The thirteen colonies that gave rise to the United States, although inhabited by mostly English-speaking populations, did not all have the same relations with Great Britain. Two of them, Pennsylvania and Maryland, were colonies of property granted by the King of England to specific persons and their heirs (the first, from Charles II to W. Penn, the second from James II to Lord Baltimore). These concessions, in form and effect, were nothing more than the constitution of great fiefdoms and were in fact modeled on the investiture of the palatine county of Durham to the bishop of Durham, which far exceeded the usual feudal relations and conferred on the invested powers almost gifts. And the feudal concepts were, as far as land is concerned, still alive in English law. The other colonies on the other hand, for the most part, constitutive deeds or privileges, which intended to found what English and American law still call “corporations”, ie legal persons: but of the type of English cities, villages, or institutes of charity; that is, with a public purpose. The expression “body politic” (body politic) in these “cards” meant nothing. In some cases, such “cards” had been abolished by legal process; but some of the settlers believed that this was illegal and that said “papers” had permanent validity. Instead, the government argued that the “paper colonies” were royal provinces, subject to the rules issued by the king, both in council and in parliament. These “papers” also granted the right to issue “- laws of English cities: a term still used today to indicate the regulations issued by the American “corporations”, public and private. Instead, the extremist colonial theory was that such “laws” were actual legislative acts, and that each colony was a small state, united only personally to the English crown. Both the colonies with owner and those dependent on the king, and in particular when they functioned on the basis of “cards”, had the same administrative system, similar to the English one. The head of executive power was a governor, appointed by the king or owner, and assisted by a council, elected by limited suffrage or appointed by the governor. The latter claimed to have an often contested right of veto; and appointed judges, quamdiu se bene gesserint. From the last decisions of the judges or the colonial legislative councils one could appeal to the royal council in England; and the decrees (orders in council) were allowed to bind the colonists, but within certain limits.
The most serious problem was that of relations between the colonies and the English parliament. The common basis of the doctrines of the colonists and of the government was the feudal principle of the personal bond of subjection of every subject, in England or outside, to the sovereign. The limitations referred to those customary personal rights of the subject, which in the century of colonization were formulated in England in the Petition of Rights and in the Bill rights. The government believed that this bond bound the subject to the king of England by virtue of his crown, and that any modification of the relationship between the crown and other organs of the state in England was also valid in the colonies. Therefore, the acts of the English parliament, which were formally acts of the crown carried out with the council and the consent of the two chambers, bound the colonies, whenever they were mentioned expressly or implicitly. The colonial jurists, on the other hand, basing themselves on the personal character of the bond and on the imprescriptible nature of their privileges or “liberties”, denied the English parliament any authority over them, even though they professed, within the limits of their privileges, faithful subjects of the king.
The question became acute in the century. XVIII, when the English ruling classes considered the colonies as fields of exploitation in the interest of England (or Great Britain, after the Act of Union with Scotland). The colonies were technically called “ plantations” (plantations), meaning by this term indicate that their purpose was the cultivation of new lands to England’s advantage. Instead the colonists understood the term figuratively, as “planting” (planting) of new communities. For them, each colony was in coordination with the other dominions of the crown, England, Scotland, Ireland, Wales, the Channel Islands, Jamaica, Barbados. And the fact that each of these countries was in a different legal relationship with the crown gave strength to their argument, as did the similarity – not yet sufficiently examined – between their situation and that of Ireland, where plantations and settlers had also arisen. British, after 1660, had claimed the same rights later claimed by the colonies of America.
The legislation of the individual colonies was very limited in matters, given their small extent, and concerned mainly the circulation of money, trade with the Indians, their defense, provisions against luxury, and the question of religious tolerance. But at least in two cases there were attempts at codification. The Puritans of Massachusetts had begun by wanting to apply the Pentateuch in their courts as far as possible; and in 1641 they adopted a complete code, the Bodye of liberties which proclaimed itself founded in the Law of Moses. This code was never fully applied, but many of its prescriptions passed into civil and criminal law. In 1670 a maritime code was adopted, largely based on the Lex mercatoria of Malyne (1622). The other great attempt at codification consists in the “Laws of the Duke of York”, adopted in Pennsylvania around 1675. Alongside these, there were more restricted codes, such as the too famous “Blue Laws” or sumptuary laws, of various Connecticut community. But the tendency towards codification is contrary to the spirit of English common law ; which is then linked to the special procedure by means of ordinances (writs) which according to a fundamental theory could not have application in overseas dominions. And all this proves that nothing was so far from the spirit of the northern colonies,
The fact is that the idea, that the English common law was precisely the law of the colonies, appears only in the century. XVIII, after 1733, when the last colony was founded. And even then, only in the small group of colonial jurists, trained on English books, and not without serious exceptions, due to the influence of the doctrines of natural law. Thus many of the characteristic doctrines of the common law were applied with such limitations and modifications that they were almost unrecognizable. Thus the distinction of land ownership (land) from each other (personality) was maintained, but the transfer of the lands was made much freer and less burdensome than in England. The birthright appears sporadically, but in many cases it gives way to division, except that in the New Inghiherra the biblical rule of the double part for the firstborn applies. Majoraschi and fidecommessi meet but rarely. The incapacity of the married woman existed, but it is doubtful whether it was practically applied in the most distant and isolated territories. We do not know whether the typically English exclusion of children born of a different parent generally prevailed.
But the political controversy gave prevalence to those doctrines on the inviolability of the person and property (see united states: State system: Constitution, XXXII, p. 561) which, proclaimed by the English parliamentary opposition in the century. XVII were welcomed with enthusiasm by both the Puritans of New England and the Anglicans of Virginia. The popularity of these doctrines considered as fundamental and as guarantees, as we have already said, “constitutional”, contributed validly to promote the reception of the common law, and the movement was facilitated by the enormous, but not undisputed, authority they had in America. Commentaires by W. Blackstone.
Law sources. – The American courts, like the English ones, have a different attitude towards the sources of law from those of continental Europe. In both systems, there can be no doubt about the overriding authority of a law. And the process of interpretation is also essentially the same. But the British and American courts make much less use of so-called “legislative precedents” than others, although American courts differ in this respect from the English. The English rule that these “precedents” or “legislative materials” are irrelevant and that “the law speaks for itself” has been abandoned in the United States when it comes to interpreting a constitution. For other laws, parliamentary discussions, etc., are now cited in an increasing number of states,
In the absence of applicable laws, American courts rely largely on previous decisions in similar cases, that is, on jurisprudence. This rule of abiding by precedents (stare decisis) has become somewhat less important in recent times, following the multiplication of laws; but it is still the most notable feature of all common law jurisdictions and also dominates the interpretation of the law.
An interpretation that has become traditional is just as difficult to eliminate as a norm of common law, originally founded only on the preceding one.
But this rule is in fact far less absolute than what its critics say. Even Blackstone does not exhibit it without reservations and the possibility that we can go against the previous one has never been lost sight of. The Supreme Court of the United States views the rule as a matter of “politics” or expediency, not as a mandatory rule. Certain states, such as Massachusetts and the state of New York, apply it with the same precision as in England. However, it should be noted that, overall, the importance of stare decisis has greatly diminished in the United States.
The secondary importance attached to laws as a formal source of dint is complicated by the question of codification. In the United States, although laws abound on every conceivable subject, most states do not have a complete code of civil or commercial law. The two most important sources of obligations, contract and crime, are usually not codified at all, although matters such as landed property, succession, family are often included in comprehensive laws that resemble codes. The same is true for certain parts of commercial law. But only a few states have gone that far. Most have codified at least one of these parts of the law, and in six or seven states there is a series of codes that present themselves as a complete exposition of the law. But even in these states.