The Common Law Tradition
35
of France and military dictator over much of Europe, reduced the enormously complex and disorganized body of ancient civil law to a single
written code. The Code Napoleon was widely copied or utilized and soon
displaced the Justinian Code and other earlier codifications. It serves today as the modern expression of the civil law.
The English common law runs all the way back to Anglo-Saxon days
in England, but it did not begin to take shape until late in the twelfth century during the reign of Henry II. It passed into North America with the
coming of the first English settlers to the New World, and over the centuries was incorporated into the American system of laws by legislation
and judicial decisions.
In England, the common law is an essential part of the English Constitution. In America, the common law is not mentioned in the written
Constitution of 1787, but common law principles underlie much of our
‘‘invisible’’ or ‘‘unwritten’’ constitution. Some provisions of the Constitution, such as the one referring to ‘‘contract’’ in Article 1, Section 10, presume the existence of the common law and cannot be understood properly without reference to it. Although most of Anglo-American common
law has been superseded by State constitutions and laws, it is still recognized in courts of law and may even serve as a rule of decision.
This is more true in State courts than in those at the Federal level, because Federal courts are not courts of general or common law jurisdiction. At the time of the Constitutional Convention in Philadelphia, and
for some forty years later, Americans debated whether England’s common law should remain effective in the United States. Opponents of the
common law argued that the Revolution had terminated application of
English legal concepts to America. In the period immediately following
the American Revolution, there was much opposition to everything English, including the common law; and in the early nineteenth century
some American lawyers favored legislative codification of the common
law along the French model. Much of this opposition stemmed from the
fact that American law reports and legal treatises were scarce, and it was
difficult even for lawyers to know what the law was and what features of
the English common law had been adapted to American circumstances.
The impetus to abandon the common law collapsed in the early nine-