Common law in the USA

Nov 2019
Andrew Stepanenko
June 15, 2019 <Общее право в США>

Translated by Berenkova Violetta Michailovna


In Norwegian, a sheriff means lensmann - the vassal who received the land area (fee) from his lord - the owner of the land. Together with fee lensmann also received landowner (seigneural, patrimonial) judicial authority over the peasants living at the fee, that is, he became a sheriff. The lensmann also carried out the functions of the notary, solved hereditary problems. His lord – lensherre - stood a step higher than the lensmann.
Therefore, when we see that sheriffs in England or the USA had unusually great powers, there is the reason to think that here we have an English variant of lensmann - the vassal of the lord.
The Norwegian Wikipedia directly names its lensmanns (functionally they were landowners) as farmers that is when in 1848, the decision to release the farmers was taken, and some translated them as "peasants", it was incorrect: in 1848, the farmers were released from the vassal dependence in Europe, that is, lensmanns, or landowners.

Now a lensmann is often the synonym of a police officer (however, as well as the second synonym of lensmann - a sheriff), - but both words have acquired new senses. I will present an example from Russian Wikipedia. Lensmann (Finnish nimismies, Swedish länsman, Norwegian lensmann) - an executive police rank in the countryside of Finland, Norway and Sweden, similar to a district police superintendent in pre-revolutionary Russia.
Here we must ask a question who was a district police superintendent before the peasant reform, - perhaps, the same as a lensmann or a sheriff?

There was one more category - a peasant-gentleman, bondelensmann. He was the representative of the sheriff (lensmann) in a crain village, and his name consists of two parts: bond + lensmann. Google offered one more name for this - a Bond Sheriff. I think that is a village head.

In 1662 (obviously, in connecon with the flooding of Brighton in 1665 and transgression of the Caspian Sea in 1669) there was a sharp concentration of power at the king level, and the Norwegian fee (len) was renamed into a county (amt), and lensmanns (sheriffs) became amtmanns, which is translated as district police officers. The difference of amtmann from lensmann: amtmann’s lord was not lensherr, but the king.
During this period, a similar resolution passed in the USA: in 1663, England quickly enacted new legislation in colonies.

The county (district) is yesterday's vassal fee
The count is the yesterday's sheriff whose lord became the king
The sheriff it lensmann, the vassal of lensherr (the lord, but not the king)

I declare that in the law history there is a basic legal mistake that is perfectly clear in the history of England and the USA. There are two major kinds of law:
Common Law - case law, based on the custom
Customer Law – communal law, similar to Lex Salica and Rus’ Justice)
There is also a problem: the same definitions – custom - for both terms – Common and Custom. Historical evidences specify that both these laws (Common Law and Customer Law) mean the same in different sources: customer law.

Source: The Sensibilities of Our Forefathers. The History of Sodomy Laws in the United States. By George Painter. © Copyright, George Painter 1991-2002.
The author repeatedly specifies that in the common law of England acting in states, death was the only punishment for a variety of serious “civil crimes” (common-law crime). The reason: due to communal character of the law imprisonment as punishment is impossible in a community: nobody would feed the criminal free of charge. Chains cost as three sickles, and it was a very big sum of money. Therefore, the criminal passed through a ceremony of symbolical death (borrowed by cities as civil execution) and went wherever he/she liked. Formally, from the moment of end of the ceremony, the criminal was dead, and if the father and brothers of the victim decided to take revenge over the "dead person", nobody would not say a word against that.

The patrimonial society had developed the ceremonial part of the legislation to perfection.
It was possible to adopt symbolically, and the person would become a relative to the necessary degree of relationship.
It was possible to expel symbolically from the family, and the person would loose all rights, and obligations.
It was possible to conduct a wedding ceremony, and both spouses would find a new legal status.
It was possible to conduct a divorce ceremony, and it would work too.
It was also possible to pass a person through symbolical death and then he/she would totally cease to exist in the opinion of the law.
Now I strongly believe that violence in patrimonial structures was strictly regulated, and everywhere where it was possible, it was substituted for a suitable ceremony. A number of circumstances specifies in it, for example, that, as nowadays for many primitive tribes exile is a supreme penalty. There is nothing worse than this. The reason is obvious: spill blood, and all relatives of the killed one will remember it, and the world in the community will end.
The same is in modern army and prison: all compulsions have a lot of violence, however a great part of them are strictly regulated and carried out according to this or that rule of the unwritten internal law. Moreover, some part of acts is deeply symbolical: the old-timer is beat with a metal plate on his bottom through a pillow, and this metal plate is definitely symbol of a much more ancient and cruel custom.
It is necessary to remember the custom to avoid punishment by touching the altar horns... "And the altar will be a great relic: everyone touching the altar will be consecrated" (Exodus 29:37). This rule of disposal of punishment was sometimes broken, but the main question is what for the society introduce this rule? The answer is simple: to avoid the direct violence breaking balance in a community. The person passed a ceremony of self-sacrifice and, most likely, automatically got into the group of those who were subordinated to the Temple rules.
If it is so, even the ancient Roman custom to kill the emperor following the results of the lost Olympic Games is most likely symbolical. Men of senior parantela simply passed through a ceremony of symbolical death and altogether transferred to a monastery, handing over their wives together with power rights to the replacing them parantela. Single violence is admissible and is even necessary, but when violence acquires some system character, it is necessary to substitute it for a suitable ceremony. In such cases the power, in ancient Roman as well, was most interested in the ceremonialism transforming direct violence into a symbol.
Annalistic tsars executed people in a bulk, with the most perverted methods but how much is it authentic and lawful? Not at all. “If an abbey has a suit in royal court, - the English feud agreement said, - his vassal will take his side even against the king”. Whence is such impudence? But it was not impudence; it was the law. According to this law to behead a criminal not expelled from the family meant to receive immediate reciprocal vendetta. Nevertheless, if the criminal was expelled from the family (or redeemed, having paid a huge penalty), the need in punishment disappeared.
Pay attention that real wars of the past often contained a genocide element, and the reason is obvious: if the number of deaths exceeds possibilities of penalties repayment, it is possible to finish the conflict only with total annihilation of the opponent. Therefore, there is only solidary responsibility at this level of development.
Nov 2019
In the history of the USA sodomy was execute since 1610, but neither sentences, but we can see no executions or a very long time – they are physically absent. The first (removed for the schedule) case was in 1810. Stable growth of number of events began since 1861, that is, for 250 years the law had been paralyzed.
By the way, the same gap of about 250 years we see in the chronology of geographical discoveries.

They write that courts did not conduct shorthand, so there are no data, and it is truth: until 1848 all courts in the world were courts of seigneurs or senior relatives over younger ones. They acted basing on the customer law – like Lex Salica and Rus’ Justice – so they did not need verbatim records for their heads. I will give some exact descriptions.

1857, Mormon State of Utah. The man was castrated for a sexual crime with the consent of the president LDS Brigham Young.
In 1859 in Utah there were also two castrations for sodomy.
In 1864 in Utah the military man was convicted in sodomy, however he was released and almost immediately killed, most probably by the father of the victim. There were no witnesses of the murder.
As a whole, there are no documents concerning death penalty for sodomy in the State of Utah. The problems were solved in a simple way - without documents.

Tragicomic cases happened as well. In 1857 in the same State of Utah, a military man copulated with a horse, was sentenced to death, but pardoned. As a result, only the horse was shot, - justice should work. It was real understanding of justice in the USA states in the middle of 19 century; it is necessary to understand that Mormons of the State of Utah were not the worst, but one of the best life-organized community.

All these are facts, and only so it should occur. There was a count, he had a network of villages managed by vassals-sheriffs, the law was strictly communal, and the village would not understand and accept something different. The level of the count court solved only affairs concerning conflicts between the communities and sheriffs, and the state level court - only conflicts between counts or villages belonging to different counts.

Documents are absent in states archives not because there were no local events, but because local problems were not solved at the state level. The village solved itself, who should live, who should die, and who should be exiled. The main reason for such situation: until the “Spring of Nations” of 1848, which resulted in appearance of vast territories of lands for redemption, the Supreme authorities had neither power, nor budgets to control the village. The power technically was not capable to control the village.

The myth about a human civilization before the middle of 19 century was finally created, in fact, it was life of approximately 9 % of the population, - and the village could not support more. Those 9 % of the literate population also created a myth about the Golden Age - de facto, about themselves. Townspeople described reluctantly the life of 91 % of the population feeding them. The reason: each of them desperately was afraid to touch the world where there were no rains, it was necessary either to bury an old woman alive or dead children. All of them remembered it, because they came therefrom. As all of us did.
Nov 2019
In Europe, as the result secularization the world was flooded with people used to live in a unisex society but not a bisexual one. It became a serious social problem, and retaliatory measures in relation to sodomites were a part of the state policy. In the North America, there were no monasteries, and the laws against sodomy remained formal.

I will show two schedules. It is a general picture, and it is clear that everything that was earlier 1770s was artificially rejected in the past.

And now we will consider a situation more detailed. Yellow colour - radical legal reforms, red colour - the first punishments for sodomy in different states. It is good to see that more or less rhythmically punishments happened after 1861, and became the most dense - approximately since 1883.

The reason is simple: the power found budgets and forces and for the first time got interested in the liquidation of "brotherhoods" mixed up on homosexual homage. The article for sodomy was a hook allowing to disorganize such brotherhoods, in case it would overstep the permitted bounds. Judging by a long absence of real sentences, in the USA such brotherhoods did not much disturb anybody. In fact, when financial capital got the next batch of assets, a new series of mortgages began, and the thesis about struggle against sodomy emerged again.

Practically in all cases, death penalty for sodomy is absolutely illusory. The lawyers had the following logic: the State of Iowa borrowed the code from the State of Wisconsin, which received the code from the State of Michigan which received the code from England where the Common Law crime acted, so there was the case law. As there were death penalty precedents for sodomy in England, this law should be extended to the State of Iowa as well.
This logic leads to a conclusion that death penalty for sodomy was introduced even in 1864, thus even in 1910 judges regularly became in deadlock in elementary questions and discussed, for example, whether the onanism was sodomy from the law position.

In the history of the USA, there is about ten bright descriptions of executions, but these cases are rare, and they happened mainly in 1660s. These evidences look like forgery: not a single copy of the statute book remained in states during the given historical periods and here we see so bright and isolated evidences.

There is a typical situation when the law was based only on the Book of Leviticus. That is, if there had not been that book, there would not have been any struggle against sodomy consecrated with its authority. That is, we again see the hands of financial capital, which corrected the Writing since 18 century as it was required for society reforming.

Sometimes states refused English Common Law, sometimes punished for sodomy by death in the consent with the Common Law, and sometimes imprisoned a criminal - in the consent with the Common Law as well.

The standard situation was when the state took the law from England – together with the embedded but directly not mentioned death penalty for sodomy, and later replaced it for imprisonment. It occurred 14 times in different states from 1787 to 1864 - without any accounting legal experience of their predecessors. It was possible, if the English Common Law was implemented in the past artificially, stereotypically and without any connection with the historical reality. If so, the English General (Case) Law changed the local Customer (Communal) Law so that the past looked more civilized, more prestigious.

In 1915, at last, facing the question, whether the civil law of the State of Vermont had precedents of the English court interpreting the Common Law, the Supreme Court of the State of Vermont declared “no” in the In Re Hilton.

The State of Vermont in 1782 accepted not only the Common Law, but also all legal acts accepted by the Parliament of England until October, 1st, 1760 which included also the Elisabeth’ sodomy law of 1562. Then in 1915, the Supreme Court of the State of Vermont suddenly admitted that it did not receive the precedents of the English Court interpreting the common law. To judge basing on the English Common Law for 133 years, without considering the precedents of the Common Law, which appeared to be absent at all ... It calls a lot into question.