Wednesday, July 04, 2012

Oh Say Can You See?

Here's a Fourth of July salute to the noble, inspiring, and occasionally impossible United States of America.

As a nation whose institutions are so closely drawn from those of my country, I admire America, even when its devotion to the constitution looks like sheer cussedness so much of the time.

I admire the US attachment to freedom, but I find the fact of two million prisoners hard to take.

But let's look on the bright side. As the old Oxford college porter said to the American visitor who asked why the lawn in the quad looked so good: "Just take care of it for four hundred years or so and it will start to look right"


  1. Sorry, but which institutions do you think are so closely drawn from your country ? By which I presume you mean England and Wales ?

    If you mean jury criminal trial, then arguable. It still exists for civil matters in the USA, and US magistrates have far less jurisdiction than their English counterparts have always had.

    So what other institutions then ?

    1. You seem a bit touch, Tony.

      Pretty much the whole of the US legal system is based on the English and Welsh system of common law.

    2. north bucks jp5 July 2012 at 15:49

      I too have great admiration for many things American, and have visited a couple of US courts to see they work. But one I cannot get my head around is the incarcerating of those under the death sentence for up to 20 years, and then executing them. By any measure that is cruel and unusual treatment of people, which runs contrary to the Eighth Amendment to the United States Constitution.

    3. North Bucks JP: I quite agree, I abhor the death penalty, and I look forward to the day when it vanishes not only from my country but from my planet.

  2. Bystander: Thank you very much. I shall endeavor to say something analogous on St. George's Day, or the Queen's Birthday, or the Fifth of November, or whatever you think the English national day might be.

    Tony Frost:

    After 200 years of separate development, it's not surprising that American and English versions of their common inheritance have accumulated some discrepancies. But our Founding Fathers began by simply wanting the rights of Englishmen beyond the seas to be recognized as equal to the rights of Englishmen in the realm, and when they saw that they could not get them, advanced to wanting independence.

    However, it was no part of the Founders' intention to eliminate the single executive (as it existed in the 18th century), the bicameral legislature, the common law including trial by jury, the Bill of Rights, and the other features of the English legal and political tradition. If most of the political features have spread to most of the world under British, French, and American influence, that does not mean that they did not begin in England.

    1. Well, we could have a happy debate about all that.

      - For the record, the US bicameral legislatures (excluding Nebraska, obviously) mix up the Executive with the Legislature only because the Vice-President is President of the Senate, and the House Speaker is no.2 in succession to the Presidency in an emergency.

      - The House Speaker in the US is the majority leader, and a heavy-weight political legislator, but only a debating arbiter in the UK.

      - As for the 'single executive' (by which I assume that you mean legislators also heading civil service departments), that is a feature of the UK system but does not exist in the USA.

      - There is no Bill of Rights in the United Kingdom, not least because the UK has no written Constitution ! Thus, no comparable 10 amendments.

      - If Common law has historical roots, then it probably resides with the Angles, Saxons and Jutes of northern Germany, some of whom happened to emigrate to what is now the UK more than a thousand years ago. Ditto the jury.

      - The upper house in the UK is a revising body (at least in theory), unlike the Senate which has a primary legislative role.

      - We can also debate the franchise 'in the realm' c.1776, and whether Bostonians were particularly entitled to resort to terrorism, but that would be churlish (another Anglo-saxon concept !) on July 4th.

      Nonetheless hope you enjoy your holiday !

    2. Tony, are you American? If you so then you appear to have inherited the British stiff-upper lipped refusal to look facts in the face remarkably well.

      Incidentally, the English & Welsh constitution is mostly written, just not in any one document, and it does include the Bill of Rights from 1689.

      I must say I loved your equivocation as to whether common law has any historical roots at all... maybe you are correct and it simply appeared yesterday and we all have a shared delusion of having learnt its history while training.

      It's also worth saying that British Ministers do not head up civil service departments as far as I am aware. Each department has a Permanent Secretary who is a civil servant and responsible for the civil service side of the department. The Minister is responsible for the policies of that department.

    3. Ed (not Bystander)5 July 2012 at 16:37

      Mr Frost is not encumbered by any "training" or "knowledge". He is instead gloriously, fully equipped with opinion untrammeled by mere facts.

    4. Sorry Ed not B: Try reading before insulting. You might learn something. Above are a list of facts, except the last, which, as stated, is indeed open to debate.

    5. The House of Lords is primarily a revising body in practice, but there is nothing to stop legislation originating there; in fact the Crime and Courts Bill is a HoL bill.

    6. Ed (not Bystander)6 July 2012 at 00:53

      I unreservedly apologise, Tony. Do share with us what your legal training is.

    7. It's Mr F's capacity to twist the facts that most disturbs. I don't know what his qualifications are, but I wouldn't trust him to sit in judgment or advise on matters of any import. Far too prone to present things in such a way as to suit (i.e. fit in with) his own blinkered perceptions.

    8. On a quick reference search:

      US vs Hudson and Goodwin 11 US 32 (1812): Federal courts have no jurisdiction to define common law crimes and there must always be a constitutional statute defining the offence and the penalty for it.

      Admittedly, Virginia Code 1-200 does recognize the prior English common law BUT ONLY so long as it is 'not repugnant' to that Commonwealth's Constitution and Bill of Rights, i.e., the common law can be over-ruled by or is subordinated to constitutional law.

      I believe that there are examples of common law offences elsewhere in the US, but that the sentencing must still be constitutionally defined. However, must admit cannot remember exactly where to find them.

      Some academics must have written on the subject.

      But, anyway, no further responses from me to people who respond to independent viewpoints with insults.

    9. Art 6 Clause 2 of the US Constitution requires all state-appointed judges to follow federal law when there is a discrepancy between his state's laws and the US Constitutional law. We call it the the 'Supremacy Clause', it makes the USA into a nation. So Mr.F's Virginia example isn't that important.

    10. Ed (not Bystander)6 July 2012 at 15:47

      "Independent viewpoint" = ignoramus.

      And yes, academics have written about these matters. In law textbooks. That's why you know nothing about it, Tone.

    11. TDB@: The UK 'Bill of Rights' (1689) mostly concerns the Crown, its powers, and limitation thereof. That hardly compares to the first 10 amendments of the US constitution, except for the title by which the two documents are known.

    12. I keep losing the message I'm writing, so I'm going to write it in smaller parts.

      By "single executive" I mean the King. You made your kings ceremonial and delegated their powers to a committee of the Council that by convention consists entirely of legislators. We set up an elective monarchy but limited its duration to four years at a time (for a maximum of ten, latterly).

      The differing roles of the Speaker are part of that separate development I mentioned. Common origin is no guarantee of similarity. For example, the English and German languages had a common origin about 2000 years ago, readily seen in such pairs as man:Mann (still the same), hound:Hund (the English word took on a more restrictive meaning), water:Wasser (German underwent a systematic sound change).

    13. The English BoR is addressed to the King rather than the government, but the King was the executive branch in 1689. Many of its provisions appear in the Constitution or the U.S. BoR, including: the right to petition the government, the prohibition against standing armies without legislative consent, the individual right to bear arms, freedom of speech and debate in the legislature, the right to trial by jury in criminal cases, and that "excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (word for word the same except for the change of "ought" to "shall").

      It's true there is no federal common law of crimes. But federal criminal law is a very small part of criminal law, mostly applying to interstate crimes, crimes in post offices, military bases, and Indian reservations, and so on. What is more, criminal law is only a very small part of the common law. The law of real property, of torts, and of contracts remains fundamentally the same in both countries, and almost all of it is judge-made.

    14. The jury is rather a Norman than a Saxon institution. Originally, the jury was just a group of the neighbors, who were called on because they knew the facts of the case and could speak truly (Latin "vere dictum") about them. Only later, but long before the settlement of America, comes the idea that they ought to hear witnesses and determine their verdicts by the credibility of those witnesses. And though the common law has pan-Germanic roots (including Scandinavian elements in the customary law of Normandy), it exists in America only because of the form it took in England over the centuries.

      Finally, I said nothing about the franchise: I spoke of the rights of Englishmen. And if Bostonians dumped tea in the harbor, the Long Parliament judicially murdered its King.

      Defense Brief: Tony is no American, or he would use double inverted commas (or quotation marks, as we call them) instead of single ones!

      And that's all.

  3. The differences are largely due to the States having a Federal system, but the similarities are there for all to see: a parliament by a different name and an adversarial legal system founded on juries and the rights of defendants to a fair trial (though both have been eroded somewhat in the U.K and the U.S imo).

    It's often forgotten that the Founding Fathers came from British stock, but I agree the slavish adherence to the Constitution is irksome at times and has resulted in a rabid gun lobby that screams to the Supreme Court when anyone tries to stop it. I just wonder what those guys sitting around the table imagined would happen over 200 years hence when the right to bear arms was decided upon.

    It's a great country though- I was fortunate to work in San Francisco for a time.

  4. 2 million out of a population of 300 million does not sound that much.

    1. Do the math, as the Americans say.

      Two million in a population of 300 million, as against Britain with about 85,000 out of a population of around 60 million. The US has vastly more prisoners pro rata than the UK - and the UK is one of the highest in Europe.

    2. Here's Wikipedia:-

    3. Okay I will take a shot at it. We imprison less than 0.2%. America imprisons over 6%. Sorry for the imprecision but my math is not that good.

      Perhaps they have more inmates because the police were pro-active and the courts sentenced heavily because that was what the public thought they wanted.

      I also think that if the percentages are reversed, it looks quite good. As in 94% or 98% of the population is at liberty. We are never going to score 100%.

  5. it's more like 0.67% for the America compared to 0.13% for Britain...

    But I think this is (partly) due to the Americans having the space to incarcerate people. Would it be much different if we (UK) had 400,000 (v.roughly the equivalent) prison places instead of 80,000. Is it actually a reluctance to imprison people or merely that we can't afford it?

  6. Thanks for that. I just rechecked and got the same on google percentage calculator.

    Americans also imprison people for longer. Our 0.13% is a revolving number because of shorter sentencing.

  7. There is much to admire; extraordinary rendition (kidnapping), use of drones to kill foreign national on presidential sign-off without trial (murder), use of torture, imprisonment without public trial, detention without representation, misuse of legislation to ensure extradition, execution of the insane, refusal to recognise the ICC.

  8. It has been my opinion for some time now that the US of A is politically evolving (devolving?) back to a monarchy of its own design. My reasoning is this: once the obscenely wealthy have all the loot (and it won't be too much longer), what else is there available to prove one's innate superiority on earth?

    A royal title bestowed by God himself.

    All hail the Brothers Koch, Dukes of Kansas and Iowa, and of Omaha, Thanes!

  9. Some of the philosophy which motivated founding fathers such as Thomas Paine is extremely interesting and praiseworthy

    1. Tom Paine is one of my heroes, and the only Founding Father born and bred in England (in Thetford, indeed). He went to America for freedom's sake, and when he thought his work was done there, he went to revolutionary France for the same reason. After that was finished, he invented the old-age pension, coupling it with a capital injection of £15 (about £1080 today) to be given to each new adult at 21. Both were to be paid out of taxes on the rent of land.

  10. Tony should reflect on what sort of legal systems and political systems existed in France, Spain, the Italian and German Electorates, Principalities and what-have-you, in the late 18th century and then he might be able to more easily discern what the fledgling United States imported from England.
    Just because a particular thing was imported 200 years ago doesn't mean it hasn't changed in the intervening centuries.


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