The Civil and Common Law Nature of United States Founding Documents and Federal versus State Court Systems Professor C. Sweazey THE CIVIL AND COMMON LAW NATURE OF UNITED STATES FOUNDING DOCUMENTS (original) (raw)

The history of Roman Law, commonly referred to as civil law, spans more than eleven centuries and its influence on global legal systems is prominent (Mousourakis, 2015). Although the United States adopted and personalized the common-law practices of England, civil law was fixed in the intellectual and legal consciousness of the United States’ founding fathers and 17TH through 19TH century American lawyers. The writings of Sir William Blackstone, namely “Commentaries on the Law of England”, were most influential in the developmental stages of the United States, and were categorized based on Roman Law codification (Titus, 1994). Upon graduating from the College of William and Mary, Thomas Jefferson studied law under the tutelage of prominent American Law Professor, George Wythe who was knowledgeable in Roman Law, and Jefferson recommended Roman Law be made a part of beginner education (Hoeflich, 1997). Jefferson is also said to have employed Roman Civil Law in his legal arguments against Louisiana lawyer, Edward Livingston in December of 1811. John Adams, because his intellectual prowess in terms of Civil Law, was called the “Justinian of Braintree, Massachusetts” by his contemporaries, and in pursuit of acceptance to the Suffolk County Bar, Adams voraciously studied the legal codes of Justinian the 1ST and Cicero (Hoeflich, 1997). Noted 19TH century legal theorist, John Austin, studied Roman Law in Germany, and referenced other prominent Roman Law scholars in his Cambridge lectures such as Alexander C. Schomberg and Samuel Halifax in their respective publications “Historical and Chronological View of Roman Law” and “Analysis of the Roman Civil Law”. Austin is also quoted saying the two systems of law which he studied with the utmost accuracy was the Law of England and the Law of Rome. Roman Civil Law was generally employed by the founding fathers and early writers of law to navigate the confusion of case law in common law systems.