English Law Quotes
Then, as now, there were some who claimed there should be a larger role for Christianity in American law and governance. One such view in the first half of the 19th century was that whatever was unspecified in the Constitution deferred to the common law. England had an official state Christian church and therefore Christianity must have been a part of English common law and hence should be a significant part of American law and governance. Jefferson was one of the many leaders who refuted the notion by pointing out that the common law in England predated Christianity.
See also James Mathew for the analogy of British justice and the Ritz Hotel.
Marat was one of the leaders of the French Revolution who advocated the execution of so many people that became known as the “Reign of Terror.” His name is associated with massive bloody violence by the existing government. Morris observed that the English system executed far more people over the years, but was not looked upon as so heinous.
There had been no tradition of self government or even rights in Germany and some like Hamilton thought that the immigrants from such a totalitarian tradition would not handle the relative freedom of America. They were wrong.
Early American law and procedure was English law and procedure.
William the Conqueror. In Wager of Battle—often called “trial by combat”, a guilty person could challenge his accuser to combat. If the accuser won, the person must have been guilty; if the accused person won, he must have been falsely accused. It was assumed that this method gave God a clear opportunity to do justice. As silly as this appears to us today, at the time, most people believed that God was indeed looking at every event and would intercede to be sure that justice would prevail. In reality, it allowed the stronger men with good weapons skills to literally get away with murder or anything else. A similar logic operated with the Ordeal of Iron and other so called “ordeals”. In the ordeal by iron, the accused was required to lift a red hot iron rod. He would of course be burned. If the burn healed, God was showing that he was innocent. But if the burn festered and got infected, God was showing that he was guilty. If he didn’t die of gangrene or other infection, he could then be executed or otherwise punished. In England the Ordeal by Iron commanded by King William was abolished in 1215. Some scholars argued that there was a method to the madness of trial by ordeal. If most people were so religious or superstitious that they believed that God would be sure that the right outcome would prevail. A false accuser would recant rather than expose himself to almost certain death in combat with an innocent person who God would surely protect. Of course the pious people would be at a great disadvantage to the non-believers who would not be intimidated. Trial by combat lasted much longer and evolved into dueling which was quite prevalent in America until later in the 19th century.
Some of the “originalist” judges like Antonin Scalia believe that the “straightjacket” was what was intended by the originators of the Constitution and this was a good thing.
