Utilitarianism in the Early American Republic by James E Crimmins

Author:James E Crimmins [Crimmins, James E]
Language: eng
Format: epub
ISBN: 9780367548094
Google: VRCxzgEACAAJ
Goodreads: 59316086
Publisher: Routledge
Published: 2021-11-01T00:00:00+00:00

5 Edward Livingston Penal Law and Codification

DOI: 10.4324/9781003090670-6

Recent scholarship has highlighted the difficulties encountered by the former colonies in severing their ties with Britain in the decades following the Treaty of Paris 1783 (Yokota 2011; Marshall 2012). The need for manufactured goods, particularly textiles, iron, and luxury items, lasted well into the new century, and in the arts, literature, philosophy, and law they continued to cling to their British heritage. This broad reliance was galling to the most fervent of the revolutionaries who thought 1776 was the beginning of the end of America's dependence on Britain, and this descended to the minutiæ of social conduct. Jefferson and Samuel Adams, for example, were highly critical of the tendency in New England society to imitate British foppery and other mannered social behaviour, and to import the latest fashions and trinkets, which they believed corrupted republican virtue. More galling to progressive reformers was the fact that English common law remained a key part of the American legal system. Critics complained it was opaque and uncertain in its application, overly complex and technical, and contained extraneous content and forms from the connection with Britain that hardly seemed to apply to a country emerging out of its colonial past. The problem was compounded by the various “reception” laws in the newly constituted states mandating the continuance of the laws and modes of practice held over from pre-revolutionary times and by the paucity of information about the current state of the law. The few available reports on colonial laws were generally unofficial documents compiled by private hands and notoriously difficult to use, lacking indexes or any coherent arrangement beyond chronology (Cook 1981, 5–7). Nor did matters improve as new law was introduced: statutes were made and repealed at a rapid rate and suffered from faulty draftsmanship; case law, the bedrock of the common law, was rendered orally and only incidentally in writing; many of the colonial bar, including some its best judges, were Tories who went into exile during and after the war with Britain, taking with them their expertise; and there was a dearth of authoritative sources for the law, with few legal texts or treatises produced in America until well into the following century. The situation was aggravated by the uncertainties introduced by the federal structure of the new republic, with largely autonomous jurisdictions applying common law principles in a varying manner and developing contradictory statute law, particularly as it affected inter-state affairs in commerce, contract, real property, and inheritance (7–10). Worse, in the eyes of many the Revolution stood for popular sovereignty and the common law operated beyond the control of the people and their representatives. Common law protections for the people's rights were not something they could easily set aside and there was little will to do so in the formative years of the republic, but the penal law was another matter. Its antiquated forms and lack of clarity around offences, the broad latitude in the hands of judges to determine the

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