I. Origin and development of American
law and government.
Introduction.
- The American legal system is a common law system :
2 general sources of law :
• statute law : law past the legislation
• case law : the law to be found in the collection of reported decisions that form the body of law within a given jurisdiction.
The role of the judge is important in choosing what law to use.
US : federal system ; one federal system and 50 states with their all government, constitution and legal system.
US as a whole : there are many districts but overlapping system of law.
• federal law passed by congress.
• regulatory rules : federal agencies.
• state laws : state legislators.
• ordinances : municipal authorities.
The federal system also means that they may be differences between one state law to another and also between state and federal laws.
The reason for structure and complexity of the legal and political system is the early history of the US.
Common law is based on cases from local conditions. Cases are decided according to settled customs and practice. The common law doctrine states that the judge must know the history of the place in which he presides. Still today, lawyers and judges when making constitutional arguments will often use history as part of the legal reason. The knowledge of American history is essential in understanding American law.
American colons ; the first settlers arrived 17th century. English immigrants in search for economic opportunities. First government settlement were Virginia (1607), the settlers wrote the common law. Then the colons developed alongside the statue law generated by local legislation. As the colonies became larger and commerce with England grew, law in America became more complex and professional.
The diverse climate conditions to illustrate the strong influence of weather in the US. All colonies developed so differently. The colonies in the South : much murder weather. Cotton and tobacco. Large number of slaves working on large plantations, they were forced to large body…
North colonies : many large cities : economy based on small family farms and crop industries and commerce. They were very strong religious tradition. The law of the Massachusetts : religious traditions.
It is only logical that so many legal systems developed independently within what will be later known as the USA.
As far as relationship between American colonies and the British empire was concerned, Great Britain had followed the policy of salutary kinglet meaning that they regulated the colonies only enough to ensure steady export of raw materials and import of British food.
They were English governments who represented the Crown for state but they were dependent on local assembles for their summaries and also to raise taxes.
Thus the colonies exercised a large amount of state government, however the court of American colonies were subject to the absolute jurisdiction of the court of England.
Reminder one of the principle of common law is story decisis meaning biding measures … therefore the entire body of English cases was biding in America. Then came the American revolution.
1st Part : The American Revolution.
Glorious Revolution.
- Glorious Revolution in England and its consequences on the American colonies. So the US started as 14 colonies of GB. The source of the American Revolution can be found in the legal and political dispute between Britain and the American colonies over how the non written British Constitution should apply to the colonies. Mainly they were different interpretations over the constitutional authority of the English parliament. Triumph of the Glorious Revolution of 1688.
The Glorious Revolution consisted … by a union of parliamentarians with an invading army led by the Dutch.
The English parliament assumed that it should have the right to assert his absolute power not only across the Empire but also over the colonies of America as well. Hoverer the American colonies had their own legislators, many of which had been operating for more than a 100 years without much interference with Westminster.
Declaratory Act of 1766.
- The constitutional : began 7 years war between England and France : 1756 1763. Also England was optimally victorious. England was left with significant amounts of debt. Parliament realized to raise revenue : taxing American colons. England sugar Act of 1764.
Provided that almost anything for morally written or printed would have to be on stamped paper imported from England. The colonist reaction was immediate and violent. General boycott.
Business went as usual without England’s paper. The Americans insisted that parliament had no constitutional right to impose taxes on them and so they resisted. The boycotted English goods, refused to pay the taxes and persist royal taxes. Even colonial juries refused to convict violators of the new English Act.
Parliament responded by retracting.
The parliament could not accept this denial of his power and past the Declaratory Act.
Parliament had full power and authority to make laws and statute of sufficient force and validity to buy the colonies and people of America in all cases what so ever. After this Act, 400 statue voted by the different assembles of the colonies. However it was already too late, the colonists for the most part felt no loyalty to a government which : too away but also one that treated men more and more poorly.
“No taxation without representation”.
- The issue of taxation was important for the colonists given the central place it held given in the history of the English Constitution as a check on executive power. In England, since the time of Magna Carta, the power of taxation had rested with the representative body of parliament and on principle they could be no taxation without consent. The colonists argue that since they were not represented in parliament : they could not legally be taxed according to the English Constitution. Parliament refused to concede this constitutional part : continued to extract revenue from the North American colonies. Tried to impose the Townsend Act of 1767 and the Tea Act of 1773. The tea act imposed a tax on all tea import and it lead to famous and decisive event of the Boston Tea Party. According to the Tea Act, any tea that remain on a ship in an American port for 20 days could be sized buy customs officials and soul. And a portion of the benefit could be used to pay the taxes. The Americans prevented any ships (with tea) from entering their ports ;
December 1773 : a ship caring tea to enter Boston port.
December 1773 : a ship caring tea to enter Boston port.
The American were faced with the difficult decision on allowing the precedent of taxation and parliamentary supremacy to be established after the 20 days or taking far more aggressive action to avoid this establishment of a precedent. On the 19th day, the leaders of Massachusetts, nearly all of all were trend as lawyers decided to destroy the tea by throwing it by the sea to avoid the precedent .
The Boston Tea Party was a turning part : parliament saw it as an unacceptable escalation of colonial resistant to him.
Series of impressive measures which are known as intolerable Act and the Punitive Act by England.
The port of Boston was closed. Right to jury trial was suspended. Local representatives in Massachusetts : replaced par royal authorities. So the colonies form the first delivery to represent themselves as a whole. Known as the first continental congress. Met in 1774 to establish the rights and liberties of the colonies upon a just and solid foundation.
Declaration of Independence dated July 4th, 1776.
- Declaration of Independence : 4th July 1776, after the first continental congress, neither the King of England, nor the English parliament agreed to concede on the constitutional issues. King George 3rd sent troops and the American War of Independence also called the American Revolution started in 1775. There were already military contributions between colonial militias and British troops when the second continental congress passed a resolution for independence on July 2nd 1776, then and on July 4th, congress set about a formal document declaring the independence of the 13 colonies : USA.
Denunciation which condemned British people for failing to heat the cause of their fellow Britain and in America.
Declaration signed by 56members of congress.
2nd Part : From the State’s Constitution to
the Union of States.
New Constitution drafted by Independent States.
- Even before independence was officially declared, the US had began writing their Constitution. Between 1776-1800. Colonists hoped their right and liberties from the English traditions would be preserved by new… most of the state constitution introduced some constitutional innovations in like of the recent experiences of the British Crown.
In general, the colonists decided to significantly reduce the power of the executive and the judiciary while concentrating power in local legislator. Therefore at first, there was no independently elected state governor and the governor was in fact appointed by the legislator. In addition, these governors were very weak with no power of vital and no power to appoint judges. As a consequence, the legislator largely controlled the other chew branches of government. The Bill of Rights provided a list of fundamental rights that fixed limitations on what the legislator product. Usually, it would find :
• Freedom of press.
• Freedom of religion.
• Freedom of assembly.
• Right to a jury trial.
- In general : keep the government closely tied .
The Constitution’s provisions included frequent elections to make the power of the legislator accountable to the electorate.
Ex : Pennsylvania Constitution of 1776. It abolished govern ship and replaced it with an executive council with 12 members.
There was a unique admiral legislator with one year term and very low requirement for voters. Therefore the goal of the Pennsylvania Constitution was to distribute the power widely and prevent economic elite from controlling political power. In general, the notion of republican government meant that the government was controlled by the people as represented in the legislator.
It was a very dangerous development given the recent experiences with the arbitrary power of the parliament at Westminster.
Another type of Constitution can be found with the NY Constitution of 1777 and Massachusetts in 1778. We could find independently elected governors which had the powers to appoint judges and vital axes of the legislator.
These Constitutions established higher & longer terms of office. NY and Massachusetts : prefigured the constitutional thinking that would dominate the decade later with the writing federal Constitution.
Relationship between the Independent States.
- The Declaration of Independence : 13 states. Nothing about relationship. In reality, the states wanted to keep their autonomy. They also had no interest in creating a strong union that might interfere with power of the Independent States. The only legitimate purpose for a union was common defense against UK. In 1777, the continental congress drafted the articles of Declaration.
The Union was a weak confederation : much like a treaty : it left most appoints of government to the States : very limited powers to the union government.
The Articles of Confederation in 1778.
- No real national government : only a congress of representative from the State. When the congress was not in session : committees set up by congress.
Moreover, the articles granted several powers to congress : that body could not act : nine of the 13 States must agree. Unanimous approval was needed to amend the articles themselves. The States agreed to the articles.
Congress was also given no power to enforce their decision.
1783 : series of crisis erupted that made clear the inadequacies of the Declaration, in particular, trade dispute between bordering States and the issue of taxation was partly debated . There was no effected central regulator of dispute allowed into State . Trade wars erupted between States, each State continued to impose its own tariffs and duties. Advantage of the less fortunate, impose every fees for port usage. According to basic constitutional principles, only the State government had the power of taxation since only the state government had legislators in which the people were represented. It was the same and recurrent idea : no taxation without representation. The confederation government could only request feints from the State in order to finance the national government and for one thing to pay back the many debts incurred in fighting the UK. Some stated refuse to provide. Mutiny in the army : not paid soldiers ! The need for national regulation of trade and powerful government was finally acknowledged.
3rd Part : The origin of the US Constitution.
The constitutional Convention of 1787 : one rule = compromise !
Overview of the Federalists papers.
Conclusion
06 07 52 89 33
John adams
Exposés :
>> The electoral system and the financing of elections. Semaine pro
>> Impeachment mechanism and examples. semaine pro
>> Political parties in the US.
>> Due process of law.
>> Supreme Court Justices.
>> Nomination of elections of Federal State Judges.
>> Doctrine of State Decisis.
>> Interest group & lobbying.
>> Role of the media and its impact on the American legal system.
>> The jury System in the US.
>> Frivolous lawsuits.
>> The criminal procedure in People vs Dominic SK.
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