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English Common Law

Pre-constitutional common law is one of the most important legal historical sources of the meaning of many constitutional provisions.

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Last Updated on March 8, 2023 by Constitutional Militia

English Common Law

“The language of the Constitution cannot be interpreted safely except by references to the [English] common law . . . when the instrument was framed and adopted. The statesmen and lawyers . . . who submitted it to the ratification of the States, were born and brought up in the atmosphere of the [English] common law, and thought and spoke in its vocabulary . . . [W]hen they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the [English] common law, confident that they could be shortly and easily understood.” [1]

English Common Law: One of the important legal-historical sources of the technical meaning of constitutional provisions.

In general, English common law of the pre-constitutional period is one of the most important legal-historical sources of the meaning (and specifically the technical meaning) of many constitutional provisions.[2] English “common law throws light on the meaning and scope of the Constitution,”[3] because the common law is “is the system from which our judicial ideas and legal definitions are derived.”[4] “‘The interpretation of the Constitution . . . is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”[5]

In determining what a provision of the Constitution means, WE THE PEOPLE “must look to those settled  usages and modes of proceeding existing in the common . . . law of England before the emigration of our ancestors, which were shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.”[6] So, if there was “no settled practice under the English law,” that law “cannot . . . be treated as embedded in the [Constitution].”[7] And “every rule of the common law and every statute of England obtaining in the Colonies, in derogation of the principles on which the new government [of the United States] was founded, was abrogated.”[8] in such cases, not English common law, but “[o]ur own Constitution and form of government must be our only guide.”[9]

The admonition that “[o]ur own Constitution and form of government must be our only guide” applies to all other foreign law—which generally is completely irrelevant to, and totally excluded as an acceptable source for, interpretation and application of the Constitution.

With three very specific exceptions of Congress’s power “[t]o define and punish . . . Offenses against the Law of Nations”;[1] of the disability of every “Person holding any Office or Profit or Trust under [the United States]” to “accept . . . any. . . Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”;[2] and the power of the President, “by and with the Advice and Consent of the Senate, to make Treaties”[3] which become part of “the supreme Law of the Land”[4] and to which “[t]he judicial power shall extend”;[5] the Constitution itself provides no basis for the notion that foreign law may promiscuously be consulted in order to construe its provisions. In the first instance, foreign law (“the Law of Nations”) becomes the predicate for Congress’s action, which most reasonably relate a defined “Offense” to that “Law,”[6] in the second instance, specific foreign laws must be consulted to determine whether particular “Office[s], or Title[s]” fall within the prohibited class. In the third instance, it may be necessary to consult foreign law to determine what a treaty means, or how to apply it. Overall, perforce of the legal doctrine inclusio unius exclusion alterius, these three particularized situations that may call for the employment of foreign law and constitutional exegesis uses compel the conclusion that nowhere else is such use permissible.

Other than the Declaration of Independence, which sets out the broad principles of separate and independent national sovereignty derived from “the Laws of Nature and of Nature’s God,” and the existence of “certain unalienable Rights” with which “all men . . . are endowed by their Creator,” the Constitution is the sole “authoritative language” that expresses WE THE PEOPLE’S will.[7] Necessarily, then, the General Government—or any branch or “Officer[ ] of the United States,” including “judges of the Supreme Court”[8]—lacks all powers save those WE THE PEOPLE have delegated to it, in definite and thereby limited terms, in the Constitution.[9] “The government of the United States was born of the Constitution”;[10] and “[i]ts power and authority have no other source.”[11]

Footnotes:

1.) U.S. Const. art. I, § 8, cl. 10.

2.) U.S. Const. art. I, § 9, cl. 8.

3.) U.S. Const. art. II, § 2, cl. 2.

4.) U.S. Const. art. VI, § 2. See e.g.,Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236–37 (1796).

5.) U.S. Const. art. III,  § 2, cl. 1.

6.) See, e.g., United States v. Smith, 18 U.S. (5 Wheat.) 153, 160–62 (1820); Ex parte Quirin, 317 U.S. 1, 27 (1942).

7.) E.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 381 (1821).

8.) U.S. Const. art. II,  § 2.

9.) Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816); Mcculloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819); Scott v. Sandford, 60 U.S. (19 How.) 393, 451 (1857); United States v. Cruikshank, 92 U.S. 542,551 (1876); Ex parte Quirin, 317 U.S. 1, 25 (1942); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 136-37 (1866) (opinion of Chase, C.J.).

10.) Downes v. Bidwell, 182 U.S. 244, 288 (1901) (White J., concurring).

11.) Reid v. Covert, 354 U.S. 1, 5-6 (1957) (opinion of Black, J.) (emphasis supplied).

English common law of the pre-constitutional period is the sole ostensible foreign law that has a definite role to play in construction of the Constitution.[10]

1.) Ex parte Grossman, 267 U.S. 87, 108–09 (1925). Accord, e.g., United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898); South Carolina v. United States, 199 U.S. 437, 449-50 (1905); Dimick v. Schiedt, 293 U.S. 474, 476 (1935).

2.)  E.g., Moore v. United States, 91 U.S. 270, 274 (1876); Ex parte Bain, 121 U.S. 1, 10-12 (1887); Smith v. Alabama, 124 U.S. 465, 478-79 (1888); Pollock v. Farmer’s Loan & Trust Co., 157 U.S. 429, 572 (1895), United States v. Wong Kim Ark, 169 U.S. 649, 654-56 (1898); Schick v. United States, 195 U.S. 65, 68-70 (1904); South Carolina v. United States, 199 U.S. 437, 449-50 (1905); Kansas v. Colorado, 206 U.S. 46, 94-95 (1907); Patton v. United States, 281 U.S. 276, 287-90 (1930); Dimick v. Schiedt, 293 U.S. 474, 476-82, 487 (1935); United States v. Wood, 299 U.S. 123, 133-39 (1936). See e.g., 2 J. Story, Commentaries on the Constitution of the United States (5th ed. 1891), §§ 1338-41, at 212-14.

3.)  Kansas v. Colorado, 206 U.S. 46, 94 (1907).

4.) Moore v. United States, 91 U.S. 270, 274 (1876).

5.) Smith v. Alabama, 124 U.S. 465, 478 (1888).

6.) Tumey v. Ohio, 273 U.S. 510, 523 (1927).

7.) United States v. Wood, 229 U.S. 123, 137 (1936), citing Callan v. Wilson, 127 U.S. 540, 549 (1888); Thompson v. Utah, 170 U.S. 343, 350 (1898); Patton v. United States, 281 U.S. 276, 288 (1930), Dimick v. Schiedt, 293 U.S. 474, 476 (1935); Continental Bank v. Chicago, R.I. & P. Ry., 249 U.S. 648, 699 (1935).

8.) United States v. Wong Kim Ark, 169 U.S. 649, 709 (1898) (Fuller, C.J., dissenting). E.g., Grosjean v. American Press Co., 297 U.S. 233, 248 – 29 (1936) (freedom of the press not limited to antient common–law freedom from prior restraint); Powell v. Alabama, 287 U.S. 45, 60–65 (1932) (traditional English common–law denial of counsel to individuals prosecuted for felonies not acceptable in America).

9.) Fleming v. Page, 50 U.S. (9 How.) 603, 618 (1850) (power of conquest over foreign lands not within the President’s “executive Power” in Article II, Section 1, Clause 1, because such a power is incompatible with a republican form of government).

10.) See E. Vieira, Jr., How to Dethrone the Imperial Judiciary, San Antonio, Texas: Vision Forum Ministries, 2004, page 77-80.

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