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To: CpnHook
The Federal government has not adopted the common law of England.

Unlike the states, the United States does not proceed from a prior government. It is a new frame of government.

It is a new government founded on new ideas that all men are created equal and endowed by their Creator with inalienable rights.

The foundational ideas of the United States are completely different from and incompatible with the ideas of England.

Instructions To Virginia Senators, January 11, 1800.

The House proceeded to consider the instructions from the General Assembly of Virginia, to STEPHENS THOMPSON MASON and WILSON GARY NICHOLAS, senators from the state of Virginia, in the Congress of the United States. The instructions are as follows:

The General Assembly of the commonwealth of Virginia, though it entertains no doubt of your punctual performance of your duty, or of your faithful adherence to the great principles of constitutional law, and national policy, deems it incumbent on it to communicate its opinions, formed after the most mature deliberation, on certain subjects essentially connected, as it solemnly believes, with the dearest rights, and most important interests of the people.

...The General Assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle and tremendous in its consequences: That the common law of England is in force under the government of the United States.

...Deeply impressed with these opinions, the general assembly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts —

To oppose the passing of any law, founded on, or recognising the, principle lately advanced, ‘that the common law of England is in force under the government of the United States,’ excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; .... and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated.”

There you have it - “Our dearest rights and our most important interests are threatened by the idea that the common law of England is in force under the government of the United States.

This audacious, barefaced and sweeping pretension to a system of law for the United States, a system not adopted by the legislature, a system beyond judicial power to adopt, would make judges into legislators since they would decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States.”

This was affirmed by none other than James Madison, member of the General Assembly of Virginia, who voted in the affirmative.

369 posted on 02/04/2015 10:21:16 PM PST by Ray76 ("Unlike my mum, Ruth has all the documents needed to prove who Mark's father was.")
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Jefferson letter to Edmund Randolph, August 18, 1799:

Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt.


370 posted on 02/04/2015 10:42:21 PM PST by Ray76 ("Unlike my mum, Ruth has all the documents needed to prove who Mark's father was.")
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To: Ray76
The foundational ideas of the United States are completely different from and incompatible with the ideas of England.

And there it is in a nutshell. By the Common law of England, everything we did was illegal. There is no justification for our actions under the Common Law of England. Our actions in creating a new government and new CITIZENS were completely outside the comprehension of the Common Law.

Thank you for posting that illuminating article about how the common law was regarded during this era. As it should happen, I have something similar. Remember that book that Cpn Kook loves to denigrate as being solely the work of one man who is a big nobody in the founding era? (He never bothered to look at the history of this "nobody".)

Well, the book was the consequence of the Legislature of Pennsylvania ordering the court to distinguish which English laws ought to be adopted by statute from those that should not.

In the first seventy-five years of our independence, many Americans – lawyers included – attacked the common law and advocated strongly for codification of all American law, in part, for the better security of citizens from arbitrary rule by judges. The common law was denounced as a barbaric, feudalistic relic of medieval England that imposed ex post facto, retroactive law on parties whenever judges found a new tort or new common law crime.50 Jefferson wrote in a private letter in 1788 that courts in America should be forbidden to cite any English decision since the accession of Lord Mansfield to the bench (in 1756),51 and in a private letter in 1812 that it was improper to quote in American courts any English authorities later than the accession of George III (in 1760).52 During the early codification movement three states – New Jersey in 1799,53 Kentucky in 1808,54 and Pennsylvania in 1810, 55 passed statutes specifically forbidding citation of English cases decided after July 4, 1776. The statutes did not last long in force, and there is some evidence that they were not enforced.56 In New Hampshire, a rule of court was adopted forbidding English citations.57

Which explains what motivated the Pennsylvania legislature to create this directive.

Which then created *THIS*:

Of which this is a prominent feature.


374 posted on 02/05/2015 6:48:42 AM PST by DiogenesLamp
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To: Ray76
The Federal government has not adopted the common law of England.

Right. There is no federal common law. This is a point acknowledged by the Supreme Court, though with one noteable exception:

"There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States 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." U.S. v. Wong Kim Ark, 169 U.S. 649, 655 (1998)

The foundational ideas of the United States are completely different from and incompatible with the ideas of England.

I'm not sure what "foundational ideas" entails. For sure, the U.S. wasn't establishing a Monarchy. Though a whole host of other ideas remained in common between England and the U.S., which is amply demonstrated by the similarity of language and concepts employed in our Constitution.

But the main topic here is Article II eligibility and citizenship. I'll note here (since this is pertinent both to your post and one I'm addressing shortly, that Thomas Jefferson authored a citizenship statute for the State of Virginia that contains a Blackstone-like jus soli principle:

"Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed{.}" Source

And, as I've noted on this thread several times, St. George Tucker, one of our nations premier early legal scholars, cites this statute as exemplary of how U.S. law is in agreement with Blackstone.

So you and others can cite to whichever authors you like waxing eloquent about principles of American independence -- when it comes to citizenship rules, the English principle was adopted.

379 posted on 02/05/2015 9:18:16 AM PST by CpnHook
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