The common law is not Blackstone.
Yes, I hear the gasps and curses. And there’s even a few guys sitting in the back of the internet who muttered “Heresy!” But, wait, before y’all start piling up a cord of wood so you can burn me at the stake, let me explain.
People tend to have a poor understanding of what the common law is and what the common law was. Ask a new graduate of law school what the common law is and you will most likely get one of two answers: stare decisis or Blackstone. To be fair, this is not the young lawyer’s fault. Quite often, our law schools do a horrendous job of explaining what American common law is / was. This is because in large portions of our country the common law has been supplanted by a quasi-civil law system and I don’t think even many people who have been practicing, teaching or judging take the time to understand how the common law works - much less to explain it in a coherent way to young or prospective lawyers.
Neither Blackstone nor stare decisis encompass the entirety of American common law. Blackstone is a snapshot of British common law at a period close enough to our separation from Britain so that it provides a starting point for American common law. However, it is always possible to find other sources for common law as it existed in 1776 as well. There’s nothing particularly sacred about Blackstone; it’s just an easy place to look for a synopsis. American common law proceeds from Blackstone and other English sources. They are far from the final word.
Starting with the English common law, as limited by the American constitution, the American common law moved forward. It provided both substantive and procedural law and it grew and changed. The idea behind the common law was that the entire nation, from Alaska to Arizona to Virginia, was working together to develop one law that would govern us all. Judges in every State, and the federal government, were working together to develop one law. Almost perversely, the lack of computer legal resources and large libraries probably helped this process. A judge riding a circuit could only carry so many books with him and the local courthouse might not have much of anything either. Even a well stocked law library would probably have a book on evidence, the State’s statute book (one of those old monstrous tomes that were a foot and a half thick), and something along the lines of Corpus Juris or Amjur. If you were really lucky there might be a copy of United States Supreme Court Reports Lawyers' Edition which had both cases and treatises explaining the state of the law across the nation. There might also be a set of the State's published cases, but remember back in the day, before computer searches, this set of published cases was not nearly so useful. How would the judge in 1892 know that there was a case in 1795 that was directly on point? The answer is that he would not.
At this point we come to the point where we must start to discuss stare decisis. Back in the day, stare decisis was not as solidly established as it is now. Certainly, a State’s precedent was to be followed by a State court. However, unless it was in somebody’s book of important and relevant cases (Amjur, Corpus Juris, or the State equivalent), the only way someone would know it existed - no matter how much it was directly on point - was if he tripped over it by some happy accident. Additionally, cases from other States were not viewed as merely advisory. A decision from Alabama was just as much a part of the common law as any other decision and therefore when it quoted in Virginia it carried weight. Not so much as a Virginia opinion, but not so little that it could be easily ignored either. An opinion from another State carried its own stare decisis as part of the common law.
So, judges and lawyers without access to computers and limited access to expensive and bulky books would look first to their State’s statutes and if they were not clear or they did not cover the question then turn to the common books. A search through AmJur might provide a case specifically from the judge’s State, but more often it would give a general statement of the law with citation to leading cases from around the country. Thus, AmJur, Corpus Juris, and similar books were part of the common law and helped build toward one law across the entire land.
One of the advantages of the common law was that it allowed things to bubble up and become part of national law and procedure. Courts in Virginia might have to deal with issues involving the ancient common law crime of snipe hunting. They could define the element of “at the known proscribed time” as meaning “at night.' Then, North Dakota courts dealing with the same issue could look and see that this issue has been settled in Virginia and follow this precedent as common law.
Of course, this is a rather idealistic view of American common law and if you look closely at any idealistic model you will find flaws and the American common law system is full of flaws. Chief among these is the fact that America took a one sovereign system and split it among fifty-one sovereigns.
In England there was one final legal authority for the common law: the House of Lords. In the United States there were eventually fifty one final legal authorities for the common law - one for each State and the Federal Supreme Court. Thus, stare decisis, which was a boon to English common law, became the bane of American Common law. The House of Lords could decide that an element of illegal snipe hunting is that it must occur at night and this would be the law of the land. In the United States the Supreme Court in Wyoming could decide that snipe hunting was only illegal during daylight hours and the Supreme Court of Florida could decide it was only illegal after midnight and the Supreme Court of Nevada could decide it was only illegal in the afternoon. Because the United States Supreme Court is only authorized to decide issues that rise from the States which are constitutional in nature it could not decide common law matters unless they touched upon constitutional issues, or were raised in cases in federal courts (and even then the decision would have no precedential value in the States), and most common law questions, whether substantive or procedural, do not rise to a constitutional level. Thus, over time as various States’ Supreme Courts put their own spin on different areas of law the law actually became more diverse than common. This became more obvious as publishers undertook to make books which concentrated on a particular State’s precedents rather than on the nation as a whole.
Another failure of the fifty-one sovereigns American common law was fifty one legislatures. In England one sovereign, whether King or Parliament, passed statutes which instantly became part of the common law. In fact, Blackstone is replete with references to statutes and acts and defines the role of statutes in English common law as
STATUTES also are either declaratory of the common law, or remedial of some defects therein. Declaratory where the old custom of the kingdom is almost fallen into disuse, or become disputable ; in which case the parliament has thought proper, in perpetuum rei teftimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2. doth not make any new species of treasons ; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. And, this being done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, this has occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law : therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law : so that this was an enlarging statute . At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. beforementioned : this was therefore a restraining statute.
In the United States this kind of congruent growth of legislation as part of a national common law was difficult, if not impossible. Fifty one legislatures writing black letter law which either enlarged the common law or restricted it in each particular State or the federal system just added to the cacophony. A prime, and continuing, example of this is how the various States and the federal government deal with the problem of illegal drugs. The lack of consistency among the laws is perhaps the most consistent thing about them.
Of course, the traditional way of dealing with the legislatures' attempt to alter the common law has always been consistent. The law is limited to what it states it covers and affects nothing more. Thus, if Virginia were to pass a statute which dealt with advisement in a case of petit larceny that statute would apply only to cases involving petit larceny and nothing further – not even grand larceny. The common law practice of taking cases under advisement, which has developed and become a widespread practice, continues unchanged except that the judge must act in a particular manner in regards to its use with petit larceny. However, while this limited the damage the the legislatures could do to the common law it did not stop the divergences the legislatures kept putting into the laws of a particular State. It is also a doctrine that seems to have sadly fallen out of the knowledge and memory of far too many judges and justices sitting in appellate courts even in States which proclaim they are still common law states.
In the end, the lack of a single sovereign diverted most States and the federal government away from each other on many aspects of the law. Certainly, some basic definitions remained. A larceny remained the taking of the property of another with the intent to permanently deprive the other of that property. However, various details never dovetailed. For instance, the value of an item required to make its theft a felony varies from State to State. In Virginia it's $200, in Tennessee $500, and in Kentucky it's $1,000. This is a significant element and its statutorily defined by each State's legislature and thus it is extremely unlikely that there shall ever be one common resolution for this element across the entire United States.
Next Week . . . And Then Came the Codifications