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Anglo-American Legal History Outline

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Anglo-American Legal History Outline Powered By Docstoc
					ANGLO-AMERICAN LEGAL HISTORY PROF. COQUILLETTE FALL 2009 The Glory of Rome .............................................................................................................................................................. 2 A. THE ROMAN LAW ..................................................................................................................................................... 2 B. IDEOLOGY OF ROMAN LAW ................................................................................................................................... 3 The Anglo-Saxon Period.................................................................................................................................................... 4 A. PRIMITIVE ORIGINS ................................................................................................................................................. 4 B. ANGLO-SAXON LAW ................................................................................................................................................ 5 C. CIVILIZING INFLUENCES ......................................................................................................................................... 6 D. PRIMITIVE LAW......................................................................................................................................................... 6 The Norman-Angevin Administrators – Birth of the Modern State.................................................................... 7 A. THE NORMAN INVASION ........................................................................................................................................ 7 B. THE ADMINISTRATION OF ENGLAND .................................................................................................................. 7 C. ORIGINS OF THE CENTRAL COURTS ..................................................................................................................... 8 D. ORIGINS OF CONSTITUTIONAL LAW .................................................................................................................... 9 E. GLANVILLE AND BRACTON .................................................................................................................................. 10 English Feudalism .............................................................................................................................................................10 A. OVERVIEW ............................................................................................................................................................... 10 B. STRUCTURE .............................................................................................................................................................. 11 C. FEUDAL PROBLEMS AND THEIR SOLUTIONS ..................................................................................................... 13 D. FEUDAL TAX EVASION ......................................................................................................................................... 14 E. QUIA EMPTORES (1290)......................................................................................................................................... 15 F. DE DONIS ................................................................................................................................................................. 15 Courts of Record.................................................................................................................................................................16 A. THE FORMULARY SYSTEM..................................................................................................................................... 16 B. PRIMITIVE MODES OF PROOF .............................................................................................................................. 18 C. COMMON LAW ACTIONS WITHOUT WRITS – PLAINTS AND QUERELAS ...................................................... 18 D. THE QUESTUS EST NOBIS WRITS AND THE POSSESSORY ASSIZES................................................................ 19 E. THE “MOTHER” WRIT – TRESPASS ..................................................................................................................... 19 F. THE JURY .................................................................................................................................................................. 20 Equity.....................................................................................................................................................................................21 A. ORIGINS OF EQUITY .............................................................................................................................................. 21 B. SPECIAL ROLE OF THE LORD CHANCELLOR AND THE CHANCERY .............................................................. 22 C. HENRY VIII AND SECULAR EQUITY ................................................................................................................... 22 The Specialized Courts of the Renaissance...............................................................................................................23 A. THE CONCILIAR COURTS ...................................................................................................................................... 23 B. NATIONALISM OF THE COMMON LAW AND THE ROLE OF PROFESSIONAL SPECIALISTS ......................... 24 Appeal ....................................................................................................................................................................................24 A. OVERVIEW ............................................................................................................................................................... 25 B. ERROR ....................................................................................................................................................................... 25 C. PREROGATIVE WRITS............................................................................................................................................. 26 D. EVOLUTION AND DEVELOPMENT OF APPELLATE SYSTEM ........................................................................... 27 The Birth of the English Legal Profession ................................................................................................................28 A. LEGAL PROFESSIONALISM .................................................................................................................................... 28 B. THE INNS OF COURT ............................................................................................................................................. 28 C. YEARBOOKS AND ABRIDGEMENTS ..................................................................................................................... 29 D. THE STATUTE OF USES.......................................................................................................................................... 29 Law Reports, Passion and Judges ................................................................................................................................33 A. THE TUDOR COMPROMISE ................................................................................................................................... 33

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B. C. D. E. THE DIALECTIC – FRANCIS BACON AND EDWARD COKE.............................................................................. 33 THE CASE OF THE PROHIBITIONS DEL ROY ...................................................................................................... 34 DR. BONHAM‟S CASE, CASE OF THE COMMENDAMS AND THE FIVE KNIGHTS CASE .............................. 35 THE PETITION OF RIGHT...................................................................................................................................... 36

Lawmaking and Revolution ...........................................................................................................................................36 A. THE ENGLISH CIVIL WAR ..................................................................................................................................... 36 B. RADICALISM ............................................................................................................................................................. 37 C. THE GLORIOUS REVOLUTION.............................................................................................................................. 39 D. THE COLONIAL EXPERIMENT IN AMERICA ...................................................................................................... 40 Law and Order in Eighteenth Century England .....................................................................................................41 A. SOCIETY DURING THE HANOVERIAN DYNASTY ............................................................................................. 41 B. BLACKSTONE ........................................................................................................................................................... 41 C. ALBION‟S FATAL TREE........................................................................................................................................... 42 D. LORD MANSFIELD AND THE INCORPORATION OF MERCHANT LAW........................................................... 43 The Nineteenth Century – Legal Instrumentalism, Codification and Utilitarianism .................................45 A. THE CHANGING WORLD ...................................................................................................................................... 45 B. LEGAL INSTRUMENTALISM ................................................................................................................................... 46 C. CODIFICATION ........................................................................................................................................................ 48 D. THE DRED SCOTT CASE........................................................................................................................................ 49 The Twentieth Century – New Jurisprudence, Critical Studies and the Post-Liberal Society .................50 A. THE NEW JURISPRUDENCE ................................................................................................................................... 50 B. CRITICAL LEGAL STUDIES ..................................................................................................................................... 51 C. THE POST-LIBERAL SOCIETY ............................................................................................................................... 52 Law and History .................................................................................................................................................................54 A. THE GREAT DEBATES ........................................................................................................................................... 54 “Out of the ould fields must spring and grow the new corne” – Sir Edward Coke quoting Geoffrey Chaucer The Glory of Rome A. THE ROMAN LAW  How the Roman “Courts” Worked  When two Roman citizens had a legal dispute, they went to the representative of the Praetor, the elected official responsible for enforcing the law of Rome. They would then be asked to choose the name of a judge or form a list of qualified Roman citizens, called the  If the two parties could not agree, the Praetor would choose a name for them.  Album did not contain names of professional lawyers or judges in the modern sense – it contained the names of laypersons that served as a public service.  If the came across an issue or application of law without a clear answer, he would submit his question to the jurists, who would answer such inquiries in a – recorded in writing.  With his answer in hand, the would render his decision to the parties and the Praetor would enforce the judgment.  If there were a disagreement between two jurists, they would ask a third jurist for his opinion to decide the issue.  N.B. The decision of the did not establish a “precedent” that was binding on future jurists or a future even in a similar case. What was binding was the legislative code, or the persuasiveness of the opinion of the jurist.  Justinian‟s Body of Law  First he ordered three legal scholars to condense all of the collected opinions of the jurists into consolidated digests – selecting the best writings; organized topically → the

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 Justinian ordered all previous digests to be destroyed!  Second he ordered the jurists to prepare an elementary textbook for students → the  Third he ordered the scholars to consolidate all of the existing statutes → the  The Rediscovery of Roman Texts  The early people, the were so enamored by the original texts that they practically worshipped them and refused to change a single word of text.  By the 1300s, the for the first time realized that you could use the Roman texts to regulate commercial transactions.  However, it seems that they still did not understand who the Romans were.  Only in the real renaissance do you begin to see a true understanding of the Roman legal accomplishments with the works of the like Francis Bacon.  and all interacted with the texts in different ways. B. IDEOLOGY OF ROMAN LAW  The Roman View of Law and Legal Authority  The Romans recognized three important different kinds of  was the law of nature. It included everything that was beyond the power of human law making, and included “that law which nature teaches to all animals.”  was the law of all nations, referring to human made laws common to all mankind. By this, the Roman meant common to all civilized peoples and included both rules of diplomacy and state relations, public international law, commercial practices and principles of fairness in trading.  was the national law of the particular state. It was equivalent to what we would call positive law, the statutes and judicially enforced rules of each state.  Specific “laws” written laws were enacted by legislative authorities, were referred to as or and were usually concrete and technical.  There was also which referred to the idea of doing justice in a particular factual situation, even if it meant bending or ignoring the particular  Roman Empire v. Greek City-States  Greek city-states were on a much smaller scale as compared to the diverse Roman Empire.  Greeks were elegant philosophically, but the Romans had codified laws and such.  Romans did not assume underlying moral/cultural restrictions.  The Romans admired the Athenians but did not believe that their “system of law” was practical or effective for governing.  Romans tested the laws empirically.  Was it effective, promulgated prospectively and by written rule?  Five Fundamental Concepts  First, through Emperor Justinian‟s vision and the concise and highly structured (the Digest, Codex, and Institutes), the Romans created a sophisticated legal system based on written sources, which were both intelligible and manageable in length.  Second, the Roman system provided reliable and efficient justice without a large professional bar, under the supervision of the jurists and the  Third, the Romans conceived of elements of the legal order, which extended beyond national borders, which are today the conceptual cornerstone of international law and the international protection of human rights.  Fourth, the Romans believed in a prospective legal system based on pre-established codes or treatises, rather than reliance on ex post facto judicial determinations.  Fifth, the Romans believed in law as a perfectible science, capable of being tested by the results achieved in a rational manner.

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 Justinian’s Institutes (533 A.D.)  “The imperial majesty should be not only that, alike in time of peace and in time of war, the state may be well governed, and that the emperor may not only be victorious in the field of battle, but also may by every legal means repel the iniquities of men who abuse the laws, and may at once religiously uphold justice and triumph over his conquered enemies.”  A Proposition to His Majesty by Sir Francis Bacon  Sir Francis Bacon proposed overhauling the entire English legal system into a form similar to that achieved by Justinian. The Anglo-Saxon Period A. PRIMITIVE ORIGINS  A Period of Cultural Darkness  There was almost no writing during the period, which lasted from the famous letter of Emperor Honorious of 410 A.D., abandoning the Romanized Britons, to the Norman invasion of 1066 A.D., a period of more than six centuries.  St. Augustine‟s letters describe people living in huts in the middle of Roman ruins.  The Invaders of the Isle  The first invaders were the Angles and Saxons from Germany who came, not as a united people, but as a group of separate tribes.  These tribes were called “kin” and their leaders were called “chief kin” or kings.  Anglo-Saxon kingdoms were little more than tribal territories.  During the period from 600 to 800 A.D., some of the more powerful kings were able to consolidate their kingdoms into fairly large units of land, such as the kingdom of Wessex in the south, Mercia and East Anglia in the midlands, and Northumbria in the north.  During the period 800 to 900 A.D., there were invasions by the Vikings and the Danes.  The Danes drove the Anglo-Saxons out of much of the north and also settled down, creating a region that is still known as “Danelaw.”  Anglo-Saxon kingdoms in the south united under the leadership of Alfred, King of Wessex, who succeeded in reaching a truce with the Danish in 879 A.D., which included the conversion of the Danish leaders to Christianity.  Later, under King Cnut, large areas of England were united with Norway and Denmark.  Following major military victories over Wessex and Mercia, the treaty of Oxford in 1018 A.D. began a long period of peace between the two groups of English and Danish, now under a national “king.”  After King Cnut‟s death, Edward the Confessor restored unity. However, it was short lived and upon Edward‟s death in 1066 A.D., the country was disorganized and divided, and ripe for the Norman Conquest.  Societal Changes  There was no central government – society was formed around small groups of families with a chieftain at the helm.  Developed into concepts of the “freeman” and the “serf.”  For unknown reasons, the population of the island diminished by roughly two-thirds.  Far from the Roman villas on vast expanses of property, the population now lived in small groupings of huts, surrounded by walls, with the shared fields a distance away from the village.  Referred to as “villages of the hundreds.”  Marxist would look at the strips of land and see the perfect communal living – each family contributing and sharing in the profits and burdens of farming.  By 800 A.D., literature redevelops and we learn that there are actually 5/6 kingdoms.  Each kingdom was multi-tiered.  At the top there was a King and his group of aldermen called the

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 In any kingdom were several smaller towns called  From this there was a shire administrator,  Each shire had a moot; a meeting of the leading people in the shire.  Underneath the shires were the villages of the hundreds.  Each village also had a moot where most business was conducted.  Not much understood about local moots; except for Icelandic moots.  Societal Obligations  Every free man had three obligations: (i) worthy, (ii) worthy and (iii)  was the equivalent of being called in a military draft.  was the equivalent of having to serve as a juror  was the equivalent to paying taxes. worthy.

B. ANGLO-SAXON LAW  Dooms  Dooms or laws were promulgated by Anglo-Saxon and Danish kings.  They referred to a judgment and most were formulas for settling disputes – often technical and graphic (i.e., for a wound to the head piercing both bones, 30 shillings shall be given) and focusing on to the victim.  Most disputes involved tribal squabbles between rival kin groups in which the King was often powerless beyond the vicinity of his own stronghold.  Disputes were settled between kin groups based on the central concept of the blood feud.  Kin groups had a strong moral duty to retaliate for any wrong committed against them.  Since there was an obvious incentive to resolve disputes peacefully, compensation was determined by a person‟s value (the ) or man price.  The Moots  Freemen gathered to negotiate such payments at local sites, often a “law rock.”  It was an obligation of all freemen in a particular neighborhood to attend (“moot worthy”).  The most local of these moots was the court of the “hundred” which met every 4 weeks.  A hundred court was convened by a deputy of the sheriff.  There were also shire moots, run by the King‟s representative in the shire, the sheriff, and at the top, moots convened by the King himself.  If an individual was declared an outlaw, they could be killed without a duty by kin to retaliate.  Moot Procedure and Purpose  Believed that at the local moot, one side would bring a charge against another individual or a tribal group. The offending party could either pay the blood price for the physical harm caused, risk a blood feud, or risk being declared an outlaw.  All eligible members of the village would try to resolve the disputes.  The people called this a system of negotiation law; its fundamental notion being that there is a system of customs or morals that governed the behavior of members in the tribe.  Everyone in the tribe had a price – the man price, or  crimes were removed from the moot and brought before the King‟s representative.  The realm of such crimes started with breaching the King‟s peace but soon expanded to include crimes in the King‟s hall, highways, marketplaces, etc…  Anglo-Saxons developed the idea of – something that every individual has – a type of personal space that cannot be invaded without consequence.  It was not given by any greater authority but rather by the customs of the tribe.  A right not to have your body invaded – the consequences depending on price.  Invasions of rights included murder, rape, burglary, theft, battery, etc…  Note that every individual had rights; just not the same rights or consequences for violating said rights.  Rights were backed up by retaliation from the group responsibility of your kin group.  Reciprocal violations were most common and accepted – a way to buy off retaliation.

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 Customary Oaths  Often used by accusers and defendants alike at the law rock, such ordeals served to establish the truth of a statement.  However, it was generally “your word against mine.”  Fear of blood feuds led to serious efforts to arrange victim compensation, even when oaths clashed between parties.  A party could use an oath to deny the truthfulness of a factual dispute.  Village priest would bring out sacred religious relics and the party would swear to the truthfulness of their statement upon the relic → relying on fear of eternal damnation.  If there were two contradicting oaths:  “Oath Helping” involved bringing forth 21 other individuals who would swear on the relic that the party is an honest individual and that his oath was clean.  Church “Ordeals” were commenced for more serious crimes and would involve being placed on burning coals or thrown into ponds (floating guilty). However, the village priest would usually encourage the party to confess rather than go through with the ordeal. C. CIVILIZING INFLUENCES  Two Important Factors  First, the as the Kings developed more power, there were more crimes which could not be addressed in a rudimentary system of victim compensation through fear of revenge.  Second, since the Church had no kin, it relied on the King for retaliation.  The Church was also the only institution where many people could read and write.  The Anglo-Saxon were probably invented by the Church to prove grants of land to itself and provide a record to gain royal support should one try to steal Church property. D. PRIMITIVE LAW  Was It a Legal System?  The written laws that did exist, customary oaths, and were not really rules back by official sanctions but were more akin to statements of customary norms, effective because of voluntary acceptance.  A positivist would clearly not consider these customs to constitute a legal system.  In the middle is a compromise: (i) interesting to see where our legal systems come from [protolegal systems]; (ii) there are things about the way human beings organize themselves that are repeated over and over [same elements in the absence of law]; (iii) primitive systems actually have some beneficial ideas.  Primitive Legal Systems  Primitive legal systems are simple but often highly effective.  Negotiated settlements instead of violent retaliation.  Efficient; no need for professional legal profession or professional police.  Has a built in compensation mechanism – victim‟s rights.  Protects victims first and foremost – deterrents (know that family will be responsible for the actions of their kin) – collective responsibility.  Right to bear arms – capital punishment in effect (removes troublemaker).  History of English Law by Pollock and Maitland (1898)  “It is the feebleness of executive power that explains the large space occupied in archaic law by provisions for the conduct of suits when parties make default.”  Primitive Law by Robert Redfield (1964)  “One who sets out to talk about primitive law has a choice of two roads. The road to the right recognizes law to exist only where there are courts and codes supported by the fully politically organized state…Making this choice amounts to saying that there is no law in truly primitive society and that therefore there is nothing to talk about. The road to the left does not identify

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law with courts and codes…The law consists of the rules which curb human inclinations, passions or instinctive drives; rules which protect the rights of one citizen against the concupiscence, cupidity or malice of the other; rules which pertain to sex, property, safety.”  The Albanian Blood Feud by Margaret Hasluck (1967)  “When the injury took the form of murder, vengeance generally took the Mosaic form of a life for a life, but sometimes was achieved by the extraction of blood money or the imposition of exile.”  Law and Civilization by Karl Llewellyn (1930)  “You would not have me deny the presence of law in a society merely because there were no state officials… The sole inescapable common element is dealing with disputes. The sole inescapable focus is the relation between the of dealing with disputes and the other ways of living.” The Norman-Angevin Administrators – Birth of the Modern State A. THE NORMAN INVASION  The Battle of Hastings  On October 14, 1066 a French warlord, Duke William of Normandy, with only 6,000 men, defeated the English forces under King Edward‟s successor, Harold, at the Battle of Hastings.  Explaining the Norman‟s Success  England was still not very united. At a joint meeting of the regional powers, the Danish king was nominated to rule the kingdom provided that he agree to protect the rights and customs long known to the people in southern England. The Witan agreed on Edward the Confessor, the first English ruler, but he died in 1066.  Three strategic tactics:  First tactic was the big lie; William said that he was actually the legitimate successor.  The Bayeux Tapestry; early propaganda.  Pledges to defend the English Church and the rights and traditions of citizens.  Second tactic was to use the “tip of the pyramid approach;” just eliminate the top people who did not cooperate.  Leaving the majority of the establishment alone. They left much of the system in tact and simply put Norman individuals in control. The hierarchal societal structure was not changed.  Normans were confronted with having to rule a large landmass.  Third tactic was to control the lines of information and communication.  Used the old Roman system – centering the administration in London but establishing key outposts in large English towns, building castles. B. THE ADMINISTRATION OF ENGLAND  Establishing Authority  The Normans wished to maintain a standing army and needed a way to tax the citizenry in order to pay to the cost.  By 1086 A.D., William the Conqueror‟s bureaucrats had compiled a compilation of all the taxable assets in the kingdom and their owners, known as the  Normans collected this information by assembling groups of twelve neighbors and putting them under oath → juries of inquiry.  This was made possible by dividing the country into administrative districts, controlled by Normans loyal to the Crown, and anchored by powerful military garrisons in local castles.  William was also shrewd enough to incorporate the old English shire boundaries, the ancient courts of the shire and the moots of the hundred, in an effort to avoid infuriating the citizenry.  Norman-Angevin Bureaucracy

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 The bureaucrats first developed new written records, writs, and new ways to communicate. At first the were used merely for administrative purposes.  The most important contributions took two forms: (i) a new system of “royal” or national courts and (ii) the emergence of a constitutional order, reflected in early forms of legislation and restatement of ancient rights.  Normans also brought with them a sophisticated feudal system and a system of pleading. C. ORIGINS OF THE CENTRAL COURTS  Development  The Anglo-Saxon courts were hierarchical going from the local courts of the hundred, to the shire courts, to in extraordinary cases, directly to the King himself, as advised by his immediate court called the  Normans made no immediate changes to the system but saw in the now called the a potential vehicle of great value.  Royal Common Law Courts  From the developed the first professional central courts of England, called the “common law” courts because they administered a law as opposed to the local law of the shires and the hundreds.  Original jurisdiction of the royal or central common law courts derived from the King‟s personal jurisdiction and it followed the King on his travels.  Royal courts were not open to all people, nor did they hear all matters.  Only disputes involving free tenancies in land and all major crimes or “felonies” were heard by the royal courts.  Possible reason is because cases involving title to land or serious crimes could involve potential revenues owed to the Crown.  Trifurcation of the Royal Courts  Section 17 of the provided that “common pleas shall not follow the King‟s court, but shall be held in some definite place.”  This resulted in the royal court being divided into three parts:   Held at the King‟s Palace at Westminster, it was general court of civil jurisdiction, doubtless because its permanent, central location aided litigants and the emerging class of professional lawyers.  From 1272 on, it had its own Chief Justice and kept its records in a separate set of rolls.  The court eventually developed a monopoly on real property actions and the old personal actions .   Held at the King‟s Palace at Westminster, the court had a monopoly on all cases involving money owed to the Crown. But later, by a fiction called its jurisdiction was expanded to almost all personal actions – alleged that a plaintiff was “less able” to pay tax to the Crown because the defendant owed money to him. It followed, at least arguably, that the Crown had an interest in the action.  By around 1250 it had its own Chief Judge, called the Chief Baron of the Exchequer.   Also eventually residing at Westminster, the court became regarded as the senior court due to its historic close proximity to the King.  The court had a special jurisdiction for serious crimes or “pleas of the Crown.”  Its proceedings were recorded in the .  All three had important elements in common: (i) the law they applied was the same throughout the kingdom (i.e., the common law); and (ii) their judges were also all trained professionals – just not literate but educated in the law and the development of uniform procedures.

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 Pattern of Centralization  The earliest method of control appears to have been a system of local agents, local who were to take part in the determination of any matter involving royal rights. This gave way to a system of periodic audits by commissioners sent out from the center, the supplemented by a permanent local accountant, the whose records provided a check on the accounts given by the local institutions themselves.  Journey‟s by the King‟s commissioners and the King himself, represented a system of governing the kingdom bit by bit; checking on one county after another; and within each county the sheriff would make similar periodic tours of the hundreds.  People sought royal justice wherever they could find royal power.  The Eyre System  The coming of the justices in eyre was the coming of royal power, and before them would appear the fullest assembly of the county.  The proceedings were divided into two parts:  The first part, the pleas of the crown, represented the system of itinerant government, the first stage of institutional centralization. The articles of eyre were all about matters of possible revenue to the Crown.  Titles to land had a direct impact on taxation.  Criminal felonies were included because conviction often meant forfeiture of assets to the Crown.  The second part was the business of the common pleas – ordinary litigation between ordinary people.  It was in the eyre that such pleas would first come to royal justice as a matter of routine – action before the central court was the exception, not the rule.  Actions were often commenced without writ – but the justices and the procedure by bill of complaint were taken as evidence of a power to override the rules of the common law, establishing .  Actions concerning land required a writ for a reason that was not purely administrative – the two most common being the .  To attend to the increasing need for local sessions by royal justices, the Crown established permanent commissioners for each county – the .  Also developing at this time was the taking from local juries verdicts in cases depending before the central courts → establishing legitimacy by placing outcome in hands of local neighbors.  The sheriff‟s job was to hold individuals for a hearing before the assize.  The Sheriff had the power of the grand jury and used the jury of inquiry as well. D. ORIGINS OF CONSTITUTIONAL LAW  Fundamental Anglo-Saxon Concepts  Speaking of “rights” or “freedoms” refers to the customary that gave each English person, including women and slaves, some individual space that was their own.  The customary varied greatly from class to class and from person to person, just as your would depend on your situation, but everybody had some  N.B. These customary rights and freedoms were not part of any treatise or master document – they were not enacted or created but rather always existed.  The was really a restatement of the rights and liberties granted to Englishmen since time immemorial.  The Magna Carta (1215)

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 § 39. “No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”  § 40. “To no one will we sell, to no one will we deny or delay right or justice.”  § 61. “And neither of ourself nor through others will we procure from any one anything whereby any of these concessions and liberties may be revoked or diminished; and should any thing of the sort be procured, it shall be null and void, and we will never make use of it either of it either of ourself or through others.” E. GLANVILLE AND BRACTON  Glanvill  The emergence of a trained, professional judiciary, of central courts with written records, and of „constitutional‟ charters, created a new legal environment in which the first true law books were written.  Written between 1187 to 1189 A.D., during the reign of Henry II, Chief Justice Ranulph de Glanvill focused on the procedure in the new central royal courts. and  Was a practitioners‟ book containing over eighty writs and pleadings.  Bracton  While Glanvill emphasized the professional bureaucracy and the central courts, Bracton emphasized the genuine development of constitutional and legal theory.  Writings were formed by a group of Norman judges who had access to the plea rolls and recorded them in a notebook  Bracton quotes the beginning of Justinian‟s .  Passages make clear the growing sophistication of the new “common” law and the royal Norman courts, and of the professionals who served them as both judges and lawyers.  Sections on the source of the legitimacy of the laws and the powers of the Crown help us to understand the of Angevin rules and its influence on legal doctrine.  Shows development of the doctrines of both criminal and civil law that still exist today.  Finally, Bracton was written, in part, by reference to a notebook of decided cases, kept by Henry de Bracton himself – thus the beginning of judge-made law.  Bracton on the Laws and Customs of England (circa 1230)  “To rule well a king requires two things, arms and laws, that by them both times of war and of peace may rightly be ordered.”  “The king must not be under man but under God and the law, for the law makes him king.”   “The king, since he is the vicar of God on earth, must distinguish from equity from inequity, that all his subject may live uprightly, none injure another, and by a just award each be restored to that which is his own.”  “Therefore as long as [the king] does justice he is the vicar of the Eternal King, but the devil‟s minister when he deviates into injustice.” English Feudalism A. OVERVIEW  Origins  Word comes from the Latin word used in medieval times to designate the fee.  When Williams conquered England, he claimed all the land to himself. He then carefully granted out “fees” in land to his loyal supporters on condition that they supply him on demand with so many knights, armed men, or (shield money equivalent of actual manpower).  The top supporters were called “tenants-in-chief” or tenants because they held their fees directly for the Crown.  Fee was the conditional right to occupy and exploit the land, subject to the feudal incidents required – only the Crown held ultimate ownership of the land.

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 Norman French word for “hold” was  The expression of holding a fee was referred to as meaning possession.  Every possession was also held for duration of time – called an .  Feudalism: In a Nutshell  Part of what makes it so complicated and difficult is that it was an overarching system of judicial, economic, military and political power.  It was a fiscal system; a legal system, a defense system; a social structure combined.  Feudalism denies most rights of a liberal society both in theory and practice.  It was a system of maintaining status – preventing upward/downward mobility.  Your position is fixed within society and you can only do your best at that level.  No division between private and public law – completely intertwined.  For example, private individuals with enormous public duties and privileges; i.e., large hospitals, corporations, utility companies.  The upper rungs provided security and good government and the bottom rungs provided resources and loyalty. B. STRUCTURE  Chart of the Legal Structure of Feudalism

 The Feudal Hierarchy  The tenants-in-chief were almost exclusive Norman and could hardly produce the knights required under their fees – they needed farmers, crafts people and others to work the land and produce enough revenue to support the military establishment.  The tenants-in-chief thus re-granted much of the land they received from the King to others, the so-called ( meaning in the middle) who were often Norman or powerful Anglo-Saxons who decided to cooperate.  The held by military tenure or by non-military tenures that involved the payment of crops, animals or money – the tenure.  Some also re-granted land to others, usually yeomen farmers who were often English and held by free and common socage.

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 Exceptions to the Tenure System  Church and its priests, monks, nuns and charitable institutions frequently held land by spiritual tenure called or where they were only obliged to perform masses or pray for the land donor.  Problematic for the Crown‟s revenue since you could not pay for soldiers with prayers.  Those who lived in towns and cities, called boroughs, (residents called burgesses) often made a living of craftsmanship, trade or fishing and held land in which was a nonmilitary tenure like socage – a simple payment to the feudal lord above.  At the bottom were the descendants of Anglo-Saxon slaves or also known by their French name who held land in unfree tenure, or .  Royal courts took no notice of unfree tenure until the 17 th century and so the serfs were protected by the Lord of the Manor, often according to a written book kept at the manor.  Unfree tenure was for “uncertain services” – sometimes leading to oppressive services.  Serfs could not be moved from their land nor could they be physically harmed.  Church would encourage feudal lords to treat their serfs well.  The lords then set up courts of the manor to resolve disputes between serfs.  Was also referred to as and enforced by the – an informal means of protection.  The Estate  All land held in a tenure was also held for an estate – a period of time.  At common law there were only three possible estates: (i) (for the tenant‟s life only, no inheritance), (ii) (inheritance by tenant‟s heirs), and (iii) (limited inheritance).  Leaseholds were not recognized as a true estate at common law.  Most humble lands were held in fee simple.  At first all estates were life estates – this was later supplanted by a presumption that the tenant‟s heirs inherit on death, with a payment called a to the feudal lord.  Under English feudalism there were only two ways to transmit land: (i) and (ii) .  Sub-infeudation merely created multiple layers in the feudal hierarchy.  Substitution merely replaced one tenant with another; however, it required the feudal lord‟s consent and the payment of a tax on the transfer called a .  Land could only be conveyed during the grantor‟s lifetime by the two methods – it was not freely alienable by substitution without the lord‟s consent and couldn‟t be left by will.  Seisin  The expression to describe control of interests in land was from the same root as – all were “seised” of their fee – none owned absolutely.  Seisin is far closer to possession than ownership.  Whoever was seised was treated as controlling the fee legally, even if he or she had no right to the seisin, but had just taken the interest in the land by force.  Communal Ownership  Concept was largely inherited from Anglo-Saxon England.  Most villages were surrounded by unused land.  The major limitation on agricultural production was, for centuries, a shortage of laborers.  Important tracts were held by all the freemen of the manor or village, a tenure by the commonality which descended collectively in fee simple from generation to generation.  Surviving examples include the great Port Meadow at Oxford or Boston Common.  In early feudal time, great fields were also farmed in common by the whereby each villager was entitled to a particular furrow of the plow in every open field.

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 This meant that each shared equally in the good and bad fields and in the success or failure of particular crops.  The feudal system was a reciprocal security system, which did not know absolute ownership divorced from responsibility. C. FEUDAL PROBLEMS AND THEIR SOLUTIONS  Three Intrinsic Problems in the Feudal System  The first was inheritance.  Originally land in feudal system could only descend on death only to common law heirs.  The tenant seised could not change this by will nor could the tenant sell the land during his lifetime without the lord‟s consent.  The second problem was sub-infeudation.  The only way to transfer land was during your lifetime and, unless the lord consented, through sub-infeudation – thus creating another feudal layer.  Feudal dues owed to the seller would often be negligible (i.e., a rose in midsummer).  Resulted in evasion of feudal dues.  Parents were reluctant to give away their land while they were still alive.  The third problem was that feudalism itself was rapidly changing.  The King and the chief nobles no longer relied on calling their feudal tenants to serve in their armies – they instead relied on standing armies of mercenaries.  Once the feudal system became strictly a system of taxation, the reason for many of the restrictions on free alienation and divisibility disappeared.  Homage and Fealty  Relationship between feudal lord and tenant was established by public ceremony.  The lord invest the tenant with the lands by a symbolic delivery of the seisin – – usually a clump or earth, some twigs, or etc.  The tenant did to the feudal lord and became the lord‟s man (Norman French ).  Homage usually consisted of the tenant placing his two hands between those of his lord, which according to Bracton, “symbolized protection, defense and warranty (of good seisin) on the part of the lord and subjection and reverence on that of the tenant.”  Ceremony of homage and fealty helped keep track, in the public memory, of who held from whom and for how much – a vital matter for both tax and civil litigation.  Bracton said, “homage ought not to be done in private, but in a public place and openly, in the presence of many, in the county or hundred court or the court of the lord so that if, through malice, the tenant should wish to deny his homage, the lord could more readily produce proof…”  The Cannons of Descent  The dominant custom of inheritance was called  The eldest son took all of the land on his father‟s death. If there was no son, the land was divided equally among the daughters  Lineal over collateral → first male heir over father‟s brother (uncle).  On failure of all issue, the land would go back to collateral heirs, siblings, cousins, etc. with those on the father‟s side preferred to those on the mother‟s, unless the land descended through the mother.  Primogeniture was a harsh system.  Younger sons had to earn a living in one of the acceptable professions – the Church, the military or the law.  Daughters had to be married to men of inheritance, or become dependent on the charity of their eldest brother. Even if they inherited their father‟s land equally, they lost control of that land to their husband if they decided to marry.  The sole protection was the . On their husband‟s death, their eldest son would inherit the land, but he widow would retain a life estate in a third of the land to provide for a protected old age.

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 Wealthy landowners looked to a new class of lawyers to develop ways to evade paying feudal taxes and to provide for their daughters.  The policy for primogeniture is easy to see – feudal lords wanted loyal warriors holding the land beneath them, and clarity as to who owed what feudal duties.  Primogeniture meant that the tenant below was usually a direct male descendent of an ally holding an undivided tract of land charged with specific numbers of men or of money.  If all the sons inherited equally, estates would be soon divided into small tracts and feudal dues would be impossible to manage, i.e., 1/16th of a knight.  Inheritance by daughters was worse since they might marry the sons of rival nobles.  Subordinating women and preventing the breakup of large tracts of land was reinforced for a new reason – the desire of the great noble families to ensure the survival of their power.  Concentrating the land in the hands of the eldest son kept the great estates, and thus the family power and honor, intact.  The Interests of Women by Catherine McCauliff (1992)  The biggest disadvantage suffered by women was marriage. Upon marriage, all of a woman‟s property and rights essentially fell under the guardianship of her husband who became her legal representative.  “In a „status‟ society where birth meant a great deal, illegitimacy was a major threat to social stability. Upper class women lived cloistered and guarded lives to prevent doubts about the parentage of the heir, while their men had no such restraints.”  Women of the working classes of both own and country had more leverage under such a system than the upper class women in their gilded cages. D. FEUDAL TAX EVASION  Edward I and His Statutes  During the years 1267-1283, Edward I conquered Wales and made a good effort at conquering Scotland and Ireland. He was also constantly fighting to secure his French lands.  All of this required money.  Edward I saw the need to tax land as efficiently as possible.  He also understood, like Justinian, than a sound legal system not only ensures loyalty but leads to prosperity.  But Edward I was troubled by the actions of the new legal class who discovered ways for their wealthier clients to avoid paying feudal incidents.  Feudalism as a System of Taxation  Wanted a system of tax, as clear as possible, based on events that were indisputable.  Incidents included:  – Payments due to assist the lord in meeting specific financial obligations.  By the Magna Carta, they became limited to reasonable payments on the occasion of only three events: (i) money to ransom the lord from captivity, (ii) money to knight his eldest son, and (iii) money to provide a dowry on the first marriage of his eldest daughter. As of 1275, the last two payments were fixed at 20 shillings per knight fee or 5% of the value of land.  – Payable to obtain the consent of the lord for direct sale of the fee by the tenant below. They were usually fixed at one-third the annual value of the land.  – Since in theory upon the death of the tenant the land reverted back to the lord, he was entitled to a fee, called for re-granting the land to the tenant‟s heirs. For tenure, a reasonable relief could be a year‟s profit from the land.  – If a tenant left an underage heir, the land came back to the feudal lord until the heir was of age (21 yrs for military tenure; 14 yrs for socage tenure).  During this time the lord was expected to look after the ward but could help himself to the profits from the land → leading to great abuses.  §§ 3 and 4 of the prohibit the feudal lord from committing waste.

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 – A lord could arrange marriage for his ward – a profitable enterprise. The ward had to consent but if he or she refused, the lord could recoup the value of the marriage.  If ward married without lord‟s consent, he would double the value of the marriage.  Technically the lord‟s marriage arrangements had to be suitable socially to the ward but there were great abuses of this as well.  – If a tenant was convicted of a felony or died without an heir, the land came back to the feudal lord.  Treason was the only exception – then the land reverted to the King directly.  Problematic Elements  Two elements were uncomfortable in the system and eventually led to its cracking:  Church land was held in free alms.  X gives land to church; church re-grants land to X through sub-infeudation and the Church will now report directly to the Church → no payments.  Under Edward I‟s statute of 1279, all alienations to the “dead hand,” referred to as of such charitable institutions were prohibited without special license.  Development of cities and – were outliers of the system.  In theory they held by individuals in tenure, but the city was more of an institution. E. QUIA EMPTORES (1290)  The Three “Action” Items  Chapter One. Declares that all land will be freely alienable without the feudal lord‟s consent.  But the purchase and sale must be by substitution – sub-infeudation is prohibited!  No new layers of feudalism could be created – this would prevent evasion of feudal taxes through the creation of a confusing maze of sub-tenancies.   The feudal system atrophied until the Tenure Abolition Act of 1660 converted all tenures into free and common socage, with the exception of frankalmoign and copyhold, and abolished most feudal incidents.  Chatper Two. Declares that the purchaser must take a fair share of the feudal tax to the lord.  If the seller sold less than all the land, the buyer‟s feudal services would be apportioned exactly like the split in the land.  Ensured that the burden of the services was on all the land.  Chapter Three. Limited the statutes to grants in fee simple, set out that the statute should be prospective only, and restated the policy against tax evasion by gifts to the Church.  The Quid-Pro-Quo Agreement  Eliminating sub-infeudation was of pure benefit to the King and the King alone.  The King was able to quell the uneasiness of the wealthy noble families by enacting a statute called which provided a way for the English landowners to tie up their land despite the free alienation under . F. DE DONIS  The Entail Male  The most common fee tail was one that limited the grant of a fee to inheritance by males only.  This prevented the land from going to the husband‟s family.  Before however, it was only necessary to give birth to a male heir – the so-called “cry within four walls.” At that point the land vested in fee simple estate with the parents even if the son died soon after.  Most importantly, once a son was born, the parents could sell or give away the land.  The Entail Male After the Statute  Preamble of De Donis states that the “will of the giver [donor]… shall be henceforth observed.”  Statute prevented recipient parents of an entail male from selling it and thus disinheriting their children once there was a cry within four walls.

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 Statute would protect entails beyond the donees‟ generation, through the entire serious of their issues. Thus, one who held land for an estate of fee tail could alienate the land, but never more than a life estate, because on his or her death the land descended to the heir as defined by the entail, or reverted to the heirs of the donor.  This effectively locked in family land forever.  Example: G‟s daughter H is to marry J, the son of F. The Gs and the Fs have always been rival families but this marriage is to unite the families. Afraid that the Fs might one day receive the land if something were to happen to H, G grants the land to “H and J and the heirs male of their body.”  The heirs of G always had an interest in the land called a if the male issue failed. These heirs were called .  The heirs of H and J also always had an interest to prevent sale, even before they were seised of the estate – a These heirs were called .  Both sets of heirs could stop the sale of entailed land by bringing a writ called a (from  Breaking the Entail  was widely evaded by the use of a legal fiction, the  A is a tenant in fee tail of land he wishes to sell to B. A has B sue him in royal court claiming that A‟s land actually belonged to B (a “recovery”). In defense of the suit, A would call a witness to warrant under oath that he, A, was the true owned – a so-called voucher. This witness would be C, a man of straw. At a crucial time, C would ask permission from the court to discuss the issue with B out of court (“crave leave to emparl”). C would then fail to reappear in contempt of court. The court would award B the judgment, and require A to convey a fee simple to B, free of any entail. The court would also award a judgment for A against C for equal lands for violating his duty of warranty.  A recovery, however, could only be brought against a tenant in possession.  Preserving the Entail  Between 1640 and 1700 the so-called was devised, which basically gave only a life estate to the owner of land at any given time. Before his heir was in a position to break the settlement by reaching majority, his father would persuade him to resettle the land so that he would in turn only have a life estate.  This was often in return for the father giving his son immediate income so he wouldn‟t have to wait until his father died to enjoy some of the benefits of his inheritance.  Thus the father is bargaining away his son‟s right/ability to use the Courts of Record A. THE FORMULARY SYSTEM  Development of Systematic and Predictable Legal Procedure  Early English judges perceived themselves as administering the just application of a relatively static body of customary law – static except for royal statutes.  The writ helped develop the jurisdiction and doctrine of the royal courts.  Normal royal courts kept detailed records on the so-called “great rolls.”  Between the rolls and the judges‟ own notebooks, sufficient records had amassed to develop a body of law about the use of writs, which in turn led to a judge-made jurisprudence of both procedure and substantive doctrine, called the  The Writ  A writ is both official and private.  It is official in that it is in the form of an official letter from a public official – usually from the King himself – to another official – usually the sheriff – directing the official to do something to a private person pending resolution of a dispute in court.

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 It is private in that no royal official is actually involved in issuing the writ except the sheriff who serves it on the private individual.  Writs were purchased from the King‟s secretariat called the Chancery.  These model writs collectively became known as the and very early on lawyers wrote up their own collection of model writs reflecting those available in the register.  Bracton and the Writs  However, there was not a model writ for every remedy sought.  Bracton took the view that established forms of writs are granted and approved by the common counsel of all the reign and cannot be changed in any way without their will and consent.  “There are as many forms of writs as there are kinds of actions and no one can sue without a writ, since the other party is not bound to answer without a writ unless he wishes to do so.  But, Bracton made one large exception – a new writ could issue “without warrant of law” if it is “consonant with reason and not contrary to the law, provided it has been granted by the King and approved by his council.”  The two rules of Bracton: (i) that writs de cursu (ordinary form) could not be changed at will and (ii) that no one need answer in royal courts without a writ → both in notice pleading.  Edward I‟s Statute of Westminster II  “And whensoever henceforth it shall happen in the chancery that a writ is found in one case, but none is found in a similar case falling under the same law and requiring a similar remedy, let the clerks of the chancery agree in making a writ; or let them adjourn the plaintiffs into the next parliament, and write down the cases in which they could not agree and refer them to the next parliament, and let a writ be made by those learned in the law so that for the future it shall not befall that the court fail in doing justice to complainants.”  Referred to as the rule  However this did not provide a solution and eventually the register of writs was closed.  The Ancient Praecipe Writs  After the register was closed, you had to find an existing form of a writ to fit a client‟s case or you were unable to seek justice before the royal court.  Each form of action was founded on a particular writ in the register.  The oldest and most dignified writs were the Praecipe writs, because they began with the words B” or “Command B” (the defendant) that justly and without delays he sends to A (the plaintff)…  Seniority was important because it was a rule that if an older, more senior writ was available, you could not employ a more junior or modern writ.  The writs included the great writs to determine title to land:  The Writ of Right and the Writ of Right for Chief Tenants holding directly from the King .  The writs also included early personal actions, including .  The writs were very primitive – they only offered one remedy – the return of the thing taken, be it land (writ of right), money (debt), chattel (detinue) or the specific performance of something promised in a deed under seal (covenant).  The writs, and their form of action, had to address only yes or no questions.  Only defense to a claim in covenant was to argue that it was “not my deed,” not my signature – the question then becoming “whether it was A‟s signature of not?” – another yes or no question.  Royal Writs in England from the Conquest to Glanvill by R.C. Van Caenegem (1958)  “The all-perceiving eye and the autocratic hand of the Anglo-Norman and Angevin kings built up a powerful system of all-pervading royal government that is one of the most remarkable spectacles of world history. It was not in legislation or in the declaration of principles, nor in attempts at long-term improvement of human society that their genius expressed itself, but in

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the everyday business of governing the realm, in solving problems as they came, on practice lines… The instrument to convey their will, to notify some decision, to express some order or to prohibit some action, was the royal writ.”  “It is in this diffuse mass of royal orders and notifications, cast in the diplomatic mould of the writ, that we best see royalty at work kneading the soft clay of the kingdom, regulating, commanding, and forbidding.”  History of English Law Before the Time of Edward I by Pollock and Maitland  “England was unconsciously reproducing [Roman] history; it was developing a formulary system which in the ages that were coming would be the strongest bulwark against Romanism and sever [the] English law from all her sisters.”  “[T]he English peculiarity is that in the middle of the twelfth century the old, oral and traditional formalism is in part supplanted and in part reinforced by a new, written and authoritative formalism, for the like of which we shall look in vain elsewhere, unless we go back to a remote stage of Roman history.” B. PRIMITIVE MODES OF PROOF  Providing Proof  Earliest forms of “proof” took the form of an appeal to God.  This had two distinct advantages: (i) there was no hope of threatening God, or seeking revenge on God, or cross-examining God, and (ii) there was no appeal from God‟s decision – once God had spoken, the matter was over.  The assize judges, traveling into potentially hostile territory, needed a credible fact finder who was or that judge might not return safely to London.  Three most common methods of appealing to God were the oath, the ordeal, and battle.  Disputed facts over title to land were could be resolved by (writs of right) or by (debt, detinue, covenant).  If any supporters of the defendant in an oath helping slipped in reciting the words of the oath, it was believed to be that the defendant was guilty.  The Battle  Anglo-Saxons knew ordeals and oaths but the Normans introduced battle to the continent.  Idea was that God would not permit the party in the right to lose.  Early on, women, infants and elderly could employ champions to battle on their behalf.  Occurred except when the accuser was bringing a private appeal of a felony.  The champions fought in a circle or enclosure in front of the royal assize justices. The objective was to get the opponent to give up from exhaustion.  If the stars came out while both champions were still fighting, the defendant won!  Battle was never popular and was discouraged by judges as early as the 13th century.  The Ordeal  The ordeal was most commonly used for alleged crimes, particularly where a suspect was unable to produce oath helpers, had been guilty of lying under oath before, or was a serf.  Most common ordeals were: (i) water – the innocent was “accepted” by the water and sank, (ii) hot iron or boiling water – burns healed quickly if the suspect was innocent, and (iii) the cursed morsel – a piece of bread with a feather in it – the guilty choked.  Some evidence of administrators fixing ordeals to achieve a desired outcome.  The Church‟s active participation in ordeals, having individuals swear upon relics, was eventually forbidden by the Fourth Lateran Council in 1215 and the ordeal quickly disappeared; replaced by criminal or juries. C. COMMON LAW ACTIONS WITHOUT WRITS – PLAINTS AND QUERELAS  Ignoring the Formulary System  When assize judges would visit the shire towns, they would also hear informal pleas for help.  The pleas were called (i.e., complaints) or (i.e., bills).

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 The theory was that the King was ultimately a source of remedy for all wrongs, and the King‟s representative was the royal assize judge.  As common law justice became closely constrained by the limited forms of writs, „safety valves‟ had to be found to do justice in extraordinary cases. D. THE QUESTUS EST NOBIS WRITS AND THE POSSESSORY ASSIZES  A New Family of Writs  Henry II saw that the old Praecipe writs were too cumbersome and their methods of proof too unreliable to protect against people simply seizing the seisin of fees belonging to others.  Henry II wished to on both sides.  They were called possessory because they were designed to protect peaceful possession, or seisin, until a court could determine ultimate right.  The Possessory Assizes all began with the words or “A hath complained unto us (the King).”  Important features: (i) they would automatically restore possession to anyone who had something taken from their possession during a fairly short period before the action – usually six months, and (ii) factual issues would be resolved by the jury.  The question of whether a seizure of possession, or disseisen, actually occurred was decided by a jury of twelve neighbors – presumably they would know town gossip.  The Four Possessory Assizes  Most important was which remedied any seizure of land which occurred fairly recently. If the plaintiff was in possession, and recently removed by the defendant (a factual issue), the remedy was to return the plaintiff to possession.  The more complex issue of whether the plaintiff had ultimate good title v. the defendant could be decided later through a writ of right.  The writ of established by Henry II protected a particular weak point in the feudal chain of possession – the period between the death of an ancestor and the seisin of the heir – unscrupulous land barons could strike and take over the manor with armed mercenaries.  All that would have to be proved is: (i) that the plaintiff was the legal heir of the dead owner – checked by review of the canons of descent, and (ii) that the dead owner died seized of the property – an issue of fact.  The writ of concerned the issue of whether the plaintiff was the last person to make an appointment to a Church patronage job. If so, the plaintiff was seized and could make the next appointment.  The writ of concerned the issue of whether church land in question was held in spiritual tenure, frankalmoign, or was held by lay tenure. It was chiefly used by clerics seeking to recover land belonging to the Church. E. THE “MOTHER” WRIT – TRESPASS  The Nisi Prius System  Part of the Statute of Westminster II provided that a day and place should be set aside on the assizes to try all such possessory cases, and that the case should not be tried in London unless the assize judges “had not previously” tried them on the appointed day in the town.  Permitted inexpensive and knowledgeable trials before local juries.  At first, juries had to be representative (i.e., a yeoman tried by other yeoman).  They were not, however, impartial – were chosen specifically for their knowledge.  The Trespass Writ  The writs always used the words to show wherefore.  The words were usually coupled with two other characteristic trespass phrases: (i) force and arms, and (ii) against (the King‟s) peace.  Writs were originally designed to give victims of violent attacks with force and arms a special civil remedy where writs providing for specific performance or restitution would not suffice.

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 Because the writ was originally designed to remedy violent behavior against the King‟s peace, it was tried before the King‟s Bench and provided a way to move legal business into their court and away from the Common Pleas.  Juries in such actions were asked not only to determine who was at fault but also to determine fair monetary damages for the harm, a harm that, by its nature, could not be simply “put back.”  The writ was soon expanded to encompass other situations than an ordinary violent attack.  The was used for individuals forced out of leaseholds.  Different from the writ of trespass for intentional torts. Instead these writs required a statement of the case. The characteristic words and were gone and the writ was called an “action on the case” because it set out the case itself in the writ – a negligence action.  The next evolution included the word for action covering negligence on contracts that were not under a deed in covenant.  The final step was the which covered instances where one party failed to perform under a contract – a remedy for no act at all!  One limitation on was that the plaintiff had to pay the defendant in some way for the undertaking – purely gratuitous undertakings were not allowed.  However, due to the rule that an individual must proceed with a more senior writ than a modern one, like trespass, the old writs were kept alive in a marginal role for many years.  This was finally eliminated under the legal fiction of indebitatus assumpsit.  This fiction assumed a subsequent assumpsit whenever an old action would have been appropriate (i.e., A and B had a written covenant, and then A later made an oral assumption of duties). The idea was that the later oral assumpsit made a trespass remedy. Soon that later assumpsit itself became alleged, even when it never happened.  The trespass writ was of such great importance because it allowed the courts to provide remedies for actions that were not specifically accounted for in the closed register of writs. F. THE JURY  The Concept of the Jury  In legal fact finding there are two pressing concerns – legitimacy and rationality.  The primitive modes of proof were focused on the need for legitimacy only.  Employing jurors was a classic compromise between the two concerns.  Each juror was put under oath to give a true answer to a question – incorporating part of the fear and power associated with the oath.  Next, the jury had legitimacy because it did not consist of professional judges, but of local people from the neighborhood.  Juries, like God, were inscrutable and were impossible for neighbors to effectively challenge.  Local juries were also likely to have first- or second-hand knowledge of incidents.  Chart of the Development of the Jury

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 The Norman Jury  From the Norman administrative fact finding jury were derived three separate tools for resolving three different legal needs.  The earliest to appear, dating from the Assize of Clarendon in 1166, it consisted of twelve, not twenty-three individuals.  Appeared following the Fourth Lateran Council of 1215 when the Church prohibited clerical involvement.  Established around 1179, the twelve was an inherent part of Henry II‟s statute calling providing possessory assizes.  However, evidence from Bracton shows that royal judges cross-examined jurors and rejected jury verdicts as late as 1235.  By 1367 unanimity was required, but only in the late 1460s was there a full shift to juries as triers of fact rather than witnesses.  The Mandatory Jury Trial  A mandatory jury is one where the parties must accept a jury trial.  According to the Statute of Westminster II (1275), criminal defendants could not be tried by jury without their consent – a continuing legacy of the old ordeal as an appeal to God. However, the defendants could be locked in a until that consent was given.  Unfortunately, a misreading substituted or pain for the word prison.  This led to pressing whereby weights were placed on to a prisoner until the prisoner pleaded and submitted to a trial by jury.  Mandatory jury trial without the coercive consent of pressing was not finally achieved until pressing was formally abolished in 1772. After 1827, a plea of not guilty was automatically entered if a prisoner chose not to plead.  In a macabre sidelight, before 1772 some prisoners bravely refused to consent to a jury trial as a way of avoiding conviction of felonies and the subsequent loss of their properties for their heirs and families by the – crushed to death rather than consenting. Equity A. ORIGINS OF EQUITY  Greek and Roman Theory  The linguistic origins of equity were the Greek

and the Latin

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 The original classical meaning was “fairness” but the Romans added a related notion – the ideal of a fairness that transcends the strict positive law in those individual situations where a mechanical application of the rule would be unjust.  This fairness would also be available to plug in the inevitable gaps in already enacted positive law, or to construe and apply statutes in a commonsense way –  Aristotle defined equity as that which corrects “the error that is generated by the unqualified language in which absolute justice must be stated.”  However, one case should not necessarily set a precedent for the next.  The Church and Canon Law  By the 13th and 14 th centuries the Church in England had developed a complimentary jurisdiction to the royal courts that encompassed not only matters involving Church lands and priests, but also many disputes such as divorce, defamation, grants of probate, important issues of legitimacy, supervision of executors and administrators of personal property.  The Canon law was a rich source of juristic ideas, drawing in turn from the procedures and doctrines of the Roman law and the Continent. B. SPECIAL ROLE OF THE LORD CHANCELLOR AND THE CHANCERY  The Residual Power of the King  Equity was advanced, in part, by the medieval beliefs that the King as a residual power, and a duty, to right any wrong that came before him for which there was no regular remedy.  The religious and royal components of equity met in the office and person of the King‟s Confessor, the Lord Chancellor – with a duty to advise the King in moral and legal matters.  By the 14th century, special pleas to the King for equity were referred to the Lord Chancellor in a court that became known as the Chancery.  The Lord Chancellor had extraordinary powers but usually refrained from using them if there was an adequate remedy at common law → notion of exhaustion of remedies.  Three major differences between the Chancery and the common law courts: (i) remedies at equity were discretionary – you had to have impress the Chancellor with clean hands and heart, (ii) the Chancellor had the fearsome power of the to summon individuals before him – jurisdiction was in and (iii) there was no jury at equity – the Chancellor was both judge of law and trier of fact. To obtain facts he used procedures similar to those developed in canon law, including written interrogatories and inquisitorial procedures. There were no formal writs, only informal bills and even word of mouth complaints.  Since there were no records, one could not predict what the Chancellor would do.  Importantly, the Chancellor and his court were seen as royal instruments.  Common lawyers were incredibly distrustful of equitable courts.  Did not trust the authority of the executive and did not like the idea of a single chancellor with absolute discretionary power. C. HENRY VIII AND SECULAR EQUITY  The English Reformation  One of the most traumatic events of the century was Henry VIII‟s decision to take England out of the Catholic Church in 1534.  Henry was without a legitimate male heir (his wife was barren) and therefore sought a divorce that the Pope refused to grant.  Henry also sought to consolidate royal power – both spiritual and secular authority was united for the first time in one person as he made himself the head of the Church.  There were also vast rewards for Henry‟s supporters as the dissolution of vast Church holdings and their distribution among his trusted lieutenants created a new class of nobility, directly indebted to the King.  Henry understood the need to divide the power bases of his rivals and to consolidate his own.  Saw the need for retaining the ecclesiastical courts under his control while encouraging the creation of royal Roman law based specialty courts as a bulwark against the power of the common lawyers as a profession and the common law courts.

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 The Doctor and Student by Christopher St. German (1523 and 1530)  First major law book printed in English, it examined candidly and scientifically “the principles or grounds of the laws of England.”  It helped establish a secular basis for English equity, just as Henry VII jeopardized its religious basis by suppressing the Catholic Church.  The gravamen of the dialogue, sometimes implicit from necessity, was that the common law will be effective only if it is firmly based on a moral foundation, and that its continuing health requires careful and critical examination of its fundamental assumptions. The Specialized Courts of the Renaissance A. THE CONCILIAR COURTS  The Court of the Lord High Constable and the Marshall  Handled cases arising from military expeditions that included issues of treason, ransom, contracts for foreign supplies and the right to coats of arms and other distinctions.  The Court of the Admiral  Handled cases involving international commerce and maritime disputes.  Strictly enforced the civil Roman laws of contracts and transactions - a flexible law, which was suited for commerce.  Handle actions for large sums of money, which then interested the common lawyers who wanted part of the action.  Actions must have been international – no jurisdiction for events that occurred inside England.  Developed the whereby a ship‟s captain could pledge the credit of the vessel as collateral in order to make necessary repairs – creditor could seize ship if unpaid.  Vice-Admiralty courts were important to the British government in colonial America because it proceeded without a jury → couldn‟t convict a ham sandwich with colonial jurors.  Also had jurisdiction over divorces.  The Court of Star Chamber  Handled cases that were beyond the power of the sheriff and included issues that involved powerful political figures or political issues so explosive that an ordinary jury trial and legal process could not be expected to function.  Cases were taken collectively by the King‟s entire Privy Council.  While the Star Chamber handled both civil and criminal cases, its later history was focused on crimes threatening the welfare of the state, such as sedition and conspiracy.  Complaints could be brought directly by from state officers.  Cases were initiated not by a grand jury but by the Attorney General.  Chamber could find crimes where the common law would find none and they could design punishments at their discretion.  While it could not execute a defendant (only the common law courts could do that), it could and did torture, mutilate and brand individuals called before it.  It was often thought of as an equity court for criminal matters.  There was no need for indictments by juries of presentment and none of the safeguards.  Chamber did not rely on the confessions produced during torture but rather on the hard evidence discovered via the confession.  Star Chamber was relatively popular with the general populace as the public could see political figures prosecuted for their abuses.  Deteriorating relations between the Crown and Parliament and the forces that caused friction between the common law courts and the Chancery proved fatal to the Star Chamber.  It also became too closely associated with the Stuart monarchy and its unpopular prosecutions and was finally abolished by Parliament in 1644.  The Court of Requests  England‟s poor also flocked to the King for justice they could not obtain in other courts.

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 Petitions were received by the back door of the King‟s palace and by 1483 a royal official was named to receive the “bill[s], requests and supplications of poor persons.”  Originally this was a special responsibility of the King‟s Almoner and Dean of the Chapel Royal, but it eventually became a court of the Lord President of the Privy Seal, who managed the King‟s personal affairs.  The Court of Requests was a court of equity, used the same simple pleading by bill, and had flexible remedies.  Irony of this “small-claims” court was that it was so simple and efficient that it became so popular that it attracted litigation among the wealthy.  The Other Courts  Other courts of equity also existed, the most important being the Courts of the Council in the north and the Council of Wales.  They were regional councils designed to assist with royal authority in border regions.  There were also many local courts throughout England, including the powerful so-called “Palatine” courts of Durham, Lancaster and Chester, which often operated like royal courts, and on occasion used equitable remedies and procedures.  Among the customary local courts were courts that particularly served merchants.  These courts, called “courts pied poudre” because of the dusty feet of the commercial travelers, were located in major cities and ports, and also could be found at major trade fairs for the duration of the fair.

B. NATIONALISM OF THE COMMON LAW AND THE ROLE OF PROFESSIONAL SPECIALISTS  The Civilians of Doctors‟ Commons  When Henry VIII suppressed the Catholic Church, he not only saw the need to replace the Catholic canon lawyers but also saw the danger of handing over a new jurisdiction to the already powerful common lawyers.  Abolished canon law study at Oxford and Cambridge and established a royal professorship in Roman law.  Confirmed that the graduates of these programs at the doctoral level (i.e., doctors of civil law) should have special monopolies in the new conciliar and ecclesiastical courts.  Primary purpose was to assist where English national law met foreign systems.  The civilian lawyers were thought to be better disposed toward centralized executive power – due to their Roman antecedents – and were immediately viewed with suspicion by the class of common lawyers – practicing their “foreign” laws and secretly working as Catholic spies.  Civilians v. Common Lawyers  Civilians were all graduates of universities and had doctorates in Roman law.  Common lawyers were all taught through apprenticeships.  Civilians believed in the → rules should be written, promulgated, prospective in application, and should be empirically tested.  Common lawyers were very suspicious of centralized authority.  Civilian and council courts were under the thumb of the executive.  Latin was also the transnational language of the day.  Common lawyers spoke English and Law French.  Common lawyers were nationalist and they looked upon the use of outside legal principles as suspicious and disloyal.  The civilians also believed in and relied on the inquisitorial system. They saw the jury system as foolish and unreliable. The security of the state was of the highest priority – not human dignity. Appeal

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A. OVERVIEW  A New Concept  The idea of appeal is relatively new when compared to the other fundamental ideas.  The ordeal, wager of law, and trial by battle represented trial by the will of God.  There was no possibility of error in a judgment supported by divine intervention!  There was no higher court, except the residual authority of the King.  Equity was available as a complementary, not superior, system when common law remedies were inadequate.  The Proto-Appeal Process  When individual assize judges would hear cases that presented difficult issues, the judge would return to London for a review of the issues by the full court before entering any judgment.  A process called  It was a form of review in that legal issues could be raised by other judges or, within strict limits, by the losing party.  However, it was not a true appeal because no judgment had been entered.  There was also no hierarchal process of superior judges reviewing lower judges.  Procedure called allowed the judges to discuss a case en banc, not acting as a court of record but as an advisory assembly. Nevertheless, their collective opinion was always acted on, and if reported, would serve as precedent for the future.  This informal assembly was referred to by the same name as the statutory court of error, the “Exchequer Chamber,” probably because the judges met in that room.  However, the functioned much like a modern court of appeal because it was not limited to narrow legal errors, but could, and did, address broad changes in the law.  Informality of such proceedings was important – outcomes, on the record, were simply the entered judgment or an order for a new trial – leaving little to nothing to attack by . B. ERROR  The Writ of Error  Established in the 16th century, it was the first common law vehicle for regular supervision of one court by another.  Had an extremely narrow remedy that was limited to a manifest error on the formal record (i.e., the plea rolls), or some plain fact, proven by the plaintiff in error, that was clearly inconsistent with that record, and which directed a different result.  The law could tolerate an unjust result but not an obvious mistake reflected on the record.  Examples included use of the wrong writ or cause of action.  The King‟s Bench was given general supervision over local courts of record and the Court of the Common Pleas.  A statutory court of error was established consisting of the Chancellor, two royal judges and the Treasurer, the so-called “Council Chamber,” to review judgments of the Exchequer.  Another statutory court of error was established consisting of all the judges of the Exchequer and the Common Pleas, the “Exchequer Chamber,” to review judgments of the Kings Bench.  Final review in error was to the House of Lords.  The Appellate Jurisdiction Act of 1876 provided for the creation of the Lords of Appeal in Ordinary who were trained judges.  William Aldred‟s Case  Issue was whether Aldred could have a remedy to prevent “corrupted air,” the stench from his neighbor‟s hog sty, from destroying the enjoyment of his property.  Defendant argued that hog sties were a required industry and that “one ought not to have so delicate a nose, that he cannot bear the smell of hogs.”  Aldred brought a regular action on the case at the royal assize in Norfolk. The jury found his allegations to be true and assessed damages. The trial judge reserved judgment for his brethren of the Common Please in London.

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 Upon review, the Common Pleas held that the action was maintainable and entered judgment.  Why didn‟t the defendant then proceed in error to the King‟s Bench?  Allegation would be that a nuisance action like this should not be brought by an action on the case but by the old possessory nuisance action, , which was analogous to the possessory assizes, particularly novel disseisin.  But of course possessory actions merely restored the appropriate status quo and in this case the plaintiff wanted damages.  Eight years earlier the issue had been decided by the Exchequer Chamber, holding that a nuisance plaintiff could have his election of an action on the case or the possessory assize. C. PREROGATIVE WRITS  Overview  While appellate review of another court on the merits was a relatively new concept, it was another matter when a court exceeded its jurisdiction or used the wrong procedures.  A specific application of a more general principle that governed everyone acting under the “countenance of authority,” including Crown officers.  Were called prerogative writs because they were inherently discretionary and were theoretically based on the King‟s royal prerogative.  Writs were never issued by the King but almost solely by the King‟s Bench in its capacity as the senior common law court of England.  They writs evolved, however, not as a vehicle for royal prerogative in the sense of the King‟s executive discretion, but rather as a check on the arbitrariness of the Crown and the King‟s officers and councilors.  The Writ of Prohibition  The oldest writ, it was available at the request of a private party to halt a judicial or quasijudicial action against that party in a court or tribunal.  Solely to determine the appropriateness of just a single action involving the petitioner.  Was originally used to keep Church courts out of secular business, but it was extended to control all inferior judicial entities by the sixteenth century.  Extensive use of the writ against civilian jurisdictions.  Aggressive use of the writ curtailed the development of mercantile courts and aided in the “incorporation” of mercantile law into the common law by effectively destroying the finality of commercial judgments in the specialized courts.  The Writ of Quo Warranto  Different from the writ of prohibition because it went to the underlying authority of any court or tribunal – hence it‟s name “by what authority.”  Used to examine the “whole picture” – i.e., it asked the sheriff to determine by what authority someone was holding a court to hear the action in the first place.  Originally evolved as a writ brought “by information” of the Attorney General or other royal officers, but was eventually used by private suitors, usually in the name of the master of the Crown office.  Analogous to the (“that you cause him to know”), used to enforce judgments, letters, patents and other legal records by requiring the defendant to show cause why the plaintiff should not have the benefit of what was shown by the record.  The Writ of Mandamus  A collateral remedy to the the writ would require or “command” a local authority to act, or else to show cause why it should not act.  Traditionally used to restore legitimately appointed official to public office and to protect those entitled to other public benefits (private benefits being protected by contract).  Because the writ was a general remedy for lack of relief from inferior tribunals and public bodies, it never served as a true appeal on the merits. It lay when a public authority wrongly

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failed to exercise jurisdiction or used the wrong procedures, not where that authority has simply come to the wrong decision on the merits.  The Writ of Certiorari  Historically the writ had a narrow function, laying only to inferior courts and only to demand that the record be certified and sent to the King‟s Bench to see if that court had exceeded its power in a particular case.  Originally not a true basis for appellate review – could only review the formal record.  No new trial in King‟s Bench or reexamination of the case on the merits.  Commonly used to review criminal indictments and local administrative orders, and was often used to examine the statutory authority for acts of administrative bodies created by statute.  Frequently included was the writ of  Also solely addressed to inferior courts, it commanded an inferior court to proceed to judgment promptly, without specifying what the judgment should be.   The Writ of Habeas Corpus  Original purpose was not to release people from prison but to secure their presence in custody.  Only by sixteenth century had the King‟s Bench begun to use to the writ to challenge any unauthorized imprisonment by royal officers.  Writ was directed to the jailer and required producing the prisoner in person before the court, together with the reason for imprisonment.  By the time of Chief Justice Coke, the writ had become a powerful weapon against royal absolutism and a formidable tool for common law supremacy.  After the Habeas Corpus Amendment Act of 1679, the King‟s Bench had extended the remedy to a wide range of wrongs including much more than just criminal cases.  Still not a true form of appeal – “[e]ven in its widest application…it does not enable an appeal on the merits of a decision to imprison. Its function is to question the lawfulness, not the inherent correctness, of an imprisonment.”  Two years ago the DOJ sought to abolish the (“our own courts”), used where the court made a clear mistake and the individual was punished but the petitioner wants to at the very least straighten the record (i.e., want to clear a felony charge).  Slade‟s Case  Plaintiff Slade had sold defendant “all the ears of wheat and corn which did then grow.” Defendant promised to pay £ 16 on a specific day – a standard futures contract. Defendant did not pay because the price of grain fell and Slade sued in the King‟s Bench.  Slade brought a writ for for two reasons: (i) to get a jury trial and (ii) to get damages. Slade won a jury verdict and asked for £ 40 in damages.  Defendant said case should have been brought on a .  The court held that while either writ was available, the action was maintainable.  Note that the Common Pleas had a monopoly on the old actions like debt, while the King‟s Bench had a monopoly on the trespass actions and their progeny. D. EVOLUTION AND DEVELOPMENT OF APPELLATE SYSTEM  Early Appearance of Formal Appeals  First formal appeals involved the jurisdiction, established in 1833, of the King‟s Council in reviewing foreign colonial judgments through the so-called Judicial Committee of the Privy Council.  By 1675, the House of Lords decided that it could review regular “English Side” Chancery proceedings and by 1851 professional Justices of Appeal in Chancery were appointed.  Was a true appeal since these equitable proceedings, officially, had no record and no jury and thus as a rehearing on the merits of the case.  By legislation in 1854, true appeal was allowed from a court to a court of error and by 1875 all proceedings in error and the statutory Exchequer Chamber were replaced entirely by a new Court of Appeal, consisting of professional Lords Justices of Appeal.

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The Birth of the English Legal Profession A. LEGAL PROFESSIONALISM  Early Development  The first “lawyers,” in the sense of persons, who represented others in legal proceedings, were called “attorneys” from the medieval Latin and the Norman French  Probably no more than particularly articulate and bright kinsmen or assistants who were assigned by a party to speak on their behalf.  Along with the role of the attorney there was the ancient idea of the “counselor,” deriving from an old French term and ultimately from the Latin  Term appeared very early on usually in reference to the King‟s advisors who were learned in the law. But by the twelfth century, a clear distinction was developing between counselors to the Crown, who increasingly acted as judges in disputes, and counselors to private persons who acted as attorneys.  The Normans introduced the idea of the professional, the judge or advocate who was more than just a learned and talented amateur but rather one who had a permanent identity and business with the law.  In 1292, Edward I issued a writ that required those who wished to practice before the bar had to participate in a number of apprenticeships and sit in courtrooms.  Professional judges of the royal courts began to take responsibility for “lawful and ready learners” who “shall attend the court, enter into business, and no other.”  Eventually lawyers trained directly by the royal courts to be advocates in said courts became known as because they could plead at the bar of the courts.  Around 1400, the “guild ideal” emerges – obligation to legal profession and rule of law.  Another distinct group continued in the attorney tradition of managing their client‟s day-to-day legal affairs, but their close association with their clients created a contrast with the barrister elite who was more identified with the courts themselves.  These attorneys became known as and no client could employ a barrister directly, but only through a solicitor.  Sergeants at Law, Barristers, and Solicitors  Above the barristers was an even older social class dating from at least the fourteenth century, called the who had a monopoly in the Common Pleas, and until the sixteenth century were the exclusive source of new royal judges.  With their characteristic they were an admired elite, “leaders of the bar by natural, judicial, and royal selection.”  Importantly, they served as a bridge between the judiciary and the private advocates.  The barristers reflected a social aristocracy, while the busy solicitors became a symbol of middle class advancement.  This legal elite was an acceptable occupation for gentry – particularly the younger sons disinherited by primogeniture.  Barristers are still not allowed to associate with law firms – they are solo practitioners.  Solicitors were generally unregulated until the 18th century.  Many did not go to universities but instead learned the law through apprenticeships. B. THE INNS OF COURT  Professional Education  Term inns probably comes from the hospices that filled western London for the benefit of government officials, supplicants, agents, and during the term of the court, lawyers and clients.  By 1350 some of these hospices, often under-utilized mansions of the nobles who rarely came to London, had the idea of specifically housing apprentices at law – this provided tenants for the slack periods when the court was out of session but also employment for experienced lawyers, eventually known as to work as teachers and supervisors.

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 Other students stayed in the houses of Chancery clerks, which became collectively known as “Inns of Chancery” – serving as feeder schools for those wishing to enter the Inns.  By 1400 four inns began to establish dominant positions: (i) Gray‟s Inn, a house of the Lords Grey; (ii) Lincoln‟s Inn, either named for Henry de Lacy, Early of Lincoln or Thomas de Lincoln, a prominent sergeant at law; (iii) Middle Temple; and (iv) Inner Temple – both located in the defunct premises of the Knights Templar.  For the very elite who became sergeants, there were also two Serjeant‟s Inns, although these were more akin to small clubs than an educational institution.  By 1450, the four inns were professional schools with the exclusive right to train common law barristers and sergeants.  In the sixteenth and seventeenth centuries, the inns not only trained young lawyers but were also centers of political influence, literature and even art.  Legal Education at the Inns of Court  Three most important characteristics make an interest contrast with modern legal education.  First, the faculty was almost exclusively practicing lawyers.  Providing “readings” on statutes and supervising the exercises within the Inn were part of the duties of those seeking advancement from barristers to benchers.  Benchers were also expected to sit on the bench at moot court exercises and to critique the student participants.  Second, the required exercises, the or public pleading exercises, and the similar exercises held in private.  Such exercises combined learning by rote memorization and learning thru practice.  Third, the Inns were a compulsory society, where keeping commons with your colleagues was required.  This society built a sense of professional identity and value. C. YEARBOOKS AND ABRIDGEMENTS  The First Professional Literature  Many of the law students attending court created a new record of the legal proceedings in their detailed manuscripts of what was said and done in the courtroom.  By the end of the thirteenth century these manuscripts appeared regularly.  They were identified chronologically by reignal year.  As the years passed their function slowly changed (i.e., study guide → unofficial report) and the books became much more uniform with practically no gaps.  However, there was still no organization by topic and no way to find precedents.  Written Precedents  The first abridgement, known as appeared in 1490 and was followed by two great writings containing summaries of tens of thousands of yearbook cases, organized under alphabetical topics. These were (1514-16) and (1513).  These writings symbolize three dramatic changes: (i) the impact of printing, for sets of yearbooks were among the first printing projects in England and an almost complete set was available by 1558; (ii) the use of these newly uniform and accessible yearbooks for a different purpose – authority for judicial decision, rather than education; and (iii) an early attempt to form a not of statutes or formulary proceedings but of decided cases.  The doctrine of precedent had two elements – the idea of a (the rule of a case, as opposed to simple the views of a judge, ) and the idea that judicial precedent should be binding in future cases. D. THE STATUTE OF USES  Overview

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 Henry VIII, witnessing the emerging political influence of the common lawyers themselves and their clients, a new commercial and land-holding bourgeoisie, sought to protect his feudal revenues by revolutionizes the feudal law through statutes.  Henry VIII also had to accommodate the new and increasingly powerful House of Commons.  Running out of money, Henry VIII knew it would have been practical to simple pronounce a new tax, so he instituted a gathering, the commons, consisting of people from various counties.  The rule that developed through the 1300s was that not only did the commons have a right to be consulted on all taxation issues but that the commons established that it had the right to originate all bills of finance.  Commons also established that the King could not revise the houses‟ terms of the bill. The King could refuse to accept the bill but he could not pick and choose provisions.  The Use  During the crusades, wealthy noblemen would grant legal title to a powerful neighbor for safekeeping with the explicit understanding that upon return, the title would be returned.  Term in Latin was (for the use)  A→B→A  B had the legal title but A only had equitable title. However, while “uses” were initially not legal titles, they were enforced as equitable matters in the Chancery.  Once they were recognized, they became as good as legal title.  It was also used to convey land to religious groups – while gifts of land to religious institutions were prohibited by the statutes unless permission was granted, pending the grant, the gift could be held “to the use” of the institution.  Legal seisin was a matter of public record but being a beneficiary of a use could be secret and thus helpful in evading feudal dues.  Uses could also be used to achieve things prohibited at common law.  A landowner could grant to his land to a lawyer, to be held to the “use” of the landowner for life, and then to the “use” of his or her children according to instructions, which might be quite different from the ordinary rules of inheritance.  This was problematic for the Crown because the two important principles of maintaining the collection of feudal fees were to keep record of (i) transfers of land (public ceremony) and (ii) inheritance of land (automatic set of rules).  The Goal of the Statute  Henry VIII‟s first idea in 1529 was to prohibit all estates in land except the fee simple for all subjects except peers of the realm, who could still entail their land.  This proposal had absolutely no support. The growing class of wealthy untitled landowners, some using money made in commerce to buy land to enjoy the status of landed estates saw it as an exposure to greater taxes. The common lawyers saw it as ruining their profession – there was nothing more to study than the fee simple.  Uses had also become the method to devise land.  In 1536 Henry VIII tried again but this time with a substantial benefit to the common lawyers.  Common lawyers in the Common Pleas had lost a great deal of business to the Chancery because uses were only recognized in equity. The revised proposal would “execute” all uses and turn them into interests at law.  Everyone seised of any freehold interest to the use of anyone else would lose title, which will vest in the beneficiary. Thus, the effect of a grant to “A to the use of B” was simply to vest the freehold in B.

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 The Statute of Uses was passed and along with the Statute of Enrollments to keep a record of all theses interests.  This would provide revenue for the Crown and business for the lawyers.  Immediate effect of the statute was to aggravate political unrest in an already unsettled society.  A rebellion, called the broke out as many land-holding gentry complained that the execution of uses took away their power to devise land.  Henry VIII realized he went too far and, by the Wills Act of 1540, all land held in fee simple by common socage tenure was made devisable, as was two-thirds of all land held in fee simple by knight tenure.  Henry VIII also established a new court, the Court of Wards, specializing in collecting his increased feudal dues.  Thanking to a few narrow loopholes left in the drafting of the statute, a few ingenious minds and the courts themselves circumvented the law in its entirety through the use of legal fictions.  Uses were creatures of equity; they were curtailed by statute; then resurrected by fiction.  The Bargain and Sale  Before statute, secret conveyances were achieved by bargain and sale – if one had bargained for and sold a freehold to another, equity would enforce the sale by specific performance.  Thus, the bargain and sale was said to leave the seller with legal title held to “the use” f the buyer, although there had been no formal livery of seisin, no fealty and homage ceremony.  After statute, this “use” was executed (removed) and the buyer had legal title by reason of the bargain and sale. However, it was no longer a secret conveyance because the transaction had to be recorded under the Statute of Enrollments.

 Devise by Use  Common law did not permit devise of land but only inheritance through canons of descent.  This was avoided by granting land to to the use of the donor for life, and then to the use of specified heirs, at the donor‟s discretion.  Legal title would descend by the regular canons of descent to B‟s heirs, but that made little difference, as it was a bare legal title.

 After the Statute of Wills in 1540, devise of land was allowed at common law, without consideration of canons of descent, but the transfer had to be recorded with the Crown.  Major Loopholes in the Statute of Uses  The first hole was the fact that it was not intended to abolish all uses.  The statute used the term “seised” to the use of another. Seisin referred to real hereditaments.  It was also decided that “active” uses, where the legal owned had real duties to perform, were not to be covered by the statute.

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 These types of active uses, not executed by the statute, became known as  A covenant to stand seised by consideration of marriage or of “natural love” also raised a use before the statute and this use was executed by the statute. However, the Statute of Enrollments did not catch this transaction because it was not a bargain and sale.  Thus, private family settlements were still possible.  Bargain and sale of leaseholds also presented a significant problem for the statute.  Vendors routinely bargained and sold long leasehold terms (i.e., 1,000 years) rather than deal with the hassle of transferring a freehold.  “The Statute of Enrolments [sic] did not affect bargains for a term, and so these were left to the combined operation of the Chancery rule and the Statute of Uses; the bargainor is therefore seised to the use of the termor, and the termor acquires the legal term under the statute, without having to enter. Hence it was possible to convey secretly by using two deeds – a bargain and sale for a term, followed by a release of the fee to the termor. Neither had to be enrolled and neither needed actual entry for its completion.”  Shifting and Springing Uses  The statute, rather than simplifying the law, actually created new complex legal interests that were never before permitted at common law.  Legal estates had always been governed by two strict rules: (i) a remainder has to be supported by a prior estate, and vest when it ends – no sooner and no later; and (ii) remainders cannot cut short a prior estate.

 Before the statute, efforts were made to achieve these grants by uses, having legal title vested in a straw man, subject to uses.  A use that shifted from one beneficiary to another on the happening of a contingency cutting short what would otherwise have been a legal estate was called a  A use that attempted to come into being after a pre-existing use had terminated was called a because it sprung out of nowhere.  While application of the statute would seem to “execute” the use, and the common law would seem to prohibit the gifts over or remainders, vesting a fee simple in B, exactly the opposite was decided by the courts.  Example: “To S, for the use of B for life, and then to C”  Since the statute only executed interests seised to the use of another, and B was not seised to the use of C, what happened when B died? The Courts solved this by saying that the straw man S still had a (“spark of title”), which could leap out and ignite C‟s remainder when B died.  There had been no restriction on future interests before 1536; “uses are not directed by the rules of the common law but by the will of the owner of the lands; for the use is in his hands as clay is in the hands of a potter, which he in whose hands it may put into whatever form he pleases…”  Seisin could be made to skip and jump as it never could before.  The Use on a Use  Began by simple errors in conveyances.  Example: Widow A, bargained and sold her lands to her son B in fee simple to her own use for life, with the remainder over to B.

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 The result was not what was intended because the bargain and sale created a use, which was executed by the statute giving the son a fee simple outright. The use to the life of the widow was a second use – a use on a use.  At first the Lord Chancellor refused to protect the second use, because the result would be a deliberate evasion of the statute by conveyancers putting a use on a use. However, mounting pressure to protect innocent victims of such errors became too great and .  The valid second use was called a and the formula “to A to the use of B upon trust for C” became widely employed in the eighteenth century. Law Reports, Passion and Judges A. THE TUDOR COMPROMISE  The Intellectual Seeds of Civil War  Upon Elizabeth I‟s death, the closest heirs were the House of Stuart, the Kings of Scotland and its head, James VI of Scotland, soon to become James I of England.  James was perhaps the most intellectual of English sovereigns but had inherent disadvantages.  As King of Scotland and the “Allude Alliance” between Scotland and the Continental powers made some of his new English subjects suspicious.  The influence of civil law in Scotland was significant and the common lawyers were on full alert to protect the nationalism of the common law.  Rumors that James was secretly Catholic and partial to the “Spanish faction” at court.  That he was almost openly gay and appointed his male consorts to high positions bothered the English much less.  James also believed strongly in the concept of the modern absolute monarchy as the cornerstone of the modern centralized state.  The Tudor model represented an old-fashioned, quite literally feudal arrangement, with reciprocal obligations between subject and sovereign based on ancient contracts and even older ritual.  The new rationalism promised to do better through a powerful central government. B. THE DIALECTIC – FRANCIS BACON AND EDWARD COKE  Sir Francis Bacon  The youngest son of Queen Elizabeth I‟s Lord Keeper, Bacon went to the bar to support himself like many other younger sons of gentry.  Bacon knew Elizabeth I from early on as a child but was never granted any advancement, as Elizabeth was always suspicious of him.  Elizabeth‟s favor fell upon Edward Coke, an experienced practitioner devoted to the common law of the yearbooks and the forms of action.  Upon Elizabeth‟s death, Bacon hurried to ingratiate himself with James I.  Bacon offered to assist in reforming English law and combining the two legal systems of England and Scotland – a project dear to James‟ heart.  James recognized Bacon‟s great intelligence and steady promotions followed, first to Solicitor General, then Attorney General, and finally Lord Keeper and Lord Chancellor.  The Lord Chancellor was always a symbol of royal discretion and prerogative.  Bacon believed that human nature was imperfect and he was skeptical about democracy.  Bacon believed that only powerful, collectivist, and elitist states could control human nature and harness the promise of science safely.  Bacon believed that law was a tool or instrument, and the success or failure of a law could be measured by empirical methods.  He believed this was the function of an enlightened sovereign-legislator.  “Judges ought to remember that their office is and not – to interpret law, and not to make law, or give law…”  Bacon believed that the best laws were prospective in nature and best administered when judges have the least amount of arbitrage.

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 Bacon believed in discovering the truth through four idols: (i) the cave [individual psychologies], (ii) the tribe [the family, ethnicity, etc.], (iii) the market place [linguistics] and (iv) the theatre [all art (including religion) as an oversimplification of nature and so misleading].  Sir Edward Coke  With strong parliamentary support, Coke had been appointed Chief Justice of the Common Pleas and then Chief Justice of the King‟s Bench.  The common law courts, the Common Pleas and the King‟s Bench, were the great bulwarks of the ancient common law, binding king and subject alike.  Coke believed in the idea that the common law embodied a wisdom that could not be safely assessed in purely instrumentalist terms.  Coke‟s name is synonymous with fundamental human rights and judicial precedent.  were a major breakthrough as they provided more than the pleadings of the yearbooks and the bare outcomes of the plea rolls – Coke included the theoretical justification of the judges‟ decisions.  Coke is the “old” flavor of the American conservative.  Coke‟s Institutes  Coke‟s writings, some published posthumously because they contained controversial accounts, covered the spectrum of legal issues.  In his Coke asserts that torture was contrary to the common law.  Coke saw that the dignity of the individual, even a guilty individual, could be more important than ascertaining the truth.  To Bacon and many civilian jurists, truth was the essence of justice. If torture led to truth, it could certainly be justifiable in sufficiently important cases.  To Coke, the dignity of the individual, founded on personal freedom and private property, could outweigh any state interest in the truth.  In his Coke articulated the doctrine of Parliamentary sovereignty.  “Of the power and jurisdiction of the parliament, for making of laws in proceeding by bill, it is so transcendent and absolute, as it cannot be confined either by causes or persons within any bounds. Of this court it is truly said, (“if you look to antiquity it is the most ancient, to dignity it is the most honored, to jurisdiction it is the widest”).  (“upon it I place no limits of matters or time”). C. THE CASE OF THE PROHIBITIONS DEL ROY  Overview  Less of a report on case law then an account of the ongoing dispute between the King and the common law judges, represented by Coke as Chief Justice of the Common Pleas.  Dispute arose because the Archbishop of Canterbury resented the writs of prohibition, which were being issued by the common law courts to curtail the ecclesiastical court‟s jurisdiction.  James I lost his patience with the common law judges and sought to intervene directly in what he saw as a dispute between two branches of his “own” court system.  James I argued that “the King himself may decide an issue in his royal person; that the judges are but the delegates of the King; and that the King may take what causes he shall please to determine.”  Coke responded, “that the King in his own person cannot adjudge any case…but that it ought to be determined and adjudged in some Court of Justice, according to the law and custom of England.” Coke continued, saying that “his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it…”  Coke concluded with Bracton,

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 Confrontation came to symbolize the rule of law courageously defying totalitarianism. D. DR. BONHAM‟S CASE, CASE OF THE COMMENDAMS AND THE FIVE KNIGHTS CASE  Dr. Bonham‟s Case  Royal College of Physicians controlled the right to practice medicine in London, pursuant to royal letters of patent in 1519. The charter gave the College the actual right to fine and imprison those who defied its authority.  Most importantly, the royal charter had been ratified in all respects by Parliament.  Dr. Bonham had a doctorate in medicine from Cambridge University but when he was examined by the College he was found to be insufficiently trained. Bonham continued to practice, was first fined by the College and then imprisoned for 7 days pursuant to the charter. Bonham then brought an action for false imprisonment in the Common Pleas where Coke was the Chief Justice.  Coke held that the charter must be read to only apply to derelictions in practice and in the present case Bonham had been found “merely unlicensed, not inexpert,” and thus the imprisonment was illegal.  Coke added in dicta, that no person should be a “judge of his own matter.”  “And it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.”  The Case of the Commendams  Involved dispute between Church authorities, the common law courts and the King.  A was a temporary Church benefice – it could be very lucrative, just like a feudal wardship where the holder enjoyed the profits of the land temporarily.  The King had claimed power of appointment to such a because a parsonage had allegedly been vacant for more than 18 months. The owners of the appointment, however, disagreed and brought suit in the Common Pleas to defeat the King‟s appointment.  The King was furious and summoned all twelve common law judges before his Council.  He hoped Coke, now Chief Justice of the King‟s Bench, would be more of a protector of the Crown since he was now part of the King‟s Council → he was wrong!  Coke replied to the King‟s request that the court halt the proceedings by saying that such requests were contrary to the law and thus the action would go forth.  After a second letter on the King‟s behalf, the rest of the judges capitulated fearing to go further would risk losing their office or worse. Coke, however, continued to resist and argue.  Coke was censured by the King, barred from the King‟s council, prohibited from hearing cases in assize and ordered to “correct” his reports.  Of the 500+ published cases, Coke returned with 5 minor typographical errors.  Coke was dismissed from office in November of 1616.  Shortly after, Coke poured his energy into Parliament and soon had bribery charges brought against Bacon by the House of Commons.  Bacon was sacrificed politically and impeached in May of 1621.  The Reign of Charles I  Charles I had three fatal flaws: (i) he was even more devoted than his father James I to theoretical divine rule; (ii) he was in desperate need of revenue; and (iii) he was widely believed to be a secret Catholic and in league with England‟s archenemy Spain.  Parliament was determined to use its financial power to bring Charles to heel. He was determined to resist. And in the end, Charles dissolved Parliament and attempted to defend his position without special subsidies.  Called the period of “Personal Rule.”  Two critical elements needed for success were exploiting all of the King‟s personal revenue, including feudal dues, and maintaining peace with England‟s enemies.  Without Parliament to enact a new tax, the King‟s advisors put forth the idea of loaning money from the noblemen of each shire.

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 It was technically not a “tax” but just a loan to help the King. Of course, this was a fiction and those who refused to loan the requested sum were imprisoned.  The Five Kngihts‟ Case  Five knights who had refused to “loan” the King the requested sums were imprisoned.  Their lawyers brought a writ of habeas corpus in the King‟s Bench to test the legality of their imprisonment for refusing the request. The writ issued, the jailer brought in the warrant for the knights‟ imprisonment.  The warrant gave no reason for the imprisonment except the words (“by special order of the lord king).  John Selden, appealed to the and argued “that by the constant and settled laws of this kingdom, without which we have nothing, no man can be justly imprisoned by either of them, without a cause of the commitment expressed in the return.”  § 29 of “no freeman shall be imprisoned without due process of the law.”  The imprisonment was clearly illegal but the courts had lost their independence and Chief Justice Hyde refused to release the prisoners.  Now the scene shifted to Parliament – desperate for money, Charles I was forced to call a new Parliament in 1628. E. THE PETITION OF RIGHT  The Five Knights‟ Aftermath  Charles I knew that Parliament would not proceed with the five knights still in jail and so he had them released that January in 1628.  First order of business was to address the five knights‟ case.  After a dramatic speech by Coke in which he reasserted the supremacy of the legislature, the Parliament unanimously voted in favor of the  The two fundamental points of the petition were: (i) that habeas corpus must not be denied and (ii) “that it is antient and indubitable right of every freeman, that he hath a full and absolute property in his goods and estate…and no tax…ought to be commenced…without common consent by act of parliament.”  The King appeared to asset to the petition on June 3, 1628 but only July 26, 1628 he dissolved parliament and repealed his assent.  No further parliament would be called for eleven years. Lawmaking and Revolution A. THE ENGLISH CIVIL WAR  A Social Upheaval  The English Civil War split the country along religious, regional, and class lines and was fought fiercely by genuine armies.  A war fueled by differing political ideals – the fundamental division of power between the King and the Parliament.  What the settlers in the American colonies saw during the English Civil War and its aftermath had a profound effect on the American Revolution.  Execution of Charles I upset the natural order of sovereignty by divine right. His execution was not through battle but by the “orderly” will of the people.  The parliamentary side represented the middle class – led by Oliver Cromwell.  The royal side represented the landed families and the rural peasantry.  Parliament won for three reasons: (i) they controlled London; (ii) they had a very different kind of army – the “new model army” – disciplined professionals who were paid regularly and loyal to the central command; and (iii) they also fought differently – basically heavy infantry.  After the war was won, the professional army refused to disperse.  They wanted to ensure that the newly installed government would be different.  From 1649 to 1653 Parliament tried to rule by itself.  Oliver Cromwell

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 The army, still refusing to disband following some brutal campaigns in Ireland and Scotland, simply took over in a military coup and placed its commander, Oliver Cromwell, in office as Lord Protector and Head of State.  Cromwell was a deeply religious man who ruled the country by a system of local military governments – each only answerable to him.  His supporters repeatedly offered him the Crown, in part because they believed it would serve to “limit his power, to bind him to with precedents and with the rule of law.  Cromwell saw himself as ruled by God and saw no need for the limitations of monarchy.  Cromwell called parliament regularly but packed the House with loyal supporters.  Cromwell widely imprisoned subjects without trial.  Within eighteen months of his death, parliament and the standing army agreed to restore the executed Charles‟ son, Charles II, to the throne.  The restoration was unconditional.  As for the legal order of the republic, it was to be wiped from memory. Every parliamentary act during the interim was declared null and void. It was even impolite to discuss in company. The King had just been “on his travels.” B. RADICALISM  By-Products of the Struggle  Failure of the legal process led to a permanent scar in the national confidence.  However, it also provided a fertile ground for the development of advanced political theories.  Among small political fragments of the parliamentary forces, the most left-wing soldiers of Cromwell‟s army, there arose an extraordinary movement, the  Immediate Reactions to the Horror of the English Civil War  Rise of left-wing radicals – the “Law of Freedom in a Platform” in 1652.  Believed that the war was caused by the inequalities between men/women and classes.  Thomas Hobbes – came to exactly opposite conclusion.  He was Francis Bacon‟s secretary.  Believed democracy was too dangerous – needed one supreme sovereign.  Idea that law was ultimately an issue of power, not or morals, and that a strong government was the only alternative to anarchy.  Unconditional delegation of rights and freedoms to govern.  Cannot have a division between religion and state – need unitary power.  Religion must be subordinate to secular authority.  English people felt that Hobbes was dangerous as well.  John Locke – “Two Treatises of Government” – official propagandist of new order.  Was written to explain why William and Mary were rightful rulers and why James II was not – starts with basic idea that there is a basic covenant (implicit consent) between citizens and their government.  Need for balance between important elements of government.  Powers of the government should be divided into balancing branches, so that no one branch could become a source of tyranny.  James II forfeited the Crown because he abused his side of the implicit contract.  Legitimacy depends on certain fundamental understanding of the rights of all men  The consent of the governed is required for there to be a legitimate state.  Locke was a perfect Whig, and his ideas appealed to middle class, conventional souls, who wanted some genuine representational government.  The Levellers and the Diggers  A radical movement seeks to change society fundamentally, “by its roots,” to substitute an entirely new set of ruling principles.  Led by men like Hugh Peter, chaplain of the new model army, and Jerrard Winstanley, the movement was a blend of Christianity and proto-communism, believing that all men and women were equal (i.e., level) and that government should be based on complete suffrage.  Parliament should be elected in frequent and fair elections.

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 Wealth should be distributed more equally and the labor of those who worked the land (i.e., diggers) should be more valued than the passive control of wealth.  The movement believed that the English Civil War had been fought against the King and the great landowners → since they were victorious, land should be made available for the very poor to cultivate.  Before the war, the population of the urban poor had climbed dramatically.  Religion should be up to individual – compulsory support of state religions should cease.  Believed in the “priesthood of believers” – just need a Bible to find God.  Greatly distasted the complexity of the law and government.  Believed that legal jargon and etc. was just a cover for self-dealing and exploitation.  Wanted the law to be written plainly and freely accessible to all people.  Neither side (the King and Parliament) were pleased with genuine left-wing radicals and Hugh Peter was executed in 1660.  The Aftermath  Politics of the English Civil War continue to this day in England.  Those who believed that the crown lost power in the Lockean agreement in the bill of rights were called .  More committed to central authority; natural divisions in class, etc.  Distrustful of middle class dominated parliament.  A Tory was an Irish outlaw – weren‟t committed to rule of law and Irish because they were probably Catholic.  The Whigs represented the middle class.  Settlement with William and Mary set up the Whig‟s authority for running parliament for the next century – the Hanoverian Kings were largely ineffectual.  Protection of individual rights, private property, good business.  Whigs hated Francis Bacon.  Very conventional approach to governing.  American settlers started with the left-wing radical approach to governing, but by the 18th century, they support the ideals put forth by Locke.  The Law of Freedom in a Platform by Jerrard Winstanley (1652)  “For the Crown of Honor cannot be yours, neither can those Victories be called Victories on your part, till the Land and Freedoms won be possessed by them who adventured person and purse for them.”  “Now you know Sir, that the Kingly Conqueror was not beaten by you onely as you are a single man, nor by the Officers of the Army joined to you; but by the hand and assistance of the Commoners, whereof some came in person, and adventured their lives with you; others stayd at home, and planted the earth, and payd taxes and freequarter to maintain you that went to war.”  Of the Dissolution of Government by John Locke (1689)  “That which make the community and brings men out of the loose state of nature into one politic society is the agreement which everybody has with the rest to incorporate and ct as one body, and so be one distinct commonwealth.”  “[I]t is in their legislative that the members of a commonwealth are united and combined together into one coherent living body. This is the soul that gives form, life, and unity to the commonwealth.”  “When any one or more shall take upon them to make laws, whom the people have not appointed to do so, they make laws without authority, which the people are not therefore bound to obey; by which means they come again to be out of subjection and may constitute themselves a new legislative as they think best, being in full liberty to resist the force of those who without authority would impose anything upon them.”  “Whensoever, therefore, the legislative shall transgress this fundamental rule of society, and either by ambition, fear, folly, or corruption, endeavor to grasp themselves, or put into the

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hands of any other, an absolute power over the lives, liberties, and estate of the people, by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty and, by the establishment of a new legislative, such as they shall think fit, provide for their own safety and security, which is the end for which they are in society.” C. THE GLORIOUS REVOLUTION  The Reign of Charles II  Charles II was a man of great political skill but of no virtue.  Charles II was smart in not pushing any divine right to rule theory. He managed parliament through a little corruption and a little charisma – akin to the political skill of Elizabeth I.  He was also secretly a Catholic too.  He had 17 illegitimate children and many mistresses – he was a good time King.  However, Charles II would not divorce his wife despite her being barren.  This caused a great concern since without an heir, the throne would pass to Charles‟ brother James who was openly Catholic.  An important group led by Lord Shaftsbury tried, unsuccessfully, to block James‟ succession by passing an Act of Exclusion.  Were comprised of upper middle class gentlemen farmers, lawyers, doctors, merchants, bankers and practical low “Church” clergy.  Were devoted to the practical, the profitable and the conventional.  Though they last their first confrontation, they became the first political party and were called the an insulting term referring to the one-horse plain carriages they rode in.  The Reign of James II  James II wrecked all of his brother‟s political efforts in three short years.  The Whigs opposed him and the Tories, who were particularly devoted to the idea of the King as head of the Anglican Church, did not support him because he was openly Catholic.  James II had a barren marriage for ten years – Whigs and Tories alike began to look forward to his death without an heir, as the throne would pass to his sister Mary – a sensible Protestant who was married to the anti-Spanish Dutch leader William of Orange.  Out of nowhere James II announced that he and his Catholic wife Mary of Modena had given birth to a son – the baby allegedly being smuggled into the room in a bedpan.  Parliament wanted to have a commission look into the legitimacy of the birth.  Whigs and Tories met at once and with little disagreement decided to invite James‟ sister Mary to take the throne with William.  William landed with an army at Torbay in November of 1688. James, as the head of the royal troops, moved to counter the landing but suffered a mental collapse and his troops deserted.  On his second attempt, James II fled to the safety of his cousin Louis XIV in France.  Loyal Jacobites remained loyal to the Stuart pretenders, holding their wine glasses during royal toasts over their water glasses – symbolizing their true allegiance to the “King over the water.”  A Bloodless Revolution  The age of absolute monarchy in England was over.  William and Mary were fully aware that they were guests at the sufferance of Parliament.  Symbolized legally by a series of parliamentary enactments, which were really the constitutional underpinnings of a limited monarchy.  Future succession to the throne was delineated.  All “popish” princes were barred and royalty was forbidden to “marry a papist.”  Most important was the Bill of Rights of 1689.  Cannot suspend laws parliamentary consent; cannot create executive laws; cannot create executive courts; cannot impose new taxes without parliamentary consent; cannot have a standing army without parliamentary consent; subjects may possess arms; elections in parliament ought to be free and fair; freedom of speech in parliament; etc…

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D. THE COLONIAL EXPERIMENT IN AMERICA  The Massachusetts Bay Colony  Given a legal form of government by a charter, issued by the Crown, giving the corporate proprietors power to exercise civil government and to pass any laws “not inconsistent” with English law.  Crown officers had named wealthy merchants, safely resident in London, among the proprietors on the charter → Crown‟s intention to control the colony through these established proprietors.  Night before the expedition set sail, the resident proprietors resigned en masse and named replacements who were going with the fleet – largely religious refugees, i.e. Puritans.  The expedition also took the royal charter with them to prevent amendment.  Crown was happy to get rid of radical puritans while simultaneously trying to offset the increased expansion of the French.  Leaders of the colony were suspicious of the English establishment and English law.  Also existed a great tension between the proprietorial “magistrate” class given authority under the charter and the free men, entitled to assemble in the annual General Court.  Freeman wanted greater influence in determining colonial governance.  Effect was to attempt to draft a codified law, written in plan language that all could read and understand – the .  Settlers wanted the law to be freely accessible but they were not ready to import English law and the English legal profession wholesale.  Not a single citation to English law – rather the citations were to the Bible.  First law book printed in North America.  Older printing was the “Oath of the Freeman,” but it was a broadside on soft wood pulp type paper (not vellum) → likely used as toilet paper by the colonists.  Had an alphabetical topical index providing a resource for all the law you needed.  Printed separately was the a broadside intended to be distributed to every household in the colony.  Challenges to Common Law Incorporation  Settlers still looked to the positive aspects and protections provided by the common law.  were among some of the books ordered from London.  Problem was how to incorporate their English legal heritage with both the harsh reality of frontier society and their dreams for a better system of law and governance.  Settlers were left with three options: (i) – adopt all the laws of England; (ii) – pick and choose those laws that were approved while also allowing for each colony to retain its own character; and (iii) – based on laws of nature and natural reason.  Massachusetts took the second approach.  In Connecticut, Chief Justice Jesse Root believed there were only two legitimate sources of law – the state legislature and “Connecticut” or “American” common law.  “Connecticut” or “American” common law derived from three sources: (i) the “perfection of reason, arising from the nature of God, of man and of things, and from their relations, dependencies, and connections;” (ii) universal usages and customs, “universally assented to and adopted in practice by citizen at large, or by particular classes of men, as the farmers, the merchants, etc.” and (iii) “the adjudications of the courts of justice and the rules of practice adopted in them.”  became the “common law” of the colonies, to the extent such a thing existed at all – some colonies had to legal records at all.  First American edition of the text, published in 1771 in Philadelphia, was pirated.  Racism and Slavery in the Colonies  By 1700 slaves were to be found in all colonies and the slave trade was growing rapidly.

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 English law, in theory, did not recognize race slavery at least within England.  Early notions of “unfree tenure” came with major safeguards – you could not break up serf families, you could not separate serfs from their land, you could not physically injure serfs except through the legal process, etc.  Race discrimination was not a factor in unfree tenure, not was it a factor in Roman slavery, where slaves were often captives of war.  St. George Tucker‟s Edition of Blackstone‟s Commentaries  A distinguished Virginian jurist, he added notes to Blackstone‟s text where the law of Virginia was different.  Not only did Virginia have a law of chattel slavery, but Tucker also discussed the “free negros and mulattos; whose civil incapacities are almost as numerous as the civil rights of the free citizens.”  Virginia had elaborate tests, based on race alone, to determine who was a negro/mulatto. Law and Order in Eighteenth Century England A. SOCIETY DURING THE HANOVERIAN DYNASTY  A Long Period of Outward Stability  The Glorious Revolution had instituted a period of stability in English national life.  By way of contrast, the world saw America‟s Declaration of Independence in 1775 and the French Revolution in 1789.  The Hanoverians were, by all accounts, very dull.  George I and II barely spoke English and possessed none of the political charisma necessary to challenge Parliament.  They had to leave the business of governing to English politicians.  The Whigs flourished in this period and their solid, commercial, bourgeoisie values became national values despite great gaps between rich and poor and the cruel dislocation inherent in growing industrialization.

 Georgian England  Despite poverty and vast class exploitation, England remained in a state of internal peace without a high rate of imprisonment or a regular police force.  Society flourished without fundamental reform for four generations.  Part of the answer was in the administration of the criminal law.  England entered the eighteenth century a colonial power, but with the balance of economic and political power still firmly in the hands of a landed aristocracy. However, expansion of English trade and industry quickly changed the dynamics.  The Bank of England was founded in 1694 with a sum of roughly £ 2 million but by 1796, the figure had increased to £ 13,457 million – the largest source of capital the world had ever seen.  With the expansion of trade and industry the common law system needed to adapt.  Complex commercial transactions replaced land settlements.  Most major changes were achieved by judge-made common law – there were no great statutory changes in the law that marked the reform of the feudal system.  Whigs preferred the incremental approach to changes in the law.  Not only did the common law adapt to these profound economic and social changes, but it became established through the vast British Empire, as perhaps England‟s most permanently enduring export. B. BLACKSTONE  A Teacher and Popularizer of the Common Law

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 Charles Viner, author of one of the most extensive and authoritative abridgements of English case law, left a major bequest to Oxford University for the establishment of the “Vinerian Professorship of English Law,” the first position in any university for teaching common law.  Sir William Blackstone was the first recipient and began giving regular lectures.  Blackstone‟s lectures, in turn, became the basis of a four-volume summary of the entire common law – the or .  His treatise became the most popular legal writing in common law history.  Most importantly, his writings were written so that it could be read and understood by intelligent laymen.  Blackstone was later criticized for overlooking important areas of contract and mercantile law, and failing to understand the importance of equity.  Blackstone‟s two great contributions were to prepare a clear restatement of the common law and to unite the study of common law with the great Western university curriculum.  Issac Royal, a colonist in Massachusetts, was so greatly impressed by Blackstone that he left in his will a bequest to Harvard to establish an endowment for a professor of law. C. ALBION‟S FATAL TREE  The Application of Criminal Law in Georgian England  Criminal law was largely unwritten – it was a matter of custom and tradition.  Criminal law was very draconian – almost all felonies were punishable by death.  Punishments were “didactic” – teach the criminal one lesson and teaching the community at large the boundaries of appropriate behavior.  Based on Blackstone‟s writings alone, one would think that public order was maintained by rapid and severe punishment for even the slightest act of wrongdoing.  Scholars from the “Warick School” tell a different story however.  Despite the proliferation of crimes punishable by death, there were in practice, many ways to avoid capital punishment even after conviction. Two of the most common escapes were the benefit of clergy and pardons.  The Benefit of Clergy  Originated in the middle ages as a privilege of ordained clergy accused of felonies.  Theory that such clergy had the benefit to be tried by ecclesiastical courts.  By 1350, anyone who could read Psalm 51:1 was presumed to be clergy for this purpose → purely a legal fiction since you could simply memorize the verse.  By 1705 the reading requirement was abolished and the privilege was available to all.  Certain heinous crimes were excluded from the benefit of clergy.  From the reign of Henry VII those claiming benefit of clergy were, on conviction, branded and could not claim it again unless they were actually in a religious order.  In 1717, “it was enacted that persons not in orders convicted for a clergy-able offense were to be transported [to the colonies] for a period of seven years.”  Pardon  If a criminal was convicted for a second capital offense, there was still a chance for a pardon if it could be done in a way that emphasized the guilt and remorse of the criminal and the mercy and compassion of the state.  Society rewarded acknowledgment of guilt and open remorse.  Both the confession and the pardon were specifically done in open public.  Criminals would give warnings to not follow in their footsteps.  Criminal became an “object lesson” for others while the state appeared to be both powerful and compassionate.  When executions did occur, they were orchestrated for maximum public impact.  Effectiveness of a few severe punishments, of a highly dramatic and symbolic sort, was important to maintaining order in Georgian England without a penal system or police.  Minor crimes and misdemeanors were usually tried before local magistrates.  These Justices of the Peace, had the power to inflict minor penalties such as whipping, stockades or small fines, and used such punishments to enforce the public order and to be sure public duties were fulfilled, including keeping public ways in repair and providing domestic support.

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 Application of the criminal law must have hit it correctly, psychologically speaking, to teach the community about the boundaries of what is right and moral.  People felt that the English system worked to protect all people, not just the rich.  State was perceived as merciful but all powerful when necessary.  Theories of Punishment  Modern criminal punishments tend to focus on either reform of the criminal or deterrence.  Both tend to focus on the individual and not the public.  Reform theory tries to change the criminal so that the desire to commit antisocial acts is gone.  Deterrence theory does not attempt to change the criminal but exacts a cost so high that the illegal act, no matter how desirable to the criminal, is not worth the penalty.  Requires most crimes to be resolved quickly and accurately, but does respect the dignity of the human personality – including the dignity of the guilty – more than reform does.  It does, after all, give the criminal a free will of choice.  Didactic punishments, on the other hand, can be purely retributive.  Where reform or deterrence would be unavailing (i.e., one time murder), a public execution will teach the state‟s view on the sanctity of human life and the evil of murder.  Even more compelling and instructive would be a contrite expression of remorse by convicted offenders, followed by a dramatic pardon by the compassionate state.  Such symbolism was used by the English state to educate and awe the populace. D. LORD MANSFIELD AND THE INCORPORATION OF MERCHANT LAW  Lord Mansfield  A Scot, Mansfield went to Christ Church College, Oxford, and developed an interest in Roman law and a fluency in Latin.  One reason of his great reputation as Chief Justice of the King‟s Bench was the developed of reliable and complete law reports such as .  Lord Mansfield in a few strokes incorporated the into the common law.  He believed in only three constraints on contract law: (i) did the person charged with contract intend to be bound; (ii) is it clear what the terms of the contract are; and (iii) is there any public policy reason why contract should not be enforced?  Lord Mansfield acknowledged the need for law to change in order to accommodate changes in society and economic conditions → “legal instrumentalism.”  The Commercial Practices of Merchants  Was hardly a “law” at all – it was more of an expedited code of procedure.  Origins were in the local fairs court of the and the local courts of port and market towns, where speed was of the essence, as merchants were constantly on the move.  Actions in the common law courts would involve considerable delay.  Because the fairs were of a limited duration, the powerful overseeing lord would allow for the establishment of the courts to expedient efficient dispute resolution.  Merchants would elect their own experienced merchants to handle the disputes.  What developed was a body of commercial practices that was accepted in the customary dealing of merchants both in England and abroad.  Proof of contractual obligations relied somewhat less on formality and writing, a natural result where much depended on oral bargains and mutual trust.  They also relied on some substantive Roman principles of laws.  Book of importance covering these laws was called  Common law courts did not bother with taking over jurisdiction – they allowed it to exist for solely international disputes between merchants.  With the industrialization of the British Empire, there was a great need for the law to adapt to the commercial practices of merchants.  The Mercantile Trade in England

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 Important trade routes to India, China, and the Americas, the founding of the Bank of England, and the spread of the British Empire resulted in a new class of the very wealthy whose fortunes were based almost exclusively on trade.  Henry Maine‟s development from “status to contract” as an integral part of legal progress.  Government tried to regulate the wool trade by restricting export to 5 ports and by establishing a “staple court” to hear international disputes regarding the wool trade.  Developed from the tradition of the specialty courts, i.e., Admiralty courts.  Bills of Exchange  Merchants were always looking for ways to avoid carrying around large sums of currency.  Bills developed as a method of transporting value without bullion and for facilitating mercantile credit.  People would store wealth (gold and silver bullion) with local merchants (i.e., goldsmiths, etc…) and receive bills of exchange for the value given.  The next logical step was to make the bills negotiable for value.

 The “30 days sight” or delay guarded against forgery and fraud.  Presumably in that time at least one party would be able to notify another if the bill had been stolen or if the bill was genuine.  The drawer/drawee had the funds to complete such transactions because of bilateral trade.  System balanced itself out with merchant bankers taking a percentage of each transaction, usually by exchanging currency at rates advantageous to them.  Exchange also provided a method for concealing interest for loans – prohibited by usury laws.  Example: Suppose A didn‟t have £ 100. B might write him a bill of exchange anyway, at an exchange rate highly favorable to B. A would be required to pay the £ 100 later by a covenant and the actual interest would be concealed in the exchange rate.  Such bills, as between at least one international party, were enforced by the English courts, particularly the Admiralty Court, as a part of the custom of merchants.  English court eventually recognized negotiable bills of exchange as well.  Inland Bills of Exchange  Such bills were commonly used between merchants trading domestically.  Bad business practices would lead to being blacklisted.  Common law courts refused to acknowledge the validity of such inland bills.  Originally had to be both merchants and one outside of England.  Ordinary English people could not qualify for the use of such bills.  Two major doctrinal problems with initially enforcing inland bills.  If the note was actually concealing a loan from A to B, there was no exchange rate between currencies in which to hide the interest.  Issue was solved in the seventeenth century by a judicial view, which permitted taking reasonable commercial interest on loans.  While there was privity of contract between A and B on the front end, there was no privity between C and D on the back end and no consideration.  Issue was resolved by the Act of Anne in 1704, which made inland bills enforceable and extended the negotiable features of bills of exchange to promissory notes.  End result was something very close to a negotiable bank check of today.  Buller v. Crips

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 Heard before Chief Justice Holt, Mansfield‟s predecessor, the issue at hand was the enforceability of an inland bill of exchange for a quantity of wine.  Holt refused to find it enforceable, saying, “the notes in question are only an invention of the goldsmiths in Lombard street, who had a mind to make a law to bind all those that did deal with them; and sure to allow such a note to carry any lien with it were to turn a piece of paper, which is in law but evidence of a parole contract [no covenant under seal], into a specialty.”  Pillans v. Van Miérop  Heard before Chief Justice Mansfield, he looked to customary commercial practices and enforced the obligation.  Irish merchant White asked the plaintiffs, Dutch merchants named Pillans, to pay £ 800 in Rotterdam to a merchant named Clifford. White offered to repay Pillans by a credit “upon a good house in London,” i.e. a reputable banking or merchant firm. Pillans wished a confirmed credit upon such a London firm in White‟s name before paying the money. White gave them the name of Van Miérop & Hopkins, the defendants. Pillans then paid out the £ 800 to Clifford.  After paying the money, Pillans contacted Van Miérop & Hopkins and asked if they would honor a bill for £ 800 on White‟s credit. The defendants said yes and Pillans drew up a bill for £ 800 payable by Van Miérop & Hopkins. Before the bill came to Van Miérop & Hopkins to be paid, White‟s business failed leaving him penniless. Van Miérop & Hopkins then refused to honor the £ 800 and Pillans sued.  Van Miérop‟s lawyers argued that it was “a promise to pay a past debt…void at common law for want of consideration” and “a naked promise is a void promise: the consideration must be executory, not past or executed.”  Mansfield disagreed, saying “I take it that the ancient notion about the want of consideration was for the sake of evidence only: for when it is reduced into writing, as in covenants, specialties, bonds etc., there was no objection to the want of consideration.”  Holding rejected the need for consideration in commercial cases if a promise in writing.  Rann v. Hughes  Mansfield was even bolder and rejected the doctrine of consideration if there was a moral reason to enforce an agreement.  A dispute arose between John Hughes and Mary Hughes. It was submitted to arbitration and Mary Hughes was awarded £ 983. Before the sum was paid, both parties died. Administratrix of John Hughes‟ estate was Isabella Hughes. She promised to pay the £ 983 to the executors of Mary Hughes‟ estate, Joseph and Arthur Rann. She evidently then received some legal advice and was told that personal actions, at common law, terminate with the death of the parties. She therefore had no legal obligation to pay, except her naked promise.  Mansfield, sitting as a trial judge in Westminster Hall, refused to set aside the jury verdict for the plaintiffs, believed that moral consideration supported the promise by Isabella.  Defendant Hughes brought a writ of error in the Exchequer Chamber and after two full arguments, Mansfield‟s decision was set aside.  Plaintiff then brought a writ of error in the highest court in the kingdom, the House of Lords. The House upheld the Exchequer Chamber and not only reversed Mansfield in but disapproved of as well. The Nineteenth Century – Legal Instrumentalism, Codification and Utilitarianism A. THE CHANGING WORLD  The Social and Economic Explosion in America  A period of profound economic, social and political change.  Capital put into manufacturing doubled every decade up to 1900.  National income per capita increased.  Railroad securities dislodged government and bank stocks from market predominance.  Population exploded due to the high birthrate.  Immigration of over 20 million people created novel issues of social order.

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 Rapid growth in metropolitan areas.  Changes in England  Population dramatically increased.  Profound industrialization and enormous increasing in manufacturing, iron and coal output and steam technology.  Migration from agrarian villages to great industrial centers.  What replaced the social protections (cultural system) of feudalism was the contract.  Rights in society depended on employment contract.  Problems with the fact that such contracts are not freely negotiated.  End of the post-war book from the Napoleonic victories brought signs of severe danger from the new industrial towns, where widespread unemployment and a steep drop in wages brought new threats to the social order.  Charles Dickens and his  In 1819 soldiers, in an overreaction to a large peaceful demonstration of out of work laborers, killed eleven people in a disaster that was known as the “Peterloo” massacre.  Parliament was ready to consider new initiatives for enlarged franchise and reform.  When Tories in the House of Lords vetoed the Whig Reform Bill of 1830, riots broke out across Nottingham, Bristol and Wales.  It was during this period that Karl Marx and Engels surveyed the new social order and wrote the long before the English establishment was alert to the need for significant reform legislation.  The theoretical leader of the English reform movement, able to strike the right balance between the need for radical change and the fear of revolution, was Jeremy Bentham. B. LEGAL INSTRUMENTALISM  The Need for Legal Change  The need for legal change to accommodate new economic and political realities led to a new view of the once static common law.  For Blackstone, common law was still manifestation of timeless folk wisdom of the land.  Bentham, having witnessed Lord Mansfield and notable others, saw it differently.  Mansfield‟s judicial activism taught Bentham an unexpected lesson, that judge-made law was inherently founded on a myth of consent and interpretation.  Reality was that judges like Mansfield made the law afresh, and in Bentham‟s view, that was the true function of a legislative sovereign, not a judge.  Common lawyers viewed Bentham as highly dangerous – similar to Francis Bacon.  Blackstone‟s assertion that the common law contained a core of natural law – immutable and self-evident – particularly infuriated Bentham.  Legislative process was more open to genuine political review and social consensus and was more likely to use scientifically valid criteria to test the usefulness of legal change.  Bentham saw no limit on the power of a democratically elected legislature.  All limits are legal fictions designed to maintain power of upper class.  Saw a problem with criminal law based on common law rather than codified statutes.  Only test of legal system is whether it ensures the greatest good for greatest number.  Bentham was too radical for Americans, but his writings were consistent with a growing willingness by judges and legislators alike to see the law as a rather than as an unchanging standard.  Legal Instrumentalism in America – Commonwealth v. Hunt  The American judiciary also adopted an instrumental conception of the law.  Horne, a boot-maker, was discharged by his employer because he was not willing to pay a fine to the Boston Journeymen Bootmakers‟ Society, a union, for doing extra work without pay. His employer wished to enjoy good relations with the union and to avoid strikes. An indictment was brought by the state against John Hunt and six other union leaders on three counts, alleging, inter alia, that the union is a conspiracy to interfere with the Horne‟s right/ability to freely enter into contracts.

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 In theory, the case was of the greatest interest.  Contract and free private association were seen as cornerstones of the release of energy principle, i.e., that the elimination of archaic, status-oriented legal doctrines would free trade to reach its most beneficial and profitable potential, to the ultimate benefit of all.  Workers in the industrial states were discovering that any “equality” in bargaining their services with big employers was a myth.  Contract law, uninformed by social policy, could be a pretty blunt instrument. As James Willard Hurst observed, “[c]ontract was inherently too limited an institution to serve [society‟s] need.”  Chief Justice Lemuel Shaw dealt with this dilemma by first affirming that in the absence of a relevant statute, the case would be decided by “the general rules of the common law.” However, Shaw noted that not all common law precedents, i.e., those from English law, are binding on Massachusetts‟ courts.  Shaw‟s final conclusion was that the purpose of the union was to “induce all those engaged in the same occupation to become members of it” and that “such a purpose was not unlawful.” Therefore the damage to Horne was simply that of legal competition, allowable in everyday economic life.  Fundamental argument among scholars that Shaw could have decided the case either way.  Hard to assume that he was oblivious to the great social and political issues hinging on the outcome of the case.  The need to adapt a non-statutory common law tradition to new settings gave powerful judges law-making opportunities equivalent to those of the legislatures themselves.  The classical common law theory of law as immemorial custom was a shallow fiction.  Judges such as Chief Justice Shaw, boldly used judicial opinions to create a new law for America → this was the point of instrumentalism.  Legal Instrumentalism in America – St. Helen‟s Smelting Co. v. Tipping  Theory was not limited to evolving areas of contract, commercial, labor and criminal law.  The Ancient common law domain of real property was involved as well, particularly in setting a balance between industrial exploitation of natural resources – with its concomitant externalization of costs through environmental waste and pollution.  Morton Horowitz and others argue that the American courts in the nineteenth century became tools of the industrial class. He attacks actions by the bench as serving only to encourage economic maximization at the cost of exploiting the environment and the poor working class.  Moving subtly away from the absolute enforcement of the nuisance doctrine, the court focused on a new – providing more discretion for industrial development and including the now infamous notion of the “ruined” neighborhood whose inhabitants lose effective nuisance rights because they already live in a very polluted city.  Lord Cranworth, in concurrence, wrote, “[y]ou must look at it not with a view to the question whether, abstractedly, that quantity of smoke was a nuisance, but whether it was a nuisance to a person living in the town of Shields; because if it only added an infinitesimal degree to the quantity of smoke, I held that the state of the town rendered it altogether impossible to call that an actionable nuisance.”  The Transformation of American Law 1780-1860 by Morton Horowitz  “By 1820 the legal landscape in America bore only the faintest resemblance to what existed forty years earlier. While the words were the same, the structure of thought had dramatically changed and with it the theory of law. Law was no longer conceived of as an eternal set of principles expressed in custom and derived from natural law. Not was it regarded primarily as a body of rules designed to achieve justice only in the individual case. Instead, The emphasis on law as an instrument of policy encouraged innovation and allowed judges to formulate legal doctrine with the self-conscious goal of bring about social change.”

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C. CODIFICATION  Codification in America  Bentham argued that once the myth of the immemorial common law as static was abandoned, it was simply more useful, efficient, and fair to have the commands of a sovereign expressed as an organized, accessible, written scheme of law that is prospectively applied.  As questioned by Robert Rantoul in 1836, “[w]hy, is an law, passed by the legislature, unjust, unconstitutional, and void, while judge-made law, which, from its nature, must always be is not only to be obeyed but applauded?”  Such a vision did not succeed in America despite the energy of David Dudley Field.  According to James C. Carter, the question was whether “growth, development and improvement of the law” should “remain under the guidance of men selected by the people on account of their special qualifications for the work” or “be transferred to a numerous legislative body, disqualified by the nature of their duties for the discharge of this supreme function?”  If Americans distrusted lawyers, they trusted politicians even less.  Statutory Reformation in England  To a much greater extent than America, England moved toward legislative reform, eventually embracing the entire legal system in new legislation.  As described by the writings of Dickens, by 1848 it was becoming apparent that “capitalist industrialization” had “failed to improve the conditions of the working class.”  If Marx became the ideologue of this failure, Dickens was the artistic soul.  The English establishment recognized the need for reform.  The turning point was the Reform Act of 1832, which though leaving must to be desired, greatly improved actual democratic representation.  This was followed closely by the Poor Law Amendment Act of 1834, which attempted to provide a basic reform of English local government.  Slow consolidation of the statute law had begun in 1825, with repeal of 12 archaic acts and the replacement of 442 others.  Henry Brougham founded a Royal Commission on statutory reform by 1883 and by 1854 a Statute Law Commission was appointed by the Lord Chancellor.  Its goal was to draft a perhaps drawing on the large-scale codification of the common law prepared between 1830 and 1860 for use in India.  From 1868 on, a series of Statute Law Revision Acts followed, with the goal of better, clearer drafting of new statutes.  By 1869 the position of was created and professional drafting was thus ensured.  By 1860 the Report of the Commissioners on the Supreme Court of Law led to the more radical First Report of the Judicature Commission (1868).  Finally, the radical reforms of the Judicature Act of 1875 completely reorganized the courts – establishing a new High Court of Justice that encompassed all of the traditional common law courts, plus a new Chancery Division and new Admiralty, Probate and Divorce divisions, reflecting the old civilian specialties.  Just over twenty years after Dickens published Bleak House, the entire legal order that he had been witness to and portrayed was changed.  In the end, the codification movement in England resulted in pragmatic, but highly useful statutes and restatements.  The Bills of Exchange Act of 1882, the Partnership Act of 1890 and the Sale of Goods Act of 1893 were more successful attempts at producing a “code,” but they “digests more in the tradition of Justinian, Staunford and Bacon than Bentham.”  As Pollock observed, “the right kind of consolidating legislation is that which makes the law more accessible without altering its principle or methods.”  Reform in the Legal Profession and the Laws by David Dudley Field (1855)  “The present condition of our law is anomalous. For the main part, it is derived from the common law of England, but so mixed and blended with other rules and usages that it can

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hardly be called a system at all. The Constitution of the State [of New York] declares that „such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony…What was this common law to which the Constitution referred, and which are those parts of it that formed the law of the colony? The common law, properly so called, is the customary law of England, as it existed before the coronation of Richard I, which was in 1189. But, as this would throw us back, nearly seven hundred years, upon a mass of usages which would not be thought tolerable for any existing civilization, the courts have been obliged to hold that such acts of the English Parliament, in amendment of the common law, as were passed before the emigration of our ancestors, and are applicable to our situation, are to be considered as part and parcel of the common law.”  “Thus it is seen that the English portion of law which our English progenitors brought with them was not a homogeneous system, but an irregular mass of usage and statute, derived partly from the traditions of various and discordant tribes and races, partly from the enactments of tyrannical kings and struggling parliaments, and partly from interpolations by judges and chancellors from the civil or canon law.”  “How, then, stands the question of practicability? Is a civil code practicable? The best answer to this question should seem to be the fact that civil codes have been established in nearly all the countries of the world, from the time of the Lower Empire to the present day. Are we not as capable of performing a great act of legislation as Romans or Germans, as Frenchmen or Italians?”  “The plan of a code does not include a provision for every future case, in all future times; it contemplates the collecting and digesting of existing rules and the framing of new ones, for all that man‟s wisdom can discern of what is to come hereafter.”   “Judges are not the wisest legislators, any more than legislators are the wisest judges. And if it were otherwise, there is this difference between the two modes of legislation, that legislation by a legislature is made known before it is executed, while legislation by a court occurs after the fact, and necessarily supposes a party to be the victim of a rule unknown until after the transaction which calls it forth.” D. THE DRED SCOTT CASE  A Colossal Failure of the American Legal System  Analogies to the English Civil War are striking – the prelude to both the American Civil War and the English Civil War, to a surprising degree, saw key issues expressed as legal questions and presented to courts of law.  In England, the Five Knights‟ Case came to symbolize the ultimate conflict between the rule of law and parliament and the prerogatives of the Crown. The failure of the courts to protect individual rights and uphold parliament‟s taxation power made war inevitable.  Dred Scott, an African American, had been held in slavery in Missouri. His master, an army surgeon, took him into a free territory, the upper Louisiana Territory. The Missouri Compromise, an act of Congress in 1820, had prohibited slavery there. Scott returned with the surgeon to Missouri where Scott later sued for his freedom. His argument was simple – as slavery was prohibited by Congress in the upper Louisiana Territory, his residency there made him a freeman.  Chief Justice Roger Brooke Taney, writing for the Court, held that Scott was still a slave under the laws of his current residency, Missouri, that no African American was a citizen of the United States within the meaning of the constitution, meaning that Scott therefore did not have standing to sue in federal court, and finally that Congress exceeded its constitutional powers in adopting the Missouri Compromise, on the grounds that the prohibition of slavery deprived citizens of property contrary to the due process clause of the Fifth Amendment.  One could argue that Taney wrote the opinion following the letter of the law to avoid civil unrest, despite the despicable result of the opinion – he wrote that he had absolutely no choice in the decision.  Bentham would point to the Dred Scott case and point out that instrumentalist judicial decisions cannot suffice for legislative acts that determine the direction of the country. Bentham would see Dred Scott as a failure of the instrumentalist process.

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 Justice Benjamin Curtis, in a brilliant dissent, attacked slavery as “contrary to natural right” and defended the power of Congress to prohibit slavery in the free territories.  Curtis‟ argument both symbolized the ability of the courts to attack deep political and moral issues by bold instrumentalist holdings, and the necessary power of the legislature to likewise attack such problems.  Curtis‟ dissent was true to the spirit of instrumentalism and the legislative sovereignty inherent in codification, while Taney‟s invocation of common law “property” rights to stifle reform represented all that Jeremy Bentham feared and hated about the judicial process.  A Retrospective Look  The legal instrumentalism of great judges provided a vehicle for bring the common law in line with the changing times. But the candid recognition of judicial power inherent in such instrumentalism provoked a backlash, and focused efforts to establish the law through welldrafted codes and statutes on particular topics.  Bentham and his ideological progeny brought to the surface a bold notion that law was no more than what its social usefulness warrants. This in turn brought a new period of reflection and experimentation.  Though there was to be no or there would at least be a Field Penal Code (Laws N.Y., 1881, ch. 676), a Sale of Goods Act (56 & 57 Vict., c.71) and eventually a Uniform Commercial Code (first adopted, Penn., 1953). The Twentieth Century – New Jurisprudence, Critical Studies and the Post-Liberal Society A. THE NEW JURISPRUDENCE  Oliver Wendell Holmes, Jr.  The glory of the new jurisprudence was its willingness to incorporate the lessons of social science and utilitarianism with the goals of instrumentalism → .  Holmes was at the heart of the great departure from the formalism of the common law; the idea that the common law was fixed and immutable, like the laws of a natural science.  It was a “shift from absolutes to relatives, from doctrines to practices, from passive – and therefore pessimistic-determinism to creative – and therefore optimistic freedom.”  However, Holmes believed firmly in the history and tradition of the common law as an essential part of a growing, living body of doctrine.  “[h]istory of what the law has been is necessary to the knowledge of what the law is.”  “The life of the law has not been logic; it has been experience.”  Holmes was more Mansfield than Bentham and more the secret innovative soul of Coke – who changed the law by judicial reports – than the self-declared legal science of Bacon.  Holmes secularized the common law!  Christopher Columbus Langdell  Founder of the of legal education → bastard.  Believed that “law is a science” and that law books were “to us all what laboratories of the university are to the chemists and physicists…”  Roscoe Pound  Became dean of HLS in 1916 and established “sociological jurisprudence” as a cornerstone of a new approach to legal education.  Saw his sociological jurisprudence approach as very different from Langdell‟s “science.”  “A process, an activity, not merely a body of knowledge or a fixed order of construction. It is a doing of things, not a serving as passive instruments through which mathematical formulas and mechanical laws realize themselves in the eternally appointed way. The engineer is judged by what he does. His work is judged by its adequacy to the purposes for which it is done, not by its conformity to some ideal form of a traditional plan.”  “A movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human condition they are to govern rather than to assure first principles;

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for putting the human factor I the central place and relegating logic to its true position as an instrument.”  Justice Brandeis took notice of this new jurisprudence and was responsible for making it, after Roosevelt‟s 1937 “court packing” crisis, the all but official doctrine of the Supreme Court.  Most dramatic, and perhaps most consequential results were to be found in the area of constitutional law.  Sociological jurisprudence became the backbone of the “Warren Court.”  The Common Law by O.W. Holmes, Jr. (1881)  “The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desirable results, depends very much upon its past.”  “The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and reconcile it with the present state of things; The old form receives a new content, and in time even the form modifies itself to fir the mean which it has received.”  The Spirit of the Common Law by Roscoe Pound  “The jurists of today seek to enable and to compel lawmaking and also the interpretation and application of legal rules, to take more account and more intelligent account, of the social facts upon which law must proceed and to which it is to be applied…Where the last century studied only the making of law, [the new jurists] hold it necessary to study as well the means of making legal rules effective.” B. CRITICAL LEGAL STUDIES  Max Weber‟s  Articulated in the wake of the hard lessons learned in the economic great depression.  Weber identified three qualities of “modern law” that clearly challenged the existence of “law” as a concept independent of raw political and economic power.  “The legal ignorance of the layman will increase” as legal rules become more complex and technical.  The tendency of courts to depart from rigid, objective rules to resolve cases, and the increasing reliance on more subjective economic utilitarian meaning.  The increasing reliance on subjective law decision making – whether by jury, arbiter or mediator – and the erosion of a significant distinction between “private” and “public” decision making.  Weber believed that as law becomes increasingly obscure, technical, subjective and private, the source of its moral force is eroded.  “Inevitably, the notion must expand that the law is a ration technical apparatus, which is continually transformable in the light of experiential considerations and devoid of all sacredness of content.”  Weber saw this as the inevitable result of the sociological jurisprudence approach to legal instrumentalism.  “Funky Dunc” Kennedy‟s  Purpose in analyzing Blackstone was to strip away the pretense of Blackstone‟s “desire to legitimate the legal status quo” and to establish a method of “discovering hidden political intentions beneath the surface of legal exposition.”  To argue that there are neutral rules of law demonstrable through a scientific process is worse than bad science; it is a deceit by the legal profession on the general public.  Kennedy argues were a vast explication of “the single notion that the conflict of right with right was illusory, and at the same was therefore true of the conflict of

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right with power. Where Hobbes and Locke were opposite sides of a coin, Blackstone argued that law was  “The strong is never strong enough to be always the strongest, unless he transforms strength into right, and obedience into duty.”  Kennedy believes that were a patent attempt to “naturalize” purely social phenomena. “They restate as „freedom‟ what we see as servitude. And they cast as rational order what we see as something like chaos.”  Law in Economy and Society by Max Weber (1954)  “The formal qualities of the law emerge as follows: arising in primitive legal procedure from a combination of magically conditioned formalism and irrationality conditioned by revelation, they proceed to increasingly specialized judicial and logical rationality and systemization, passing through a state of theocratically or patrimonially conditioned substantive and informal expediency. Finally, they assume, at least from an external viewpoint, an increasingly logical sublimation and deductive rigor and develop an increasingly rational technique in procedure.”  “Prophets are the only ones who have taken a really consciously „creative‟ attitude toward existing law; only through them has new law been consciously created. For the rest…even those jurists who, from the objective point of view, have been the most creative ones, have always and not only in modern times, regarded themselves to be but the mouthpiece of norms already existing, though, perhaps, only latently, and to be their interpreters or appliers rather than their creators.”  “The law is drawn into anti-formal directions, moreover, by all those powers which demand that it be more than a mere means of pacifying conflicts of interest.”  The Structure of Blackstone’s Commentaries by Duncan Kennedy (1979)  “This premise [about legal thinking] is that the activity of categorizing, analyzing, and explaining legal rules has a double motive. One the one hand, it is an effort to discover the conditions of social justice. On the other, it is an attempt to deny the truth of our painfully contradictory feelings about the actual state of relations between persons in our social world.”  “Blackstone developed his structural opposition between natural liberty and the general welfare achieved through regulation as an aspect of his strategy for legitmating the „artificial‟ institutions (feudal and capitalist) of the legal system of his time. He devised a sort of compromise in which both hierarchical formal inequality and substantive inequality through property rights could seem to flow from the postulated equality of the state of nature.”  “The pre-legal natural liberty of antagonistic individuals became, in conflicts mediated by the ideas of convenience and implied consent, the fully legal absolute and relative rights of persons. That same natural liberty, clashing with sovereignty, began its transmutation into the legal but limited constitutionals rights against the state of American citizens.”  “The relations of men in the state of nature, and the relation of natural right to sovereignty, were conundrums of political theory.”

C. THE POST-LIBERAL SOCIETY  The Soul of the Modern State  Further developing Weber‟s message, Roberto Unger believes that the rule of law has been the soul of the modern state. Belief in a neutral, all pervading rule of law and a careful division between state and private ordering is at the heart of our notion of a liberal, constitutional state.

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 Unger believes that the rule of law is currently in “disintegration” and our belief in the United States as a liberal state is actually belief in a myth.  Unger sees two forces leading us to this end.  The “overt intervention of government in areas previously regarded as beyond the proper reach of state action” a tendency he labels as the “welfare state” function.  The “reverse side,” the gradual approximation of state and society, of the public and the private sphere; what he labels the “corporatist” tendency.  Unger argues that the growth of the welfare state and the power of corporatism eat at the neutral rule of law in at least three ways.  The welfare state encourages “open-ended standards and general clauses in legislation” that take away the certainty and objectivity of legal rules.  Law in the welfare state turns “from formalistic to purposive or policy-oriented styles of legal reasoning and from concerns with formal justice to an interest in procedural and substantive justice.”  The erosion of the ideals of formal justice eventually leads to a breakdown in the difference between public and private and between law and pure economic and political power.  Two Original and Alternate Hypotheses  Unger then advances two original and alternate hypotheses about legal history itself.   The entire history of law as one movement toward a certain point, followed by a return to the origin.  “Bureaucratic law, with its public and positive rules, builds upon customary practices and how this bureaucratic law is in turn partly superseded by the rule of law, with its commitment to the generality and the autonomy of legal norms. The welfare trend in post-liberal society moves the rule of law ideal back in the direction of bureaucratic law by undermining the social and ideological bases of that deal. The corporatist tendency and the communitarian aspirations that follow it begin to subvert bureaucratic law itself. Thus, they prepare the way for the return to the custom of each group as the fundamental and almost exclusive instrument of social order.”  Such a “balkanization” of American political life, away from consensus politics to the politics of special interest groups, and to fractionalized politics would make Unger‟s hypothesis seem credible.

  A bit more optimistic, legal history may spiral upward without returning to its origin.  “This would mean that individual freedom could be rescued from the demise of the rule of law and brought into harmony with the reassertion of communitarian concerns. It would also signify that the capacity to see and to treat each form of social

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life as a creation rather than as a fate could survive the disintegration of public and positive law reconciled with the sense of an immanent order in society.”  Unger believes that to ensure an upward spiral, legal system must refine “ancient methods for the dispersal of power,” while also distinguishing between “legitimate and illegitimate uses of power” and between “permissible and prohibited inequalities.”  Unger also believes that the law must retain what Weber termed “sacredness of content,” i.e., the law must not just be an arbitrary exercise of power promoting arbitrary ends. “The problem of power carries us to the other aspect of the spiral like process. Unless people regain the sense that the practices of society represent some sort of natural order instead of a set of arbitrary choices, they cannot hope to escape from the dilemma of unjustified power.”

 Law in Modern Society by Roberto Unger (1976)  “The study of the legal system takes up straight to the central problems faced by the society itself. If this is correct…then any revision of the nature and uses of law will reveal changes in the basic arrangements of society and in men‟s conceptions of themselves.”  “The characteristics of [Western capitalist social democracies] undermine the rule of law and they strengthen tendencies in belief and organization that ultimately discourage reliance on public and positive rules as bases of social order.”  “Periods of greater stress on formalistic legal reasoning and formal justice have followed eras of a more policy-oriented mode of legal discourse, as in nineteenth century America.”  “Policy-oriented legal argument represents an unstable accommodation between the assertion and the abandonment of the autonomy of legal reasoning, just as procedural justice mediates between formal and substantive justice.” Law and History A. THE GREAT DEBATES  Fundamental Significance of History in Law  As Frederick William Maitland observed, “Such is the unity of all history that any one who endeavors to tell a piece of it must feel that his first sentence tears a seamless web.”  Maitland believed that lawyers are fundamentally “anti-historical.”  Sir Henry Maine was a leading proponent of  Know for his sweeping principles, such as “[W]e may say that the movement of progressive societies has hitherto been a movement from and  “A general proposition of some value may be advanced with respect to the agencies by which law is brought into harmony with society. These instrumentalities seem to me to be

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three in number, Their historical order is that in which I have placed them.”  Roscoe Pound boldly rejected the evolutionary nineteenth-century analysis.  He proposed a new perspective on the history of the law, a “complex picture” informed by psychology and sociology.  Holmes and Cardozo both recognized the power that history exercises through the law.  Perceived the promise and danger that this represents to judges, lawyers, and historians.  Holmes believed that antiquarianism for its own sake was a pitfall.  Cardozo characterizes scientific, rational jurisprudence as the “demon” of formalism.  Harold Berman believes that the history of Western law is at a turning point as sharp and as crucial as that which was marked by the French and English Revolutions.  Berman sees part of the reason for this crisis as “cynicism about the law, and lawlessness, [which] will not be overcome by adhering to a so-called realism which denies the autonomy, the integrity, and the ongoingness of our legal tradition.”  Interpretations of Legal History by Roscoe Pound (1923)  “The social interest in the general security has led men to seek some fixed basis for an absolute ordering of human action whereby a firm and stable social order might be assured. But continual changes in the circumstances of social life demand continual new adjustments to the pressure of other social interests as well as to new modes of endangering security. Thus the legal order must be flexible as well as stable.”  “Kohler, in his neo-Hegelian philosophical jurisprudence insisted upon the element of creative activity, upon the adapting of the legal materials of the past, shaped by and adapted to the civilizations of the past, to the exigencies of civilization in the present and the requirements of a continually changing and moving civilization.”  “When men are thinking thus a functional attitude in jurisprudence is inevitable… It grows out of the need for action to meet the pressures of new demands consequent upon changes in the social order and of new desires both behind and involved in those changes.”  “We may well believe, then, that an epoch is juristic thought has come to an end, and that the time is ripe to appraise its work, to ask what of permanent value it has achieved, to inquire what are the present demands which it is unable to satisfy, and to consider wherein its way of unifying stability and change, with which men were content for a century, is no longer of service.”  “The actual legal order is not a simple rational thing. It is a complex, more or less irrational thing into which we struggle to put reason and in which, as fast as we have put some part of it in the order of reason, new irrationalities arise in the process of meeting new needs by trial and error.  “We must think of a body of materials in actual use handed down from the past on which we work consciously and subconsciously to achieve the desires and satisfy the wants of the present; eking them out through suggestion and imitation, creating new ones now cautiously and now boldly when the old fail us, and molding all to the form which those desires and wants have given to traditional faiths and beliefs; but held back by those traditional faiths and beliefs and especially in law by the rules and modes of thought of the art in which lawyers have been trained, become an instinct to follow logical compulsion and authority.”  The Path of the Law by O.W. Holmes, Jr. (1920)  “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”  “Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form.”  “Such matters really are battle grounds where the means do not exist for determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place.”

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 The Nature of the Judicial Process by Benjamin Cardozo (1921)  “Three of the directive forces of our law, philosophy, history and custom, have…been at work.  “The rule that misses its aim cannot permanently justify its existence. Ethical consideration can no more be excluded from the administration of justice which is the end and purpose of all civil laws than one can exclude the vital air from this room and live.”  “We will shape the law to conform to [logic, history and custom] when we may; but only within bounds. The end which the law serves will dominate them all.”  “When [formalistic judges] are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance.”  Law and Revolution by Harold Berman (1983)  “The story of the Western legal tradition is itself, in part, a story of the emergence and class of these various schools of legal philosophy. They do not explain history; it is history that explains them.”  “Only four of the ten basic characteristics of the Western legal tradition remain as basic characteristics of the law in the West.  “Law is still relatively autonomous, in sense that it remains differentiated from politics and religion as well as from other types of social institutions and other scholarly disciplines.”  “It is still entrusted to the cultivation of professional legal specialists, legislators, judges, lawyers, and legal scholars.”  “Legal training centers still flourish where legal institutions are conceptualized and to a certain extent systematized.”  “Such legal learning still constitutes a meta-law by which the legal institutions and rules are evaluated and explained.”

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