From: stephen@sprunk.org

On 14-May-14 01:58, Charles Ellson wrote:
> On Tue, 13 May 2014 19:29:41 -0500, Stephen Sprunk
>  wrote:
>> On 11-May-14 02:20, Charles Ellson wrote:
>>> On Sat, 10 May 2014 23:01:43 -0500, Larry Sheldon
>>>  wrote:
>>>> Some where I learned that "The Body of The Law" in the USA (I
>>>> think that is my tern--but I am not sure and I am still not a
>>>> lawyer and would deny it if I was) consists of part or
>>>> components with names like:
>>>>
>>>> English law statutory law (comes in flavors like Federal,
>>>> State, County or Parish, City, and such) Case law ("judicial
>>>> decisions" in your definition) Common law (I guess "custom" in
>>>> your definition)
>>>
>>> The 17th century settlers will have carried on using the law
>>> that they had "back home" thus for practical purposes using
>>> English Law but from that time onward there would no longer be a
>>> direct matching to English Law due to separate development.
>>
>> In theory, the Colonies used English common law until independence,
>> at which point they each "received" that common law as their
>> own--and then promptly started making changes to it, each in
>> slightly different ways. The US Govt also "received" that common
>> law as its own, but SCOTUS (mostly) wiped that out in 1938, so it's
>> (mostly) moot now.
>
> In reality, it would have ceased to be "English" as soon as someone
> added a domestic judgment.

The Colonies were part of England, so any judgments made in the Colonies
were by English judges within English common law.  And it was not (and
still is not) uncommon for trial courts to disagree on the law,
resulting in different common law in different parts of England, whether
those parts were in the Colonies or back home.

After independence, of course, that all changed.  The important point
was that all of the US states (except Louisiana) and the federal govt
"received" English common law and then started to diverge from that
common origin--and even from each other.

>>> This would result in some current law being traceable back to
>>> English Law but the system is now essentially as separate as all
>>> other Common Law systems.
>>
>> Well, the parts we haven't changed would still be traceable.
>
> The parts you have changed sometimes return to their ancestral home
> when the same reason for change arises, in some cases allowing a
> thread of development making more than one return journey (or a bit
> of a tour if it goes via other systems) over the centuries.

I can't recall having seen any citations of English cases after 1776,
and I'm pretty sure I'd remember that because I'd recall questioning the
legal authority of such a precedent.

That's not to say our courts haven't on occasion ruled in the same way
as English courts, but that would be convergent evolution.

S

--
Stephen Sprunk         "God does not play dice."  --Albert Einstein
CCIE #3723         "God is an inveterate gambler, and He throws the
K5SSS        dice at every possible opportunity." --Stephen Hawking

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