British ideas concerning common law and natural law and the English people’s attempts to establish political and civil rights under a monarchy guided the Founders in forming the ideology and procedures of the new nation’s judicial system.

Selectively drawing from the British legal tradition as it existed in the late eighteenth century, the Founders created a system designed to limit political power and protect fundamental individual rights, while guaranteeing uniform interpretation of federal law in the diverse states.

The cornerstone document of British and U.S. judicial development is the Magna Carta (1215), an agreement forced on King John by irate barons. Among other things, the Magna Carta established the principle that no individual could be deprived of life, liberty, or property except by “the lawful judgment of his peers and by the law of the land.” Also habeas corpus (production of charges and evidence) was made mandatory. The Magna Carta became the basis for civil liberties and the right to a fair jury trial in England. It eradicated previous feudal practices of trial by ordeal and trial by combat. It also set up the Court of Common Pleas (permanently residing at Westminster) as distinct and separate from the King’s Bench. Still there was much joint jurisdiction. After 1215, new legal thought emanated from the King’s Bench, while Common Pleas remained conservative. Writs were organized to try to standardize justice and bring common law into synchronization with equity. Also within a century of the signing of the Magna Carta, because of economic transformation during the Renaissance period, the Court of Exchequer emerged. This new court had jurisdiction over all revenue cases related to the British Crown. For the United States, the Exchequer Court would become the model for separate, financially oriented courts such as the Court of Claims, the Tax Court, and the Court of Customs and Patent Appeals.

Edward Coke produced a four-volume set of scholarly treatises on common law that helped appellate courts determine how the law should be interpreted.

(Courtesy of Art & Visual Materials, Special Collections Department, Harvard Law School Library)

Another important work in the development of British law was Edward Coke’sCoke, Edward four-volume set of scholarly treatises on common law, The Institutes of the Laws of England (1628-1644), although many did not relish his less than lucid writing style. The work was a major study of legal statutes, criminal law, and legal jurisdiction. Such treatise writers were extremely important in an age without standardized court reporting because their conclusions produced awareness in appellate courts about how the law of the land should be interpreted. Coke served under the Stuart kings as chief justice of the Court of Common Pleas (1606) and chief justice of the King’s Bench (1613-1616). Coke believed law to be sovereign, even above kings, and that the common law would keep life and country secure for each English person. Coke used common law to struggle against ecclesiastical and royal prerogative courts, often using a loose interpretation of the Magna Carta to support his conclusions. He had the courage to invoke higher law, even against parliamentary statutes, thus setting the precedent for judicial review. Thomas Jefferson viewed Coke as essential to the understanding of law.

Coke helped write the Petition of Right (1628), which banned abuses by the Stuart kings such as imprisonment without cause and implementing taxes without parliamentary consent. When Charles I refused to abide by these principles, Parliament passed the Grand Remonstrance (1640), which listed and condemned Charles’s abuse of power. Both documents became the basis for the Declaration of Independence. They also spelled out types of abuses to be avoided in the creation of the new nation by writing a constitution restraining potential abuses of power at both the state and national level.

When the last Stuart king, James II, refused to learn the lessons of British legal evolution, he was overthrown in a nearly Bloodless Revolution (1688), justified by John Locke’s social contractual theories. The new monarchs, William and Mary, were asked to sign a Bill of RightsEnglish Bill of Rights (1689) that gave inviolable political and civil rights to the people and recognized Parliament’s political supremacy. Excessive bail and cruel and unusual punishment were banned, and juries were to be impanelled to prevent tampering. A person arrested was to be assumed innocent until proven guilty. Protestant citizens had the right to bear arms, and parliamentary elections and speech in Parliament were to be free. Similar principles were enumerated a century later in the Bill of Rights to the U.S. Constitution, a document that became the basis for Supreme Court decisions about whether actions taken, even at the highest levels of government, violated basic individual rights. The English Bill of Rights was so influential that many American states adopted their own bill of rights before the federal government was organized.

Almost half the signers of the Declaration of Independence were lawyers, and the document borrowed heavily from the second of Locke’sLocke, John Two Treatises of Government (1690), which defined unalienable rights to life, liberty, and property accorded by natural law.Natural law According to Locke, people even had the right to form a new government if the former one produced a long series of abuses destructive of natural rights. He advocated the separation of powers but viewed the judiciary as part of the executive power. Partially for this reason, the last resort for clemency in criminal cases in the United States is the governor for each state and the president for the nation as a whole.

Lawyers also made up more than half of the delegates to the federal Constitutional Convention of 1787. With law libraries few and bare, most practiced law under primitive conditions. However, if they had one law book, it was William Blackstone’sBlackstone, William Commentaries on the Laws of England (1765-1769), a well-written survey of the principles of common law Common lawas derived from important decisions in British case law. Blackstone viewed law as supreme to any and all individuals, including the chief executive. For Blackstone, law operated under the principle of equality as set by the law of nature. Therefore, individuals endowed with reason could uncover those actions that were inconsistent with natural law or that threatened those natural rights given to each individual by nature and nature’s god. In short, Blackstone was defining “unalienable rights” that would lead to individual happiness and the common good. He also viewed all human laws as falling under supreme law. It was a short step from Blackstone’s conclusions to a Supreme Court.

William Blackstone created a well-written survey of the principles of common law as derived from important decisions in British case law. He viewed law as operating under the principle of quality as set by the law of nature.

(Courtesy of Art & Visual Materials, Special Collections Department, Harvard Law School Library)

The importance of British documents in setting rules of law that all reasonable people could follow oriented the American colonists toward writing similar documents, leading to the writing of the Constitution itself, the accompanying Bill of Rights, and the establishment of a Supreme Court in the Judiciary Act of 1789. The Founders wanted to make sure that the written provisions were understood and carried out in a uniform way.

Britain’s legal philosophy and fundamental documents did not emerge in a vacuum. Rather they were the product of slow evolution over many centuries. From early medieval times, English law was common law, which was unwritten law based on tradition and customs. What mattered most in common law was getting to the facts of the case, usually through oaths in which others swore to evidence. Penalties for damages were determined by a person’s worth to the community, an idea that became the basis of torts in Anglo-American law. For major crimes, oaths were sworn before twelve leading nobles, a process that became the basis of the grand jury system. An important principle handed down by Anglo-Saxon England was that the law originated from the understood customs of the people. To make such customs more clearly known, King Alfred (849-899) issued dooms.

When William the Conqueror established Norman rule in England, he confirmed the customary Anglo-Saxon laws. Yet with the introduction of feudalism, nobles established their own manorial courts, the church established ecclesiastical courts, and the king established his own court, presided over by members of his household. After a period of civil war and lawlessness, Henry II (1154-1189) took responsibility for bringing about the king’s peace in England. After organizing England into six circuits, he sent out itinerant judges to dispense standardized justice. He also used writs to transfer cases from manorial courts to the king’s court, allowed direct appeals to his own court, and placed clerical crimes of a secular nature under the king’s court. By the end of his reign, professional judges were emerging, principles of equity were assimilated into common law, and England was developing a concept of common courts and superior appellate courts. Because the control of law was a good means of centralizing power, Henry II made sure that the king’s court sat at the apex. Jurisdictional disputes continued, however, and powerful nobles did not want to be subject to the king’s law. Hence within a generation of Henry’s death, conflict came to a head with the signing of the Magna Carta.

The dynamic conflict between royal law, common law, and equity principle produced a small number of influential legal theorists, the most influential of which was Henry de Bracton (1215-1265), the first judge to collect and record thousands of decisions in his court, thus inaugurating the use of the most recent precedents in making legal judgments. His Concerning the Laws and Customs of England (1250-1258), the first study of how the common law evolved, held that principles of law could be deduced from particular cases. Although he held that all legal jurisdiction was derived ultimately from the Crown, the individual serving as king derived his power from the law and was subject to it.

By the second half of the eighteenth century, English law had a great number of practices that the Founders chose to duplicate. English law contained countless kinds of appeals calling for different pleadings and forms. The high courts expounded the law, while the lower courts decided the cases following rules and principles articulated by the superior appellate courts. For the superior courts, decisions did not have to be based on precedents but also incorporated higher principles of equity and natural law. The U.S. Supreme Court with its powers of judicial review and the appellate court system followed similar imperatives.

In relation to the colonies, the British gave the Privy Council the right to review court work of the individual colonies to see if any fundamental aspects of British law were violated. The Privy Council had the right to declare such actions null and void. Although the colonists hated such actions, this power was given in 1789 to the Supreme Court over state courts of the former colonies.

To ensure their independence, U.S. Supreme Court justices were appointed for life. However, they were subject to impeachment for cause, a process pioneered by the British parliament. In the newly formed United States, Congress had the power to pass new statutes that superseded previous laws, just as Parliament had. However, Congress was expected to stay within the basic precepts set down by the Constitution and could have its actions nullified by the Court. This process of judicial review did not exist in Britain, where law lords in the House of Lords acted as the final court of appeals.

Strongly influenced by British judicial development in its foundation, the U.S. judiciary evolved, determining its own path during the nineteenth and twentieth centuries. However, at the first session of the Supreme Court on February 2, 1790, the justices dressed in clothing similar to that worn by English justices. They were cloaked not only in English costumes but also English principles, procedures, and practices.

• A general starting point is Bernard Schwartz’s The Law in America: A History (New York: McGraw-Hill, 1974), which provides a highly readable survey in chapters 1-3. Another excellent overview is Lawrence M. Friedman’s A History of American Law (New York: Simon & Schuster, 1973). Gordon S. Wood’s classic, The Creation of the American Republic 1776-1787 (Chapel Hill: University of North Carolina Press, 1969), contains an in-depth view of the evolution of U.S. law as a selective choosing process from the British tradition. For the development of English law, J. H. Baker’s An Introduction to English Legal History (3d ed., London: Butterworths, 1990) remains the most reliable source. An understanding of both common law and the British legal theorists who influenced U.S. law can be obtained from James R. Stoner, Jr.’s Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992). Wayne Bartee and Alice Bartee’s Litigating Morality: American Legal Thought and Its English Roots (New York: Praeger, 1992) provides interesting comparisons of U.S. and British legal viewpoints regarding sex, insanity, punishment, and legal ethics. Russell Kirk’s America’s British Culture (New Brunswick, N.J.: Transaction, 1993) makes meaningful cultural contrasts in a highly readable format. For a well-written though opinionated study of the philosophical foundations of the Supreme Court and the reasoning behind early decisions, read Matthew J. Franck’s Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People (Lawrence: University Press of Kansas, 1996).

Appellate jurisdiction

Bill of Rights

Common law

Constitution, U.S.

Declaration of Independence

Impeachment of judges

International perspectives on the Court

Judiciary Act of 1789

King, Edward

Natural law

Supreme Court of Canada