The following is a guest post by Dante Figueroa, a senior legal information analyst at the Law Library of Congress.
I have previously written about the amazing collection of Roman law resources at the Law Library of Congress. I noted that references to Roman law have been made in arguments before, and in decisions of, U.S. courts, including the U.S. Supreme Court. In fact, the use of and reference to Roman law by U.S. courts has been widely documented. A U.S. law professor has stated that the use of Roman law by U.S. courts was “an integral part of the larger jurisprudential process by which American jurists reached back to find a line of argument to be employed in understanding the case.” (Samuel J. Astorino, Roman Law in American Law: Twentieth Century Cases of the Supreme Court, 40 Duq. L. Rev. 627 (2002).)
Some authors note that Roman law had an enormous influence on legal education and legal writers from “the colonial period to the time of the Dred Scott decision .” (Steven Calabresi & Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision , 47 Wm. & Mary L. Rev. 743, 761 (2005).) Another author argues that the use of Roman law by U.S. courts diminished by the 1920s for two reasons: World War I had “generated a broad anti-German feeling, thereby closing off a major source of civil law influence,” and due to the “dramatic decline in language skills, especially Greek and Latin, among lawyers and jurists.” (Astorino, supra, at 628). Research by academics has shown, however, that the U.S. Supreme Court did continue to make some use of Roman law during the twentieth century. (Calabresi, supra, at 760.)
The following list includes a number of earlier cases in which the U.S. Supreme Court made reference to Roman law:
- Columbian Insurance Company of Alexandria v. Ashby and Stribling, 38 U.S. 331 (1839): the Court analyzed Roman law in a matter concerning the bearing of risks in shipping contracts.
- Osborn v. Nicholson, 80 U.S. 654 (1871): this case concerned the issue of slavery and the Contract Clause of the Constitution.
- Ex Parte McNiel, 80 U.S. 13 Wall. 236 (1871): the Court considered Roman law concerning the issue of pilotage.
- Hurtado v. California, 110 U.S. 516 (1884): Analyzing the due process of law clause in the Constitution, and referring to Roman law, the Court stated that there was “nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age.”
- Coffin v. United States, 156 U.S. 432 (1895): the Court studied the presumption of innocence under Roman law.
- Geer v. Connecticut, 161 U.S. 519 (1896): concerning the state-ownership doctrine, in which the Court employed Roman law to analyze a “Connecticut statute that regulated the killing of game and prohibited its transportation outside of the state boundaries as an exception to the dormant Commerce Clause.”
- Hovey v. Elliott, 167 U.S. 409 (1897): the Court reviewed Roman law regarding the right to appear and be heard and for contempt of court.
- Hayes v. United States, 170 U.S. 637 (1898): in a dispute over title to land gained from Mexico, the Court discussed Roman law, particularly with respect to the error of law as a ground for acquiring property.
- United States v. Chavez, 175 U.S. 509 (1899): the Court reviewed the Roman law institution of adverse possession.
- Knowlton v. Moore, 178 U.S. 41 (1900): the Court looked into Roman law on the subject of “death duties [taxes].”
- Krulewitch v. United States, 336 U.S. 440 (1949): the Court highlighted that the doctrine of conspiracy was “utterly unknown to the Roman law.”
- Greene v. McElroy, 360 U.S. 474 (1959) & Coy v. Iowa, 487 U.S. 1012 (1988): in these cases the Court highlighted the history and importance of the right of confrontation of witnesses vis-à-vis the Sixth Amendment, with a mention to the origins of this right in Roman law.
These cases show that the U.S. Supreme Court has considered Roman law in relation to a range of issues. Concerning individual liberties, in Scott v. Sandford, 60 U.S. 393 (1857), Justice Daniel analyzed the issue of slavery in Roman law, drawing a parallel with the same institution as it existed in the United States. (See Calabresi, supra, at 798.) The Court has also discussed Roman law in commercial and trade disputes, agency law, and admiralty law. (Id. at 762.)
A number of other authors have also noted the influence that Roman law has had over U.S. law and common law systems more generally. The following are examples of resources available in the collections of the Library of Congress that relate to the role of Roman law in the U.S.:
- Paul du Plessis, Borkowski’s Textbook on Roman Law 190-2 (4th 2010).
- Carol Rose, Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age, 66 Law and Contemporary Problems 89-110 (Winter 2003) (analyzing the influence of “Roman law’s categories of nonexclusive property” on Western legal thinking, particularly on U.S. law).
- Randall Lesaffer, Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription, 16 European J. Int’l L. 38-46 (2005) (identifying the crucial influence of Roman law on occupation and acquisitive prescription on current international law).
- Richard A. Epstein, The Modern Uses of Ancient Law, 48 S.C.L. Rev. 243 (1997).
- Douglas G. Smith, Citizenship and the Fourteenth Amendment, 34 San Diego L. Rev. 681, 740 (1997) (describing the influence of Roman law on common law systems).
- Peter Stein, The Character and Influence of the Roman Civil Law: Historical Essays (1988).
- W. W. Buckland & Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline (1952).
- Caleb Cushing, On the Study of the Civil Law, 11 N. Am. Rev. 407 (1820).