the administration of justice, that the common law authority, relating to crimes and punishments, has not been conferred upon the government of the United States, which is a government in other respects also of a limited jurisdiction: but Judges cannot remedy political imperfections, nor supply any Legislative omission.” – Justice Chase, United States v. Worrall, 2 U.S. 384, (1798)

It has since been argued, and largely accepted, that the United States is a common law country. But, the question is: How so? Are we an English common law country, as in, our federal government is bound by those laws? Or is it that only the states operate under such authority? If the United States is indeed a common law country, what then shall we do with our Constitution?

It is a fundamental principle of logic – the law of identity – that one thing cannot be something other than itself. This law is commonly expressed as, “A = A,” or “A is A.” Applied to the present discussion, this principle demonstrates that the written law cannot be the unwritten law, for that is a contradiction. A is not B.

Authority granted by legislative statute is authority neither derived from nature nor established by court precedent. Our Constitution is the written law from which federal powers in the United States are derived. The federal legislature is charged with creating and passing the necessary written laws in order to carry out those enumerated powers. This political entity is restricted by the written document that created it and granted authority to it.

If we have a common law government, then it is not bound or limited by our written Constitution and the laws made in pursuance thereof. With regards to our federal government, it is either one that abides by constitutional laws and statutes, or it is one that adheres to the common, or unwritten law. Since we do – as a matter of undisputed fact – have a federal Constitution, then it is not possible to also have a federal common law, unless it can be and is expressly adopted by that constitution.

If the argument is to make the case that the English common law is the law in many of the several states, then that may be more accurate, despite the fact that such a claim does not exactly portray the state-by-state process of adopting that law. As noted in U.S. v. Worrall, the several states did not uniformly adopt the common law, making it difficult to determine which laws apply and in what state, if at all. However, the method in which the individual states decided the matter and adopted English common law was irrelevant because it was explicitly recognized that the federal government could do and had done no such thing. The power of the federal government was derived from only one authority: our Constitution.

“Courts which originate in the common law possess a jurisdiction which must be regulated by their common law until some statute shall change their established principles, but courts which are created by written law and whose jurisdiction is defined by written law cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this Court, and with the decisions heretofore rendered on this point no member of the bench has even for an instant been dissatisfied.” – Chief Justice Marshall, Ex Parte Bollman, 8 U.S. 75 (1807)

In Worrall, Justice Chase stated that the judiciary cannot “supply any legislative omission” – meaning, the courts do not have the authority to create law. Our federal government only derives its authority through written law, and as Chief Justice Marshall pointed out, the federal judiciary “cannot transcend that jurisdiction” which has been allotted to it. In the United States, court precedents are not and cannot become national law unless adopted by the legislature. This entirely contradicts the most basic element of common law systems. If it is understood by our judiciary that they cannot create national law through precedent, then it is reasonable to assume that our federal system is not one of common law.

“It is clear there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs, and common law. There is no principle which pervades the union and has the authority of law that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption.” – Opinion of the Supreme Court, Wheaton v. Peters, 33 U.S. 591, (1834)

In the absence of any federal statute that explicitly confirms the adoption of the English common law under the authority of the Constitution, there can be no federal common law.

Other arguments have been made that we have adopted some of the common law, but not all of it. This is a more reasonable approach, as it would assume that only the laws that were consistent with the principles of our new nation and its government would be applicable. It makes sense that reasonable laws, no matter their origin, would be accepted in a nation whose laws were ostensibly based on natural reason and justice – or what is commonly referred to as natural law. This of course would include some of the common law, but does not admit to the adoption of the system in its entirety. Nevertheless, without a federal statute acknowledging the adoption of any of those particular laws, those laws have not been adopted.

“The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles and claimed it as their birthright, but they brought with them and adopted only that portion which was applicable to their situation.” – Justice Story, Van Ness v. Pacard, 27 U.S. 137 (1829)

This opinion by Joseph Story had been the accepted view of the Supreme Court with regard to American jurisprudence and the interpretation of law, both state and federal. His opinion was one of the nearly identical definitions of common law in the 1856 edition of Bouvier’s Law Dictionary:

“4. The common law of England is not in all respects to be taken as that of the United States, or of the several states; its general principles are adopted only so far as they are applicable to our situation.”

Perhaps the most damning evidence against the alleged adoption of the English common law came from two of our most prominent Founders, Thomas Jefferson and James Madison. The latter, who is commonly referred to as the “Father of the Constitution,” argued the matter in both a letter and in open congressional debate in his home state of Virginia.

“What can he mean by saying that the Common law is not secured by the new constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all the constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The Constitution of Virga. drawn up by Col Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and Obligations. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code….What could the Convention have done? 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 wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution. This objection surely was not brought forward in the Convention, or it wd. have been placed in such a light that a repetition of it out of doors would scarcely have been hazarded.” – James Madison Letter to George Washington, October 18, 1787

When President John Adams signed the Alien and Sedition Acts, it prompted debate at the state level. In Virginia, Madison’s committee went to great lengths to denounce the Acts and refuted the notion that they were accepted under the guise of English common law – which was purported to be in effect at the federal level during this time. In concluding the subject in the state resolution, it was declared that the common law was never adopted and never could, or should be.

“From the review thus taken of the situation of the American colonies prior to their independence; of the effect of this event on their situation; of the nature and import of the articles of confederation; of the true meaning of the passage in the existing Constitution from which the common law has been deduced; of the difficulties and uncertainties incident to the doctrine; and of its vast consequences in extending the powers of the Federal Government, and in superseding the authorities of the state governments; the committee feel the utmost confidence in concluding, that the common law never was, nor, by any fair construction, ever can be, deemed a law for the American people as one community; and they indulge the strongest expectation that the same conclusion will finally be drawn, by all candid and accurate inquirers into the subject. It is indeed distressing to reflect, that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labour to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers. A severer reproach could not, in the opinion of the committee, be thrown on the Constitution, on those who framed, or on those who established it, than such a supposition would throw on them.” – Virginia Report of 1799, concerning the Alien and Sedition Laws

If the common law was ever adopted as national law, Madison and his committee found no evidence of it and further reported that such an adoption would render the Constitution and the branches of the federal government moot. It was even explicitly stated that the common law was not compatible with the fundamental principles of the American Revolution.

“Such being the ground of our Revolution, no support nor colour can be drawn from it, for the doctrine that the common law is binding on these states as one society. The doctrine, on the contrary, is evidently repugnant to the fundamental principle of the Revolution.”

Fellow Virginian and writer of the Declaration of Independence, Thomas Jefferson, reached similar conclusions as Madison and his committee. In two letters written in consecutive summers, Jefferson made it quite evident that the common law was in no way applicable to the federal government and ought to be avoided in practice.

“Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force & cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the state laws of evidence in the state courts by certain parts of the stamp act, &c., &c., have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the U S, without the adoption of their legislature, and so infinitively beyond their power to adopt. If this assumption be yielded to, the state courts may be shut up, as there will then be nothing to hinder citizens of the same state suing each other in the federal courts in every case, as on a bond for instance, because the common law obliges payment of it, & the common law they say is their law.”

“I think it will be of great importance, when you come to the proper part, to portray at full length the consequences of this new doctrine, that the common law is the law of the U S, & that their courts have, of course, jurisdiction co-extensive with that law, that is to say, general over all cases & persons. But, great heavens! Who could have conceived in 1789 that within ten years we should have to combat such windmills.” – Letter to Edmund Randolph, August 18, 1799

“And I do verily believe, that if the principle were to prevail, of a common law being in force in the U S, (which principle possesses the general government at once of all the powers of the state governments, and reduces us to a single consolidated government,) it would become the most corrupt government on the earth.” – Letter to Gideon Granger, August 13, 1800

Not only did Jefferson acknowledge that the common law was never adopted by our federal legislature, but he also made it clear that such an adoption would essentially destroy our republic by consolidating extreme power within that government. If both Madison and Jefferson argued adamantly that there was no common law of the federal government, then it could be reasonably assumed that there was none at the time of the adoption of our Constitution. Considering the evidence and using common sense, it makes their assertions much more convincing and undoubtedly correct.

But why did men like Madison and Jefferson so adamantly protest the false notion that the United States adopted the English common law? The best answer to this question was provided in a speech in 1823, from a lawyer by the name of William Sampson.

“Let us keep in mind, that we too must become ancestors and be judged by posterity. We cannot altogether foresee what may be said of us, but part we may imagine. These people, (it may be said,) long after they had set the great example of self government upon principles of perfect equality, had reduced the practice of religion to its purest principles, executed mighty works, and acquired renown in arts and arms, had still one pagan idol to which they daily offered up much smoky incense. They called it by the mystical and cabilistic name of Common Law. A mysterious essence. Like the Dalai Lama, not to be seen or visited in open day; of most indefinite antiquity; sometimes in the decrepitude of age, and sometimes in the bloom of infancy, yet still the same that was, and was to be, and evermore to sit cross-legged and motionless upon its antique altar, for no use or purpose, but to be praised and worshipped by ignorant and superstitious votaries. Its attributes were all negative, its properties all enigmatical, and its name a metaphor. Taken in many senses, it had truly none. It was oral tradition opposed to written law; it was written law, but presuming the writing lost; it was that of whose origin there was no record or memory, but of which the evidence was both in books and records. It was opposed to statute law, to civil law, to ecclesiastical law, to military law, to maritime and mercantile law, to the law of nations; but most frequently contrasted with equity itself. It was common sense, but of an artificial kind, such as is not the sense of any common man; it was the perfection of reason, but that meant artificial reason. And as to its growth and progress, there is as little agreement amongst its panygerists at this hour. Some tell us it was perfect in its inception, and became corrupt through time; others that it had a barbarous origin, but gradually grew to perfection. Some that it was anciently wise, and then grew foolish, and from thence has been in a state of convalescence. One speaks of it in his day, as being the perfection of human reason; another shows it to have been at that very period under a dark and fearful inumbration. With false theories it must ever be so; for there is but one thing uniform, and that is truth, one thing wise, and that is simplicity.” – An Anniversary Discourse Delivered Before the New York Historical Society, on the Common Law

The English common law was recognized then as an incoherent relic of monarchical jurisprudence. Sampson’s Discourse offered his audience a brief history of the development of the then current English legal system. Not only did it demonstrate how many of the laws were born out of contradiction, despotism, or chaos, but it also explained how those laws could not be reasonably justified or adopted by a society such as our own. As we no longer accepted an oppressive and hierarchical society, so too did we reject the laws derived from it.

It was clear to Sampson, just as it was clear to many of our Founders, why we could not have a judicial system based on the English common law – or worse – to adopt it as it was.

Since our federal government has not adopted English common law as our national law and since the federal courts are not legally bound by anything other than the Constitution and natural reason – or common sense – the decisions made by our federal courts neither rewrite nor become national law. The written law, which defines the authority of our federal government, can only be changed by legislative statutes. The purpose of our federal courts is to interpret the written law in cases and controversies arising under their jurisdiction, which is also defined by the written law.

Legal matters arising under federal jurisdiction have been enumerated in the Constitution. Only that document and the laws and treaties made under the authority of that document govern the federal courts on federal matters. Those federal matters are not to be decided by state courts. Only federal courts can decide such cases, and in doing so, they are not bound by any common law precedents, but by our federal constitutional law. The governing power is described as follows:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” – Article VI, Clause 2, The Constitution of the United States

In federal cases, our federal courts are limited and bound by federal law. There is no mention of the English common law being one of the sources from which our federal judiciary derives its authority. There have been no amendments or statutes enacted since the adoption of our Constitution that have incorporated the body of English common law into our federal jurisprudence. Without such enactments, and without the ability of our federal courts to create law through judicial precedent, there is no federal common law.

Our national laws govern all cases involving our national affairs.

English common law has no bearing on the national laws of the United States. The only way it can be relevant is if the specific parts of the common law have been adopted by the federal legislature – in which case they become part of our written federal law (or statutory law) and are no longer considered English common law, but United States law.

In other words, there can only be one law of our federal government, and that is the law of the United States. Our Constitution and the federal statutes created and enacted by our federal government, and any treaties agreed to by the federal government (so long as they are consistent with our Constitution), are considered United States law – nothing more, nothing less.

Although the structure and procedures of our courts may resemble those of English jurisprudence and its system, the body of precedents from English common law is not to be taken as federal law in the United States.

Likewise, our written laws are not to be supplanted in our courts by judicial precedents. This is expressed in the Latin maxim, judicandum est legibus, non exemplis.  

The purpose of the federal judiciary is to interpret the law and to deliver opinions and render decisions based on those interpretations. Our courts cannot and do not create the law – they merely give an opinion of what the law is. Their duty is to hear the facts, study the applicable laws, and give their best opinion as to what the laws are and how those laws apply to each particular case that comes before their respective court. Their decisions do not then replace any and all correlative written statutes.

Judicial precedents are not law, they are merely decisions rendered by a majority of judges on a particular case. Supreme Court decisions do not become law and they are not a cause for blind obedience by future Justices. The Court’s precedents may simply become starting points for future Courts to examine and use when formulating their own opinions in similar cases. But by no means are they strictly bound by the previous judgment – and in some cases those judgments can be wholly rebuked and the precedent reversed.

There is no constitutional validation for any subsequent Supreme Court being forced to recognize any precedent by a previous Court. It is only accepted Court policy and it does not supersede or replace constitutional law. Just like the executive branch of our federal government, the judicial branch has no power to create, alter, or abolish laws. Those powers are explicitly reserved to the legislative branch – which is the legal representative of the People and the several states.

We did not adopt a federal common law at our founding, there isn’t one now, and as long as the Constitution remains in effect as the “supreme law of the land,” there never will be.

According to any and all facets of reason and truth, it ought to be plainly observed and concluded that the body of unwritten law known as the English common law is not and has never been the written law of the United States, and it is not to be used as such by our federal courts. It is also clear that the United States does not and cannot have a common law, so judicial precedents from our federal courts do not bind the opinions of future courts to them. If such observations and conclusions are in error, then the simple act of providing the relevant federal statutes that clearly demonstrate the adoption of any common law by our federal government will be an adequate refutation.

 

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