Historical Preface

Following the Revolutionary War, the English system of law was "received" and continued. American Law received a primary inheritance from its parent - the English Common Law, as well as its ancestors - the Germanic Law of the Vikings, and the Roman "Law of Nations." From Rome, it inherited fundamental Western constructs concerning the ideas of "property" and ownership, as well as a framework of law establishing the separation of public and private rights. The English had been ruled under the Jus Gentium during centuries of occupation as a conquered imperial province of the Roman Empire. Roman legal influences were further emphasized by the introduction of Ecclesiastic and feudal law.

In the period of medieval feudal England, Edward I accepted the legal doctrine of the "limit of legal memory," which was set at the coronation year of Richard I in 1190. The effect of this doctrine was to rest the Common Law upon a perceptual foundation of rights and wrong-doings as existed in the unwritten custom of the land. As a result, an individual can only be accused of a civil or criminal offense that is clearly defined and "known" to the Common Law. The development of Common Law is largely the interpretation of this customary law applied by judges in a manner consistent with legal precedents established after 1190. Historically, English lawyers could only ascertain the law by studying reports and records of ancient decisions. Law was learned through the production of annual law reports, or "Year Books," that continued in nearly unbroken succession for almost three centuries.

Essentially the effect of this doctrine was to describe the parameters of the fundamental unwritten law as regarded customary individual rights through any standing legal precedent established after 1190. The "rights of Englishmen" have remained relatively secure through the consistent application of this "rule of law." This consistency with precedent has served a similar purpose to our written Bill of Rights as a bulkwork against legislative encroachment upon liberty and property.

During the years of 1274-1290, Edward I initiated much new legislation in the form of statutes (made in Parliament) and ordinances (made in Council,) in the name of "clarifying" the common or customary law of the realm. In theory, English statutory law sought to "declare or clarify the [common] law" as it already existed from "time immemorial."

The "rule of law" remains ingrained in the basic conceptual framework defining American property and individual rights. Law maintains its consistency through the principle of continuity with prior precedent (or "stare decisis" = let the decision stand,) and integrity through the application of the Maxims of Equity. However, in carrying forward the principles of English Common Law and Equity incorporated into American Law, it is important to reconcile applications of law appropriate only to "subjects" of conquered territory or to a feudal monarchial sovereign with the structure of our American Constitutional system.


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