Modern Age - Fall 2014 - 73

JAMES MONROE AND THE SOURCES OF AMERICAN EXCEPTIONALISM

decisions. Court proceedings were carried
on in Norman French and doggerel Latin.
During the court sessions, barristers lodged
in nearby inns to search out the law, prepare
briefs, and meet clients. Eventually this
system was institutionalized as the Inns of
the Court. Young men wishing to learn law
would apprentice themselves to a barrister in
the Inns of the Court, just like an appren-
tice in any other trade. English law was not
taught at Oxford until the 1870s.
The precedents, collected every term in
yearbooks, became voluminous. Eventually
a wise judge, Thomas de Lyttleton, in 1482
wrote a commentary, a kind of guide to these
collections. It was one of the earliest printed
books and immediately popular. In 1628 Sir
Edward Coke, the same distinguished jurist
who had drafted the Petition of Right of that
year, also published an updated commentary
on Lyttleton, usually referred to as Coke
upon Lyttleton. Coke's book became the most
influential factor in the exposition of the
common law in England. Not surprisingly it
was one of the books that were carried most
often across the seas to the American colo-
nies, second only to the Authorized Version
of the King James Bible. The publication of
Coke was followed by Blackstone's Commentaries in 1765, a work still studied.
The glory of the common law is that it
was never frozen into an arbitrary code. The
courts instead are bound by a multitude of
past decisions and statutes enacted by an
elected Parliament. Common law is not writ-
ten by one hand, or a committee biased by
shifting current concerns. Rather it is shaped
by invisible hands working impartially over
the centuries. Moreover, the fundamentals
of law were decided by judges working in
the common culture of Christian civiliza-
tion, with reference both to the natural law
and a received morality. This circumstance
resulted in stability without stagnation.

A common law proceeding is an adver-
sarial one, a sort of trial by combat with
words and evidence instead of sword and
buckler. The judge, like a king overseeing
a trial by combat, takes a neutral stance
above the fray. The prosecutor tries to make
the case, but the defendant is held innocent
until proven guilty. The question of guilt is
decided by an impartial jury, selected from
ordinary citizens who have no bias in favor
of the interests of the state. Once declared
innocent, the accused cannot be tried again
for the same crime.
These procedures of common law, which
seem so self-evident as fundamental prin-
ciples of justice, were all obtained through
hard-fought confrontation. They were all
aimed at the protection of the liberty of the
individual. Virtually none of these protec-
tions are found in civil law proceedings
where the interests of the state are para-
mount. There the defendant is guilty until
proven innocent, but has no counsel sitting
at the table. The judge takes an active role
in shaping the outcome. The conduct of the
accused is considered against the template of
the public good. The purpose is to shape a
remedy to protect the social order under the
prescripts of the code, rather than to identify
whether the action violated specific terms of
the statute.

I

n 1765 Parliament passed the Stamp Act.
The stamp was to be a heavy tax on every
piece of paper-every court pleading, every
marriage license or will, every newspaper.
Parliament thought it was a trifling thing,
necessary to pay the costs of keeping British
troops in the colonies for their protection,
and that nobody would complain. But the
colonists thought it a despotic action.
On May  29 the Virginia House of Bur-
gesses was meeting at Williamsburg and a
new member arrived, a backwoods lawyer
73
Modern Age - Fall 2014

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