Introduction

A number of you (you know who you are) have suggested to me that I am making a mistake in letting my writing skills and my knowledge of history and law go to waste and that I should write something. My answer has always been that being published is hard and that, anyhow, anything I write is too obscure for the general public and too superficial for serious scholars. This blog, Obscure but Superficial is my compromise. It will be on US history, law and constitution. I intend to begin a decidedly selective stroll through our history with an emphasis on law, though other subjects will be allowed.

I will begin, though, by reviewing some of what Professor Fritz taught us in CHILP (Comparative Historical and Legal Perspectives). Americans are people of many ethnic origins, but our laws and institutions are mostly English in origin, so to understand the United States, we need some understanding of England. Fritz goes back to the Middle Ages when most decisions were made in manorial courts, under control of the local feudal lord with decidedly mixed standards of justice. The king began establishing royal courts. Royal justice proved superior to manorial justice, and more and more cases moved into royal courts. This was adventageous to the king in that trying more cases in royal courts enhanced his power at the expense of local lords. This was important to the king because maintaining domination over the nobility might decide whether the king held onto his throne -- and his life.

Royal courts made an important advance during the reign of Henry II, (life 1133-1189, reign 1154-1189). He introduced the practice of trial by jury and had judges follow precedents set by other judges to establish a common law throughout the realm. Henry II's son John was an example of a king who could not maintain his domination over the nobility. They revolted against him and forced him to sign the Magna Charta. Much of the Magna Charta deals with feudal relations, but some of the guarantees sound familiar to us.

(38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except
by the lawful judgement of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

Other provisions stress the concept of a general law that is binding on all, even the king. It was in the time of John's grandson and Henry II's great-grandson Edward I that Parliament was established as an institution, with the power to pass its own kind of law called statutes.

This makes for several important points. One is that common law, i.e., judge made law, came first and statutes later. Another is that statutes have the power to override common law, but judges can only interpret statutes.* Another is that statutes have expanded and increasingly displaced common law, but that it was not always so. But perhaps most important is that, contrary to what most people believe, laws are NOT those things passed by the legislature. Those are statutes, which are a sub-category of law, but not the entirety of it. But don’t feel bad if you have difficulty with the distinction; many lawyers, judges and even Supreme Court justices use the terms law and statute interchangeably. Nonetheless, my attempt will be to use “law” broadly, to mean anything that is legally binding, “statute” to mean laws passed by the legislature, “common law” to mean judge-made law in the absence of any statute, and “case law” to mean judicial interpretation of statutes. If I slip up, correct me.

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*Of course, the U.S. Supreme Court can also strike down statutes as contrary to the Constitution, but that is a later development.