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AMERICAN LAW
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See also:AMERICAN See also:LAW . The See also:laws of the various states and territories of the See also:United States See also:rest at bottom on the same See also:foundation as those of See also:England, namely, the See also:English See also:common law as it existed at the beginning of the 17th See also:century. (See ENGLISH LAW.) The only exceptions See also:worth noting are to be found in the See also:state of See also:Louisiana, the territory of New See also:Mexico, and the acquisitions following the See also:Spanish See also:war of 1898. Those derive most of their law from See also:France or See also:Spain, and thus remotely from the principles of See also:Roman See also:jurisprudence. A See also:part also, but comparatively a small part , of the law of See also:Texas, See also:Missouri, See also:Arizona and the Pacific states comes from similar See also:sources. The United States as a whole has no common law, except so far as its courts have followed the rules of English common-law See also:procedure in determining their own. Most of the See also:positive law of the United States comes from the several states. It is the right of each state to regulate at its See also:pleasure the See also:general relations of persons within its territory to each other, as well as all rights to See also:property subject to its See also:jurisdiction. Each state has also its own See also:system of See also:adjective law. The trial courts of the United States of See also:original jurisdiction follow in general the practice of the state in which they sit as to procedure in cases of common-law See also:character. As to that in See also:equity, or what means the same thing, See also:chancery causes, they follow in general the practice of the English See also:court of chancery as it existed towards the See also:close of the 18th century, when the original Judiciary See also:Act of the United States was adopted. The public statutes of the United States are to be found in the Revised Statutes of 1873, and in the succeeding volumes of the Statutes at Large, enacted by each See also:Congress. Those of each state and territory are printed annually or biennially as they are enacted by each legislature, and are commonly revised every fifteen or twenty years, the revision taking the See also:place of all former public statutes, and being entitled Revised Statutes, General Statutes, or Public Laws. The private or See also:special laws of each state, so far as such legislation is permitted by its constitution, are in some states published separately, and made the subject of similar compilations or revisions; in others they are printed with the public session laws. American courts are often given See also:power by See also:statute to make rules of procedure which have the force of laws. Municipal sub-divisions of a state generally have authority from the legislature to make ordinances or by-laws on certain subjects, having the character of a See also:local law, with appropriate sanctions, commonly by See also:fine or See also:forfeiture.
Law in the United States has been greatly affected by the results of the See also:Civil War. During its course (1861–1865) the See also:powers
The )(Nth
of the See also:president of the United States may be said to Amend- have been re-defined by the courts. It was its first civil See also:meat. war, and thus for the first See also:time the exercise of the
military authority of the United States within a state which had not sought its aid became frequent and necessary. Next followed the amendments of the Constitution of the United States having for their special purpose the securing beyond question of the permanent abolition of See also:slavery and the civil and See also:political rights of the coloured See also:race. At the outset the Supreme Court of the United States was inclined to treat them as having a very limited operation in other directions. One of the provisions of the XIVth See also:Amendment is that no state shall deny to any See also:person within its jurisdiction the equal See also:protection of the laws. The benefit of this See also:guarantee was claimed by the butchers of New See also:
holding that the XIVth Amendment did protectthe citizens of the United States against the deprivation of their common rights by state legislation.2 Public sentiment supported the view of the minority, and it was not See also:long before changes in the personnel of the court, occurring in common course, led it to the same conclusions. The protection of the XIVth Amendment is now invoked before it more frequently than is that afforded by any other See also:article of the Constitution. In one of its See also:recent terms twenty-one cases of this nature were decided.3 Very few of them related to the See also:negro. Since the decision in the Slaughter-House Cases, the controversies as to the constitutional rights of the negro have been comparatively infrequent, but there has been a See also:great and steadily increasing number in all the courts in the See also:country, involving questions of discrimination in favour of or against particular individuals, or of changes affecting the rights of parties in the accustomed forms of judicial procedure.
Down to 1868, when this amendment was adopted, it was, as to most matters, for the state alone to See also:settle the civil rights and immunities of those subject to its jurisdiction. If they were to be See also:free from arbitrary arrests, secure in See also:liberty and property, equal in See also:privilege and entitled to an impartial See also:administration, it was because the constitution of the state so declared. Now they have the guarantee of the United States that the state shall never recede from these obligations. This has readjusted and reset the whole system of the American law of See also:personal rights.'
The Supreme Court of the United States has used the great power thus confided to it with moderation. Its general rules of decision are well stated in these words of Mr Justice See also: The earlier practice of the common law, which denied the benefit of witnesses to a person accused of See also:felony, had been abolished by statute, though, so far as it deprived him of the assistance of counsel and compulsory See also:process for the attendance of his witnesses, it had not ,been changed in England. But, to the See also:credit of her American colonies, let it be said that so oppressive a See also:doctrine had never obtained a foothold there. The 19th century originated legal reforms of no less importance. The whole fabric of special See also:pleading, once thought to be necessary to the elimination of the real issue between the parties, has crumbled to pieces. The See also:ancient tenures of real See also:estate have been largely swept away, and See also:land is now transferred almost as easily and cheaply as personal property. Married See also:women have been emancipated from the See also:control of their husbands, and placed upon a See also:practical equality with them with respect to the acquisition, See also:possession and trans-See also:mission of property. Imprisonment for See also:debt has been abolished. Exemptions from executions have been largely added to, and in most of the states homesteads are rendered incapable of seizure and See also:sale upon forced process. Witnesses are no longer incompetent by See also:reason of See also:interest, even though they be parties to the litigation. Indictments have been simplified, and an See also:indictment for the most serious of crimes is now the simplest of all. In several of the states See also:grand juries, formerly the only safeguard against a malicious See also:prosecution, have been largely abolished, and in others the See also:rule of unanimity, so far as applied to civil cases, has given way to verdicts rendered by a three-fourths See also:majority. This See also:case does not See also:call for an expression of See also:opinion as to the See also:wisdom of these changes, or their validity under the XIVth Amendment,, although the substitution of prosecution by See also:information in lieu of indictment was recognized as valid in Hurtado v. See also:California, See also:Ito U.S. 516. They are mentioned only for the purpose of calling See also:attention to the See also:probability that other changes of- no less importance may be made in the future, and that while the See also:cardinal principles of justice are immutable, the methods by. which justice I Ibid. 89, III, 129. 3 See also:Guthrie an the Fourteenth Amendment, 27. t See also:Baldwin's See also:Modern Political Institutions, I I r, 112. is administered are subject to See also:constant fluctuation, and that the Constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the states of the power to amend their laws so as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land. Of course, it is impossible to forecast the character or extent of these changes, but in view of the fact that from the See also:day Magna Carta was signed to the See also:present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and particularly to the new relations between employers and employees, as they arise."' The Civil War deeply affected also the course of judicial decision in the See also:southern states. During its progress it engaged the attention of a very large part of the See also:population, and the business of the courts necessarily was greatly lessened. Upon its close political power passed, for a time, into new hands, and many from the See also:northern and western states took prominent positions both at the See also:bar and on the See also:bench. The very basis of society was changed by the abolition of slavery. New state constitutions were adopted, inspired or dictated by the ideas of the See also:North. The transport system was greatly extended, and See also:commerce by land took to a large extent the place formerly filled by commerce by See also:navigation. Manufacturing came in to supplement agricultural See also:industry. Cities See also:grew and assumed a new importance. Northern capital sought investment in every state. It was a natural See also:con-sequence of all these things that the jurisprudence of the See also:South should come to lose whatever had been its distinctive character. The unification of the nation inevitably tended to unify its law. An important contribution towards this result was made by the organization of the American Bar Association in 1878. Of the fourteen signers of the call for the preliminary The Bar See also:conference, five were from the southern states. Its Assocla- tion. declared See also:objects were " to advance the science of See also:juris- prudence, promote the administration of justice and uniformity of legislation throughout the See also:Union, uphold the See also:honour of the profession of the law, and encourage cordial intercourse among the members of the American Bar." Largely through its efforts, the American law See also:schools have taken on a new character. The course of study has been both broadened Law and prolonged, and the attendance of students has schools. increased in full proportion to the additions to the facilities for obtaining a more thorough training in the profession. When the association commenced its labours, those studying law in the offices of practising lawyers very largely out-numbered those found in the law school. The proportion is now reversed. During the See also:year Igloo, for instance, the state See also:board of law examiners in New See also:York examined 899 applicants for See also:admission to the bar of that state. Of these all but 157 had received their legal See also:education wholly or in part at a law school? In 1878 few law schools had adopted any system of examination for those desiring to enter them. Such a requirement for admission is now common. In only one school were opportunities then afforded for advanced studies by See also:graduate students with a view to attaining the doctorate in law. Courses of this description are now offered by several of the university schools. A more scientific character has thus been taken on by American law. It is noticeable both in legal See also:text-books and in the opinions Reports. of the courts of last resort. In the latter precision of statement and method in discussion are invited by the See also:uniform practice of preparing written opinions. The original practice of See also:reading these from the bench has been generally discontinued. They are simply handed down to an See also:official reporter for publication, which is done at the expense of the See also:government by which the court is commissioned. With the judicial reports of each state the lawyers of that state are required to be See also:familiar; and this is rendered possible, even in the larger ones, by state digests,prepared every few years by private enter-prise. Outside of the state their circulation is comparatively limited, though sets of all are generally found in each state library, 2 See also:Holden v. See also:Hardy, 169 United States Reports, 336, 385-387. 2 See also:Columbia Law See also:Review, i. 99. 829 and of many in the Bar See also:libraries at the See also:principal See also:county seats. The private libraries of lawyers in large practice also often contain the reports of adjoining and sometimes those of distant states as well as those of their own and of the Supreme Court of the United States. The decisions of one state, however, are now best known in others through unofficial reports. One large See also:publishing concern prints every case decided in the courts of last resort. They are published in several distinct See also:series, those; for instance; coming from the northern See also:Atlantic states being grouped together as the Atlantic Reporter, and those from the states on the Pacific coast• as the Pacific Reporter. Another house has published a compilation professing to give all the leading American cases from the first to the latest See also:volume of reports. Another makes a similar selection from the decisions of each year as they appear, and publishes them with See also:critical annotations. There are also See also:annual digests of a See also:national character, comprehending substantially all American cases and the leading English cases reported during the preceding year. These. various publications are widely diffused, and so the American lawyer is enabled, in preparing for the See also:argument of any cause involving questions of difficulty, to inform himself with ease of such precedentsMas may apply. A court in Texas is thus as likely to be made acquainted with a decision in See also:Maine or See also:Oregon as with one in any nearer state, and in the development of American law all American courts are brought in close See also:touch with each other. This tendency has been advanced by the steady growth of codification. That is beginning also to serve to bring English and American law nearer together in certain directions. English A Negotiable See also:Instruments Act, promoted by the and American Bar Association, and prepared by a 'confer- Americas; ence of commissioners appointed by the several states law. to See also:concert See also:measures of uniform legislation, has been adopted in the leading commercial states It° is founded upon the English " See also:Chalmers's Act," and the English decisions giving a construction to that have become of special importance. The acts of See also:parliament known as the Employers' Liability Act and the Railway and See also:Canal See also:Traffic Act have also served as the foundation of similar legislation in the United States, and with the same result. Modern English decisions are, however, cited less frequently in American courts than the older ones; and the older ones them-selves are cited far less frequently than they once were. In the development of their legislation, England and the United States have been in general See also:harmony so far as matters of large commercial importance are concerned, but as to many others they have since 1850 See also:drawn apart. Statutes, at one point or another,• probably now affect the disposition of most litigated causes in both countries. Their application, therefore, must serve more or less to obscure or displace general principles, which might other-See also:wise' control the decision and make it a source of authority in See also:foreign tribunals. The See also:movement of the judicial mind in the United States, and also its modes and See also:form of expression, have a different measure from that which characterizes what comes from the English bench. American See also:judges are so numerous, and (except as to the Supreme Court of the United States) the extent of their territorial jurisdiction so limited, that they can give more time to the careful investigation of points of difficulty, and also to the methodical statement of their conclusions. Whatever they decide upon See also:appeal being announced in See also:writing, and destined to form part of the permanent published records of the state, they are expected and endeavour to study their words and See also:frame opinions not only See also:sound in law but unobjectionable as See also:literary, compositions.
The choice of American judges, particularly in the older states, has been not uninfluenced by these considerations. See also:Marshall, Bushrod See also:Washington, See also:Story, See also:Kent, See also:Ware, See also:Bradley, and many of their contemporaries and successors, were put upon the bench in part because of their legal scholarship and their power of felicitous expression. Hence the better American opinions have more elaboration and finish than many which come from the English courts, and are more readily accepted as authorities by American judges. But the great multiplication of reports See also:halt
so widened the See also: The consequence is that a case involving such questions may be differently adjudged, according as it is brought in a state or in a federal court.2 The divergences now most noticeable between English and American law are in respect of public control over personal liberty and private property, criminal procedure and the See also:scope of the powers of municipal corporations. Under the constitutional provision that no one shall be deprived of See also:life, liberty or property without due process of law, American courts frequently declare void statutes which in England would be within the acknowledged powers of parliament. These provisions are liberally expounded in favour of the individual, and liberty is held to include liberty of See also:contract as well as of person. Criminal procedure is hedged about with more refinements and safeguards, to the accused than are found in England, and on the other hand, prosecutions are more certain to follow the offence, because they are universally brought by a public officer at public expense. The artificiality of the proceedings is fostered by a general right of appeal on points of law to the court of last resort. It is in criminal causes involving questions of common-law liability and procedure 3 that English law-books and reports are now most frequently cited. American municipal corporations are confined within much narrower limits than those of England, and their powers more strictly construed. Trial by See also:jury in civil causes seems to be declining in public esteem. The expenses necessarily incident to it are naturally rrla/6y increasing, and the delays are greater also from a jury. general tendency, especially in cities, where most judicial business is transacted, to reduce the number of See also:hours a day during which the court is in session. The requirement of unanimity is dispensed with in a few states, and it has been thus See also:left without what many deem one of its essential features. The See also:judge interposes his authority to See also:direct and expedite the progress of the trial less frequently and less per- See also:Swift v. Tyson, 16 See also:Peters' Reports, 1, 19. 2 See Forepaugh v. See also:Delaware, Lackawanna & Western Railroad See also:Company, 128 See also:Pennsylvania State Reports, 267; Faulkner v. See also:Hart, 82 New York Reports, 313; and See also:Lake See also:Shore fe See also:Michigan Southern Railway Company v. Prentice, 147 United States Reports, 101. ' See, as examples, See also:Commonwealth v. Rubin, 165 See also:Massachusetts Reports, 453, in which See also:Holmes, C..T., traces the rule that, if a See also:man abuse an authority given him by the law, he becomes a trespasser ab initio, back to the Year Books; and Commonwealth v. Cleary, 172 Massachusetts Reports, 175, in which the same judge refers to Glanville and See also:Fleta as authority for the proposition that the admission in See also:evidence, in cases of See also:rape, of complaints made by the woman soon after the See also:commission of the offence is a perverted survival of the old rule that she could not bring an appeal unless she had made prompt See also:hue and cry.emptorily than in England. A jury is waived more often than formerly, and there is a growing conviction that, with a capable and See also:independent judiciary, justice can be looked for more confidently from one man than from thirteen. The United States entered on the See also:work of simplifying the forms of pleading earlier than England, but has not carried it so far. Demurrers have not been abandoned, and in some states little has been done except to replace one system of formality by another hardly less rigid. The general See also:plan has been to codify the laws of pleading by statute. In a few states they have proceeded more nearly in accordance with the principles of the English Judicature Act, and left details to be worked out by the judges, through rules of court.¢ Most of the state constitutions assume that the powers of government can be divided into three distinct departments, executive, legislative and judicial; and direct such a See also:distribution. In thus ignoring the administrative Theegs-/atureand
functions of the state, they have left a difficult que ;t'en p ecourts. for the courts, upon which the legislature often seeks
in part to See also:cast them. The general tendency has been to construe, in such circumstances, the judicial power broadly, and hold that it may thus be extended over much which is rather to be called quasi-judicial.5 A distinction is taken between entrusting jurisdiction of this character to the courts, and imposing it upon them. Where the statute can be construed as simply permissive, the authority may be exercised as a See also:matter of See also:grace, when it would be peremptorily declined, were the meaning of the legislature that it must be accepted.6 The courts, for similar reasons, have generally declined (in the See also:absence of any constitutional requirement to that effect) to advise the legislature, at its See also:request, whether a proposed statute, if enacted, would be valid. While its validity, were it to be enacted, might become the subject of a judicial decision, it is thought for that reason, if for no other, to be improper to prejudge the point, without a See also:hearing of parties interested. The constitutions of several states provide for such a proceeding, and in these the Supreme Court is not infrequently called upon in this way, and gives responses which are always considered decisive of legislative action, but would not be treated as conclusive in any subsequent litigation that might arise.
The general trend of opinion in the Supreme Court of the United States since 1870, upon questions other than those arising under the XIVth Amendment, has been towards recog- See also:Police nizing the police power of the several states as entitled power to a broad scope. Even, for instance, in such a matter of states. as the regulation of commerce between different states,
it has been upheld as justifying a See also:prohibition against See also:running any goods trains on a See also:Sunday, and a requirement that all railway cars must be heated by See also:steam.? In the " See also:Granger Cases," 8 the right of the state to See also:fix the See also:rate of charges for the use of a See also:grain elevator for railway purposes, and for general railway services of transportation, was supported, and although the second of these was afterwards overruled,9 the principle upon which it was originally rested was not shaken.
On the other hand, reasons of practical convenience have necessarily favoured the substantial obliteration of state lines as to the enforcement of statutory private rights. Massachusetts in 184o, six years before the passage of See also:Lord See also: Wallace, 72 Connecticut Reports, 195. See also:Norwalk See also:Street Railway Company's Appeal, 69 Connecticut Reports, 576; 38 Atlantic Reporter, 708. 8 See also:Zanesville v. Zanesville See also:Telephone Company, 63 See also:Ohio State Re-ports, 442 ; 59 North-Eastern Reporter, 109. ' New York Railroad v. New York, 165 United States Reports, 628. 8 Munn v. See also:Illinois, 94 United States Reports, 113; See also:Chicago Railroad Company v. See also:Iowa, ibid. 155. See also:Wabash Railway Company v. Illinois, 118 United States Reports; 557; See also:Reagan v. Farmers' See also:Loan and See also:Trust Company, 154 United States Reports, 362.
distribution of literary activity was very uneven along the See also:sea-board; it was naturally greatest in the more thriving and important colonies, and See also:bore some relation to their commercial prosperity and political activity and to the closeness of the connexion with the See also:home culture of England. From the beginning New England, owing to the character of its people and its ecclesiastical rule, was the chief seat of the See also:early literature, and held a position apart from the other colonies as a community characterized by an intellectual life. There the first See also:printing See also:press was set up, the first See also:college founded, and an abundant literature was produced.
The characteristic fact in the Puritan colonies is that literature there was in the hands of its leading citizens and was a chief concern in their minds. There were books of exploration and description as in the other colonies, such as See also: These were The Bay See also:Psalm See also:Book (1640), which was the first book published in See also:America; See also:Michael See also:Wigglesworth's (1631–1705) Day of See also:Doom (1662), a doggerel poem; and the New England Primer (c. 1690), called " the Little See also:Bible." The See also:sole See also:voice heard in opposition was Thomas Morton's satirical New English See also:Canaan (1637), whose author was sent out of the See also:colony for the See also:scandal of Merrymount, but See also:satire itself remained religious in Ward's See also:Simple Cobbler of Agawam (1647). See also:Poetry was represented in See also:Anne Bradstreet's (1612–1672) The Tenth Muse lately sprung up in America (1650), and was continued by a See also:succession of doggerel writers, mostly ministers or schoolmasters, Noyes, Oakes, Folger, Tompson, Bytes and others. The See also:world of books also included a See also:good proportion of See also:Indian war narratives and See also:treatises See also:relating to the See also:aborigines. The close of the 17th century shows literature, however, still unchanged in its main position as the special concern of the leaders of the state. It is Chief-Justice See also:Samuel See also:Sewall's (1652–1730) See also:Diary (which remained in See also:manuscript until 1878) that affords the 'most intimate view of the culture and habits of the community; and he was known to his contemporaries by several publications, one of which, The Selling of See also:Joseph (1700), was the first American See also:anti-slavery See also:tract.
The literature of the first century, exemplified by these few titles, is considerable in bulk, and like colonial literature else-where is preserved for See also:historical reasons. In general, Puritan-it records the political progress and social conditions ism.
of the Puritan state, and the contents of the Puritan
mind. The development of the original See also:settlement took place
Reports, 329; See also:Fish v. See also: I recruited by fresh See also:immigration, the original 20,000 who Begin- they were published there; they were, in fact, an atop. as an See also:agent of the law. In some, however, the state must be the See also:plaintiff; in others the widow, if any there be. The See also:accident resulting in See also:death often occurs in a state where the man who was killed does not reside, or in which the railway company does not have its principal seat. It may therefore be desirable to See also:sue in one state for an injury in another. Notwithstanding such an action is unknown to the common law, and rests solely on a local statute, the American courts uniformly hold that, when civil in form, it can be brought under such statutes in any state the public policy of which is not clearly opposed to such a remedy. In like manner, the responsibilities of stockholders and See also:directors of a moneyed corporation, under the laws of the state from which the See also:charter is derived, are enforced in any other states in which they may be found. Thus a See also:double liability of stockholders to creditors, in case of the insolvency of the company, or a full liability to creditors of directors who have made false reports or certificates regarding its See also:financial See also:condition, is treated as of a contractual nature, and not penal in the See also:international sense of that See also:term.' As a judgment of one state has equal force in another, so far as the principle of res adjudicata is concerned, the orders of a court in a state to which a corporation owes its charter, made in proceedings for winding it up, may be enforced to a large extent in any other. The shareholders are regarded as parties by See also:representation to the winding-up proceedings, and so bound by decrees which are incidental to it .2 The provisions of the United States law on different subjects and the literature concerning them are given in the See also:separate articles. See the bibliography to the article Law; also Cooley on The Constitutional Limitations which rest upon the Legislative Power of the States of the American Union; See also:Andrews on American Law; and See also:Russell on The Police Power of the State, and Decisions thereon as illustrating the Development and Value of Case Law. (S. E. Additional information and CommentsThere are no comments yet for this article.
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