The Changing Face of the Law
Changes in the Common Law • Criminal Law • Property •
Land and Water Usage • Contract • Procedure • Bench
and Bar • Legal Literature • Lower Federal Courts • For
THE GREAT LEGAL changes precipitated by the Revolution, discussed in the last few chapters, took place in the area of public law, that is, in the creation of a system based on written constitutions establishing fundamental rules to govern the means and limits of governmental authority. The Constitution and the Supreme Court epitomized this process, but the legal system as a whole involved much more. Congress created lower federal courts, which together with the state courts took the lead in developing new law to meet the demands of a growing economy and a changing society. Property and contract law changed significantly in the late eighteenth and early nineteenth centuries, as did criminal law. These changes demonstrate the Americanization of English common law, as well as the privatization of particular areas that had previously been public.
Blackstone, in his Commentaries, had praised the English common law as the great expression of natural law; judges, therefore, did not make law so much as discover it. As such, law supposedly remained neutral, favoring no one group in society against any other, but applying with equal impartiality to all who came into court seeking justice. Statute law, while articulating the will of ruling groups, also had to conform to natural law. Although Parliament could amend judge-made law by statute, common adherence to higher principles made this more a case of fine-tuning the legal and political system than one of conflict between law and politics.
In America, the colonists had long drawn a sharper distinction between English statutes and the common law, and had rejected much of the former as inappropriate to their situation. Following the Revolution, the reception statutes continued this practice: English common law would still be applied in American courts, but only those acts of