Laura's Reviews > The English Legal System: Carryover to the Colonies

The English Legal System by Joseph H. Smith
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's review
Aug 07, 2011

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bookshelves: history, law, washington-state-law-library
Recommended to Laura by: Dawn Kendricks
Read in July, 2011

This little book starts with a bang:

In 1608, the Court of the Exchequer Chamber made a decision about who could bring a property case in English courts. Aliens couldn’t. Could a man born in Scotland after the King of Scotland became the King of England? The Exchequer Chamber said he could. Per the book, the court “went on in dictum to differentiate between the conquest of the kingdom of an infidel – meaning a Moslem, not having the American Indian in mind. If a king came to a Christian kingdom by conquest, seeing that he had the power of life and death, he might at his pleasure alter and change the laws of that kingdom. However, until he made such an alteration, the ancient laws of the conquered kingdom remained in effect. But if a Christian king conquered the kingdom of an infidel and brought it under his subjection, the laws of the infidel were abrogated ipso facto, for they were not only against Christianity but also against the laws of God and of nature. In that case, until certain laws were established they king, by himself and by such judges as he appointed, should judge the infidels and their causes according to natural equity.” (4-5).

“It was not until many years after Calvin’s Case that the English central courts enunciated a corollary principle that in the case of the settlement of an uninhabited country, newly discovered by English settlers, such settlers carried the laws of England with them.” (5)

From the other side of the British Empire, these are breathtaking statements. Once upon a time, it was English Courts for English men, who would carry the law with them into “uninhabited” lands. For such tropes the term phallogocentrism was coined. At best, embarrassing, at worst, profoundly disturbing in its disregard of the value of others. On the other hand, almost every time I read public comments on newspaper articles, I see these sentiments, expressed poorly by people seemingly seething in anger over some State action or another. Huh.

And the book ended pretty good. I had to snicker at this statement: “the history of equity is the history of its extension, and the magistrates of Massachusetts showed themselves as apt as any great English Lord Chancellor to extend both equity and the reach of the ‘Chancellor’s foot’!” (75). It’s been fascinating watch the equitable impulse pull the courts one way, the technical legal judgment another.

In between? I’m not so sure. There were lots of lists of capital crimes, some of which (viz, witchcraft and sodomy) makes me all smug with history, some of which (viz, rebellious sons) that make me shake my head. Darkly amusing where rape was or wasn’t a capital crime. Compare, e.g., Massachusetts Bay Colony’s Body of Liberties of 1641 (“enumerating twelve capital offenses – idolatry, witchcraft, blasphemy, willful murder, manslaughter, murder by guile, bestiality, sodomy, adultery, kidnapping, perjury designed to take away a life, and insurrection and subversion”) with New Hampshire law (adding “man-stealing, children cursing parents, rebellious sons, rape, and the willful burning of houses.”) Perhaps because it was the fleshed out notes of two speeches at a library, it was a little catalog-y.

It was a good find when I was trying to figure out what was a felony back in the colonial day, and I’m glad I read it, but it’s not exactly an earth shattering work of legal history.

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