Armorie v. Delamirie (1722) K.B., 1 Strange 505, 93 ER 664

Alex Feerst & Carol DeMartino?

The Opinion

Before Pratt, C.J. at nisi prius.

The plaintiff, being a chimney sweeper's boy, found a jewel, and carried it to the defendant's shop, (who was a goldsmith,) to know what it was, and delivered it into the hands of an apprentice, who, under pretense of weighing it, took out the stones; and, calling to the master to let him know if it came to three half-pence, the master offered the boy the money, who refused to take it, and insisted to have the thing again; whereupon the apprentice delivered him back the socket without the stones. And now in trover against the master these points were ruled:

1. That the finder of a jewel, though he does not by such finding acquire an absolute property right of ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.

2. That the action may well lay against the master, who gives a credit to his apprentice, and is answerable for his neglect.

3. As to the value of the jewel, several of the trade were examined to prove what a jewel of the finest water that would fit the docket would be worth; and the chief justice directed the jury that, unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages, which they accordingly did.

Key Legal Propositions

1. Finders Keepers (except against the prior owner)

This case is a staple of modern property textbooks for the proposition that one who finds a chattel is considered its owner against anyone in the world other than its prior and rightful owner.

2. Respondeat Superior

Armory is not considered an important case in the development of the doctrine of Respondeat Superior.

3. Spoliation of Evidence

Armory is considered “one of the first instances of spoliation of evidence. Under this evidentiary rule, courts presume that evidence a party has concealed or destroyed would have been injurious to their case, based on the interpretive canon omnia praesumuntur contra spoliatorem, (all things against the spoliator of the evidence). See Ariel Porat, Liability Under Uncertainty: Evidential Deficiency and the Law of Torts 11 (2001); Margaret M. Koesel et al, Spoliation of Evidence ix-x (2006).

Though it may not have been the court's intention, the great disparity in wealth and status between the two parties underscores the two rules announced in this case -- that one who finds property, even a climbing boy, holds title in it against the world, even the King's Silversmith, and that anyone who spoliates evidence, even one in so comparatively reputable a position as De Lamirie was compared to Armorie, will have all things presumed against him.

Interpellating Armory: Chimney Sweeps and their Apprentices

Legal historian A.W. Brian Simpson has this to say about the problem of tracking down Armory, the chimney sweep's apprentice:

"I’ve tried to find out more information about [Armory v. Delamirie], but so far I’ve got nowhere. I’m still trying. But the trouble is that if the people in the case are poor, they tend to leave no trace in historical records. So if you do a case involving fairly wealthy people, you often find information. It’s easier to find information in the nineteenth century, because there are extensive newspaper reports. They often give very detailed accounts of litigation, so you get a lot of information from them, but the further back you go, the more difficult it gets. . . It’s such a strange case. I mean, here’s this chimney sweep boy, they were the lowest of the low, somehow suing – who paid for his lawyer? He’s suing the most distinguished silversmith of the early eighteenth century. The defendant’s work now sells for a million dollars an item. And yet we don’t know anything about how the case happened . . .I’ve [tried to get information on the case] intermittently for years, but I haven’t gotten anywhere. History is sometimes just hopeless. Sometimes you just have to give up."

Short of finding the climbing boy at the center of this case, this section tries to do the next best thing -- to gather as much information as possible that is likely to describe someone in Armory's position.

Historiography

Kathleen H. Strange, Climbing Boys: A Study of Sweeps' Apprentices, 1773-1875 (1982), Ch. 2

Benita Cullingford, British Chimney Sweeps: Five Centuries of Chimney Sweeping (2001), Ch. 4

Peter Kirby, Child Labour in Britain, 1750-1870 19-20 n.2 (2003)

Peter Kirby offers some empirical revisionism as a corrective to our populist love affair with the picturesque Dickensian and post-Mary-Poppins image of Chimney Sweeps' apprentices:

"Chimney-sweepers' apprentices, for example, loom large in the popular historical imagination but were very small in number. Much of their high visibility resulted from the campaigning of Jonas Hanway in the eighteenth century and Lord Shaftesbury and Charles Kingsley in the nineteenth [in the 1863 novel The Water Babies]. In 1841, the number of sweeps' apprentices aged below 10 in London was estimated by Mayhew to be 370 (at a time when London's population numbered 2.2 million). Hanway estimated that in 1785 there were 400 to 550 climbing boys in London, and an estimate from seven years later supposed their number to be 500. . . According to the census of 1851, there were 1107 British chimney-sweeps aged below 15 in Britain."

The Mechanics of Climbing

Mayhew records these comments on technique from a chimney sweep living in Bethnal Green in the 1840s:

"There are two or three ways of climbing. In wide flues, you climb with your elbows and your legs spread out, your feet pressing against the sides of the flue, but in narrow flues, such as nine-inch ones, you must slant it; you must have your sides in the angles, it's widest there, and go up that way."

Mayhew describes:

"Here he threw himself into position -- placing one arm close to his side, with the palm of his hand turned outwards, as if pressing the side of the flue, and extending the other arm high above his head, the hand apparently pressing in the same manner."

Here is a sketch of four boys in various flue-cleaning positions, and another of four boys in adjacent flues.

Scrotum Cancer

Soot and the chemicals it contained led to a notably high rate of scrotal cancer among chimney sweep's boys.

In a statement to the Children's Employment Commission (1863), Thomas Clarke, Master Sweep of Nottingham remarked:

"I have known eight or nine sweeps lost their lives by the sooty cancer. The private parts which it seizes are entirely eaten off caused entirely by 'sleeping black,' and breathing the soot in all night."

Brown & Thornton, Percivall Pott & Chimney Sweepers' Cancer of the Scrotum (1957)

Pott's 1775 treatise, Chirurgical observations Relative to the Cataract, the Polypus of the Nose, the Cancer of the Scrotum, . . . [etc.], which includes an account of scrotum cancer among chimney sweepers has been cited as the first description of an occupational cancer:

". . . there is a disease as peculiar to a certain set of people, which has not, at least to my knowledge, been publickly noticed; I mean the chimney-sweepers' cancer . . . it produced a superficial, painful, ragged, ill-looking sore, with hard and rising edges. The trade call it the soot-wart . . . The fate of these people seems singularly hard; in their early infancy, they are most frequently treated with great brutality, and almost starved with cold and hunger; they are thrust up narrow, and sometimes hot chimnies, where they are bruised, burned, and almost suffocated; and when they get to puberty, become peculiarly liable to a most noisome, painful, and fatal disease."

Henry T. Butlin, Three Lectures on Cancer of the Scrotum in Chimney-Sweeps (1892)

Butlin considers possible reasons that chimney sweeps on the continent suffer a much lower rate of scrotum cancer. He hypothesizes that it is owing to protective clothing which varies by local custom that:

". . . in spite of every other condition which may be regarded as favourable to the disease, including the employment of children as 'climbing boys,' it is really almost unknown in those countries."

Here's an image of a German chimney sweep, suited up in ninja-like protective garb.

Walter Jacobson, Diseases of the Male Organs of Generation (1893)

Jacobson argues against Butlin's belief in the protective properties of specialized clothing and also departs from medical consensus holding that improved sweeping technology has reduced the incidence of cancer by allowing one to sweep from below rather than inside the chimney. Instead, Jacobson proposes:

"A more important explanation than the intersection of machinery, is to be found in the fact that chimney-sweeps, being no longer employed in boyhood, the delicate scrotal skin is not exposed so early or so long to the irritation of soot."

The Art of Sweeping

William Blake published two versions of his poem "The Chimney Sweep," once in Songs of Innocence (1789) and then in Songs of Experience (1794).

Charles Kingsley's 1863 novel The Water-Babies, features a chimney sweep protagonist. It remained popular well into the twentieth century and generated many accompanying images of chimney sweeps.

In Dickens' novel Oliver Twist, the hero is spared from indenture into service as a sweep's apprentice by a magistrate who blocks Oliver's move to a master who "did happen to labour under the slight imputation of having bruised three or four boys to death already."

Images

The corpses of two climbing boys being pulled out of a flue.

A trio climbing boys, still black with soot, tucking into a meal with some ale.

A widow sells her son into an apprenticeship with a chimney sweep.

A climbing boy on crutches in retirement.

A painting of a group of climbing boys gathered around a curdseller.

Two cherubic looking sweeps share a book.

A brush-toting sweep burdened by his pack.

Two more recent images of sweep's apprentices, one bilious, the other pensive.

Paul De Lamerie

Much more is known about the defendant, goldsmith Paul De Lamerie (spelled Delamirie in legal texts). De Lamerie was born in 1688 in the Netherlands to French Huguenot parents. The family soon moved to England. Little is known of De Lamerie's early education, but in 1703 he was apprenticed to Peter Platel, a London goldsmith, for a seven year term. Platel was a well-regarded and elegant silversmith, and de Lamerie was an ambitious apprentice. In 1711, his apprenticeship ended and De Lamerie made arrangements to start his own workshop. By 1713, he had entered his maker's mark at the Assay Office in the Goldsmiths' Hall and gave his address as "in Windmill Street near the Haymarket."

Repeated violations of Goldsmiths' Company regulations are noted throughout De Lamerie's career. In 1714, he was fined for "not having his work hallmarked"; further complaints were filed the following November because the fine remained unpaid. In 1715, he was accused of passing off work made by others as his own. Similar charges were made the next year. By 1717, he was known as the King's Silversmith, but was also named in a complaint for making and selling unmarked wares. In 1722, he was, of course, accused of cheating Armory, the chimneysweep's boy. And in 1726, he was involved in the trial of Robert Dingley, a goldsmith involved in exporting silver to Russia. Dingley was preparing to ship a large number of silver wares when the Goldsmiths' Company tried to intercept his shipment on the suspicion that pieces were not assayed and that the requisite duty was unpaid. Much of the wares, in fact, were unmarked, and around half of the goods were supplied by Paul De Lamerie. Nevertheless, Dingley avoided inspection by distracting Company officials in a tavern while the goods were being loaded and dispatched overseas.

In his extensive biography of De Lamerie, P.A.S. Phillips refers to Armory v. Delamirie as an "extraordinary incident in his career, which was to bring him into a different sphere of fame, although quite unintentionally and unexpectedly on his part." Nevertheless, while the suit was to become "one of the leading cases of the law of the land and to be known afterwards as ruling the law as to 'trover'", De Lamerie's business remained unaffected by his involvement in this or any other violation of Goldsmiths' Company regulations.

Prior to the lawsuit, De Lamerie's business had been flourishing. In 1717, he was admitted to the livery of the Goldsmiths' Company and would eventually secure the highest post offered by the Company, Prime Wardenship. By 1723, De Lamerie could already count members of the nobility and wealthy middle class at clients. Nevertheless, Susan Hare notes that "in spite of his title of King's Silversmith there is little evidence that he was fulfilling royal orders." Little question exists, however, in classifying De Lamerie as a shrewd businessman. Evidence introduced in Armory v. Delamirie reveals that in addition to a workshop, De Lamerie also kept an "open shop for ordinary trading purposes" where he also dealt in jewelry. This is confirmed by a document issued after his death for sale of his stock by auction. Hare notes that De Lamerie was a man of considerable wealth based on the "considerable investments in property he began making early in 1733" and "from his lending money on mortgage." Nevertheless, despite his wealth, when De Lamerie's father died in 1735, he was given a pauper's burial at St. Anne's Church, suggesting a certain callousness on the part of his son.

In a recent article, De Lamerie is referred to as a "pioneer of what became the Industrial revolution, operating a workshop or factory with a retail arm; he also began by making all the works that bore his maker's mark himself, then devising a system whereby his designs were manufactured by other craftsmen working under his supervision." De Lamerie designed but probably did not assist in constructing his masterpiece of Rococo style, the Maynard dish. E. Alfred Jones also states De Lamerie had "collaborators and apprentices just as had Vandyck and Rubens and other artists."

The above is compiled largely from two sources:

Beyond the Maker's Mark by Ellenor Alcorn

Paul de Lamerie: At the Sign of the Golden Ball by S.M. Hare

Other Articles on De Lamerie

Exhibition Review: Tessa Murdoch reviews an international exhibition of De Lamerie silver at the London Goldsmiths' Company, from The Burlington Magazine (1990).

Book Review: W.W. Watts reviews P.A.S. Phillips' biography of De Lamerie, from the Burlington Magazine (1935).

Article: Emil Delmar considers whether an elaborate bronze dish attributed to an Anglo-French goldsmith in London was the work of De Lamerie.

The Work of Paul De Lamerie

De Lamerie ranks as one of the finest and most prolific silversmiths of his time. Below are links to images of his work:

Shells: 1724-25

Taperstick: 1726-27

Coffeepot: 1728-29

Newdigate: 1743-44

Basket: 1744-45

Examples and highlights from the De Lamerie collection at the V&A museum, London.

Armory in Motion

Since it came down, the case has appeared in legal treatises on property, evidence, and tort law, judicial opinions, and case books on property law.

Application of the Armory rule has broadened over time. Here's a 2007 article by a barrister who advocates overturning the Armory rule because negligent lawyers now risk getting caught in a net designed for dishonest goldsmiths.

Occasionally, one can even find an Armory v. Delamirie memorabilia print available for auction on ebay.

Assizes

Courts sitting regionally, on circuit. Can try felonies, but hence are always required to have one of the 10 (later 12) judges of King's Bench? , Common Pleas? , or Exchequer in order to be able to give a death penalty in the felony case.

Impossible to know which judge will be sitting on the circuit, which complicates appeals- do you prepare under the precedents of King's Bench or Common Pleas?

Class Notes

This topic is a container for notes of our class meetings.

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In such a system I was wondering what were the formal and informal mechanisms for ensuring a the consistent application of the same common law in each court? Were there many examples of forum shopping in such a system?

-- MichaelCoburn - 09 Sep 2014

A Land Not of a Single Peace but of Many (Revision)

A. Harding wrote, “England was not a land of a single peace but of many,” (Harding 15) alluding to the diverse origins of English history that would develop into its “Englishry” through an adaptable but enduring set of legal principles. The law developed out of three elements: First, changes in the culture caused by conquering; second, the law developed out of a written language; and third, continuity that ensured the endurance of the legal system despite external changes. (Baker 2) While the takeovers suggest that Maitland is correct as to the diverse origins of English history, it is the use of the language and the endurance of the legal system that allowed the Englishry of the law to coalesce.

Due to the size of England, and its isolation, it rarely took more than a single battle to gain control and the current occupants did not have the ability to retreat into Russia or Asia as they did in continental Europe. In the sixth century, when Roman missionaries arrived in Kent, the law began to reflect the “Roman style,” (Harding 13) placing the clergy highly in society by providing them with the most compensation under the law when their property was damaged or taken. Despite the fact that England was never a part of the Roman world, Harding suggests that these early laws created a theme of the king’s “peace” with which he would be able to extend his influence over the society that would carry forward as the law developed. (Harding 15) The Anglo-Saxons also recognized a theme of peace, which would be used by later Norman rulers as a legal basis to curb any potential rebellion that would question their claim.

King Aethelbert of Kent, in the seventh century, extended the king’s peace by requiring wrongdoers to pay both their victim and the king as an illustration that a wrong against a person is a wrong against the king’s peace as well, a practice that was followed by Anglo-Saxon rulers. (Harding 15) The king held the right to declare his peace over society and to enforce it when it was breached. In each instance, the change came from either the crown or the clergy of the current conqueror, in an attempt to consolidate their power over the recently conquered society.

During the reign of King Alfred of Wessex, the government noted a need for unification and developed a system of law that would facilitate transfers of power. (Baker 3) When William the Conqueror became king in 1066, the Norman people began to partially embrace the Saxons as subjects by impressing their rule upon them rather than pushing them out. This partial acceptance of the diversity of the English people, even through subjugation, was an acceptance of a relatively unified England with the beginnings of a legal system already in place. (Baker 12) The law, therefore, developed with an understanding of the Norman tradition of murder and conquer combined with a need to maintain peace once an inevitable change of power occurred.

By asserting a legal claim to the throne, William was able to argue that his conquering of England was an extension of the king’s peace. His ascension was merely a succession and the people became his subjects under both the current legal framework and any additional laws he should put in place. By Henry II, the law was expanded to create a form of the king’s justice, in which freeholders could seek the king’s judgment on matters concerning property and disputes. The continuity of the legal system, despite changes of power, meant that even with political turmoil, an “Englishry” could be maintained over time. Rather than becoming an Anglo-Saxon country, then a Norman country, devoid of outside influences, the king’s peace remained a thread that would connect each successive regime, creating a cohesive England over time. While the Romans were the initial source of English custom, as the local people did not have a written language, the Anglo-Saxons introduced written law after King Aethelbert I of Kent. (Baker 2) The Normans spoke French, but they retained Latin as the written language. Since many of the peasant languages had never been written down, the use of Latin, which was used to codify everything from poetry to theology, meant that the development of early laws included a written language that conveyed wisdom.

The Englishry of the English law is the Englishry of the English language as well. The English word “law” entered the lexicon after the land was conquered by a Danish king. (Baker 3) The English form of government, the parliament, was originally borrowed from the French councils, or conciles. (Robert Tombs, The English and Their History 49) As England changed, so did the language, borrowing aspects of other languages and inventing its own, such as illogical spelling or lack of inflection for nouns. While the French treated their language defensively in an attempt to keep the language “pure,” and the Dutch treated theirs comically, changing spellings thrice in a generation, the English took words from other cultures to develop a language of their own and revelled in its use. Just as the country was repeatedly conquered, the English that would evolve out of the written legal Latin would take fragments of other cultures and integrate them into a distinctly English language.

The fact that England was subject to conquer for much of its history contributed to the diverse origins of its law. From early Roman influences to the expansion of the law under Norman rule, England absorbed and destroyed previous cultures resulting in a unified society. The legal system, built on the concept of the king’s peace, facilitated the transfer of power from one regime to another to create an “Englishry” that spanned beyond the lives of mortal kings. While the endurance of the legal system remained static, the use of a dynamic written language both created and maintained a record of the static legal system while reflecting the diversity of the sources that created it.

A Land Not of a Single Peace but of Many (Original Draft)

A. Harding wrote, “England was not a land of a single peace but of many,” (Harding 15) alluding to the diverse origins of English history that would develop into its “Englishry” through an adaptable but enduring set of legal principles. The law developed out of the reconciliation of three elements: First, changes in the culture caused by conquering; second, that the law developed out of a written language, distinct from the spoken languages of the common people; and third, the tradition of legal continuity that ensured the longevity of the legal system despite frequent external changes. (Baker 2) While the takeovers suggest that Maitland is correct as to the diverse origins of English history, it is the use of the language and the endurance of the legal system through these takeovers that allowed the Englishry of the law to coalesce.

Due to the relative size of England, and its isolation as an island, it rarely took more than a single battle to gain control and the current occupants did not have the ability to retreat into Russia or Asia as they did in continental Europe. Much of England’s early history was a myriad of invasions, by people speaking various languages and often pushing the current occupants out of society altogether.

As early as King Alfred of Wessex, however, the government noted a need for unification and developed a system of law that would facilitate transfers of power. (Baker 3) When William the Conqueror became king in 1066, there was a shift the Norman people partially embraced the Saxons as subjects by impressing their rule upon them rather than pushing them out entirely. This partial acceptance of the diversity of the English people, even through Norman subjugation, was an acceptance of a relatively unified England with the beginnings of a legal system already in place. (Baker 12) The law, therefore, developed with an understanding of the Norman tradition of murder and conquer as well as a need to maintain peace once an inevitable change of power occurred.

As early as the sixth century, when Roman missionaries arrived in Kent, the law began to reflect the “Roman style,” (Harding 13) placing the clergy highly in society by providing them with the most compensation under the law when their property was damaged or taken. Despite the fact that England was never a part of the Roman world, Harding suggests that these early laws created a theme of the king’s “peace” with which he would be able to extend his influence over the society that would carry forward as the law developed. (Harding 15) The Anglo-Saxons also recognized a theme of peace, which would be used by later Norman rulers as a legal basis to snuff out any potential rebellion that would question their claim.

By asserting a legal claim to the throne, William was able to argue that his conquering of England was an extension of the king’s peace. His ascension to the throne was merely a succession and the people became his subjects under both the current legal framework and any additional laws he should put in place. By the time of Henry II, the law was expanded to create a form of the king’s justice, in which freeholders could come to come seek the king’s judgment on matters concerning property and disputes between people. The continuity of the legal system, despite changes of power, meant that even with diverse origins and political turmoil, an “Englishry” could be maintained over time. Rather than becoming a wholly Anglo-Saxon country, and then a wholly Norman country, devoid of outside influences, the legal framework of the king’s peace remained a thread that would tie each successive conqueror to the previous and to the next, creating a cohesive England over time. As the nation changed hands and kings, there were various spoken peasant languages throughout society. While the Romans were the initial source of English custom, as the local people did not have a written language, the Anglo-Saxons introduced written law after King Aethelbert I of Kent. (Baker 2) The Normans spoke French, but they retained Latin as the written language. Since many of the peasant languages had never been written down, the use of Latin, which was used to codify everything from poetry to theology, meant that the development of early laws included a written language that conveyed wisdom.

We noted in class that the Englishry of the English law is the Englishry of the English language as well. The English word “law” was given to the language after the land was conquered by a Danish king. (Baker 3) The English form of government, the parliament, was originally borrowed from the French councils, or conciles. (Robert Tombs, The English and Their History 49) As England changed, so too did the language, borrowing aspects of other languages and inventing its own, such as illogical spelling or lack of inflection for nouns. While the French treated their language defensively in an attempt to keep the language “pure,” and the Dutch treated theirs comically, changing spellings thrice in a generation, the English language took words shamelessly from other cultures to develop a language of their own and reveled in its use. Just as the country was conquered again and again, the English that would evolve out of the written legal Latin would take with it fragments of other cultures that it sought to integrate into a distinctly English language.

The fact that England was subject to conquer for much of its history contributed to the diverse origins of its law. From early Roman influences to the expansion of the law under Norman rule, England both absorbed and destroyed previous cultures in an attempt to create a unified society. The legal system, built on the concept of the king’s peace facilitated the transfer of power from one regime to another to create an “Englishry” that spanned beyond the lives of mortal kings. While the endurance of the legal system remained static, the use of a dynamic written language both created and maintained a record of the static legal system while reflecting the diversity of the sources that created it.

-- By DexterXHeeter - 28 Nov 2017

This is pretty good as a response, but it can be made better.

The first route to improvement is a general edit to tighten the writing. Both at the paragraph and the sentence level, more brevity will also mean more clarity. Paraphrasing Baker, as in "The law developed out of the reconciliation of three elements: First, changes in the culture caused by conquering; second, that the law developed out of a written language, distinct from the spoken languages of the common people; and third, the tradition of legal continuity that ensured the longevity of the legal system despite frequent external changes," leads to longer, mushier sentences than you need. (Note also that Anglo-Saxon legal materials are in Anglo-Saxon, which is "the language of the people.")

The second route to improvement is to focus more sharply on the sociological formulations. "From early Roman influences to the expansion of the law under Norman rule, England both absorbed and destroyed previous cultures in an attempt to create a unified society." Leaving aside the gap of almost 800 years from the Romans to the Norman invasion, this sentence literally says that "England attempt[ed] to create a unified society," which is nonsense as social science. Who is acting over these many centuries, and with what purpose? "England," as a personification, is not helpful.

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Doige's Case

Context

Doige’s case (also known as Shipton v. Dog, or Shipton v. Dogge) arose during a period of extension of trespass on the case for nonfeasance. At the middle of the fourteenth century, trespass on the case was an accepted plea in cases of contractual misfeasance, but not in cases of contractual nonfeasance. However, there was pressure to extend tort liability to nonfeasance, especially in cases where no other remedy was available. “The plea rolls show attempts to bring such cases within the action of trespass as early as 1303 by the end of the fourteenth century it is possible to find precedents of actions on the case for contractual non-performance in Registers of Writs and attempts to bring such actions are relatively easy to find in the plea rolls of the fifteenth century.” Courts were nonetheless resistant to this extension, believing that tort liability should only be allowed in cases of commission, rather than mere omission.

Despite this resistance, the legal history of the time contains several isolated decisions from as early as 1401 in which tort liability was found for nonfeasance, often by reframing the nonfeasance as misfeasance of deceit. In Somerton’s Case in 1433, for example, the court held that “a lawyer was liable under the action of trespass on cases for deceit. In that case, the plaintiff hired the defendant to be an agent for the purchase of a manor. The agent wrongfully disclosed his agency to a third party and collusively obtained the property for the third party.” Although the failure to obtain the manor was a nonfeasance, the plaintiff characterized the conduct as misfeasance of deceit. This method of claiming deceit in an action of nonfeasance continued with Doige’s case.

Facts

In Doige’s case in 1442, the plaintiff made an agreement with the defendant to purchase land, and prepaid the purchase price of £100. The defendant agreed to enfeoff the plaintiff of the land within 14 days, but failed to do so, and instead enfeoffed a third party. The defendant brought the case under an action of deceit, and the defendant demurred on the grounds that the action should have been brought in covenant. Because the defendant was in the custody of the King’s Bench, the plaintiff was forced to bring the action there.

Judicial Arguments

Judge Ayscough began by arguing against allowing trespass on the case. In doing so, he made an analogy to carpentry: If you contracted with a carpenter to make a house, and he did so poorly, then there was trespass on the case, because the action derived from his misfeasance. On the other hand, if the carpenter did not build the house, the action was in covenant, because there was no bad act.

Judge Babthorpe, in response, claimed that the defendant had done something bad by enfeoffing a third party, thereby disabling herself from enfeoffing the plaintiff. He believed therefore an action of deceit could be founded. He also drew an analogy to a lawyer who does not show up in court, and who is liable in deceit despite his lack of commission.

Judge Paston then attempted to show that a convenant does not always preclude an action of deceit: imagine if a seller bargains to enfeoff party A, but enfeoffs party B instead, and then afterwards enfeoffs party A. Party B will oust party A, but no action of convenant would be available, because the seller enfeoffed party A according to the convenant. There would instead be an action in deceit.

Babthrorpe then argued that in such an example, there would be deceit that sounds in covenant.

Ayscough drew a distinction to the previous example: there was a positive action, whereas in this case there was none.

Chief Judge Newton then claimed that an action of covenant would be pointless, because 1) the defendant had already enfeoffed another, and 2) the day on which the feoffment should have occurred had already passed. Newton went on to argue that an action of deceit “clearly [lay]” because the defendant would be able to demand her money with a writ of debt, and a perfect bargain should require that if one party can bind the other to perform, the bound party should then have remedy against the first.

Judge Fortescue claimed that it was irrelevant whether an action of covenant would be pointless. He also drew an analogy: if seller makes a lease to party A, then makes a lease for the same land to party B who then occupies it, the seller has prevented himself from enabling party A to have the lease, but party A would only be able to bring a writ of covenant.

Paston responded that a writ of covenant does not necessarily preclude a writ of deceit. He made this claim through an example: if someone has a carpenter build them a house of certain specifications, and he does so, but makes the house faulty in ways which are not covered in the covenant (poor materials, etc), there will be not action of covenant, but there will be an action of trespass on the case insofar as the carptenter has done something wrong.

Newton then stated that if the plaintiff wants to bring the case in deceit, that is acceptable, but the plaintiff cannot then bring it in covenant as well.

Fray then drew another analogy: “if the defendant in our case had ousted her feoffee and then enfeoffed the plaintiff, all the convenants would have been fulfilled. Supposee the feoffee afterwards ousted the plaintiff: would he not then have an action of deceit, since he could not have a writ of covenant? I say he would.”

Ayscouch disagreed.

Paston then argued that “it is not true that in every bargain there is a covenant. For if I buy a horse from you, without a warranty that he is sound, here is no covenant; and yet there is a bargain, and if the horse has an internal illness I shall have a writ of trespass on my case against you for selling him to me, knowing that he is ill.” Paston therefore believed that the plaintiff should have a writ of deceit on the bargain.

Westbury then drew an analogy: if, after the bargain of the present case, the defendant made a secured loan on the land, then feoffed to the plaintiff, there would be a writ of deceit. Therefore, Westbury argued, there should be a writ of deceit here.

Fortescue then stated that “if each party to a bargain should be bound by an action, it must follow that an action of deceit is maintainable.” Looking at the horse example Paston used, he explained that in such a case, the seller would have writ of debt for the money, and the buyer would have a detinue to claim the horse. In this case, however, the buyer could not claim the land because it was already enfeoffed to the third party. Paston then reiterated that a good contract must bind both parties.

Result

“[I]n Hilary term 1443 judgment was given for the plaintiff to recover £20 damages, as assessed upon a writ of enquiry[,]” although the actual purchase price claimed by the court was £200.

Analysis

According to David Ibbetson, the judges reasoned as followed: because there was an agreement to buy and sell land, the seller would have an action against the buyer for the price. How then could the buyer have no action against the seller of the land? “The difficulty was that there was no action that the plaintiff could obviously bring: not convenant, because there was no deed; not debt or detinue because the action was not for money or chattels, not any real action because no title had yet passed to the plaintiff. The only possibility was the action of trespass on the case.” In order to find a way to justify trespass on the case, the court pointed to the fact the agreement was positively broken by conveying the land to a third party and thereby disabling the seller from performing on the contract. The judges used this logical distinction to create misfeasance out of nonfeasance.

Alfred Simpson and Kevin Teeven have a different interpretation. They believe that Doige’s Case simply extended the doctrine of action of deceit, which had already applied to intermediaries in land transactions (such as lawyer in Somerton), to the seller herself.

Effects

Along with Somerton’s case and a few isolated others, Doige’s case brought on the beginning of contractual nonfeasance passing through the test of trespass on the case under deceit. The court was interpreted as creating a general rule that liability for deceit existed where the defendant seller disabled himself from performing a contract by conveying to a third party. “In the half-century after [Doige’s case] actions for the failure to convey land, coupled with allegations of disablement, became a routine if not frequent part of the business of royal courts.”

This general rule resulted in courts accepting liability in cases where the defendant had conveyed to a third party, but not in cases where the defendant had kept the property for himself. This split approach was criticized by lawyers, and remedied beginning in the 16th century.

Ibbetson also believes that Doige’s case helped blur the line between contract and tort by allowing plaintiff’s to “formulate the defendant’s behavior in terms of the language of wrongdoing rather than the language of rights.”

Benjamin Geva mentions that a peripheral effect Newton CJ’s dicta that “if I bail a certain sum of money to Paston to bail over to Fortescue, now, if Paston does not do this, he will be liable to me in an action of Account and also in an action of Debt” became a prominent piece of support for the rule that “a bailee who has failed to deliver money to the beficiary is chargeable to the bailor, not only in Account, but also in Debt.”

References Available Online:

A History of the Common Law of Contract By Alfred William Brian Simpson

A Historical Introduction to the Law of Obligations By David J. Ibbetson

Bank Collections and Payment Transactions By Benjamin Geva

Favor Emptoris: Does the CISG Favor the Buyer?

Completed Articles for Wikipedia Submission

• Set ALLOWTOPICCHANGE = TWikiAdminGroup

Is it? Functionalism is probably more discredited now among anthropologists than among realist lawyers, for whom it is an unarticulated assumption. For the historian, as for the interpretive anthropologist, the ambition is to understand what people thought they were doing, why they thought they were doing it, and what those thoughts tell us about what it means to have been the people they were.

History and Operation of the Ordeal in England

The ordeals of fire and water in England likely have their origin in Frankish tradition, as the earliest mention of the ordeal of the cauldron is in the first recension of the Salic Law in 510. (Bartlett 4-7). Trial by cauldron was an ancient Frankish custom used against both freedmen and slaves in cases of theft, false witness and contempt of court, where the accused was made to plunge his right hand into a boiling cauldron and pull out a ring. (Bartlett 4, 9). As Frankish influence spread throughout Europe, ordeal by cauldron spread to neighboring societies. (Bartlett 9).

The earliest references of ordeal by cauldron in the British Isles occurs in in Irish law in the seventh century, but it is unlikely that this tradition shares roots with the Frankish tradition that is likely the source of trial by fire and water among the Anglo-Saxons and later the Normans in England. (Bartlett 5). The laws of Ine, king of the West Saxons, produced around 690, contains the earliest reference to ordeal in Anglo-Saxon law; however, this is the last and only mention of ordeal in Anglo-Saxon England until the tenth century. (Bartlett 7).

After the Conquest of 1066, the Old English customs of proof were repeated anew and in more detailed fashion by the Normans, but the only notable innovation of the ordeal by the conquerors was the introduction of the trial by battle. (Hyams 111). There were, however, minor conflicts between the customs of the Anglo-Saxons and the customs Normans that were typically resolved in ways that favored the Normans. (Hyams 112). In a famous story from Eadmer’s History of Recent Events, William Rufus expresses skepticism about the ordeal after fifty men accused of forest offenses were exonerated by the ordeal of hot iron. In this story, Rufus states that he will take judgment from God’s hands into his own. (Hyams 116). However, this skepticism was not universally shared by the intellectuals of the day, and Eadmer depicts Rufus as irreligious for rejecting the legitimacy of the ordeal. (Bartlett 76).

The use of the ordeal in medieval England was very sensitive to status and reputation in the community. The laws of Canute distinguish between “men of good repute” who were able to clear themselves by their own oath, “untrustworthy men” who required compurgators, and untrustworthy men who cannot find compurgators who must go to the ordeal, and one of the laws of Ethelred the Unready declared that untrustworthy men were to be sent to the triple ordeal, that is, an ordeal of hot iron where the iron is three times heavier than that used in the simple ordeal, unless his lord and two other knights swear that he has not been accused of a crime recently, in which case he would be sent to an ordinary ordeal of hot iron. (Bartlett 31).

Unlike other European societies, the English rarely employed the ordeal in non-criminal proceedings. (Bartlett 63). The mandatory use of the ordeal in certain criminal proceedings appears to date from the Assize of Clarendon in 1166. (Kerr et al., 1). Prior to then, compurgation was the most usual method of proof, and the ordeal was used in cases where there was some presumption of guilt against the accused or when the accused was bound to fail in compurgation. (Kerr, 3). A distinction was made between those accused fama publica (by public outcry) and those accused on the basis of specific facts. Those accused fama publica were able to exculpate themselves by means of compurgation, whereas those accused on the basis of specific facts and those who were thought to have bad character were made to undergo the ordeal. (Groot 23).

The Assize of Clarendon declared that all those said by a jury of presentment to be “accused or notoriously suspect” of robbery, thievery, or murder or of receiving anyone who had committed such a wrong were to be put to the ordeal of water. (Kerr 1). These juries of presentment were the hundred juries and vills, and these groups, in effect, made the intermediate decision of whether an accused person would face the more final judgment of the ordeal. These bodies rendered “verdicts” of either suspected or not suspected. In cases where the defendant was accused on the basis of one or more specific facts, the defendant was sent to the ordeal upon the verdict of the hundred jury alone. In cases where the defendant was accused fama publica, the agreement of the hundred jurors and the vills as to the defendant’s suspicion was required to send him to the ordeal. (Groot 23). However, the intermediate accusation of the juries could still be considered final in some sense as any person who was accused of murder by the juries was required to leave the realm even if he was exonerated by the ordeal. (Bartlett 67).

In 1215, clergy were forbidden to participate in ordeals by the Fourth Lateran Council. The English plea rolls contain no cases of trial by ordeal after 1219, when Henry III recognized its abolition. (Bartlett 127-128).

Explanations for the persistence and disappearance of the ordeal

Peter Brown explains the persistence and eventual withering of the ordeal by stating that it helped promote consensus in a society where people lived in close quarters and there was little centralized power. In a world where "the sacred penetrated into the chinks of the profane and vice-versa" the ordeal was a "controlled miracle" that served as a point of consensus when one of the greatest dangers to the community was feud. (Brown 135-138). From this analysis, Brown argues that the increasing authoritativeness of the state lessened the need and desire for the ordeal as an instrument of consensus, which ultimately led to its disappearance. (Brown 143).

Leeson analyzes the ordeal from a rational choice perspective. He argues that the ordeal was a socially productive custom because it used the superstitious beliefs of those who underwent the ordeals to reveal information about their guilt or innocence in a society where other fact-finding methods were unavailable. (Leeson 693). The ordeal was assigned guilt or innocence with some accuracy, because the superstitious beliefs of those who underwent ordeals caused those people to unwittingly reveal information about their guilt or innocence. According to Leeson, this allowed priests to manipulate ordeals based on the willingness of the accused to undergo them. To support this contention, Leeson points to the great latitude given to the priests in administering the ordeal and interpreting the results of the ordeal. (Leeson 697-698). He also points to the overall high exoneration rate of accused persons undergoing the ordeal, when intuitively one would expect a very high proportion of people carrying a red hot iron to be badly burned and thus fail the ordeal. Kerr et al., however, have used these very same facts to find that the ordeal was a clerical instrument of mercy to ease the strictures of the secular law rather than a means to accurately judge the guilt or innocence of a party. (Kerr et al., 24)

References

Bartlett, Robert (1986). Trial by Fire and Water. Oxford: Oxford University Press.

Brown, Peter (Spring, 1975). "Society and the Supernatural: A Medieval Change". Daedalus 104 (2): 133-151.

Groot, Roger D. (Jan. 1982). "The Jury of Presentment before 1215". The American Journal of Legal History 26 (1): 1-24.

Hyams, Paul (1981). "Trial by Ordeal: The Key to Proof in the Early Common Law". In Morris S. Arnold et al., eds, On the Laws and Customs of England. Essay in Honor of Samuel E. Thorne. Chapel Hill: University of North Carolina Press.

Kerr, Margaret H.; Forsyth, Richard D.; Plyley, Michael J. (1992). "Cold Water and Hot Iron: Trial by Ordeal in England". Journal of Interdisciplinary History 22 (4): 573-595.

Leeson, Peter T. (Aug. 2012). "Ordeals". Journal of Law and Economics 55 (3): 691-714.

-- AlexanderGerten - 20 Nov 2014

The text would work better for the education of non-specialist readers if its diction were simpler: the choice of words such as "medial" or "proband" may be appropriate to specialist monographs, but can be improved for general readers. Similarly, the hermaneutic uncertainties and side-remarks on the methodological choices made, while valuable, do not make the article more accessible by a student who wants to know what ordeals were, and how they were used. Some factual material on the specific gravities of male and female bodies might also be useful, if only for the purpose of putting to question the generalizations of fast-moving under-informed economists.

The text of this page is available for modification and reuse under the terms of the Creative Commons Attribution-Sharealike 3.0 Unported License and the GNU Free Documentation License.

Is the article right that this is the origin of guardianship? What is this statute? How was it used? How did the parens patriae power develop afterwards? Was it always a source of abuse?

It appears that the "Prerogative Regis" is not actually a statute. Plucknett in Statutes and Their Interpretation p. 12 says it is suspicious and uncanonical. Maitland gives a longer treatment of the issue in his collected papers (p 182) and discusses the "Natural Fools" provision from the bottom of p. 184 to the top of p. 187. It looks like guardianship as a concept appears sometime between Bracton and Britton/Fleta.

-- MattConroy - 08 Oct 2017

Matt - thanks for sharing this article. Statute aside, I was admittedly unaware that this form of elder abuse was so prevalent, so I thank you for the enlightenment.

As to "Prerogative Regis," my cursory look at Maitland and another source (pdf pg. 43) lead me to agree that it indeed was not a statute, and instead became law through some combination of custom and opinio juris.

-- MalcolmEvans - 16 Oct 2017

I was wondering why England contained religious court that covered family and probate law, but had no Inquisitorial Court to handle heresy, witchcraft, etc.? Which courts then handled religious crimes such as heresy? Did the fact that there were no Inquisition mean that witchcraft and heresy were less often prosecuted in England?

-- MichaelCoburn - 24 Sep 2014

-- IgnacioMenchaca - 25 Sep 2014

The absence to an Inquisitional court may be due to lack of a political purposive for it. For example, in Spain the main objective of the Inquisition was to target false conversions to Christianism made by: (i) Jews, due to their expulsion of the Spanish realms as stated in the Alhambra Decree (issued on 31 March 1492); and (ii) Muslims, who remain in the Spanish peninsula after the Reconquista wars. As opposed to certain believes, the Spanish Inquisition had little interest in heresy (interpretation of holy literature) or witchcraft, devil worship or similar; the Inquisition goal was to have a Christian country free from foreign religion influence as a political tool to achieve a “less diverse” and more governable country. Do not forget that the Spanish Kings, as many of their European counterparts receive their power through God (the Christian god).

-- IgnacioMenchaca - 25 Sep 2014

The absence to an Inquisitional court may be due to lack of a political purposive for it. For example, in Spain the main objective of the Inquisition was to target false conversions to Christianism made by: (i) Jews, due to their expulsion of the Spanish realms as stated in the Alhambra Decree (issued on 31 March 1492); and (ii) Muslims, who remain in the Spanish peninsula after the Reconquista wars. As opposed to certain believes, the Spanish Inquisition had little interest in heresy (interpretation of holy literature) or witchcraft, devil worship or similar; the Inquisition goal was to have a Christian country free from foreign religion influence as a political tool to achieve a “less diverse” and more governable country. Do not forget that the Spanish Kings, as many of their European counterparts receive their power through God (the Christian god).

-- IgnacioMenchaca - 25 Sep 2014

I cannot speak to witchcraft, but the prosecution of heresy in England became a concerted movement post-1380. [1] Though English historians and lawyers before this time were aware of the legal position of the Church in regards to heretics, it’s practical experience before then was limited. [2] Heresy, as a status crime, is hard to detect and prosecute, and the ever-evolving nature of orthodoxy meant that heretics could not be defined over the centuries by using a checklist of prohibited beliefs. [3] In any case, heresy was defined not merely as the deviation from orthodoxy, but rather a refusal during the criminal trial to repent and return to the Church. [4] The trial was seen as giving heretics an opportunity to recant their erroneous beliefs, and even punishment was viewed as administering ‘medicine’ or ‘correction’ rather than guilt. [5]

Heresy was a ‘mixed’ case, and dealt with by both secular and spiritual jurisdictions, though the knowledge of its offensiveness was spread through canon law. [6] Because archbishops and bishops had ordinary jurisdiction, provinces and dioceses were where heresy cases could be judged. [7]. However, inquisitors could exercise their own jurisdiction and self-governing bodies such as universities also had a duty to discover and punish heretics. [8] Additionally, as the protector of the Church, the Crown was obligated to resist heresy. [9] The Fourth Lateran Council reiterated the necessity of secular rulers to help the church against heretics, and they could be compelled to swear an oath to defend the faith; if they refused to do so, they risked being excommunicated. [10]

This intersection of the Church and Crown’s jurisdiction led to the four stages of the prosecution of heresy (detection, arrest, trial and punishment) being divided between the Church and secular branches of power. [11] The Church oversaw detection, the secular arm arrested, the Church would put the accused on trial, and then hand them back over to the Crown for punishment. [12]. Generally, it seemed as those the Church’s role in the prosecution of heresy was more prominent; the gloss to the Liber sextus stated that though the Crown must offer it’s assistance in the logistics of investigating, capturing, imprisoning and punishing heretics, it could not have a role in judging heresy because some aspects of the crime only related to the Church. [13] This is in line with the definition of heresy itself; as it is more a crime of morality, ecclesiastical courts and judges may have been better positioned to give the accused opportunities to repent and ‘turn back to God’ than their secular counterparts.

You might have thought that no inquisitorial courts existed in England because of the lack of a colourful Spanish Inquisition-style movement. Heretical convictions in England, unlike on the continent, were not brought about by confessions obtained through torture; I think I’m right in assuming that’s what we think of when the Spanish Inquisition is brought up. I was interested in discovering why torture doesn’t seem to feature so prominently in this part of English legal history, so did some follow-up research; I apologise if I divert a little from your original question in doing so.

As Langbein describes, the use of torture on the continent (and subsequently as was used during the Spanish Inquisition) developed as a judicially supervised feature of European criminal procedure, used to corroborate circumstantial evidence. [14] This procedure developed as a response to the high standard of proof required for a conviction in a post-1215 world. As Plucknett discusses, up until 1215, the guilt of the accused could be determined with divine certainty through an ordeal blessed and performed by the clergy. [15] The standard of proof achieved through invoking God in such fact-finding was absolute: God does not get things wrong. [16] This certainty was destroyed after the Fourth Lateran Council, where Pope Innocent III forbade clergy from being associated with ordeals. [17] Without the intervention of God, certainty was removed from a trial, and a judicial hangover created; human judges could not achieve divine certainty in criminal adjudication. [18]

In lieu of absolute certainty, the Italian Glossators designed a system of proof so objective that it was entirely unworkable; convictions had to be based on the eyewitness testimony of two impeachable witnesses to a crime. [19] Circumstantial evidence alone would not suffice. Without this testimony, only a voluntary confession could bring about a conviction. [20]

Langbein argues that because the eyewitness rule was difficult to implement, coercing a confession from someone who was suspected anyway became the norm. One eyewitness, or circumstantial evidence, was enough to justify torture, with the reasoning being that an innocent man would not confess to a crime he had not committed. [21] Additionally, rules developed to enhance the reliability of the confession; the accused would need to disclose factual details of the crime, things no innocent man would know, and the examiner was not permitted to engage in leading questioning. [22]

Whether these rules were genuinely and judiciously applied is subject to debate, but the use of torture in heretical cases on the continent is not unsurprising given how difficult it would be to prove someone’s unorthodox beliefs non-circumstantially. However, I believe that England did not follow the Italian Glossator’s standard of proof due to the development of the jury trial, in lieu of trial by ordeal. Putting aside the fact that the Magna Carta prohibited the use of torture, the development of the jury trial in England meant that confession, and consequently torture, were not necessary devices to establish guilt in medieval England. Instead, a jury would evaluate facts and could condemn on the basis of circumstantial evidence; the unanimity of twelve being all the standard of proof required for conviction.

Forrest in the entirety of his book does not mention torture being used on those accused of heresy in England, other than in 1309 when two Papally-appointed (i.e., continental) inquisitors arrived in England to oversee the interrogations of the Templars. [23] Notably, the only time when something approaching torture is mentioned in England’s regular judicial mechanisms was in forcing defendants to submit to a trial by jury; peine forte et dure. If a defendant refused to enter a plea, he would be placed between two boards and have weights stacked upon him until he accepted trial by jury or died. [24] Otherwise, the use of torture in England seems to have been minimal, or at least mentioned relatively less often in comparison to the continent.

I would be grateful if anyone had any additional comments or research to add.

[1] Ian Forrest, The Detection of Heresy in Late Medieval England, 20 (2005) [accessible online at http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199286928.001.0001/acprof-9780199286928]

[2] id. 23

[3] id. 15

[4] id.

[5] id. 18-19

[6] id. 20

[7] id. 28

[8] id.

[9] id.

[10] id. 31

[11] id. 32

[12] id. 32-33

[13] id. 33

[14] John Langbein, “Torture and Plea Bargaining,” 46 U. Chi. L. Rev. 4, 5 (1978) [accessible online at http://digitalcommons.law.yale.edu/fss_papers/543/]

[15] Plucknett, 114

[16] Langbein, 4

[17] Plucknett, 118

[18] Langbein, id.

[19] id., 4-5

[20] id., 4

[21] id., 5.

[22] id., 7

[23] id. 24-25

[24] Plucknett, 126

-- AshleighHunt - 16 Oct 2014

Part One: The Rise of Protected Confession

Shame And Guilt

Ruth Benedict, in The Chrysanthemum and the Sword, popularized a distinction between shame cultures and guilt cultures, distinguishing the extent to which a culture controls the conduct of its members by social repercussions versus individual conscience. She created this distinction to explain differences in the psyches of Japanese and Americans in the context of the Second World War, but its explanatory power reaches far beyond that. In places with strong continuity of community and where individuals are readily forced to account for themselves to the community, shame is a powerful motivator. South Asian microfinance pioneers build a successful business model around shame: New loans could not be given out until existing borrowers were shamed into repaying. The only problem with this business model was that shame was potentially too powerful, resulting in numerous suicide clusters when people could not repay their debts.(1) When social shame is not as functionally capable for the control of conduct due to possibilities of privacy, disintegration of community, or other social practices that limit the tyranny of the village, guilt culture develops as an alternative to maintain control over individual behavior. The individual conscience - a self, a mental component of the individual, the super-ego, becomes a stand-in for the panchayati raj. The individual learns to subject their own future and past conduct to critical examination. Common to the development of guilt culture is the idea that, through being accountable to the self, one reaches a higher plane of moral development(2) than Oliver Wendell Holmes's "bad man" who merely fears the social and legal consequences of his actions.(3) When properly functioning, guilt reduces the need for law and shame by allowing individuals, acting in private, to regulate their own conduct.

The first objection of econodwarfs and scoundrels to the operation of guilt in society was immortalized by Plato in his telling of the Ring of Gyges story in The Republic - someone truly immune to unwanted consequences, someone with magical privacy that operated perfectly and inviolably, would be a thief and a rapist and probably even a murderer.(4). This criticism was later echoed by English materialist Thomas Hobbes, in his work Leviathan, in 1651. What Hobbes implicitly revealed is that guilt was reinforced through England's Christianity - the social shame internalized into the conscience is re-externalized, not into the community, but into a divine and omnipotent being who ensures final justice for all actions, causing a Holmesian bad man to abide by the dictates of morality so long as he believes, regardless of his innate inclinations. But, in the tradition of Aristotle's golden mean, and akin to its cousin shame, guilt may be too strong as well as too weak. When the guilt response towards a part of ourselves becomes too powerful, a paralyzing non-acceptance of that self results, preventing the integration of multiple personality states, and with consequences potentially no less destructive than severe shame. Christianity centers not on the prevention of moral guilt through upright conduct, a position more closely associated with Judaism and Islam, but rather on the absolution of guilt which is declared to exist in everyone.

The Rise of the Box

In a Europe where Christianity was principally governed by one holy catholic and apostolic church with its associated canon law, the priesthood created power for itself by requiring its presence and participation in the sacraments. The marking points of human life, birth, marriage, and death, were not to take place without a member of the priesthood - the Catholic sacraments of Baptism, Marriage, and Last Rites. But the most powerful and most frequent of the miracles performed by the priesthood involved the twin sacraments of guilt - Confession and the Eucharist itself. By going into a box with the priest and confessing one's sins, the priest had the power to grant penance, which, when completed, resulted in one's absolution, purified once again and free to accept the body and blood of Christ through the Eucharist. During English power struggles between the Church and the Saxon throne, the tightrope between ecclesiastical forgiveness and secular punishment was carefully navigated. King Alfred's laws declare "If any man seek a cloak for those offenses which have not yet been revealed, and then confess himself in God's name, let it be half forgiven," creating a weak secular parallel to the the idea of forgiveness and penance through self-initiated confession. At the same time, because of the immense psychological and religious importance of absolution, access to the confession became a sacrosanct matter guaranteed to even the worst villains of England. In conjunction with the English synod and the Archbishop, King of the Anglo-Saxons Edward the Elder, Son of Alfred the Great declared around 921 A.D. that "If a man guilty of death desires confession, let it never be denied him"(5)

However, for the priesthood to manifest distinct power over the miracle, and for the higher moral plane of guilt to continue to operate as intended, a confession to a priest must possess secrecy. The Ecclesiastical Council of Durham in 1220 declared " "A priest shall not reveal a confession-let none dare from anger or hatred or fear of the Church or of death, in any way to reveal confessions, by sign or word, general or special, as (for instance), by saying 'I know what manner of men ye are' under peril of his Order and Benefice, and if he shall be convicted thereof he shall be degraded without mercy." As a protection against a centralizing state and a guarantee of a unique role for priests as purveyors of absolution, the power of the priest to grant holy absolution and hear confession must be protected from outside interference.(6) In this way, the genesis for a parallel system of penance and absolution outside of the King's Justice allowed for a specific domain of power for the priesthood even amidst English centralization of law and secular power.

Part Two: Confession's Fall And Conspicuous Continuing Absence

In the present day and for the past hundred years, England does not recognize a priest-penitent privilege protecting religious confessions, and only conversations involving legal advice are privileged.(7). This fall involves both a change in religious institutions, as a state church formed which did not utilize individualized confession, and a legal change as the canon law protecting the seal of confession was undermined by the evolving common law.

Edward Coke's Coup

Legally, benefit of clergy was a provision which evolved out of secular courts lacking jurisdiction over ecclesiastical officials, and evolved into a sort of system for lesser sentences for literate or well-off first-time offenders. However, benefit of clergy was understood not to apply to high treason, the highest category of criminal offence in the common law of England.(8) Edward Coke argued in the second part of the Institutes that a similar exception had always held for the law of the seal of confession: such information was not confidential or privileged in instances of high treason. However, the one pre-Reformation case he cites, the case of Friar John Randolph and Joan of Navarre conspiring to murder Henry V, does not seem to prove this was an accepted rule of common law, as Randolph confessed to direct involvement in the conspiracy and a confession under the law of the seal does not appear to have been at issue in the case.(9) The actual first case creating a high treason exception to the law of the seal of confession appears to be one prosecuted by Edward Coke himself, the trial of Jesuit father Henry Garnet for hearing of a confession to the 1605 Gunpowder plot. The Gunpowder Plot and resulting trials were massive public spectacles which entranced the public and are still commemorated to this day in England(10) with illustrated manuscripts of the trials being printed and references being made to conspirators in popular plays at the time, including Macbeth. Ironically, the issue could not have arisen with an Anglican priest, as the 113th Anglican canon passed the prior year contained both a weakening of the seal of confession and an explicit treason exception to it, so religious privilege in treason cases already could not be claimed by Anglican priests(11). Ultimately, after canon law had been edited to break the seal of confessional when plots against the monarchy were at issue, Edward Coke edited the treason exception back into the common law regarding the seal of confession.

The Decline and Fall of Confession

The broader legal context for both the Gunpowder Plot itself and the waning of confession in general involves the proscription of Catholicism in the wake of the founding of the Church of England as a distinct body headed by the English Monarchy. Elizabeth's Acts of Uniformity required participation in Anglican services and following the Anglican Book of Common Prayers with penalties of fines or imprisonment by 1559(12). Two hundred years prior, John Wycliffe's most dangerous assault on the power of the Catholic church was a dispute of the truth of transubstantiation, the miracle of the Eucharist.(13). The 1559 Act of Uniformity required all churches legally operating in England to use the 1552 Book of Common Prayers, which contained a passage known as the Black Rubric explicitly denying transubstantiation. "And as concernynge the naturall body and blood of our saviour Christ, they are in heaven and not here."(14) The greatest miracle of the clergy was outlawed, and the second-greatest, of confession, penance, and absolution, suffered a slower decline. While not explicitly proscribed in 1559, the 1552 Book of Common Prayer shifted confession to be a part of the collective act of the Christian Mass(15). The 1662 revision of the book created after the restoration of the Stuart Monarchy included, as compromise with Presbyterians and reformists, commentary stating that confession and absolution cannot be given at the pleasure of the priest and are not sacramental to the Church of England.(16). Essentially, the priest could judge that an individual was likely to be absolved because of their contrition and penance and say "I pronounce thee absolved", but could not grant or deny absolution at their pleasure.

Privilege's End

Consequently, the Anglican faith did not hold confession in the same spiritual and absolute regard, and the Catholic faith which did was marginalized, and technically if not entirely illegal at times, leading to a decline in private confession as an English social practice. In the Seventeenth and Eighteenth centuries, likely due to the active persecution of Catholics, I cannot find any legal cases specifically about priest-penitent privilege, but the cases dealing the final deathblow to priest-penitent privilege in England ironically emerge during the early nineteenth century period of Catholic emancipation, most notably _R. v. Gilham_(1828). This line of cases came to stand for the proposition that confession had never been protected in English common law, and to the extent it was privileged, had only been privileged by canon law. Some detractors fought valiantly to argue this was a misinterpretation, notably Jeremy Bentham in his 1827 discussion of proper rules of evidence in English law.(17). While some Catholic and Mormon sources continue to maintain to this day that this line of cases is misconstrued(18), from the early 20th century onwards legal texts summarize that there is no priest-penitent privilege in the English common law at all.(19)

Part Three: Jeremy Bentham's Body Lies A-Mouldering On A Chair

Does recognition of the Sacred precede its regulation?

The motivation for the prior two parts of history is the present. A new box is emerging. It contains not only our regrets and fears, but also our hopes and dreams.(20) The scope of the priest in confession is prescribing a particular penance, one specific behavior that can lead to absolution. The tracking search engine, on the other hand, plumbs the psyche and aims to produce desired results that lead to a never-ending loop of behavior and consumption. On the other hand, the search engine, like the confessional, has real positive effects in society; Exposing as much of the knowledge in the world as possible to everyone is a a re-enactment of Wycliffe's translation of the Bible into English on a secular and cosmic scale. Consequently, the first demand in the context of the search engine may parallel the first demand relating to confession in English law: if a man desire it, may it not be denied to him. Already, the Indian state of Kerala has declared that internet access must be denied to no one, and free WiFi? must be available across the land in the same way parishes open to hear confessions were made available, and not the pseudo-internet walled garden of Free Basics.(21)

Perhaps, to recognize the sacredness and inviolability of the box, the first step is always to recognize it is so indispensable for our certain form of life and character that access must be granted to everyone. We may even come to recognize doing generally expected research via search engine to fall under a duty of due care, in the way the Councils of the 13th and 14th centuries sought to declare confession obligatory. Perhaps we already have, as the idea of performing research without search tools is viewed as obsolete and insane. The idea that everyone ought to have access to the box is a relatively easy sell, but the box itself, in a way, exists in a state of Anglicanism. Nominal state control and the government being allowed inside the box is an accepted compromise for the protection and non-liability of the owners and the operators of the box.

Do the old masters have lessons for today?

The best stepping-off point from the recognition of the box as sacred and owed to everyone seems to be the development of a set of understandings, developed through both practical social and philosophical reflection akin to the ecclesiastical councils of the 12th-14th centuries.(22) If a box is sufficiently sacrosanct to be owed to everyone, ideas about what make it sacred and what about the relationship is so essential to make it inviolable even by the secular force of the state are necessary. This is because without a theological perspective on what is sacred and inviolable about the relationship, exceptions for what serves the interest of the state will be made, and those exceptions will have no real boundaries to prevent them from overrunning everything. For the priest to disclose by sign or word the confession, to blame or accuse in courts of the King, undermines the ability of the priest to serve as the direct conduit to the forgiveness of God. The practical infinity of information available through the box is, in its own way, the mind of God. Jeremy Bentham thought the chilling effect of every word not confessed to the priest was an epistemic injustice upon humankind, where the great mass of evidence for all things would be permanently lessened if the box did not keep its secrets.(23) Perhaps a correct tactic moving forward is to hold that learning is so sacred it cannot be chilled by the prospect that what one sought to learn should be used against them later.

Alternatively, the anticlerical ideas of protestants like John Milton may hold some sway. Who is great-souled enough to act like an absolute intermediary between man and God himself, and who is so puny as to need an intermediary?(24) In the pamphlet Of True Religion, Catholicism is vile most of all because it takes implicit authority by standing between Man and God and uses that authority wrongly, leading the gullible members of the congregation astray.(25) In this way Cambridge Analytica can be seen as no more than a rogue bishop exploiting a corrupt system which is always executing a man-in-the-middle attack between Man and God. Yet, this idea need not solely protestant - Dante reserved the final two circles of Hell in lower Cocytus for traitors to their guests and traitors to their benefactors. The Free Software Movement began because Richard Stallman saw a deep profanity in a program disrespecting the user. And he saw the sea shifting away from programs wholly executed by the user to Service as a Software Substitute. What of the service which betrays its guest, its lord and benefactor? If we come to see it as an offense worthy of the lowest circles of Hell, legal protections will materialize. And if the relationship with the box is schizophrenically viewed as casual or insignificant when it is anything but, the legal protections will continue to wither away here, too.

-- JoeBruner - 06 Apr 20

Notes

1 : http://www.thehindu.com/business/Rising-suicides-force-AP-ordinance-to-check-microfinance-firms/article15780132.ece

2 : Revisiting Shame and Guilt Cultures: A Forty-Year Pilgrimage, Millie R. Creighton, Ethos, p. 280

3 : Oliver Wendell Holmes, Path of the Law, passim. https://www.gutenberg.org/files/2373/2373-h/2373-h.htm

4 : Republic, 2:359a–2:360d

5 : Reeves's History of the English Law, p. 51

6 : Wilkins, "Concilia", I, 577, 595

7 , 19 : Halsbury's Laws of England, vol. 31, Privilege

8 : Pollock and Maitland, p.446

9 : Religious Confession Privilege and the Common Law, A. Keith Thompson, p. 48-50

10 : see, e.g., https://www.bl.uk/collection-items/the-trial-of-henry-garnet-1606

11 : Thompson, p.77

12 : https://history.hanover.edu/texts/engref/er80.html

13 : John Wyclif, Denying Transubstantiation, Stephen E. Lahey and De Eucharistia, John Wycliffe

14 : And as concernynge the naturall body and blood of our saviour Christ, they are in heaven and not here.

15 : An Introduction To The History Of The Successive Revisions of the Book of Common Prayer, James Parker, 1877, n53, https://archive.org/details/thesuccessivere00parkuoft

16 : , ibid, p. 306

17 : Rationale of Judicial Evidence, Bentham, 1827, Chapter 6 in its entirety

18 : See, e.g., The Catholic Encyclopedia on Law of the Seal of Confession in England, or Thompson, introduction

20 : Freedom of Thought Requires Free Media, Eben Moglen

21 : https://www.independent.co.uk/news/world/asia/kerala-free-wifi-india-state-citizens-basic-human-right-internet-a7631461.html

22 : See, e.g., discussion of the 1220 Council of Durham in the Conclia Scotiae, vol. 113, p.270

23 : Bentham, Ch. 6, p. 51-52

24 : Both Milton's anticlerical tracts and the Areopagitica itself touch on these ideas.

25 : Of true religion and false politics: Milton and the uses of anti‐Catholicism, Ray Tumbleson, Prose Studies, 1992 Vol. 15 p. 260

Lane v. Cotton

What is the context and contemporary significance of Lane v. Cotton, 1 Ld. Raym 546 (1701)? Why is it relevant to the law of Internet infrastructure in the US?

Teo and I will take this topic!

-- JaneS - 06 Nov 2008

Summary of Case

A postmaster is not answerable for packet delivered to clerk at post office which was subsequently opened and from which enclosed Exchequer bills were removed. Receiver of packet, Underhill Breese, was appointed by postmasters who were placed in their positions by letters patent of the King. Nonetheless, Breese is paid from revenue of post office and is an officer of the King, as opposed to a deputy to the postmasters.

The judges’ reasons for determining that the postmasters were not liable for the loss included: 1) post is there to promote trade and the Act erecting it (Act of 12 Car. 2, c. 35) is not regarded as creating absolute security for dispatches; 2) clerk though appointed by the postmasters had charge and trust of himself and is not a deputy to the defendants; 3) relevant statute includes provision providing for penalties of postmasters and statute did not intend that they be liable to private actions; 4) nature of post office doesn’t allow for protection of individual letters, as the office is too extensive and rushed with many people having access; 5) reward for postmasters is too small in proportion to the hazard; 6) clerk exceeded his authority in accepting the bills where his trust is only to carry letters; 7) concern about creating opportunities for fraud; and 8) statute lays out price tied to size and weight of packet and thus there is no consideration for value of content.

Analysis

One of the reasons for this case’s significance is the influence of Chief Justice Holt’s dissenting opinion, which advances a notion of public employment and a broader vision of employer liability than envisioned by the other justices. In Lane, Holt argues that the postmaster’s situation should be analogous to that of the innkeeper and carrier (1 Ld. Raym. 646, 652—53), and he draws analogies to the responsibilities of the sheriff and gaoler for prisoners and impounded goods (651). He specifically argues that non governmental officials in public office (e.g. ship captain and inn keeper) were strictly liable for loss and thus, it would be anomalous to immunize a public servant whose office was created by statute as a means of protecting the public (12 Mod. 473, 485). Furthermore, prior to the establishment of post office, any person who erected a post office would be liable for miscarriage and thus, in Holt's opinion, subjects who are now locked into using the services of this postmaster general shouldn’t be deprived of a remedy that they previously had (12 Mod. 473, 488).

Notion of Public Employment

The dissent in Lane v. Cotton is seen as expanding liability by advancing the notion that people who hold themselves open to the public take on a duty to serve. Joseph Singer bases this view in part on Justice Holt’s assertion that, “where-ever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under the pain of an action against him.” Joseph Singer. No Right To Exclude. 90 Nw. U. L. Rev. 1283 at 1306, citing 88 Eng. Rep. 1458 (K.B. 1701) at 1464 (Holt, C.J., dissenting). Holt asserts that one in the public employment can not refuse the duty incumbent upon him and that there would thus be causes of action for a postmaster refusing a letter, inn keeper refusing a guest or blacksmith refusing to shoe a horse (12 Mod. 473, 484). Importantly, the existence of alternative means by which the public could accomplish these tasks would not be a valid defense (12 Mod. 473, 488).

Singer claims that Holt advances this notion of public duty only in very broad strokes: “Holt does not explain what a ‘public employment’ is except to say that it involves taking on a ‘public trust’ for the benefit of one's fellow subjects or ‘a trade which is for the public good.’ The notion of public employment is refined in a subsequent case, Gisbourn v. Hurst, which takes up where Holt left off. In Gisbourn, holding oneself open to the public (by engaging in a common calling) immediately meant that one was engaged in public employment. Singer at 1306—07 citing 91 Eng. Rep. 220 (K.B. 1710).

Employer Liability

Justice Holt’s dissent in Lane v. Cotton is also significant because of its treatment of employer liability. One may view his opinion as an expansive attempt to hold employers responsible for the acts of their employees.

In the court opinion, Justice Gould denied any notion of employer liability for the acts of a negligent employee, seeing the defendants as “a community of officers acting in several trusts; and every one shall answer for himself, not one for the act of another” (648). Holt describes Justice Powis as being of the same opinion: “My brother Powis says, they are all fellow-servants; that is, the post-master and letter-carrier, because they all receive their salaries from the King.” 88 Eng. Rep. 1458 at 1467. The court thus finds that the servant may be held responsible for the loss, but the head of the department in question may not.

Holt, disagreeing with this result, attempts to justify his position upon the relevant statute, arguing that the post office position (as created by statute) is similar enough to that of a sheriff that it must be presumed the postmaster would have similar liability. He states “it must be presumed the Act designed the new officer should be liable; for why else should they make it so like in reason [to other offices such as that of the sheriff]” (1468). He also looks to the design of the statue, pointing out that one clause holds the postmaster responsible (and subject to forfeiting five pounds) for any failure to get horses, even though that is a task the statute also assigns to his deputies (1468).

Although Holt finds basis for his opinion in the statutory language, it seems that he is more influenced on public policy grounds. He views employers as in a position of power and responsibility over their employees: “here the defendant hath the power in him to manage the office by himself, his deputy or servant; and every deputy or servant is by him that puts him in, and therefore he ought to answer for him (1467). When he compares the office of postmaster to other callings, he offers a public policy rationale: “the same reason holds to charge them in this case as to charge carriers, inn-keepers, and such like, videlicet, the great inconvenience which would otherwise ensue, by reason of the dangerous temptation and opportunity they would lie under to imbezil goods intrusted to them, without possibility of proving a particular neglect” (1469).

Sir William Holdsworth argues that Holt’s dissent in the case should be viewed in the context of a larger movement to establish employer liability, which he credits to Holt’s opinions in that time period. In earlier cases, Holt espoused a broader vision of employer liability than his fellow justices. For example, in Boson v. Sandford (1691), he stated the principle that “whoever employs another is answerable for him, and undertakes for his care to all that make use of him,” and in Turberville v. Stamp (1689) he found liability because “if my servant doth anything prejudicial to another, it shall bind me, when it may be presumed that he acts by my authority, being about my business.” William Holdsworth. A History of English Law, Vol. 8 at 474, citing Boson v. Sandford, 2 Salk. 440 and Turberville v. Stamp , 1 Ld. Raym 264. In both cases, the court found for the plantiff on narrower grounds.

More on Liability and Agency

The case is also credited with confusing subsequent efforts to create and sort out distinctions between misfeasance, malfeasance, and nonfeasance in principles of liability. 20 A.L.R. 97 at pg. 24—25 of attachment. Holt’s opinion in the case is also considered the basis for Judge Story’s formulation of liability: “The agent is also personally liable to third persons for his own misfeasances and positive wrongs. But he is not, in general (for there are exceptions), liable to third persons for his own nonfeasances or omissions of duty, in the course of his employment. His liability, in these latter cases, is solely to his principal, there being no privity between him and such third persons, but the privity exists only between him and his principal. And hence the general maxim as to all such negligences and omissions of duty is, in cases of private agency, ‘respondeat superior.’” 20 A.L.R. 97 citing Story, Law of Agency § 308.

Relevance to the Law of Internet Infrastructure in the United States

This case ties directly into the question of the extent to which the government should influence the development of communications infrastructure (ranging from the post office to the internet) and the subsequent liability of a government employee engaged in such public employment. The government can play a role in the provision of communications infrastructure through direct provisions or more indirectly through the regulation or subsidization of private actors. In 19th C England, the post was established and a remedial mechanism was created through the Act of 12 Car. 2, c.35. Today, here in the United States, arguments are being made to similarly nationalize the internet. For instance, Google chief scientist Vint Cerf recently suggested that the Internet infrastructure should be nationalized, arguing that

“… the Internet is in some ways more like the road system than telephone or cable. These are essentially single purpose networks, each built for a particular application. … Manufacturers are free to invent and sell vehicles suitable for use on the road system. Builders are free to construct buildings, homes, offices, manufacturing plants that use the road system. But the road system itself is not owned by the private sector and its use is essentially open to all. The question is whether incentives can be found that would produce a similar effect for broadband Internet provision… ” Jim Harper, Cerf: Nationalize the Internet?, Technology Liberation Front (June 28, 2008) (http://techliberation.com/2008/06/27/cerf-nationalize-the-internet)

Those in favor of nationalizing the internet argue that nationalization will provide open, end to end architecture, where no particular party controls access, and increased internet access is generally available. Matthew Dunne. Let My People Go (Online): The Power of the FCC to Preempt State Laws That Prohibit Municipal Broadband, 107 Colum. L. Rev. 1126 at 1127.

Currently, under the 1996 Telecommunications Act, the FCC distinguishes between two relevant categories of entities. Those providing: (1) telecommunication services: “offering ... telecommunications for a fee directly to the public ... regardless of the facilities used,” 47 U.S.C. § 153(46) which are subject to mandatory regulation under Title II of the Communications Act of 1934 as common carriers and (2) information services: “offering ... a capability for [processing] information via telecommunications,” 47 U.S.C. § 153(20) which are almost completely outside the scope of the Act. Importantly, the FCC has classified both cable broadband and phone company DSL services as “information services”, because companies offering such services merely use telecommunications to provide end users with information services. (Broadband: National Cable & Telecommunications Ass'n v. Brand X Internet Services, 45 U.S. 967, 968 (U.S.,2005) (upholding FCC declaratory ruling: In re Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, 17 F.C.C.R. 4798, GN Docket No. 00-185 March 15, 2002; DSL: In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-52, 02-33, 01-337, 95-20, 98-10, Report and Order and Notice of Proposed Rulemaking, FCC 05-150, released Sept. 23, 2005, para. 5) As information services, broadband and DSL operators are not subject to common carrier regulations and can thus act as gatekeepers, denying consumers access to certain services and steering them towards their preferred applications. Had they been subject to Title II regulations, as common carriers, they would have been prohibited from making any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services… 47 U.S.C. § 201.

Although the FCC has ruled that broadband and DSL service providers are exempt from Title II regulations, the FCC has indicated a willingness to consider “adopting any non-economic regulatory obligations that are necessary to ensure consumer protection and network security and reliability” under its Title I authority. In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-52, 02-33, 01-337, 95-20, 98-10, Report and Order and Notice of Proposed Rulemaking, FCC 05-150, released Sept. 23, 2005, para. 111. The FCC has also issued the following policy statement, aimed at preserving and promoting the vibrant and open character of the Internet. Policy Statement: In The Matters Of Appropriate Framework For Broadband Access To The Internet Over Wireline Facilities, 20 F.C.C.R. 14986 CC Docket No. 02-33 September 23, 2005. This statement highlighted the following four principles which the FCC will incorporate into its ongoing policymaking decisions:

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network

- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers

Policy Statement: In The Matters Of Appropriate Framework For Broadband Access To The Internet Over Wireline Facilities, 20 F.C.C.R. 14986 CC Docket No. 02-33 September 23, 2005.

Thus, in conclusion, at present the liability of a cable broadband or DSL provider under federal regulations is relatively limited and in no way approaches that imposed on a common carrier under Title II of the 1934 Communications Act.

Conclusion

Lane v. Cotton is in part a debate over the requirements and liability of parties providing public services. This debate concerns the modern infrastructure of the internet because the open nature and free character of the internet depend upon the liability and requirements of internet service providers. While some have called for the nationalization of the internet to allow for open access free from control, the prevailing system has been established as essentially private in nature. Although the FCC made some commitment in its policy statement to “preserve and promote” the internet’s open nature, the 1996 Act effectively insulates internet providers from the obligations and liability that they would face if they were treated as common carriers.

The same fundamental tension lies at the heart of Lane v. Cotton. While Justice Holt advocated a broad notion of public duty and public trust that would provide liability and ensure proper service of the public, the court ultimately insulated the postmaster from liability. In the realm of internet infrastructure we see a similar result. The Telecommunications Act has shielded internet providers from common carrier status, freeing them from Title II obligations regarding discrimination and exclusion. Common carriage would have provided social value because it necessitated “service on a non-discriminatory basis, neutral as to use and user… [and functioned as] an important element in establishing a free flow of information, neutral as to its content.” (Eli M. Noam. Will Universal Service and Common Carriage Survive the Telecommunications Act of 1996? 97 Colum. L. Rev. 955, 963). Instead of imposing protective restrictions on service providers, current internet infrastructure in the U.S. limits their liability instead.

-- JaneS - 22 Dec 2008

-- TeoTokunow - 06 Dec 2008

• You did an excellent job understanding one aspect of the contemporary significance of Lane v. Cotton, which I meant to be resolved in a throw-away paragraph, so far as your own research into the original elements of the case went. But, because you read somewhat narrowly the context of the case and in that scope understood the law it made, or that Holt tried to make, your grasp of its contemporary significance largely concerned infrastructure development. Because you went no further into the history than Holdsworth, which is sometimes a good starting point but never a good stopping point, the relevance of Charles II's giving the Post Office franchise to his brother, the Duke of York, later James II, whose efforts to create a system of political surveillance through opening the post--which is the actual hidden subject of the case--escaped your attention. Seen as a case about liability for spying on communications through public/private allocation of responsibility, there were other recent analogies that might have been drawn.

• In short, while you didn't get it all, you undertook substantial effort and learned plenty. That deserves very positive evaluation. Thank you.

• FCC_declaratory_ruling_on_Broadband_Cable.pdf: FCC Declaratory Ruling on Broadband Cable

• FCC_declaratory_ruling_on_DSL.pdf: FCC Declaratory Ruling on DSL

• National_Cable_v._Brand_X.pdf: National Cable v. Brand X

• Policy_Statement_regarding_Broadband_access.pdf: Policy Statement Re Broadband Access

Introduction

The Case

The defendant(Chandelor) was a goldsmith and had a special knowledge in precious stones. This Defendant owned a stone which he affirmed to the Plaintiff Lopus was a bezar stone and sold it to Lopus for 100 pounds. Lopus subsequently found that the stone possessed no healing powers and sued Chandelor before the King’s Bench. Defendant pleaded not guilty, however a judgment was entered for the plaintiff in the King’s Bench.

The court in the Exchequer Chamber reversed the decision on a procedural point claiming that the plaintiff (Lopus) had not alleged or proven that the defendant had actually warranted the stone to be a bezar. The court claimed that “the bare affirmation that it was a bezar-stone, without warranting it to be so, is no cause of action: and although [the defendant] knew it to be no bezar-stone, it is not material; for everyone in selling his wares will affirm that his wares are good, or the horse which he sells is sound; yet if he does not warrant them to be so, it is no cause of action, and the warranty ought to be made at the same time of the sale.” Chandelor v. Lopus, 79 Eng. Rep. 3. Anderson, J., dissented in part yet affirmed the outcome. He argued that the deceit in selling the stone as if it were a bezar stone, when it was not, was indeed a sufficient cause of action for the plaintiff.

The Holdings

1) The court held that the quality of the bezar stone, which the seller had not expressly warranted, is a risk the buyer must assume and

2) That there was no fraud in selling the stone as a bezar, so long as the seller did not expressly warrant it to be one.(The court found the mere affirmation that the rock was a bezar was not enough for it to be a promise or a warranty.)

The Historical Context of Chandelor v. Lopus

In order to fully understand the legal theory at work in Chandelor, it is important to have a brief understanding of the contractual formats and remedies available for plaintiffs as well as their limitations. The language used to enforce what we would consider contractual agreements, was very specific at the time and the manner in which a complaint sounded would dictate jurisdiction and largely the outcome.

Historically, before the introduction of Assumpsit, contractual actions in English law were Debt, Detinue, Account and Covenant, which were all based on non parol formalize contracts.(James Barr: The History of Parol Contracts Prior to Assumpsit) The most important contractual theory for our immediate case was the action in Covenant. As it applied to merchant transactions and everyday commerce, Covenant was the most common contractual complaint. “Before 1200, there was a royal writ in the form of praecipe to enforce covenants, and the formula settled in the 13th century was ‘order the defendant to keep the covenant’ made between him and the plaintiff,” however by “1321… royal judges had decided that the only acceptable evidence of a covenant in the royal courts was deed-a written document under a seal.” (J.H. Baker, An Introduction to English Legal History pg. 318)

In addition to the procedural requirements which made covenant a difficult claim to prove, claimants were also limited by the remedies offered by the action. The formulaic remedy, ordered the defendant to keep the covenant contemplated, therefore requiring specific performance. (Ibid) While covenant proceedings shifted in later years allowing more liberal remedies, at the time of Chandelor, their rigidity made them a difficult form of action for medieval claimants. As applied to the facts of the Chandelor case, it is evident how specific performance was not ideal. In the arena of merchant transactions, where one simply wanted a refund, specific performance was not the choice remedy and left the medieval plaintiff with few options.

Warranty, Tort and Covenant Parallels

In contractual cases of misfeasance, or where an undertaking was made, and performed poorly the courts began to uphold these actions as a tortuous action of trespass, which did not need to be proven by deed. “The cases of 1374 and 1388 show that, although action layed for the wrong, the undertaking was recognized both as covenant and as being part of the cause of action…where trespass was brought for an act of misfeasance, and no one suggested that there should be a deed. ” (Baker,331) Where plaintiffs would be barred from bringing claims under the older contractual notions of covenant, the court’s shift turned on the separation of these claims into parts sounding in contract and others sounding in tort. Where a plaintiff complained not of the failure to perform a contract, but its impartial or poor performance an action of trespass was available for the suffering of the plaintiff due to his poorly performed result. (Brown, 332) This action concurrently evolved with the contractual action of Assumpsit, which eventually provided remedy for poorly performed undertakings.

Medieval Warranty

The first tort actions of deceit were for breach of express warranty where the defendant knew the warranty was untrue. These actions first appeared in the last quarter of the 14th century. (Kevin M. Teevin, A History of Anglo American Common Law of Contract pg. 135) Much like the procedural requirements of actions in covenant, “sales of unfit goods were not a deceit unless there was an express warranty, and this lack of actionability was reinforced with the emergence of the doctrine of caveat emptor.” (Ibid)

Caveat Emptor

Due to an increasingly impersonal market place, sellers were often unable to be contacted for complaint if a sale did not satisfy a buyer. The result was the rule caveat emptor which stood for the principle that unless expressly warranted, a buyer would be responsible for purchasing unfit goods. This policy helped to streamline complaints that could be brought to the common law courts, and also to expedite commercial transactions which were becoming increasingly faceless. The court in Chandelor, demonstrated the depth of the caveat emptor line of legal thinking. The case demonstrated that “if there is no warranty… an action on the case does not lie, even though [the buyer] is deceived.” (Chandelor v. Lopus) The court was clear to draw a distinction between the embellishment of a saleman in hawking their wares and the formalized expression of warranty.

Also clear in this case was that the defendant’s scienter would only be of consequence when there was a direct and express warranty. Although the defendant in the case knowingly claimed the falsity of the bezar stone’s value, the court found the lack of an express warranty dispositive. While the salesman in Chandelor claimed the bezar stone contained magical powers, this assertion was not considered a warranty as it was not evidenced in writing nor were there affirmations strong enough to qualify it as such. The judges noted the importance of the case, in that judicial economy would be wasted by making a cause of action liberally available based on bare affirmation on the part of the seller. This is one of the reasons the court is clear in separating mere puffery in selling an item, from what would be construed as an express warranty.

Chandelor's Aftermath and Convergence with Contract Law

While the earliest warranty cases were tortuous actions (Chandelor being one of which as it was a trespass action)the claim was actually becoming contractual in nature since the question now was whether the defendant was deceived out of his bargain rather than whether the defendant was dishonest.(Teeven, 137) This resembled more of the contractual theories of the time since liability was absolute and by the time of Mansfield a change in the notion of deceit on warranty was clear.

Mansfield saw little difference between breach of warranty sounding in tort and one in contract. The reasoning behind this was that the tort action of deceit on a warranty had been available only for the reliance of the plaintiff entering into a contract with the defendant and the deceit action on a warranty was contractual in theory since the scienter requirement was dropped. The parallel advance of warranty law and contract law converged under Mansfield, as in 1778 in the case of Stuart v. Wilkins, Mansfield declared that an express warranty of quality was enforceable in Assumpsit concluding that a warranty extends to all faults known and unknown to the seller. (Ibid, 138)

Chandelor Extended: The Characters

Chandelor: Occupation: Goldsmith. In European societies at the time of the Chandelor ruling, goldsmiths were one of the most important and lucrative trades in society. They were organized into guilds which established both quality and price control on its members. The guild also included a system of training and education for its artisans. In effect Goldsmiths often acted as bankers, since they dealt in gold and had sufficient security for the safe storage of valuable items. Their work included not only with gold but close association with most precious stones and metals. Chandelor’s occupation as a goldsmith is important for a couple of reasons. Primarily, it establishes his competitive advantage in knowledge of precious stones over Lopus, demonstrates the relative power of his trade, and also serves to demonstrate the common critique that caveat emptor proved most beneficial to the upper class. This critique, as well as large gaps in the ability to garner information about a product have largely led to the demise of Caveat Emptor in modern commercial transactions.

Jan van Eyck’s Portrait of the Dean of the Goldsmiths’ Guild in Bruges demonstrates the lofty social status of Goldsmiths during this time.

Lopus: Occupation: Unknown. As telling as Chandelor’s profession was for historical context, it is equally interesting that the record mentioned no descriptive detail about Lopus, neither citing any experience with precious stones nor describing his trade. Despite extraordinary efforts I have found no such information on him.

Bezar Stone: A Bezoar stone is a mass formed in the stomach of animals that does not pass into the intestine. These stones were largely found from wild goats in Arabia and caused from toxins the animals were introduced to. The stones were largely believed to have special curative powers and were thought to be able to counteract any poison.

Intestinal products such as this were revered as pricey Bezar (Bezoar more commonly) stones.

The Aftermath of Chandelor In US Law

While Chandelor stood for the idea of Caveat Emptor in the English Legal history, Seixas v. Wood is considered its American counterpart effectively incorporating the precedent, however not with its unique importance in the development of the English Common Law of Contract. In Seixas, a merchant sold wood to the plaintiff which had been advertised as braziletto wood. Despite this advertisement, the merchant inadvertently sold the defendant peachum wood instead. The court relies heavily on Chandelor in finding that in the absence of the merchant’s fraud, the plaintiff had a duty to inspect his purchase and to obtain an express warranty from the seller. Seixas v. Wood, 2 Cai. R. 48 (N.Y. Sup. Ct. 1804). Laidlaw v. Organ, a decision written in 1817 by Chief Justice John Marshall, is believed by scholars to have been the first U.S. Supreme Court case which laid down the rule of caveat emptor in U.S. law.

As applied in American Law, Chandelor’s legacy largely put buyers in a considerable quandary. Sellers had little incentive to give express warranties as this would expose them to legal risk. Additionally, buyers were less able to properly inspect the inner workings of increasingly complex and advanced merchandise. The seminal American case which began the demise of the Caveat Emptor doctrine was Hawkins v. Pemberton, 51 N.Y. 198 (1872). Here, the defendant sold bottles labeled “blue vitriol” to the plaintiff and had simply bought the bottles from a supplier and never checked their contents before reselling. The item actually turned out to be of inferior quality and although the defendant attempted to argue that Seixas held as there was no express warranty, the court held that “the rule [in Seixas] has been thoroughly overturned since the courts held that any positive affirmation or representation as to the character or quality of an article sold may constitute a warranty.” Hawkins v. Pemberton, 51 N.Y. 198 (1872). In 1906 the Uniform Sales Act was introduced and adopted by half of the States in the union. It worked to codify the holding in Pemberton, stating that “any affirmation of fact or promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon.” Article 2 Section 12 Uniform Sales Act.

While the complexities of modern commercial transactions led to the demise of Caveat Emptor in most transactions, vestiges of it can still be seen with regards to investments and real estate. The concepts in these trades are moderated by consumer protection and disclosure statutes, but absent actual fraud, these transactions demonstrate the clearest application of the policy behind American ideas of Caveat Emptor- to ensure that buyers inspect and are diligent in their purchases.

Useful Links

James Barr: The History of Assumpsit, Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2086&chapter=158768&layout=html&Itemid=27

James Barr: History of Parol Contracts Prior to Assumpsit. Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2086&chapter=158776&layout=html&Itemid=27

John Salmond: THE HISTORY OF CONTRACT. Select Essays in Anglo-American Legal History, vol. 3 [1909] http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2086&chapter=158778&layout=html&Itemid=27

Attachments

• seixas_v._wood.pdf: seixas_v._wood.pdf

• Hawkins_v._Pemberton.pdf: Hawkins_v._Pemberton.pdf

• Laidlaw_v._Organ.pdf: Laidlaw_v._Organ.pdf

• Chandelor_v_2.pdf: Chandelor_v_2.pdf

I. Introduction

Through contingency, the disempowered in England were able to transform unfreedom into freedom by unifying their might to usurp some power from the ruling classes. In England’s power ladder, the king was theoretically at the top, followed by the peerage and Parliament, and lastly, the commoners. But each rung depended in some way on a lower rung: the king depended on the peerage to raise funds and armies, and the peerage, in turn, relied on the commoners for taxes, labor, and military service. If a lower rung unified in opposition to a higher rung, they could deny that rung’s needs. In these moments, concessions could be forced upon the higher rungs, forcing them to give up some power and redistribute it more favorably to a lower-rung. Unfreedom in England gradually transformed into freedom through incremental concessions forced on the higher-rungs.

II. The Distribution of Power on the Ladder

Power in England was wielded through rhetoric, resources, or unity. Resources were firmly the domain of the peerage, the king could not directly and independently raise an army, impose taxes, or control local affairs. These powers were instead directly wielded by the peerage under the feudal expectation that they were exercised on behalf of the king and their benefits would flow upward to him. Thus, if the king needed money or an army, he had to rely on the barons or Parliament.

Despite this reliance, the king exclusively wielded the rhetorical power to lend his subjects royal legitimacy. The peerage frequently squabbled among themselves for power, and the king’s rhetorical support for one faction or another could be enough to tip the balance in their direction. Once a faction had the explicit backing of the king, dissent became rebellion. Even though those opposed to the king’s chosen faction often had the resources to potentially prevail in a rebellion, victory still meant risking their position and their lives. Furthermore, the legitimacy bestowed by the king’s support helped rally undecided nobles to his chosen faction while at the same time giving dissenters a pretense for backing down. In the constant struggle for power among the nobility, the king’s support could help Davids beat Goliaths and help Goliaths crush Davids. Thus, even though the king alone could not raise funds or an army, those would could needed his support.

But the king and the peers both relied on a lower-rung for power. The king’s economic and military power relied on a supply from the peerage and his ability to empower a faction with royal backing needed a faction to empower. If opposition to the king was united, he would have no independent means of raising funds or an army and no rhetorical power to use as a bargaining chip. Unified, the peers commanded enough resources to credibly threaten the king and make demands on him. But the peers relied on a lower-rung to muster those resources, they needed commoners to pay taxes, work their lands, and populate their armies. When the commoners united against the peers or the king, they too had enough leverage to make demands.

III. Freedoms for the Peerage Won by Contingency

When the peerage unified against the king, they could demand some of his power over them be relinquished. Over time, this transformed the peers’ unfreedom into freedom. For instance, the Magna Carta was issued five separate times by three different kings. The first three times, it was issued to appease a group strong enough to threaten the king. The last two times, it was issued as a concession demanded by the peerage in exchange for new taxes requested by the king. The Provisions of Oxford, establishing Parliament as a check on the monarchy, were only issued to appease the barons who were unified in refusing to raise taxes to help Henry III place his son on the Sicilian throne.

When the throne was empty the unified peerage had even greater leverage. Powerful factions forced insecure claimants to the throne to promise grants of liberty in exchange for their backing. When Henry I claimed the throne without the means to hold it, the barons only backed his claim in exchange for new rights and protections for themselves under the Charter of Liberties. Five hundred years later, the ejection of James VII left no obvious claimant to the throne, and so Parliament offered it to William and Mary, contingent on their acceptance of the Bill of Rights of 1689. With Parliament holding all the cards, the future king and queen replied, “we thankfully accept what you have offered us.”

IV. Freedoms for Commoners Won by Contingency

The commoners also used their leverage to transform their unfreedom into freedom. During the Second Baron’s War, “the barons had been dependent to a considerable extent upon the assistance of smaller landowners who also had to be satisfied by a measure of reform.” These landowning commoners leveraged their position for greater property rights, including regulation of the right of extra-judicial distress, which were later codified in exchange for peace by the Statute of Marlborough.

The least free people in England, serfs, also transformed their unfreedom into freedom by contingency in the century following the Black Death, when severe labor shortages mobilized laborers and enabled them to seek higher wages. Though Parliament clumsily attempted to end this practice with the Statute of Labourers, the leverage the serfs gained was a major blow to villeinage, which effectively ceased by the 16th century.

V. Conclusion

Throughout English history, those in power chose to “buy peace rather than make it.” Thomas Paterson, J. Garry Clifford, & Shane J. Maddock, American Foreign Relations: A History, to 1920: Volume 1 20 (2009). The price they paid was control over people and property. Over time, this power was nickeled-and-dimed away for short-term gains, incrementally transforming unfreedom in freedom.

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Magna Carta

Includes, among other things, essentially jurisdictional rules saying that jurisdiction can't move from the courts of the nobles to the Common Pleas? unless the jurisdiction is waived. (Writ of novel disseisin? effectively overrules this.)

Englishery of English Law

-- By MattConroy - 06 Apr 2018

As an analytical framework arguing that the diversity of origins formed the unique character of English Law does not seem very useful. Were the origins diverse? Yes. Was the law distinct? Also yes. But many legal systems have diverse origins and yet do not seem so very distinct. What matters is that the origins were diverse and then the system was allowed to develop without significant outside influence for several hundred years.

What is the Englishry of English Law?

What exactly is it that Maitland calls the Englishry of English Law? It seems to mean that by the end of the 13th century the English recognized their own law as distinct and "were proud of it". (Maitland, 188) The major piece of this Englishry is a refusal to adopt French law if it is clearly French. ("Foreign novelties from Poitou or Savoy."). It is not necessarily clear if this statement is against foreignness or against novelties.

Defined By Origins

What if we tried analyzing the system using linear algebra. Let's represent any given legal system as a n dimensional vector x for some countable n. Each element of this vector would represent some qualitative weighting of how important some fact, or probably more accurately string of words, weighs into a decision. The social and political background as a whole would operate on the vector as a matrix C. Then through repeated application of the social transformation, the legal system develops over time. For a system to be precisely defined by origins, then the origins would need to completely define both C and x0 where x0 is the legal system at origin. For England this would probably be either 1066 when William became King or maybe 1072 when he consolidated power and left for Normandy.

Linear Algebra Informing Societal Change

In the vector model of a legal system, there are two possible ways to effectuate change. The first is to change the matrix on the left hand side by changing the sociopolitcal reality of the realm. The second way to change it is to simply change it, ie add a vector to the legal system arbitrarily to produce a new one. What happened is that the Englishry of the English Law meant that society was fine with changing the matrix, but not okay with direct substitution inside the legal system vector. This formulation seems to imply that it is the opposition to novelty that makes Englishery, not opposition to foreignness. Most of the powerful are cosmopolitan Normans anyway, not Anglo-Saxons.

Quia Emptores

One of the most important statutes of early medieval England is Quia Emptores of1290. (Baker and Milsom, 9). What this statute did was forbid tenants from subinfuedating when selling a portion of their tenement and they could only substitute. This was a massive change to the social, political and economic structure and English society. But this is legislation and not judge made law. It changes both the legal vector and the underlying matrix of politcal and social concern.

On the other hand, at roughly the same time the legal system is against clever lawyers trying too hard to change the law from within the courts. In 1285, Hengham CJ states "Do not gloss the statute, for we understand better than you; we made it." (Baker, 209). This shows a refusal to change just the legal vector on the whim of a lawyer.

Both of these anecdotes come in the light of Magna Carta of 1215. With this the barons have a say in what legislation gets passed, and England is moving towards the supremacy of Parliament (even if it does not really exist yet). Again Englishery is about avoiding novelty and having a say in governance.

Why is this useful analytically?

Analytically this characterization is useful because historically it was relatively easy to determine the components of the vector for any given generation of lawyers, but rather difficult to determine the characteristics of the matrix. Because of the ease of observing the legal vector, the English lords understood the power of perfect information in controlling society and were not willing to cede that power to the king completely.

Law was learned through observation and copying. Legal education consisted of copying verbatim what happened in court during the day into Year Books and then eating dinners in the inns at night in order to learn how to think and act like a lawyer. What this education did not do was explain the broader sociopolitical implications on and by the law. The class of people who had a better understanding of the bigger picture were the Henry II's and Thomas Cromwell's of the realm. Cromwell in particular was special because he rose above being a simple lawyer into being a major adviser to King Henry VIII. As despots these individuals were concerned with projecting power into the future which required a understanding of how things change over time. Even then they did not have a perfect understanding of how everything changed because the nature of the transition matrix is that it is really big. They were not Hari Seldon. 21st and 22nd century despotism will not have this limitation (maybe not entirely but to a disturbingly accurate degree).

The goal of power is to perpetuate itself, and no power system would wittingly adopt a change that reduces its own power. The lords may have understood that Quia Emptores would result in all of their lands reverting to the King through escheat eventually, but the present economic power of preserving the incidents is more important. This shows the fundamental difference between the state and the powerful creatures underneath it. The state wants power forever. With woefully suboptimal information about the matrix all those below it can do is maximize power now. Once information becomes more prevalent, there becomes a race to see who can better understand the matrix and upend this power dynamic.

Mitchell v. Allestry

This case, materials collected at B & M 572, was seen in the 18th and 19th centuries as inventing what American lawyers took Lemuel Shaw to have invented in Brown v. Kendall. Please explain how they can both be right or how both were wrong, and what the pleadings in Mitchell show the case should be remembered for.

I'll take this topic.

-- MatthewPodolsky - 06 Nov 2008

Factual Summary

In June of 1673, Thomas Scrivener brought two horses and a coach, belonging to his employer, William Allestry, into Little Lincoln’s Inn Fields. Little Lincoln’s Inn Fields was busy city square and the horses escaped, knocking Mary Mitchell to the ground and running over her with the coach. Mary Mitchell and her husband, James, brought suit on the case for negligence against Scrivener and Allestry (Mitchell v. Allestry, KB 27/1973, m. 1283; 3 Keb. 650, pl. 2; 1 Vent. 295; ECO MS. 178, p. 183).

Little Lincoln’s Inn Fields

The history of Little Lincoln’s Inn Fields provides some insight into the growth of London. Originally, the Templars owned the Little Lincoln’s Inn Fields and used it, along with the larger Lincoln’s Inn Fields just to the North West, as tilting grounds (Heckethorn 48; Hunter 991-2).

After the Order of the Templars was abolished, the Fields were assigned to St. John’s Priory. By 1376, the Fields had been arrayed with trees and walking paths for the use of the Chancery clerks and apprentices and students of law. In 1399, a petition appeared in Parliament alleging that Roger Legit had been setting metal traps around the square to harm the clerks (Heckethorn 48).

After the dissolution of the monastery, the square reverted to King Henry VIII, and, after he granted ownership of the square, it descended through a confusing chain of private ownership during the second half of the 16th and first half of the 17th centuries. Until 1620, Little Lincoln’s Inn Fields were frequently used as a site for executions (Heckethorn 48-9).

Throughout the changes in ownership, clerks and law students continued to use the square as a place to walk outdoors. In 1683, a formal agreement was reached between the benchers and the owner of the square, permitting the owner to refit the square with new gates and buildings. By 1720, the square was entirely surrounded by housing occupied by lawyers (Heckethorn 49-50).

Although much of this work was not completed until the end of the 17th century, it is certainly true that when Scrivener attempted to break his horses in Little Lincoln’s Inn Fields, he was doing so in a public square frequently used as a place for outdoor walks and reflection, particularly by the legal community (Heckethorn 49-50).

Little Lincoln’s Inn Fields, now New Square, remains in much the same condition today, located in central London just two blocks north of the London School of Economics (see attached maps).

Procedural History

Mitchell originally brought suit under the theory that Allestry and Scrivener “did negligently permit” the horses to run upon Mitchell. Mitchell was non-suited in that claim because there was evidence that the defendants did everything they could to prevent the accident (Mitchell, ECO MS. 178, p. 183; see also Baker 465). Judge Hale directed the plaintiffs to bring the suit again by challenging the decision to bring the horses into Little Lincoln’s Inn Fields, rather than claiming negligence in the conduct by the defendant in the square itself. The court granted the plaintiff judgment and at nisi prius the jury found for the plaintiff in the amount of 40 marks (Mitchell, ECO MS. 178, p. 183).

The bill contains one peculiarity of special note: in order to bring suit against Allestry, who as the employer presumably was not judgment-proof, the plaintiff alleged that Allestry was present during the accident, even though he was not in fact at Little Lincoln’s Fields (Mitchell, KB 27/1973, m. 1283).

Analysis

The defendants’ counsel argued that the suit was a case of first impression for three reasons: the plaintiff made no claim that (1) the location of the accident was a public highway; (2) the defendants knew that the horses were wild; and (3) the defendant negligently allowed the horses to run over the victim (Mitchell, ECO MS. 178, p. 183). Indeed, all that the plaintiffs did allege was that the defendants drove the horses “improvidently, rashly and without due consideration of the unsuitability of the place for the purpose” (Mitchell, KB 27/1973, m. 1283).

The claim, therefore, lay outside established categories of fault. Although a defendant could be held liable for knowingly keeping animals with dangerous propensities or for bringing such animals to a public highway, there was no allegation that the defendants had such knowledge (see Baker 462). A defendant could also be held liable for negligently driving a horse and causing an accident, but no liability would lie where the horse itself was at fault (see Baker 464). It was a novel claim, then, for the plaintiffs to seek damages based upon the unwise decision to bring horses and a coach to a public square used for walking and relaxation.

For this reason, 18th and 19th century treatises referred to Mitchell v. Allestry as establishing a new branch of actions on the case for accidents simply arising out of negligence (Baker 466). Under this view, Mitchell v. Allestry stands for the principle that a plaintiff may hold a defendant liable on a showing that injury was caused by actions the defendant should reasonably have prevented, whereas prior cases required the plaintiff to establish either that the defendant directly caused the accident or that there existed some special customary duty for the defendant. Further, Mitchell v. Allestry seems to preempt the old rule that the defendant may prevent liability on a showing that he or she could not reasonably have prevented the accident, at least where some negligence of the defendant subsequently resulted in the accident (see Baker 464-5).

This negligence-founding view sets up Mitchell v. Allestry as establishing the same principle as the 1850 American case Brown v. Kendall, 60 Mass. 292. In that case, the plaintiff sued the defendant for injury sustained when the defendant used a stick to separate two fighting dogs and accidentally struck the plaintiff (Brown, 60 Mass. at 292). It was held that the fact that the act was unintentional was no defense, and that the defendant could be held liable for injury resulting from the defendant’s lack of ordinary care, meaning, “that kind and degree of care, which prudent and cautious mean would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger” (Brown, 60 Mass. at 296).

Although both cases similarly charged the defendants with taking a certain degree of care with their decisions, it does not seem as if the judges in Mitchell were contemplating establishing a new standard of ordinary care. Rather, the judges focused on precedents concerning loose animals and public areas. Judge Wilde argued that a defendant should be held liable for damage caused by a horse when the defendant failed to lock the stable, and, along with Judge Twisden, analogized the situation to a prior case in which monkey broke loose and hurt some children. Chief Judge Raynsford made the more general assertion that a defendant should be punishable for murder if he or she throws a rock into a market and it kills someone (Mitchell, ECO MS. 178, p. 183).

Baker interprets these statements merely as extending the principle of scienter to embrace public nuisances (Baker 466). That is, Baker understands the case to expand upon the rule that defendants may be liable for knowingly keeping animals with dangerous propensities to include liability for knowingly bringing animals to crowded public spaces. Under this view, Mitchell v. Allestry represented another step toward a general negligence standard, but did not stand for the same sweeping tort rule as Brown v. Kendall.

Indeed, the most striking part of the case is the plaintiff’s efforts to circumvent obstacles to vicarious liability. At the time, there was no rule of vicarious liability. In fact, husbands were not yet liable for accidents cause by their wives (Baker 464-5). Hence, an employer would not be liable for the actions of his or her employees unless actually present and directly responsible (Baker 464).

The plaintiffs therefore engaged in some slight of hand, alleging that Allestry was, in fact, present at the time of the accident (Mitchell, KB 27/1973, m. 1283). It is not entirely clear how necessary this construction was, since, at least according to one report, the court held that the master is as liable as the servant if he ordered the servant’s conduct (Mitchell, 3 Keb. 650, pl. 2 (untr.)). Whether or not the court was shifting strongly toward vicarious liability therefore depends on whether Allestry actually ordered Scrivener to bring the horses to Little Lincoln’s Inn Field, which is not made clear from the report. Nevertheless, it is clear that Mitchell v. Allestry was part of a move toward respondeat superior liability. By 1697, the court had firmly established that an employer could be held liable for the actions of his servant without an express command if the servant had the authority to engage in the conduct and the conduct was for the employer’s benefit (Turbervile v. Stampe, 1 Ld Raym. 264 (untr.)).

Therefore, Mitchell v. Allestry was at least as important for the doctrine of vicarious liability as for the growth of the tort of negligence. Still, Mitchell v. Allestry did mark an important swing toward a general liability standard. As London became an increasingly densely populated city, the court had to deal with conflict between traditional uses of public land, such as the breaking in of horses, and regular urban use. In Mitchell v. Allestry, the court expanded liability to include negligence in one’s use of public space. The court also, though, seems to have moved away from the categorical thinking of prior cases and held the defendants liable not for directly causing the victim’s injury, but for making the ‘improvident’ decision that ultimately resulted in the accident.

Bibliography

Cases Mitchell v. Allestry, KB 27/1973, m. 1283; 3 Keb. 650, pl. 2; 1 Vent. 295; ECO MS. 178, p. 183.

Turbervile v. Stampe, 1 Ld Raym. 264 (untr.)

Brown v. Kendall, 60 Mass. 292 (1850)

Secondary Sources J.H. Baker, An Introduction to English Legal History (1990)

Charles William Heckethorn, Lincoln’s Inn Fields and The Localities Adjacent (1896)

Robert Hunter, Lincoln’s Inn Fields: Past and Present, 130 English Illustrated Magazine 991 (1894)

-- MatthewPodolsky - 19 Dec 2008

• Fields_Map1.pdf: Fields_Map1.pdf

• Fields_Map2.pdf: Fields_Map2.pdf

• Heckethorn.pdf: Heckethorn.pdf

• Turbervile.pdf: Turbervile.pdf

• Mitchell_v_Allestry.pdf: Mitchell_v_Allestry.pdf

• Brown_v_Kendall.pdf: Brown_v_Kendall.pdf

INTRODUCTION

William Shakespeare’s Macbeth begins, not with the play’s namesake, but with a meeting of three witches at night. Under the cloak of darkness, the “weird sisters” gather to plan out their encounter with Macbeth. The play, written and performed around the turn of the 17th century, is one of the longest-lasting and most popular depictions of witchcraft. Though not main characters themselves (their names are but “First Witch,” “Second Witch,” and “Third Witch”), they are central to the unraveling of the plot. Marion Gibson notes that “with their economical, rhythmic and riddling speeches,” the weird sisters “create in a few short scenes an oppressive atmosphere of evil and mystery which blights the whole play.” Gibson at 112.

Just like the three witches in the play, however, little is known about the real witches they intended to imitate. Theorizing their purpose in the play, Gibson notes a doubt left unanswered: “Attention is directed towards the source of evil, but nothing is revealed [about them] and the audience and readers, like the characters, are left unsatisfied.” Gibson at 112. Gibson’s analysis veers in the direction of attempting to explain the inspiration for the witch characters (she notes a likely a blend of Scottish and English references to indulge the King and audience). Id. Though modern readers of Shakespeare know very little about the witches, how much did the audience at the time of the play’s development know and understand about the witches? How did they relate to the characters (and what about real witches themselves)? After all, at the time of the play’s creation and performance, witchcraft was considered real by many—and a crime at that.

--

My intent in this paper is to explore some of the reasons why early Modern English people convicted others of witchcraft. Much is written on the evidence used to convict these women, for they were primarily women, of evil-doing but much less is known as to the reasons why the common belief allowed such an outcome. This, of course, is a far more complicated question with few definitive or satisfactory answers. Reaching the thoughts and beliefs of the common people is a difficult task to undertake. For one, what has passed on in time of common beliefs, much like the words of the weird sisters, was facilitated through the mouths and memories of others (the sort of narrators of real life). After all, most common people could not read or write. Additionally, the sources from which we can divine the common understanding of witchcraft are largely biased: the court sources, in the form of records and the writings, of educated observers and the demonological tracts of theologians. Sharpe at 58.

Left with few historical records, this papers reaches some of these questions by attempting to understand the cultural life which the witches and their accusers inhabited. My original inquiry into how witchcraft, again a crime, was proved at trial necessarily leads to a focus on the states of mind of those on whom a conviction hung: the lay jurors. I use the anthropological writings, heavily borrowing from Clifford Geertz’ writings on common sense and the law, to arrive at some of the answers and to think through some other proposed answers.

On some level, a basic one perhaps, witchcraft helped explain the reason why events, many of them tragic or unfortunate, occurred—why bad things happened to the supposed good people of the community. Though Trevor-Roper has called witchcraft persecution “[t]he rubbish of the human mind”—and he is not wrong, in certain respects—it is also worth exploring the socio-cultural beliefs that made a belief in witchcraft real. Trevor-Roper at 97. As Carlo Ginzburg explores in Ecstasies, witchcraft persecution, with the witches’ sabbath at the center, emerged from a history of scapegoating in continental Europe. In this vein, common beliefs and imaginations were crucial to the prosecution of witchcraft. Gaskill suggests that “no social, economic, religious or cultural facts shaped the history of English witchcraft more.” Gaskill, Witchcraft and Evidence, at 39. For a conviction of witchcraft to stand—that is, for the evidence to prove successful—it had to convince the people of the community; it had to make sense of their lives.

SETTING THE STAGE

The prosecution of witches in England materialized during the early modern period. By the sixteenth century, the belief in the existence of witchcraft was a common one and the belief in dark magic was regarded as “the logical corollary of the equally widespread possibility in the belief of beneficent magic.” Thomas at 437. Though the beliefs in dark magic “were as old as human history, and in no sense peculiarly English,” during the late Middle Ages, Christianity began to distinguish this type of magic from the unharmful kind. Thomas at 438. Among the intellectual class, what resulted was demonology, a field of study that constructed a new way of seeing the world from the old beliefs. Trevor-Roper at 91. As such, though witchcraft was ascribed to “virtually every kind of magical activity or ritual operation that worked by occult methods,” Thomas, The Relevance of Social Anthropology to the Historical Study of English Witchcraft, at 48, it came to be regarded as the “supernatural activity, believed to be the result of power given by the Devil, and causing physical damage….” McFarlane? at 82. In practice, the ways in which witchcraft mattered to English society differed between the learned classes and the rest of society. Whereas theologians and others who studied witchcraft were concerned with Devil-worshipping, a heretical practice, the “uneducated populace” was more concerned with the damage that these evil creatures caused to persons and property within their community—those experiences which they could feel and to which they fell victim at times. See Thomas, The Relevance of Social Anthropology to the Historical Study of English Witchcraft, at 48-49; Sharpe.

Since witchcraft rarely occurred among family members (except perhaps in cases of bewitched husbands or magical acts to induce marriage), it was regarded as more of a communal problem. Macfarlane at 87. As such, witches of the bad sort came to be seen as those who “afflict[ed] their neighbours and others with misfortune, sickness, and death, and who also practise[d] a range of ungodly magical rites in the community.” Marion, Intro at x. From these definitions, we can gather that witches accused of wrongdoing did not practice their craft silently. Rather, she was one who exposed her community to the evils which she possessed and with which she disturbed the peace.

This view of witchcraft was taken up in the courtroom, where it was treated as an “anti-social crime” rather than heresy. Court records suggest that most prosecutions were provoked by accusations of damage to persons and property in the community rather than worshipping with the Devil. Thomas at 443. Unlike theologians, witch finders in the community were not as interested in “the mechanics of the operation than in the fact of the witch’s malice.” Thomas, The Relevance of Social Anthropology to the Historical Study of English Witchcraft, at 51. Though proving either strand of the crime would seem like an uphill battle by modern evidentiary standards, the law of evidence, though in its development at the time, was not yet in place during the early modern period.

Thus, as to the actual evidence introduced, confessions, whether forced or otherwise obtained, “unnatural” body marks, and witness testimony became popular methods to substantiate the accusations of witchcraft. Gaskill at 48.The records that remain of the processes are troublesome: not just because they are few but also because it is difficult to extract from them what the accused believed. Confessions should be analyzed with a healthy degree of skepticism as evidence of the accused’s actual beliefs. After all, demonologists and witch hunters advocated the use of trickery and false promises of leniency to extract confessions “from those who [were] obviously guilty but [would] not say so.” Gibson at 25. Though judicial torture was formally disallowed in England (unlike continental Europe and Scotland), it made its way into witch investigations at times by way of sleep deprivation and the return of ordeals, such as “swimming a witch.” Matthew Hopkins, a popular witch hunter during the Civil War, used these practices, which verged on torture, to obtain confessions from the accused. Hopkins, for example, popularized the use of “dunking” the accused into water and “walking” the sleepless witch as ways to extract confessions. Gaskill at 52-53. See Trevor-Roper at 119 n.1.

Even within this system, little remains of the thoughts and beliefs of the accusers; but far less remains and is known of the unmitigated thoughts and beliefs of the accused. Gaskill notes, if merely in passing, “Most suspects were marginal women whose confessions reflected the misery of hardship, anxiety of moral guilt, and fear of damnation.” Gaskill at 53. Though the outcome of these cases largely turned on what they confessed to, we can discern far less about what they thought, even from their supposed own words. As Geertz remarked in Local Knowledge: Fact and Law in Comparative Perspective, “Men, of course, can lie, and, especially in the presence of judges, often do....” At 189.

PULLING BACK THE CURTAIN

What is perhaps most readily striking in the prosecution of witchcraft is the process of law in the making: its effort to find and form some sort of relation—whether of alignment or power over or something else—with the community and its values. This is perhaps part of what Geertz meant when he wrote that “the ‘law’ side of things is not a bounded set of norms, rules, principles, values, or whatever from which jural responses to distilled events can be drawn, but part of a distinctive manner of imagining the real.” Geertz at 173. Through witchcraft, the beliefs from above—whether intellectual, divinely ordered, or both—merged with the lived experiences and beliefs of those below. In this, we see a process that is not neat or orderly but constantly in flux and struggling to make sense of the relations between the people in the community and their systems.

Keith Thomas and Alan Macfarlane have both offered valuable insight into the function of witchcraft in early modern society. In The Relevance of Social Anthropology to the Historical Study of English Witchcraft, Thomas suggests that witch accusations helped alleviate the pressures, whether of social, moral, and/or religious guilt, that afflicted community members as English society moved away from reliance on private charity for care of the poor to ideals of self-help. Macfarlane’s Witchcraft in Tudor and Stuart Essex offers a similar argument. In it, he suggests that witchcraft was the means through which neighbors, in a society founded on Christian communal values, transitioned to publicly dealing with conflict. In this worldview, a witch would inflict harm on her victim for his “unneighbourly behavior”—for example, denying her the sale of a pig or refusing her a loan. Macfarlane at 92.

Though neither account is implausible, and perhaps each helps account for some of the accusations, it is difficult to imagine such a widespread phenomenon, at its most basic level, driven on unaired social tensions. In a way, these accounts undermine the fantastic fervor, whether real, imagined, or fluffed up with which witchcraft manifested:

Though, of course, one ought to question such accounts of social life in early modern England, Trevor-Roper’s incredible description helps shed light on the complexity of the circumstance. Although Thomas and Macfarlane’s arguments that deteriorating social relations between the community’s well-to-do and the poor precipitated accusations of witchcraft are persuasive, these evaluations create a not so insignificant ideological vacuum. Perhaps these tensions laid the foundation, but what else made up the “witch-craze”?

Although it is useful to explain the role that witchcraft played in society, it is equally important to recognize that, whether or not witches could fly on brooms, the belief in the occult was real. For this reason, the legal system was used to intervene in, make sense of, and account for witchcraft. For its part, witchcraft helped to explain those misfortunes that happened in everyday life, or, as Geertz put it, “when ordinary expectations fail[ed] to hold… the cry of witchcraft [went] up.” Common Sense as a Cultural System, at 11.

Perhaps their meanings and origins may differ, the witches of early modern England played a similar role as those in the lives of the Zande people of north central Africa. In Common Sense as a Cultural System, Geertz provides an example of the Zande people’s common sense system, which includes witchcraft, illustrative for trying to understand its purpose in society. When walking along, Geertz explained, a Zande boy might hit his foot against a tree stump. Rather than recognize his own carelessness, he’ll declare, “I did look where I was going; you have to with so many stumps about…and if I hadn’t been witched I would have seen it.” Geertz, Common Sense as a Cultural System, at 10. The details of what and who is a witch are different, but her purpose is the same—to give justification to why things changed for the worse.

Similarly, George Clifford, writing in 1587, illustrated how a witch accusation would arise after injury. The previously healthy English man would account for his unexpected decline in health in some formulation of the following:

Though critical of the accusations, this account illustrates the ways in which witchcraft provided the community with an explanation of what was happening in their lives. Paradoxically, as Geertz suggests, “[f]or all the talk about its flying in the night like a firefly, witchcraft doesn’t celebrate an unseen order, it certifies a seen one.” Geertz, Common Sense as a Cultural System, at 11. Though the prosecution of witchcraft emerged from intellectual developments in the field of demonology, the common people, good Christians as they may have been, were not so much concerned with the devilish pact but with the effects they felt through the offenses of others—the witches.

CONCLUSION

Though literature and law may seem wildly different, through witchcraft it is evident that neither is immune culture—even the popular one. Like the weird sisters, whether witches were the cause or a symptom of the evil that existed in the world and afflicted the lives of common men, they were certainly representative of it.

• Malcolm Gaskill, Witchcraft, Politics, and Memory in Seventeenth-Century England, 50 The Historical Journal 289 (2007).
• Malcolm Gaskill, 2008 Witchcraft and Evidence in Early Modern England, PAST & PRESENT 33.
• Clifford Geertz, Common Sense as a Cultural System, 33 Antioch R 5 (1975).
• CLIFFORD GEERTZ, Local Knowledge: Fact and Law in Comparative Perspective, in LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 167 (1983).
• MARION GIBSON, WITCHCRAFT AND SOCIETY IN ENGLAND AND AMERICA, 1550-1750, (Marion Gibson ed., 2003).
• CARLO GINZBURG, ECSTASIES: DECIPHERING THE WITCHES’ SABBATH (Raymond Rosenthal trans., 1991).
• Alan Macfarlane, Witchcraft in Tudor and Stuart Essex, in WITCHCRAFT CONFESSIONS AND ACCUSATIONS 47 (Mary Douglas ed., 2013).
• WILLIAM SHAKESPEARE, MACBETH (1606?), reprinted in WITCHCRAFT AND SOCIETY IN ENGLAND AND AMERICA, 1550-1750, 114 (Marion Gibson ed., 2003).
• JAMES SHARPE, INSTRUMENTS OF DARKNESS: WITCHCRAFT IN ENGLAND 1550-1750 (1996).
• Keith Thomas, The Relevance of Social Anthropology to the Historical Study of English Witchcraft, in WITCHCRAFT CONFESSIONS AND ACCUSATIONS 81 (Mary Douglas ed., 2013).
• KEITH THOMAS, RELIGION AND THE DECLINE OF MAGIC (1971).
• H.R. TREVOR-ROPER, THE EUROPEAN WITCH-CRAZE OF THE SIXTEENTH AND SEVENTEENTH CENTURIES (1969).

Origins of the Peremptory Challenge

Here is a message from a colleague:

My name is -----. I'm student from -------------------- Law Faculty, in Poland. I write in the hope that You can answer some questions that have been weighing on my mind of late. It puzzled me when did the defendant acquire the right to peremptory challenges in criminal trial? I think that according to Fleta peremptory challenges were not permitted: the appellor and appellee will be able to remove any jurors legitimately suspected, but it is not sufficient with any jury to put forward a challenge without giving a reason and , if this cannot be verified by those who are not challenged, the man who is challenged will be compelled to take the oath, Fleta, Book I, Cap. 32, p. 86); I have also found examples of challenge for cause in State trials of the reign of Edward the First, 1289-1293, (Tout, Johnstone), pp. 30 and 36 : et quod calumpnianerunt iuratores per certas et racionabiles causas, videlicet quod fuerunt homines Radulfi de Bello Campo qui totum factum procurauit contra eos, nee fuit eorum calumpnia allocata… But no trace of peremptory challenges. First examples are from the Northamptonshire Eyre of 1329-30 (Eyre of Northamptonshire 3-4 Edward III (1329-30), vol. I, p. 179). I have references to the chapter 3. Trial and the verdict revolution from Bellamy, The criminal trial in later medieval England but unfortunately don’t have access to this book. I would greatly appreciate if You could help. Best wishes,

Your move.

John Post (in Jury Lists and Juries in the late fourteenth century; in Twelve Good Men and True: the Criminal Trial Juryin England, 1200-1800 (Princeton, 1988), p. 71) thought there was no evidence in the records of peremptory challenges. A. Musson stated that jury challenges were not uncommon in criminal trials and he givs some examples in his Public Order and Law Enforcement (p. 196). But Musson might be referring to challenges for cause.

-- Main. - 8 Dec 2008 (I accidentally deleted the name of the commenter above. Please put it back if you're reading this. Sorry- James)

It is clear that the accused in criminal trials were allowed to challenge jurors at least for cause, and there is some evidence that they were allowed to challenge peremptorily as well. We know from Bellamy that “The accused might base his challenge on the fact that the jurors were not drawn from the hundred where the crime had been committed or that they had been members of the indicting jury, or that they were related to the victim, or that their wealth was insufficient.” Bellamy, The Criminal Trial in Later Medieval England, 100. But in trials for felony, where the punishment was death, the juror was allowed to challenge with or without giving cause. He could challenge up to 35 jurors without cause. “The rule was that such a peremptory challenge was permissible when a person was on trial for his life.” Bellamy, 100-101. Richard Littleton explained this rule by saying that “The accused … did not have sufficient courage to show a particular cause because their lives were at stake.” Bellamy, 100. (Bellamy cites to Cambridge University Library MS Hh.3.6, ff.8-8v for Littleton’s actual remarks- without access to Cambridge all we have is Bellamy’s restatement of it.) S.E. Thorne and J.H. Baker collaborate this explanation, “In an indictment or an appeal the defendant shal have his peremptory challenges, [which he does not have] in other actions, because when his life is at risk he is so troubled in his mind through fear of death that he has neither the boldness nor the presence of mind to show cause; and because the law presumes that he has a secret cause in mind, which he does not know how to show in a suitable manner, he may therefore challenge thirty-five peremptorily without showing cause.” Thorne and Baker, Readings and Moots at the Inns of Court in the Fifteenth Century, 276.

Determining the date of this rule’s beginning is difficult because the system of record keeping was such that peremptory challenges would only be noted when made by the accused on appeal. “In gaol delivery records instances of juror challenge are rare, as they are elsewhere. This may have been because they only secured a place in legal records if they were made by apellees.” Bellamy, 101. This leaves us with an incomplete record. We have some early examples, as pointed out in the original post aboce, but no definitive first example.

Please, could you send me scanned pages of that books?

-- PavelZlamanczuk? - 13 Dec 2008

• JE_Seldon,_Readings_and_Moots_at_the_Inns_of_Court_in_the_Fifteenth_Century.pdf: JE_Seldon,_Readings_and_Moots_at_the_Inns_of_Court_in_the_Fifteenth_Century.pdf

• J.G._Bellamy,_The_Criminal_Trial_In_Later_Medieval_England.pdf: J.G._Bellamy,_The_Criminal_Trial_In_Later_Medieval_England.pdf

Perjurious Wager

What happens if a plaintiff complains to the church courts of the perjury when a defendant falsely wages his law? ______________________________________________________________________________________________________________________________________

A false wager of law, if sanctioned by the ecclesiastical courts, seems likely to have resulted in a sentence of excommunication.

Did ecclesiastical courts have jurisdiction to punish perjury?

5 Elizabeth, c. 9, passed in 1563, demonstrates that the ecclesiastical courts had a previously existing right to punish perjury and also preserves that right. The law provides a statutory basis for common law courts to prosecute perjury but is explicit that ecclesiastical rights are not being infringed:

http://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/5_Elizabeth_c._9.pdf

Was false wager of law specifically within the types of perjury punishable by the ecclesiastical courts?

As false wager of law would seem to be a particularly egregious form of perjury, its prosecution might appear to be inevitable. However, this was not the case in the common law courts. There are at least two King’s Bench cases in which the court declined to find an action for perjury for false wager of law. The report of Brown (89 Eng. Rep. 393) reads: “No indictment for perjury by wager of law or swearing a foreign plea: An indictment doth not lie for perjury by wager of law, nor by swearing a foreign plea; and an indictment was quashed for it.” Sir Robert Millers Case (74 Eng. Rep. 1091) reaches the same result, but is more explicit in its reasoning: “[A] man cannot be punisht by the statute of 5 Eliz. Cap. 9. for perjury in his own cause, as wager of law, &c. But by that he shall be indicted at common law, and it was commanded to be observed from henceforth.”

At least in Millers Case, there was no indictment only because 5 Elizabeth c. 9 was being relied on. Brown may be operating on the same grounds, since if Millers Case is to be believed, there was a common law action for perjury in wager of law. Assuming a common law action existed, Brown only makes sense if it is confined to actions based on the statute. As discussed earlier, the statute is only relevant to the ecclesiastical punishment of perjury to the degree that it preserves that ecclesiastical jurisdiction. Thus, the difficulties that were experienced in obtaining an action for perjury in wager of law in King’s Bench seem to have been procedural in nature and, given the content of the statute, would not impair an action in the ecclesiastical courts.

http://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/Brown.pdf http://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/Sir_Robert_Millers_Case.pdf

How did the ecclesiastical courts punish perjury?

5 Elizabeth c. 23, An Acte for the due Execucon of the Writ De excommunicato capiendo, displays the seriousness with which perjury was treated by the spiritual courts. The statute was aimed at the fact that people excommunicated by the ecclesiastical courts were going unpunished and gave King’s Bench the right to direct sheriffs to enforce the writ de excommunicato capiendo. For our purposes, the end of the statute is most interesting. It provides for a process by which pains and forfeitures levied by the statute can be voided, except in the case of certain crimes, including perjury. This tells us two things. First, it establishes that excommunication was a sentence given out for perjury in the ecclesiastical courts, at least some of the time. Additionally, it shows that among the crimes that could be punished by excommunication in these spiritual courts, perjury was regarded as one of the most serious.

Lynwood’s Provinciale also displays the import of perjury in these ecclesiastical courts. Lynwood provides us with the Canon of Stephen (the archbishop of Canterbury through 1228), which reads: “We excommunicate all such as presume maliciously to rob or defraud churches… We also add unto these, declaring all them to be knit in like sentence, whatsoever they be, that wittingly bear false witness and procure false witness to be bourne, and also that wittingly bring forth such witnesses or suborn and instruct such in cause of matrimony…” That Lyndwood included this two centuries later in his Provinciale tells us that he still viewed it as good canonical law. It would be impossible to say whether perjury was always punished by the ecclesiastical courts with excommunication. However, the combination of 5 Elizabeth c. 23 and the Canon of Stephen tells us that perjury was treated extremely seriously by ecclesiastical courts, with excommunication available as a sentence.

http://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/5_Elizabeth_c._23.pdf http://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/Lyndwoods_Provinciale.tif

Would these cases definitely be heard in the spiritual courts?

By the 17th Century, it wasn’t necessarily clear that a case involving perjury in an ecclesiastical court would be tried in an ecclesiastical court. Coke writes: “ For perjury concerning any temporall act the eclesiasticall court hath no jurisdiction; and if it be concerning a spirituall matter, the party grieved may sue for the same in the Star Chamber.” It is fairly difficult to imagine the ecclesiastical courts willfully giving up jurisdiction over something that happened in their own courts, but this at least brings up the possibility that these cases would end up somewhere else.

http://moglen.law.columbia.edu/twiki/pub/EngLegalHist/PerjuriousWager/CokeStarChamberJurisdiction.pdf

Conclusion

The sources we have allow us to make a pretty good guess as to what would happen if the plaintiff complained to the ecclesiastical courts of a false wager of law, at least before the introduction of the possibility of Star Chamber jurisdiction makes things a bit murkier: The false wagerer would be tried by the ecclesiastical court, and if found guilty would be excommunicated. There is nothing we can point to that definitively says that this was always (or even usually) the case, but what we do have strongly suggests that it was the most likely outcome. We know that the ecclesiastical courts could and did exercise jurisdiction over perjury in their courts, and we have no reason to think that false wager of law was excluded from this. We also know that perjury was regarded very seriously by the spiritual courts and that canon law from the time of Archbishop Stephen Langton prescribed a sentence of excommunication for perjury.

Bill of Information

A written complaint alleging an offense punishable by the Court that was signed by private party's counsel or the attorney general, and given to the clerk of the Chamber. [Cheyney 737]

Writ of Subpoena

Document issued to defendant compelling him to appear before the court. The defendant would appear at the proscribed date where he would obtain a copy of the bill against him. Sometimes the defendant would also need to enter into a bond to not leave the jurisdiction of the court without its license. [Cheyney 737-8] Failure to appear would result in a writ of attachment against the defendant, and possibly a proclamation of rebellion. [Stuckey 152]

Answer

Defendant's response to the plaintiff's bill of complaint where he had to confess, deny or demurrer to all of the charges laid out against him within eight days after his initial appearance. Answers were written and signed by the defendant's counsel. [Cheyney 737-8]

Interrogatory

Questions put forward by the plaintiff to the defendant. The interrogatory would then be read to the defendant by the examiner of the court who would record the defendant's answers under oath during a private conference. The defendant would not have access to the interrogatory before the examination, and did not have access to a lawyer during the questioning. The plaintiff was given only four days to write an interrogatory, and it was limited to 15 articles. [Boyd 14] The parties had the option to have the interrogatory be conducted by commissioners chosen by the parties instead of by examiners who were court officials. [Cheyney 738]

Replication

A reply to the defendants answers in the interrogatory put forward by the plaintiff with the assistance of his counsel. [Cheyney 738]

Rejoinder

The defendants reply to the plaintiff's replication. [Cheyney 738]

Surrejoinder

A further reply of the plaintiff to the defendant's rejoinder. [Stuckey 153] Very rarely if ever used. [Stuckey 153]

Rebutter

The defendants reply to the Surrejoinder. [Stuckey 153] Very rarely if ever used. [Stuckey 153]

Witness Examination

Witnesses were put forward by either the plaintiff or the defendant, and were questioned by the court's examiners or commissioners under oath in private. The procedure was very similar to the interrogatory. Witnesses were not allowed access to counsel or the questions beforehand, and the record was preserved in writing. [Cheyney 738]

Secundum Allegata el Probata

The standard hearing before the council where all of written testimony was presented to the judges for their consideration. [Scofield 75] The proceeding were held in public, and counsel was allowed to speak in favor of the defense or the prosecution, as well as answer questions put forward by the judges. The judges would reach their final verdict at the end of the hearing. [Cheyney 739]

Super Confessionem

Hearing called by plaintiff if he believed the defendant had sufficiently confessed to the crime in his answer. At the hearing the only evidence introduced was the defendant's answer. The defendant was allowed counsel to provide for his defense and rebut the claims against him. [Scofield 75-6]

Pro Confesso

Procedure used when defendant failed to file an answer to the plaintiff's bill of complaint or interrogatory. The court would treat the defendant as if he had confessed to the crime, summarily find him guilty and sentence him. [Scofield 75-6]

Ore Tenus

A relatively uncommon procedure used when the defendant was apprehended by a government official and confessed to the crime without the administration of an oath. The defendant was allowed to appear before the court in person without counsel and put himself at the mercy of the court for summary justice and punishment. [Cheyney 740]

Censure

The sentencing procedure for the Star Chamber. Each member of the court would have the opportunity to voice their opinion of the verdict and propose a punishment going from most junior judge to the Lord Chancellor. A majority vote would decide the sentence, and in the case of a tie, the Lord Chancellor would cast the deciding vote. [Scofield 76] Punishment could be divided into four general types: imprisonment, fines, public acknowledgment of offense and public humiliation. Punishment was not determined by statute or common law conception of damages, and could range from nailing the defendant's ear to a pillory to forcing him to wear a piece of paper on his hat describing his crime. [Cheyney 741-3] The most common punishment was a fine with imprisonment until the fine had been repaid. [Boyd 17] The court, however, did not have the power to sentence the defendant to death or forfeit his estate. [Cheyney 729]

Comparison to Canon Law

Star Chamber procedure is often associated with the procedure of the civil law. This might be due to the fact that like man civil law systems today, Star Chamber procedure was primarily written not oral. However, the procedure of the Star Chamber differed from the more heavily romanized courts, such as the canon law courts, in several key respects.

For one the canon law courts had a clearly defined burden of proof to convict a witness known as plena probatio (full proof) that required either a confession or two witnesses. [Brundage 142-143] Star Chamber did not appear to have such a clearly defined burden of proof, and it was certainly less exacting than "full proof." The fact that Star Chamber did not need a confession in order to convict could be why, unlike the Inquisition, it did not regularly employ torture to exact a confession.

Canon courts also allowed proceedings against a defendant to be initiated by a judge per inquisitionem, and it would be the judge than who would conduct the investigation including questioning the defendant and witnesses. [Brundage 147-148] In Star Chamber proceeding were initiated either by private parties or by the king's attorneys on behalf of the king. [Newell 12] The Chamber's judges played no role in the investigation of the claim and the parties only appeared before the judges during the trial itself. [Chenyey 739]

In addition, during the per inquisitionem the defendant had no access to counsel and was not allowed to see the charges against him until after the judge had achieved plena probatio. [Brundage 149] In Star Chamber the defendant was given notice of the charges against him right after he appeared before the court under his subpoena, and had access to a lawyer from the beginning of the proceedings. Although the lawyer was not allowed to be present when the defendant was being examined.

Punishment in canon law was very similar to Star Chamber. Like Star Chamber, the were no clear limitations on what punishments for certain crimes were expected to be and canon judges were given wide latitude and flexibility in ensuring that the punishment fit the crime. [Brundage 155] Like Star Chamber, punishment in canon law consisted usually of a mix of fines, imprisonment and some form of public humiliation. [Brundage 152]. In addition, acts penance such as pilgrimage were often seen as an important component of a sentence which was not the case in Star Chamber. [Brundage 152] Also like Star Chamber, canon law courts were forbidden from issuing the death sentence but unlike the Chamber the canon law courts were also forbidden from branding, ear cutting or the pillory. [Brundage 152]

In many ways the procedure of the Star Chamber can be seen as a hybrid of the common law and civil law systems that sought to achieve the speed, efficiency and relative simplicity of roman law procedure with many of the due process protections of the common law. The Chamber, however, failed to live up to this ideal.

Criticism

It is hard to see from the procedure alone what caused the Star Chamber to gain such an infamous reputation for abuse of power and injustice. Nowadays, Star Chamber has often been equated with secrecy, torture and summary justice. But, this was far from the case. In many way the procedure of the Star Chamber more closely resembles modern day legal procedure with its emphasis on written depositions, interrogatories, claims and counter-claims than the procedure of the early modern common law courts, with their complex system of oral pleadings.

Many of the basic elements of due process such as the right to an attorney, notice of the charges against you, and the right to a public trial were all present in the procedure of Star Chamber. For most of its existence Star Chamber was regarded as one of the most just,efficient and least corrupt court in England. Even Lord Coke once described Star Chamber as "The most honourable court (Our Parliament excepted)that is in the Christian world. Both in respect of the judges in the court and its honourable proceeding." [Cheyney 745] However, the Star Chamber's gruesome reputation was well earned and eventually the flaws in the structure of the Court led to its downfall.

The main flaw in the Star Chamber lay not in its procedure but rather in the court's lack of independence. While the common law courts were composed of a judiciary that was somewhat independent of the executive branch and an almost completely independent jury, the Star Chamber was instead composed of the leading civil servants of the monarchy. This fact made the Star Chamber uniquely susceptible to royal control and biased against those who dared criticize the government.

Under Charles I the Court was increasingly used as a tool of royalist suppression. One individual was imprisoned for spreading rumors that the King attended Catholic mass with his wife and sheriffs were punished by Star Chamber for failing to adequately collect enough ship-money. [Cheyney 747] Individuals were often tried and sentenced by the same people they had been accused of slandering, and punishments became increasingly severe.

In perhaps the most notorious case before Star Chamber, William Prynne and two co-conspirators were sentenced to the pillory, life imprisonment and had their ears cut off for publishing a book that condemned dances, plays and hunting. The argument here was that this was a direct attack on the king who hunted and also attended balls. [Newell pg. 117] By the time the Long Parliament came to power in 1640 the Star Chamber had become so associated with King Charles's abuses of power that it had lost all support of the people and the legal profession who had once held it in high esteem, and was abolished by the Long Parliament in 1641. [Newell 130]

Wikipedia Plans

Below is a summary of what I added to the Star Chamber Wikipedia page:

Intro

Court sessions were held in public although witnesses and defendants were examined in secret. [Cheyney 738] Defendants were given prior notice of the charges against them and had the right to be represented by an attorney. [Cheyney 737-739]

Under the Plantagenet and Tudors

[Initially well regarded because of its speed and flexibility,] Star Chamber was regarded as one of the most just and efficient courts of the Tudor era. Lord Coke once described Star Chamber as "The most honourable court (Our Parliament excepted)that is in the Christian world. Both in respect of the judges in the court and its honourable proceeding." [Cheyney 745]

Also deleted references that the court sessions were held in secret which I don't believe is true.

References

Cora Louise Scofield. A Study of the Court of Star Chamber. University of Chicago Press, 1900

Edward P. Cheyney. The Court of Star Chamber. The American Historical Review, Vol. 18, No. 4 (Jul., 1913), pp. 727-750

Michael Stukey. A Consideration of the Emergence and Exercise of Judicial Authority in the Star Chamber. Monash University Law Review 19 (1993) 117-164.

Newell Dalton Boyd II. The Final Years of the Court of the Star Chamber 1558-1641. Thesis submitted to Graduate Faculty of Texas Tech, 1971.

Susan Agee. The Court of Star Chamber. University of Richmond UR Scholarship Repository: Honors Theses 1969.

James Brundage. Medieval Canon Law. Taylor & Francis. New York: 1996.

-- MichaelCoburn - 20 Oct 2014

Questions

To ask a new question, create a topic, using a descriptive topic name that identifies the subject of the question. The topic's parent should be "QuestionsBeingAnswered". Just type "Q" in the "Parent" names box and you will jump to the right parent name.

Answer team members should edit the question topic to give the answer. The goal is to present a clear version of the question and its answer, so as to produce one of the ArticlesInProcess. But that requires the discovery of secondary sources giving explanatory reference to primary sources. The work of developing the sources and the explanation should occur here first.

• Set ALLOWTOPICCHANGE = TWikiAdminGroup

Political Refugees' Property

This is not a question. You've started an essay on very complex and indeterminate issues, for which you've collected (irresponsibly) a good deal of secondary material, but without defining, in fact, the subject. What does "influence" mean? What is "Roman law"? Why does it matter whether something is "Roman influenced" or not? Until an actual social consequence is identified, this is mere formalism.

Perhaps there is a question here. If so, it should be asked, not answered, succinctly. The job of asking questions is difficult, but playing both sides of the net in this fashion, while easier, is not a substitute.

I do not anticipate supporting an article on this topic as defined, because of the indefinite and essentially a-historical framing, but you are more than welcome to make a personal essay of it. Let's talk about how to limit the topic so you could actually make progress on it under existing conditions.

We need to have a discussion about the difference between Googling and conducting research. All that has happened here is a string search for "Roman" in different materials, leading to a hotchpotch. Effort to understand context and to seek for materials containing ideas rather than words of interest, which is at the center of the actual task of using secondary sources to build historical knowledge, has been replaced by mere index consultation.

Apologies I probably should have added my comments separately instead of interspersing them throughout below (still getting used to the wiki). I have a formatted Word document of the Question (in which my comments are in a different color) if anyone wants me to email it to them.

We don't use proprietary data formats "belonging" to companies here. If you needed to represent your text in different colors for some reason, you could do so here without resorting to proprietary data representations.

-- TomDixon - 07 Sep 2014

OK so I’m not exactly sure how all this is to work – but I’m in the ‘question team’ so here goes. The lectures last week touched on early English history including Julius Caesar’s forays into England in c. 55BC - and then Claudius’ invasion/conquest proper in 43AD.

Now as a general ‘question’ I wondered whether a new topic on the issue of ‘The influence [or not] of Roman Law on the English Common Law’ was not worth writing about. From my readings there has been much debate about the extent of Roman influence (discussed briefly below). There might then be some (separate?) sub topics (eg) the law of restitution and the jury system on which much has been written including from the Roman perspective (also touched upon below).

Our reading list is a pretty good start – but I found this article particularly useful:

Edward D. Re (1961) - The Roman Contribution to the Common Law - http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1673&context=flr

There is also an article by Lewis A ‘What Marcellus says is against You” (Here - http://books.google.com/books?id=6vWcB-Ihl3UC&pg=PA208&lpg=PA208&dq=birks+roman+law&source=bl&ots=cVq7BGr2DF&sig=i2ZyIiE-UNIlmC442oMsqx-cERU&hl=en&sa=X&ei=bW4MVKSKELHbsAT8n4KgBA&ved=0CDcQ6AEwBDgK#v=onepage&q=birks)

The structure of the article is up to the ‘Answer Group’ obviously – but an issue that arises (by reason of the fact that the Roman occupation was for c. 400 years from the 1st to the 5th Centuries) is that Justinian’s Codex post dates the occupation (Gaius’s Institutes may be the main contemporary source of the corpus juris – see below). So I think there needs to be some discussion about (or a need to distinguish between) the sources, namely:

1. what the relevant Roman law was during the period of occupation; and

2. what relevant Roman law thereafter influenced the English law (as (eg) the Anglo Saxons returned from exile in c. 11th Century from Normandy and of course the Normans would have brought with them Continental law as well).

What does this "of course" mean? On what basis did you "of course" the existence of "continental law" and on what basis did you Romanize whatever that was?

Just as a starting point, the following (including from our readings) appear to set up the debate:

Plunknett in “Statutes and their Interpretation” at pg xii -

_Only when parliament becomes the power which Sir Thomas Smith, the Elizabethan, describes as "the most high and abso- lute power of the realme of Englande," do English jurists finally adopt the Roman terminology of "written" and "unwritten" laws. To Hale, to Blackstone, who follows him, and to later jurists, the statute law is the English "lex scripta," the common law is the English "lex non scripta." In this use of Roman terms we may see one of the influences of the legal renaissance upon English jurisprudential thought. But this par- ticular Roman influence, like most of the others, touches only the surface of the law; it does not substitute the corpus iuris civilis for the corpus of the year books, the plea and statute rolls, and the books of Coke; it merely decks out the English cases and the English statutes in Roman garb. Maitland has taught us that the Inns of Court, where the year books were read and taught, "saved English law in the age of the Renaissance.”_

Aside from the adjective "Roman," what does this quotation out of context mean to whatever the inquiry is here?

Plunknett again in “A concise history of the common law” at pg 262 writes about Bracton who’s thesis was generally that Roman Law had a far greater influence on English Law than (eg) Maitland (referred to above) suggested -

What?

Sir William Holdsworth has observed:

_“We cannot say that all Bracton’s law is English in substance, that the influence of Roman law is merely formal. No doubt there is a body of thoroughly English rules; and Bracton differs at very many points from the Roman texts. But it is clear that he has used Roman terms, Roman maxims, and Roman doctrines to construct upon native foundations a reasonable system out of comparatively meagre authorities. Even when he is dealing with purely English portions of his treatise, and discoursing upon the Assizes, the writs of entry, or the writ of right, Roman illustrations and phrases naturally recur to him. And it is clear that his study of Roman law has led him to discuss problems which, when he wrote, were very far from any actual case argued in the royal courts. Thus he deals with ammio, :poa'firatio, and ronfmio; and ‘ where ’, says Maitland, ‘ in all our countless volumes of reports shall we find any decisions about some questions that Azo has suggested to Bracton? ’ Similarly he deals with many questions relating to obliga- tion and contract, fraud and negligence, about which the common law had as yet no rules. In dealing with these matters he necessarily uses Roman terms and borrows Roman rules. It is, as we shall see, because his treatise has given to English law at least one authority upon many matters which- were outside the routine of the practising lawyer of the thirteenth century that his influence upon the history of English law has been so great. That his treatise deals with such matters is due to the Roman law which it contains.”_

Bracton’s influence has varied greatly from century to century.

Had you not better back up a little bit and figure out what "Bracton" is? It would be helpful to recognize, for example, that none of the authors you quote on the subject holds a view of the work we call "Bracton" that would be considered minimally relevant by current historical judgment.

An interesting point to note is that Scottish law appears to have developed as a separate stream – with a far heavier Roman influence - yet Scotland/Caledonia was never fully conquered by the Romans.

"Seems"? Scottish law is utterly distinct from English law. Its Romanism results from a history having nothing to do with the history of England, which we have not yet begun understanding.

See for example “Slavery and the Roman Law of Evidence in Eighteenth-Century Scotland” by John W Cairns (http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199206551.001.0001/acprof-9780199206551-chapter-33)-

This chapter focuses on slavery, which was a recognized part of Roman society, and discusses the problems which it caused in the very different social conditions of 18th-century Scotland. The pursuer in a divorce action wished to call a slave from the Caribbean to give evidence of his wife's adultery. The ensuing legal debate about the competence of a slave to give evidence is analysed and it is shown how the very fact that Scots law did not recognize or regulate slavery led to uncertainty and potential confusion.

This is just random Googling. Something from half a millennium off your chronology fundamentally marginal to the "question" you are pursuing that turned up in a "scholar" search without any context needed for its interpretation. This isn't research, it's knowledge randomization.

See also from page 72 of this book re Roman Law and Scottish Cases (http://books.google.com/books?id=n_KAvAjkEbsC&pg=PA69&lpg=PA69&dq=slavery+law+evidence+scotland+cairns&source=bl&ots=Gjwx6AFvLi&sig=XETEng-VyzfkkYlZAhnJ5pw44bA&hl=en&sa=X&ei=t28MVMbsNcS1sQTs4YGADw&ved=0CDMQ6AEwAw#v=onepage&q=slavery%20law%20evidence%20scotland%20cairns&f=false).

Not even an attempt at reduction of this random bit to coherence with any other materials or ideas.

Some extracts from our readings which may be of some interest/good subtopics. Baker in his “Introduction to English Legal History” discusses how, notwithstanding that by Elizabethan times there was an identifiable autochthonal common law, the Admiralty jurisdiction “was watched by the common-law judges with that jealousy and suspicion which they bestowed on all jurisdictions tainted with Romanism” (at page 123):-

The Court of the Lord High Admiral of England appeared at the same period as its terrestrial counterpart, to deal with matters arising on the high seas. It was not restricted to causes connected with naval warfare, and was much resorted to by merchants. Like its sister court, it encroached in its early days upon the common law and had to be restrained by statute from hearing matters arising within the realm, whether or not they concerned the sea.-"' The court was presided over by a judge of the Admiralty, usually a doctor of law, and proceeded according to the Civil law, under which process could issue against ships and goods as well as against persons. The law which it applied was based on the jus gentium, or universal law of the sea, which was derived from the ancient Rhodian sea law and the 'customs of Oleron’.

But this is an actual issue of jurisdictional competition between courts applying Roman law and courts applying common law, which isn't "influence" unless its definition has expanded noticeably. Why didn't you bother mentioning canon law and the Reformation while you were about it?

Another of our readings, EP Thompson ‘Whigs and Hunters’, also contains a discussion of slavery/serfdom which was touched upon in the classes last week -

_Productive relations themselves are, in part, only meaningful in terms of their definitions at law: the serf, the free labourer; the cottager with common rights, the inhabitant without; the unfree proletarian, the picket conscious of his rights; the landless labourer who may still sue his employer for assault. And if the actuality of the law’s operation in class-divided societies has, again and again, fallen short of its own rhetoric of equity, yet the notion of the rule of law is itself an unqualified good. This cultural achievement — the attainment towards a universal value — found one origin in Roman jurisprudence. The uncodified English common law offered an alternative notation of law, in some ways more flexible and unprincipled — and therefore more pliant to the ‘common sense’ of the ruling class — in other ways more available as a medium through which social conflict could find expression, especially where the sense of ‘natural justice’ of the jury could make itself felt. Since this tradition came to its maturity in eighteenth-century England, its claims should command the historian’s interest. And since some part of the inheritance from this cultural moment may still be found, within greatly changed contexts, within the United States or India or certain African countries, it is important to re-examine the pretensions of the imperialist donor._

As to property rights – see Maitland in his article on the Domesday book at p 224 -

_“This leads to a remark which concerns us more deeply. As and us re- regards the legal ideas in which feudalism is expressed a general question may be raised. If we approach them from the stand- point of modern law, if we approach them from the standpoint of the classical Roman law, they are confused ideas. In particular no clear line is drawn between public and private law. Ownership is dominium \ but governmental power, jurisdictional power, these also are dominium. Office is property ; taxes are rents ; governmental relationships arise ex contractu. Then within the province of private law the ideas are few ; these few have hard work to do ; their outlines are blurred. One dominium rises above another dominium, one seisin over another seisin. Efforts after precision made in comparatively recent times by romanizing lawyers serve only to show how vague was the subject-matter with which they had to deal. They would give the lord a dominium directum, the vassal a dominium utile; but then, when there has been further subinfeudation, this vassal will have a dominium utile as regards the lord paramount, but a dominium directum as regards the sub-vassal. So again, as we shall see hereafter, the gift of land shades off into the ' loan ' of land, the ' loan ' into the gift. The question then occurs whether we are right in applying to this state of things such a word as 'confusion,' a word which implies that things that once were distinct have wrongfully or unfortunately been mixed up with each other, a word which implies error or retrogression._

The most famous common law case in Australian legal history is called Mabo and concerned the question of whether indigenous peoples had native title rights over crown lands. The High Court had to undertake an exegesis of the origins of English property rights, such that they might apply to a dominion of the Crown (being the English settlement (termed ‘conquest’) of Australia). There is an extract below which may be of some use on the feudal basis of land ownership (ie, the Doctrine of Tenure (and Estates)) in England following the Norman Conquest: see at [48].

The Thompson extract above touched upon the Jury System. The 1961 article by Edward Re referred to at the outset has this passage: -

The most notable legal contributions of the reign of Henry II, the centralization of the judicial structure, the introduction of the "inquest" or "recognition," and the "writ," are treated in Glanvill's treatise. Since it consists of a commentary upon the writs and the forms of action, it has the earmarks of a modern manual on procedure and practice. Glanvill's borrowing of the canon law rules on the competence of witnesses- which he adopted as challenges to jurors-has fortified the belief of scholars that the jury system is of Roman origin. Although there was formerly some doubt, the verdict of scholars is now clear that trial by jury, which dates from the inquest of "recognitors" or jurors of Henry II, is not of Anglo-Saxon but of Frankish or Continental origin.1"8 Like- wise Henry II's assize of novel disseisin, so important in English legal development, was borrowed from the canon law, which developed the procedure from the Roman actions. Pollock and Maitland remind us that "the most famous words of Magna Carta will enshrine the formula '1' 9 of the novel disseisin.

Henry II, who rid himself of ‘that turbulent priest’ Thomas [a] Becket and was granted lordship over Ireland by the Catholic Pope Adrian IV (ie, Nicholas Breakspear - the only English Pope to date) undertook major legal reforms which were documented in the Tractatus of Ranulf de Glanvill (referred to above). So it would I think be interesting to spend some time on that particular reform (ie the Jury system) and that source - as Henry II’s influences at this time could have been manifold (as, other than his relationship with the Church of Rome, he controlled large parts of France as well - which may accord with the suggestion above that there were Frankish/Continental origins involved).

The other area which I suggest could make a good subtopic is the Law of Restitution (property and jury systems also being touched upon above).

If you have a look at pages 4 - 5 of this article on The Roman Division of Wrongs: A New Hypothesis (http://www.romanlegaltradition.org/contents/2009/RLT5-DESCHEEMAEKER.PDF) - there is a discussion of the state of the roman law at a time fairly near the beginning of the Roman Occupation of Britain. Relevantly, on page 5, Gaius is said to have recognized a type of obligation based on mistaken payment – which was not said to arise in contract per se.

There are some good articles on this topic (eg - Swain, Warren --- "Unjust Enrichment and the Role of Legal History in England and Australia" [2013] UNSWLawJl? 41; (2013) 36(3) University of New South Wales Law Journal 1030 - http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLawJl/2013/41.html) including by a scholar called Peter Birks (eg, Peter Birks, ‘Comparative Unjust Enrichment’ in Peter Birks and Arianna Pretto (eds), Themes in Comparative Law: In Honour of Bernard Rudden (Oxford University Press, 2002) 137; Peter Birks, ‘Failure of Consideration and its Place on the Map’ (2002) 2 Oxford University Commonwealth Law Journal 1, 13.).

In short, the law of unjust enrichment and restitution in common law countries is said to trace its origins to the decision in Moses v Macferlan 1760] EngR? 713; (1760) 2 Burr 1005 [97 ER 676] per Lord Mansfield. There is a debate about the influence of the Roman Law on the outcome of this seminal case.

Mansfield LJ arguably injected into the action for money had and received the Roman notion of a contract ‘quasi ex contract’ (this is discussed in the Descheemaeker article above) when he stated (at 97 ER 676 at page 678) –

If the defendant be under an obligation, from the ties of natural justice, to refund; the law implies a debt, and gives this action, founded in the equity of the plaintiff’s case, as it were upon a contract (‘quasi ex contractu’ as the Roman law expresses it). This species of assumpsit (‘for money had and received to the plaintiff’s use’) lies in numberless instances, for money the defendant has received from a third person; which he claims title to, in opposition to the plaintiff’s right; and which he had, by law, authority to receive from such third person.

OK so that is my ‘Question/Questions’ – It is an interesting area and seemingly a real division of views as to whether there really is a significant interest – admiralty, property/feudalism, the jury system, and unjust enrichment are all areas that can be explored - so good luck!

Regards

Tom Dixon

Extract from Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) from [48] -

_The feudal basis of the proposition of absolute Crown ownership

1. The land law of England is based on the doctrine of tenure. In English legal theory, every parcel of land in England is held either mediately or immediately of the King who is the Lord Paramount; the term "tenure" is used to signify the relationship between tenant and lord (80) Attorney-General of Ontario v. Mercer (1883) LR 8 App Cas 767, at pp 771-772, not the relationship between tenant and land. The characteristic of feudalism "is not tenere terram, but tenere terram de X" (81) Pollock and Maitland, The History of English Law, 2nd ed. (1898, reprinted 1952), vol.1, p 234n. It is implicit in the relationship of tenure that both lord and tenant have an interest in the land: "The King had 'dominium directum', the subject 'dominium utile'" (82) ibid., p 773; Co Litt 16. Absent a "dominium directum" in the Crown, there would be no foundation for a tenure arising on the making of a grant of land. When the Crown acquired territory outside England which was to be subject to the common law, there was a natural assumption that the doctrine of tenure should be the basis of the land law. Perhaps the assumption did not have to be made. After all, as Holdsworth observed (83) op cit, vol.ii, p 199, the universal application of the doctrine of tenure is a purely English phenomenon. And Pollock and Maitland may be correct in saying (84) op cit, vol.2, p 236; accord: Holdsworth, op cit, vol.ii, (1923), p 75 fn.8 that the notion of universal tenure "perhaps was possible only in a conquered country". In Scotland, the King was not Paramount Lord of all land: some allodial lands remained in the Orkney and Shetland Islands, though most land that had been held allodially became subject to feudal tenure (85) Bell, Lectures on Conveyancing, (Edinburgh, 1867), vol.1, ch I, pp 531-532; Stair, The Institutions of the Law of Scotland, 4th ed. (1826), pp 219, 222; Craigie, Scottish Law of Conveyancing, (Edinburgh, 1899), pp 27-28; Lord Advocate v. Balfour (1907) SC 1360, at p 1368-1369. However, the English view favoured a universal application of the doctrine of tenure (86) Pollock and Maitland, op cit, pp 232-233: " Every acre of English soil and every proprietary right therein have been brought within the compass of a single formula, which may be expressed thus: - Z tenet terram illam de ... domino Rege. The king himself holds land which is in every sense his own; no one else has any proprietary right in it; but if we leave out of account this royal demesne, then every acre of land is 'held of' the king. The person whom we may call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all others off it, holds the land of the king either immediately or mediately."
2. It is arguable that universality of tenure is a rule depending on English history and that the rule is not reasonably applicable to the Australian colonies. The origin of the rule is to be found in a traditional belief that, at some time after the Norman Conquest, the King either owned beneficially and granted, or otherwise became the Paramount Lord of, all land in the Kingdom (87) Bacon's Abridgement, 6th ed. (1807), vol.V, "Prerogative", B,1. According to Digby's History of the Law of Real Property (88) (1897), p 34 William I succeeded to all rights over land held by the Anglo-Saxon kings; he acquired by operation of law the land of those who had resisted his conquest and a vast quantity of land was deemed to have been forfeited or surrendered to William and regranted by him. He may have become the proprietor of all land in England so that no allodial land remained. Or it may be, as Blackstone asserts, that in England, as in France, the allodial estates were surrendered into the king's hands and were granted back as feuds, the only difference being that in France the change "was effected gradually, by the consent of private persons; (the change) was done at once, all over England, by the common consent of the nation" (89) Commentaries, Bk II, ch.4, pp 50-51. But, whatever the fact, it is the fiction of royal grants that underlies the English rule. Blackstone says (90) ibid that - "it became a fundamental maxim, and necessary principle (though in reality a mere fiction) of our English tenures, 'that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has, mediately or immediately, been derived 'as a gift from him, to be held upon feodal services.' For this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same supposition, as a substruction and foundation of their new polity, though the fact was indeed far otherwise". It is not surprising that the fiction that land granted by the Crown had been beneficially owned by the Crown was translated to the colonies and that Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law. It is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed.
3. Accepting the doctrine of tenure, it was an essential postulate that the Crown have such a title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant and would attract the incidents appropriate to the tenure, especially the Crown's right to escheat (91) Wright, Introduction to the Law of Tenures, 4th ed. (1792), p 5. The Crown was invested with the character of Paramount Lord in the colonies by attributing to the Crown a title, adapted from feudal theory, that was called a radical, ultimate or final title: see, for example, Amodu Tijani v. Secretary, Southern Nigeria (92) (1921) 2 AC 399, at pp 403, 404, 407; Nireaha Tamaki v. Baker (93) (1901) AC 561, at p 580; cf. Administration of Papua and New Guinea v. Daera Guba (94) (1973) 130 CLR 353, at pp 396-397. The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty. The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign's beneficial demesne.
4. By attributing to the Crown a radical title to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown's demesne. The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown's purposes. But it is not a corollary of the Crown's acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen C.J. in Attorney-General v. Brown (95) See pp 13-14 above; (1847) 1 Legge, at pp 317-318: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant.
5. After the conquest of Ireland, it was held in The Case of Tanistry (96) (1608) Davis 28 (80 ER 516); 4th ed. Dublin (1762) English translation 78, at pp 110-111 that the Crown was not in actual possession of the land by virtue of the conquest and that - "a royal monarch (who) hath made a new conquest of a realm, although in fact he hath the lordship paramount of all the lands within such realm, so that these are all held of him, mediate vel immediate, and he hath also the possession of all the lands which he willeth actually to seise and retain in his own hands for his profit or pleasure, and may also by his grants distribute such portions as he pleaseth ... yet ... if such conqueror receiveth any of the natives or antient inhabitants into his protection and avoweth them for his subjects, and permitteth them to continue their possessions and to remain in his peace and allegiance, their heirs shall be adjudged in by good title without grant or confirmation of the conqueror, and shall enjoy their lands according to the rules of the law which the conqueror hath allowed or established, if they will submit themselves to it, and hold their lands according to the rules of it, and not otherwise." Similarly, after the conquest of Wales, in Witrong and Blany (97) (1674) 3 Keb.401, at p 402 [1685] EngR? 4051; [1685] EngR? 4051; (84 ER 789, at p 789) and see McNeil? , op cit, p 174 it was held that the inhabitants who had been left in possession of land needed no new grant to support their possession under the common law and they held their interests of the King without a new conveyance. In these cases, the courts were speaking of converting the surviving interests into an estate of a kind familiar to the common law, but there is no reason why the common law should not recognize novel interests in land which, not depending on Crown grant, are different from common law tenures. In Amodu Tijani (98) (1921) 2 AC, at p 403 Viscount Haldane, speaking for the Privy Council, referred to the variable nature of native title to land capable of recognition by the common law: "There is a tendency, operating at times unconsciously, to render (native) title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely. As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with. A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the Sovereign where that exists. In such cases the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached. But this estate is qualified by a right of beneficial user which may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence."

-- TomDixon - 07 Sep 2014

The actual first draft of my second paper (the contingency paper) was accidentally submitted under the heading for my First Paper in late December. I apologize if my difficulties in navigating the Wiki created any confusion. Attached below is a revised copy of the Freedom/Contingency Essay and the revised Englishry Essay that was initially submitted in January. Sorry if submitting them together throws off the word count. Thank You!

Best,

Ryan Holmes

SECOND PAPER REVISED

Introduction Surveying the development of freedom in the English law over the course of several centuries, it is apparent that there was no overarching plan or design that drove its development. It was a haphazard and decidedly uneven affair. Each of the incremental advancements in the freedom of land and people was in response to the events and circumstances of the day. These contingencies created tensions in society between various factions, whether they be the baronage and the Crown, mesne lords and their vassals, or the peasantry and the nobility as a whole. Change was largely brought about through compromise, but progress was rarely linear or guaranteed. Often, but not always, the faction attempting to maintain or reassert the status quo would make an initial attempt to resolve the tension through taking more restrictive measures, which frequently left land less freely alienable and individuals more bound to the land and their lords than before. When present, these restrictions usually precipitated a drastic reaction, either through violent uprising or legal innovation, that created the need for a new compromise. This gradual evolution generally left people freer and land more alienable. Tracing these patterns from the signing of the Great Charter through the Statute of Wills, it is clear that contingency, and response to it, are paramount drivers in the development of freedom in the English law.

Magna Carta The 1215 signing of the Magna Carta is a textbook example of how an incremental increase in the freedom of people was brought about by an attempt to resolve the immediate social and political tensions of the age. John was an unpopular king buffeted by conflicts with an ever more assertive Church and crushing military failure in France. Faced with rebellion by the baronage in the wake of the permanent loss of Brittany and Normandy in 1214, John’s hand was forced into making a series of guarantees to the nobility and the church that seemed to ensconce a modicum of due process in the English legal system. Though not considered a permanent settlement at the time, John’s untimely death and the subsequent repeated affirmation by later monarchs lead to the minimal guarantees of due process contained in the Magna Carta becoming the symbolic foundation of the English legal system.

The Crisis of the 14th Century: Plague, the Statute of Laborers, and The Peasant’s Revolt Perhaps the widest–reaching advancement in individual liberty during the medieval period was the gradual weakening of serfdom brought about by tumult of the second half of the fourteenth century. The immediate aftermath of the Black Death saw wages rise dramatically for agricultural laborers and increasing movement of people seeking work and demanding better conditions. Attempting to stem the tide and reassert the pre-plague status quo, Parliament passed the Statute of Laborers in 1351, which froze wages and prohibited the movement of workers. The Statute and its accompanying Ordinance were weakly enforced, but contributed to a general atmosphere of oppression of the working classes in the second half of the 14th century. As the economic crisis deepened in the 1370s, peasant discontent rose, and coupled with new theological reform movements like Lollardy, exploded in the Peasant’s Revolt of 1381. Though the jacquerie was ultimately put down, it posed a significant shock to the system, threatening London and executing the Archbishop of Canterbury along the way. Despite remaining on the books, the Statute of Laborers proved ineffective in restoring pre-plague conditions in the fact of the demographic and economic pressures that were weakening serfdom. The Revolt did not bring an immediate end to the institution, but it withered away in its aftermath, becoming almost nonexistent as a personal status in England by the end of the fifteenth century. The importance of social and demographic forces in driving the process is perhaps the greatest example of contingency advancing the freedom of individuals in the English law.

Uses, Wills, and the Reformation: Land Reform in the Reign of Henry VIII The Statute of Wills also demonstrates a model of how contingency drove the advancement of freedom. Granting landowners the right to devise their land through will, it represented a victory of landowners over the Crown, and freed the landowners from the strictures of mandatory primogeniture and excessive royal interference. This legal innovation came about through a drive to increase royal revenue, and Reformation, and outright rebellion. The stage was set with the passage of the Statute of Uses in 1536, an attempt by the Crown to end abuses of beneficial ownership and stymie the avoidance of the payment of incidents. Though these goals were almost immediately undermined through clever lawyering and the development of the trust, discontent over the Statute of Uses was a significant contributing factor, alongside the break with Rome and the Dissolution of the Monasteries, in the eruption of the Pilgrimage of Grace that fall. Gaining tens of thousands of followers and lasting for months, the rebellion was the most significant popular uprising against the religious and economic reforms of Henry VIII’s reign. Though royal authority was reestablished across Yorkshire in 1537, the Pilgrimage placed enormous political pressure on the Tudor state. The resulting compromise eventually led to the passage of the Statute of Wills in 1540, giving landowners the freedom to dispose of their land as they saw fit while avoiding the specter of royal escheat.

Conclusion Taken as a whole, contingency played a decisive role in the development of freedom in medieval England. This halting path to liberty, created by compromise and driven by the needs and contingencies of a given generation, shows that freedom in the English law was brought about by an organic and uneven process. The importance of events and the resolution of immediate social problems demonstrates that English liberty and was not the created through a grand design or derived from ancient indefinable rights, but was the product of a centuries-long human struggle that developed in response to specific events, and the social pressures they unleashed, as they unfolded over time.

FIRST PAPER REVISED

Introduction

The Englishry of the English law owes a great deal to the diverse traditions that contributed to its structure and substance. The medieval English law is in large part a product of the marriage of the Anglo-Saxon legal system, based in intensely local tradition and collective responsibility, and the expanding machinery of Norman central governance. The imposition of a Norman administrative super-structure in the aftermath of the Conquest created a truly national legal system that continued to evolve and grow throughout the period. Despite this expansion of national power, the system preserved instruments of local control and community decision making. The combination of these two traditions formed the basis for that most English of institutions: the common law. This inquiry demands a definition of Englishry, or what makes the common law system historically distinct. Using broad strokes, this quality of the system can be defined as the flexibility derived from its case-driven nature, encompassing both the absence of a comprehensive civil code and the centrality of judicial decisions and a significant degree of community involvement, either through compurgation or trial-by-jury.

The Foundation: Anglo Saxon Localism and Norman Administration

The various sources of the English law laid the foundation for legal system and enabled its later development and growth. The primary substantive source for the English law is the Anglo-Saxon law before the Conquest. It was influenced by several Germanic legal traditions and was by no means uniform across the entire country. Its concerns were intensely local, and it was underpinned by notions of collective responsibility and community justice. Though records are sparse, compurgation seems to have played a significant role is the decision of cases. The Normans brought two particularly significant innovations to the English legal system. The first of which was the development of a more robust royal administration, epitomized by projects like the Domesday Book, that allowed for the development of a truly national legal system and more efficient taxation. The second was the imposition of feudal tenure, a radically new system of land ownership. This combination of the Anglo-Saxon focus on local custom and community participation with Norman central governance and the military tenures provided the foundation of the English law, allowing for its later development and growth. The consolidation and expansion of royal authority and administration in the centuries following the Conquest led to the development of a national court system that governed the entire realm and developed new jurisdictions, causes of action, and novel uses of fictions to fit the legal needs of their times. The latter half of the 12th century saw dramatic increase in both royal power and the reach of national courts. Not only did royal justice begin to travel independently from the physical person of the king with the development of the eyres and later the assizes, but the judicial functions of the curia regis were functionally shifted to permanent courts with the creation of the Exchequer of Pleas, the Court of Common Pleas, and later the King’s Bench. The reign of Henry II saw the development and subsequent judicial use of novel disseisin and mort d’ancestor to ameliorate the abuses of the Anarchy. Later times saw the Chancery develop to remedy the perceived rigidity of the common law.

Procedural Innovations Within Royal System

Once established, these courts adopted new procedures that drove the law forward to meet the legal needs of contemporary society. This was occasionally done in novel ways. The Exchequer and King’s Bench greatly expanded their own respective jurisdictions with the Writ of Quominus and the Bill of Middlesex. In the 14th century, the common law courts drove the development of early tort law by expansively interpreting the vi et armis component of the writ of trespass as was done in Rattesdene v, Grunestone (YB 10 Edw II (54 SS) 140) and later doing away with the need for an allegation of force with the emergence of trespass on the case. A similar process is seen in the King’s Bench with development and affirmation of the use of assumpsit, much to the benefit of plaintiffs and the legal profession. Slade’s case Trin. 44 Eliz. 4 Co Rep 92b. The centrality of judicial action to substantive legal development and the national scope of these royal courts are part and parcel are part and parcel of the English law. They were created by the creation of Norman administrative state and evolved to the need to meet social, political, and economic needs of the day.

Local Participation

Despite the prominence of the royal courts in creation and development of a national legal system, the localism at the core of Anglo-Saxon law remained a defining aspect of the common law throughout the medieval period. Compurgation, or oath-helping through a combination of eyewitness accounts and character references, remained a key feature of litigation in the immediate aftermath of the Conquest. During the reign of Henry II, local participation grew into a more formal institution through the development of the jury. This took the form of the presenting jury of the grand assize and the also self-informing trial jury. The abolition of the ordeal by the Lateran Council of 1215 further encouraged the adoption of the jury trial. This right was later ensconced in the Magna Carta, securing community involvement through jury trial in a criminal proceeding as a fundamental right in the English constitutional system.

Conclusion

Though this essay speaks in broad terms and excludes many important themes, it seeks to establish that the diverse sources of the English law provided an essential foundation and account for the development of the common law’s defining characteristics. The institutions of the Norman state created a truly national legal system, and the institutional responses to contemporary social pressures through the years gave the common law much of its substance. Although the medieval English law operated within the confines of a national system, it remained an intensely local affair, with the jury in all its forms epitomizing the continued importance of the Anglo-Saxon tradition of localism and community involvement to the development of the common law.

Post Script: Despite what the heading reads, this is the evised 1st Paper. Reframed the question and moved away from constitutional questions.

I was wondering how the Domesday Book could have had as much authority as it did when I'm assuming the demographics of Medieval England must have changed relatively quickly such that the information it contained became very out of date. How long was the Domesday Book relied on by English authorities? Why was there no attempt to update the book? Was there any equivalent of such a record on the Continent? How did the book assist in the administration of the government of England beyond aiding in the collection of taxes?

-- MichaelCoburn - 09 Sep 2014

The Domesday Book was commissioned by William the Conqueror who dispatched a survey to assess all of the land throughout England. As king, he had the right to levy a land-tax. Called a geld or danegeld, the land-tax existed as early as 991 A.D. [1] Although the land-tax was abolished by Edward the Confessor around the year 1051, William reinstated it as a means of raising money for the Crown. [2] Reasons for conducting the land survey recorded in the Domesday Book were twofold. [3] Firstly, no similarly comprehensive survey had been conducted since the Roman occupation in England. Secondly, William wished to reform the previous system, which had over time accumulated many special provisions granting certain landowners favorable treatment. [4]

The Domesday Book continued to be relied on for many centuries. Particularly, it was used as evidence of boundaries amongst vills and other geographical units. [5] It was also used as proof of land-ownership. [6]

One reason the Domesday Book has achieved long-lasting influence is that it provides a picture of feudal England, with its hierarchies clearly articulated. [7] Indeed, this may have been another motivation for the rigid definitions of social classes in the book. [8]

A relatively recent attempt was made to create a new snapshot in England in the spirit of the original Domesday Book in 1986. [9] Over a million people participated in documenting British life. The project was reloaded in 2011 to give participants the opportunity to update their Domesday entries. [10]

[1] Maitland, The Domesday Book and Beyond, pg. 3. [2] Maitland, pgs. 3--4. [3] Survey questions available at http://www.bbc.co.uk/history/british/normans/doomsday_01.shtml. [4] Maitland, pg. 4. [5] Maitland, pgs. 12, 14--15. [6] http://www.nationalarchives.gov.uk/domesday/discover-domesday/domesday-legacy.htm [7] Maitland, pgs. 170--71 [8] Plucknett, Concise History, pg. 517. [9] http://www.atsf.co.uk/dottext/domesday.html [10] http://www.bbc.co.uk/history/domesday/story

-- AllysonMackavage - 10 Sep 2014

Statutes & Royal Ordinances, Edward II

This is a work in progress

Edward II

Brief History:

Reign 1307 – 1327

Married Isabella, from the French Royal Family. The marriage would soon turn sour to the point that Isabella would plot and bring about Edward’s deposition.

The major conflict of his reign was against the Scots led by Robert Bruce where the English army suffered a series of reversals leading up to a decisive victory by the Scots in 1314.

However, the conflict that would have far reaching consequences for the constitutional history of England was of a domestic nature.

Baronial Opposition and the Ordinances of 1310-11

It was Edward’s political battle against the Barons that lays the stage for the constitutional developments that concern this topic. One could mark the decade of 1310 as the decade when the Baronial opposition was successful in gaining the upper hand. The decade began with the Ordinances of 1310-11 which imposed severe limitations on the authority of the King. Among other things, it stipulated that the King could not make war, leave the realm, make appointment to important posts, make grants of title without the consent of the Barons in parliament. The phrase in parliament is of great significance here. To read the intention of the Barons as that of establishing constitutional checks and balances would be anachronistic. The Barons did not have a “constitutional” plan as such, as one would understand it in the modern sense. Instead, for the them, the Parliament emerged as a political space in which they could successfully and effectively challenge and contest the King’s authority without indulging in all out military assaults every time. The parliament was not for the Barons an independent source of legitimacy and power. There was no principle of representation involved. It was a place where the Barons would gather together, and thereby have an effective political platform to challenge the King. It is in this context one has to understand the importance of the insistence in the Ordinances that the nobility was summoned to the Parliament “by right and not by the King’s grace”. The regularity and the transparency of the summons (in which lied the seed of the notion of Peerage, which still governs the House of Lords) was of crucial importance.

While the Parliament is associated in modern times as primarily as centre of legislative power, this is not what it meant for the Barons. Their main focus was administrative, and to a lesser extent judicial power. In none of these functions of the parliament did the commonality have a share, whose role was limited to assenting to legislation, to make grants for money and to present petitions – in other words, functions of mostly legislative in nature. Not a word was said about any of these functions in the Ordinances concerning the parliament. In other words, in the Baronial vision of the Parliament, as evidenced through the Ordinances, there was no significant role for the commonality to play.

However, despite their highly limited and strategic vision for the Parliament, the decade of Baronial political success had two major impact in how Parliament was to evolve. One was (and this becomes more significant in view of the Household Ordinances, which was aimed at the private sphere of the Monarch) to establish the Parliament as a space for “public” exercise of political power, as opposed to the highly personal nature of the Monarchy. It allowed for a setting where the exercise of state power could be made public, and for the opposition that implied a level of transparency and check. It also provided a sense of legitimacy (though, not in the modern sense of the word) which made it easier for the Barons to make claims against the King. The inherently public nature of the Parliament provided for the Barons a greater ability to successfully curtail the power of the King which would have been difficult, or at any rate much more troublesome, to achieve through sheer force. The biggest evidence of this lies in the fact that the biggest political successes of the Baronial Opposition in the decade of 1310s was achieved in a Parliamentary setting (most notably, the Lincoln Parliament of 1316). One should not undermine the importance of the military strength of the Barons in all this (after all, Thomas of Lancaster, the leader of the Barons, often brought in his own armed guards inside the Parliament), but the developments of this decade gave the Parliament a notion of legitimacy, and public exercise of power, both of which were crucial to its future development as the most powerful institution in the realm.

The second major impact was the emergence of the Parliament as an independent political sphere, no longer just another monarchical chamber. In the battle against the King, the Barons had a serious handicap. The King possessed a source of power and legitimacy that came to him by virtue of his lineage – by the mere fact of being King. What the Barons needed was a political stage were they could unify and a stage and one that was independent of the aura of the King. They partly identified, partly made the Parliament to be such a stage. The realized (and successfully put into practice) that by controlling the parliament, they could be controlling a sphere of political action that could be outside the King’s control. This freeing of the Parliament from Monarchical control, even if just politically (as opposed to constitutionally) was a move of great significance, resonance of which could be felt even in Edward II’s reign.

Attempts at Reassertion of Royal Power: The Coronation Oath Argument

There were different ways in which Kings would extricate themselves from the promises made. Edward I, for example, did so through absolution through a Papal Bull. Edward II though took a novel approach, and argued against the 1311 ordinances on the basis of the relationship of the Sovereign to the law. He especially argued that the Ordinances, and the limits the sought to impose on him, were violative his Coronation Oath (given below), especially the first and the fourth precepts. [Anthony Musson, Medieval Law in Context, Mancheter University Press, Manchester, at 239-240.]

CORONATION OATH (1308)

"_Sire, will you grant and keep and by your oath confirm to the people of England the laws and customs given to them by the previous just and god-fearing kings, your ancestors_, and especially the laws, customs, and liberties granted to the clergy and people by the glorious king, the sainted Edward, your predecessor?" "I grant and promise them."

"Sire, will you in all your judgments, so far as in you lies, preserve to God and Holy Church, and to the people and clergy, entire peace and concord before God?" "I will preserve them."

"Sire, will you, so far as in you lies, cause justice to be rendered rightly, impartially, and wisely, in compassion and in truth?" "I will do so."

"_Sire, do you grant to be held and observed the just laws and customs that the community of your realm shall determine, and will you, so far as in you lies, defend and strengthen them to the honour of God_?" "I grant and promise them." [Emphasis Added]

Reassertion of Royal Power: Statute of York, 1322

In 1322, soon after Edward II won his political and military victory over the Baronial opposition, he convened the Parliament at York to pass the Statute of York to repeal the Ordinances of 1311 and reestablish the absolute superiority of the Monarchy. The relevant portions of the statute read:

Whereas our lord King Edward, son of King Edward, on March 16, in the third year of his reign, granted to the prelates, earls, and barons of his realm ... ;[1] and whereas the archbishop of Canterbury, primate of all England, and the bishops, earls, and barons chosen for the purpose, drew up certain ordinances that begin as follows ... , which ordinances our said lord the king caused to be rehearsed and examined in his parliament at York three weeks after Easter in the fifteenth year of his reign ...; and whereas, through that examination in the said parliament, it was found that by the ordinances thus decreed the royal power of our said lord the king was wrongfully limited in many respects, to the injury of his royal lordship and contrary to the estate of the crown; and whereas, furthermore, through such ordinances and provisions made by subjects in times past against the royal authority of our lord the king's ancestors, the kingdom has incurred troubles and wars, whereby the land has been imperilled: [therefore] it is agreed and established at the said parliament by our lord the king, by the said prelates, earls, and barons, and by the whole community of the realm assembled in this parliament, that everything ordained by the said Ordainers and contained in the said ordinances shall henceforth and forever cease [to be valid], losing for the future all title, force, virtue, and effect; and that the statutes and establishments duly made by our lord the king and his ancestors prior to the said ordinances shall remain in force. And [it is decreed] that henceforth and forever at all times every kind of ordinance or provision made under any authority or commission whatsoever by subjects of our lord the king or of his heirs against the royal power of our lord the king or of his heirs, or contrary to the estate of the crown, shall be null and shall have no validity or force whatever; but that matters which are to be determined with regard to the estate of our lord the king and of his heirs, or with regard to the estate of the kingdom and of the people, shall be considered, granted, and established in parliament by our lord the king and with the consent of the prelates, earls, and barons, and of the community of the kingdom, as has been accustomed in times past. [Emphasis Added]

The statute became, in time, one of the most important in the history of English constitutional law. Of great importance, and which got a lot of attention from the future scholars, was the term “and the commonality of the realm” at the end of the statute. This was often viewed by future scholars and politicians (especially the Whigs) as a recognition of Parliamentary supremacy, and a constitutional recognition of the role of the “commonality” who till that point had little substantive role in the process of law making. The abovementioned phrase in the statute can be seen as a major concession to the commonalities. While such concessions have been made by Kings earlier from time to time for strategic purposes (including Edward’s father Edward I), this statute gave it permanency, and as would be argued by future historians and politicians, a constitutional validity to the right of the community to be consulted on fundamental matters which clearly concerned it.

However, it would not be in any ways correct to surmise from this that the intention of Edward II and his advisers who drafted the Statute was to establish the Parliament as a centre democratic power. The Statute was not in anyway progressive, as the Whig reading would suggest, but overwhelmingly Conservative, in the sense it aimed at reinstating, and conserving Monarchical supremacy that has been damaged by the decade of Baronial challenge -- as the major part of the statute makes amply clear. What Edwards was specifically concerned about is having unchecked and unfettered power over matters concerning his own person, estate, family and heirs. In the fractured Feudal nature of the British realm, this was of the central issue to him. The concession to the commons on the other hand was made regarding the “estate of the realm”. Here, it was not seen as threatening to his immediate concerns to atleast acknowledge the principle that matters concerning all must be approved by all.

In anycase, it is likely that he saw the commonality as playing little more than a merely formal role as they had used to and not emerging as a alternate centre of power, like the Barons, who were the more immediate enemies. The wording of the statute, which says that the matters (both regarding the estate of the king and the estate of the realm) was to be “established” by the King shows that the political initiative was to come from the King exclusively, and the power of the parliament was to merely “consent” to it. In 14th century, consent did not carry the republican overtones that it does today. On the contrary, the intention was to bring the Parliament, which had been so successfully hijacked by the Barons back into the Monarchical orbit – to make it an expressly royal institution. However, while the express intention of the Statute of York was to strongly reassert Royal supremacy both over the realm and over the parliament, the far reaching consequences were more interesting.

For one, the very fact that Edward and his counselors saw the need to go through the Parliament and a statute to undo the legal implications of the Baronial challenge speaks volumes. It shows that they realized the importance of the Parliament as a political arena tat was so successfully used against them by the Barons. Thus, a mere military victory (which they had already achieved) against the Barons were not enough. What they also needed was to secure the control of the Parliament, and insure that it does not fall into the hands of the Barons quite so easily as it did a decade back. Thus was the need to expressly put the Parliament in a central role in the Statute of York.

Of equal importance was the provisions regarding the commonality. While they were not, as the Whigs would claim, an acknowledgement of the absolute constitutional supremacy of a representative body, they were nevertheless an important advancement of the principle of representation in the medieval context. One of the main strengths of the Baronial control of the Parliament was the fact that the Barons could claim to represent the realm and its common interests. This gave them a potentially equal platform of legitimacy to challenge the King who also claimed to represent the realm in his very personhood. Thus, one of the political strategies of the King and his counselors was to cut off this source of legitimacy to the Barons. They attempted to do so by strengthening and regularising the rights of the “commonality of the realm” (that is, the lower house of the parliament) to present “common petition”.

This right must be understood in the context of the political landscape of the 14th century. The main threat to the King was the Barons. The “commonality” (not yet the commons, as they are known today) on the other hand consisted of knights burgesses, and a large numbers of lower clergy. It was a rather disunited bunch of men, with very little unified political purpose. Especially the clergy did not feel a deep sense of commitment to the parliament, which they saw as a secular institution and thereby neither binding nor demanding much from them. Clearly, for Edward II, this cumbersome body of men was not a political force that worried him, as opposed to the Barons. By elevating and formalizing the role of “common petition” as the representative plea of the realm he insured that the Barons would not have an easy access to the claim of representation any more. At the same time, while this change in the nature of common petitions was a significant development constitutionally, in Edward II’s reign it had little immediate significance in shaping legislation. Legislation would still be, in the years following 1322, almost entirely royal in nature and very little, if any of it, originated in the common petitions.

So, one was of reading the developments of Edward II’s reign is to see how the “commonality” gained political prominence not by being a party to the political struggle, but as a beneficiary of the struggle between the King and the Feudal lords. However, as in time, the economic and social power shifted from the Feudal class of the Barons to the bourgeoisie class, who populated the lower house of Parliament, the words of Statute of York, and the practices brought about by Edward II, would get a new life and new significance, in a way that the King and his counselors could not have imagined. In that respect, one has to recognize the significance of the developments that were put in motion during the reign of Edward II.

Private and Public Nature of Law I: Ordinances and Statutes

So, one way of reading the developments of Edward II’s reign is to see how the “commonality” gained political prominence not by being a party to the political struggle, but as a beneficiary of the struggle between the King and the Feudal lords. However, as in time, the economic and social power shifted from the Feudal class of the Barons to the bourgeoisie class, who populated the lower house of Parliament, the words of Statute of York, and the practices brought about by Edward II, would get a new life and new significance, in a way that the King and his counselors could not have imagined. In that respect, one has to recognize the significance of the developments that were put in motion during the reign of Edward II.

As has been mentioned earlier, one of the significant moves made by the Baronial opposition was an assertion for the need of public exercise of political power. There intention for this assertion was to make sure that they could exercise a scrutiny and check over the King’s authority. Significantly, when the King successfully wrested his authority back, he did not give up on this idea. One of the reason for this was, as we have discussed, the (perhaps begrudging) acknowledgement by the King and his counselors of the political potential of the parliament, and thereby the potential pitfall of abandoning it entirely. The other, perhaps more important reason was to ensure that the Barons cannot undo the work done by the Statute of York merely by force or another set of ordinances. They had to made to come through the Parliament (and the commonality), which the King now controlled. This is what explains the provision in the statute that all ordinances made by the “subjects” against the “estate of the crown” to be void; and the further, more significant provision that “but that matters which are to be determined with regard to the estate of our lord the king and of his heirs, or with regard to the estate of the kingdom and of the people, shall be considered, granted, and established in parliament”. In other words, all matters concerning the “estate of the kingdom and the people” were to be decided in a public manner and a public forum. Ordinances were still possible for the King to make, but that would concern it seems only private matters regarding his own estate, heirs and family. This potentially set up the division between Ordinances (and individual exercise of power by the executive), and Statue (a collective exercise of power by a body of representatives) that would take shape in time to resemble what we understand today by those terms. Furthermore, it also set up an implied hierarchy of these two legal instruments. Statutes (including the Statute of York itself) was to deal with more fundamental matters of law (constitutional, in our sense) while Ordinances were to deal with matters of more ordinary (administrative, in our sense) matters, including the management of the royal household and estate. The Statute of York could be seen as laying down the foundation of this notion of the two kinds of lawmaking which would be familiar to us in the modern times. What should be remembered though that in absence of checks and balances, this was not seen by Edward II and his counselors as any limitation on the royal power since it was the King who initiated statutes as well. Instead it was seen as a safeguard against future renegade Barons who could draft ordinances and then force the crown to accept them.

Private and Public Nature of Law II: The King and the Courts

“Sic voluntas hodie vincit rationem. Nam quicquid regi placuerit, quamvis ratione careat, legis habet vigorem” [Thus today will overcome reason. For whatever pleases the king, although lacking reason, has the force of law]. Vita Edwardi Secondi.

The discussion of private and public nature of the law in Edward II's reign would not be complete without taking a look at how the law was interpreted by the courts vis-a-vis its relationship to the King. The king being the fount of all justice, was also a judicial authority. It seems that Edward II personally did involve himself in the judicial decision making process if the matter had enough at stake for him to be involved. La Warre v. Bishop of Coventry (attached) mentions adjournment for further royal deliberation.

So does King v. The Prior of the Hospital of St. John of Jerusalem (attached).

However, sometime the King would intervene to instruct the courts to act in a way that would be expressly violative of a statute, and that did not go without protest. In Scoland v. Grandison [Attached] the counsel for the defendant, says that his client need not answer to the writ since it was presented in violation of the procedure laid (not on the day provided for) by statute. The judge note that they were under direct order from the King to allow the writ. The interesting (and relevant for our purpose) exchange happens on page 175-76, where to the Counsel’s contention that the statute in question was made by the “common counsel of the Realm”, and therefore should not be overridden by a simple directive of the king. However, the judges responded that the king’s command was at par with “common counsel” What also came up was the fact that such a view is in clear violation of the Ordinances of 1310-11, which were still fresh (the case was sometime in the years 1313-1314)

Similarly, in the case of Horneby v. Abbot of Croyland the question came up whether certain actions were in violation of the Magna Carta. The response of the judges was that since they were acting in King’s stead, the have to give weight to the king’s wishes (which were conveyed through a letter) even if it goes against the principles of Magna Carta. [Attached]

These cases then illustrate the ambiguous nature of the constitutional developments in Edward II's reign as has been discussed earlier. They show that it would be wrong to claim that there was an ascendancy of the idea of public law as a successful counter to private or individual assertions of legal power by the King. At the same time, as some of the arguments in these cases illustrate, the developments in this time made it possible for enterprising lawyers to make those claims. In time, as the socio-political conditions would change, so would the strength of these arguments.

I was wondering what the public policy/moral justification for what today appears to be a manifestly unjust law? How could the law have continued to exist for such a long period of time as new Enlightenment ideals and a rising belief in the importance of the free market increased in England during the 18th and 19th centuries?

-- MichaelCoburn - 25 Sep 2014

OLD POOR LAWS 1349 through 1781

Medieval (14th Century)

The Ordinance and Statute of Laborers were two laws passed in 1349 and 1351, respectively, in response to labor shortages following the Black Death. Essentially, the workforce was significantly lessened by the large number of deaths, creating a labor shortage that poised workers to demand high wages, forcing manufacturers to increase prices to account for increased costs.

The Ordinance of Laborers froze wages at the pre-plague level by forbidding employers to offer and employees to ask for wages higher than those paid from "the twentieth year of our reign of England, or five or six other commone years next before" (1332 to 1338, note that plague was in 1348). [1] It also required the sheriff to commit to the gaol any unemployed able-bodied men and women. The Ordinance of Laborers was not very effective, and the subsequent Statute of Laborers was passed to aid its enforcement, because many workers continued to demand twice or thrice pre-plague wages. [2] The Statute of Laborers mostly contains more specific provisions of acceptable wages and and sales prices for specific workers.

At the time, the justifications for both the Ordinance and Statute of Laborers are plainly stated. Firstly, the King intended to discourage idleness, particularly because some able-bodied individuals were choosing to "beg in idleness" rather than work. [3] Indeed, the Ordinance of Laborers forbade giving alms to idle beggars to make the lifestyle of begging less profitable to potential workers and increase the safety of the realm ("many valiant beggars, as long as they may live of begging, do refuse to labor, giving themselves to idleness and vice, and sometime to theft and other abominations"). [4] An important justification, however, was essentially that fixing prices and wages was for the good of the realm. [5] Of course, it bears noting that these acts were passed by the King "by the assent of the prelates, nobles, and other of his council" and perhaps therefore were more favorable to the wealthy than the poor.

As noted by Palmer, the Statute of Laborers ultimately created a perverse incentive for workers to slack on the job because "[f]orced work and wage restrictions . . . result in less motivation to work well." [6]

Enforcement of the Ordinance and Statute of Laborers was generally light, so long as prices were sufficiently high. When prices dropped, and as a result profit margins shrunk, employers looked to enforcement of the statutes to drive wages back down. Therefore, enforcement was low for the two decades following the Black Death, but re-energized in the 1370s. [7] The Peasant's Revolt of 1381 is at least in part attributable to this increased enforcement. [8] In the following century, wages naturally rose beyond the levels set by the Statute of Laborers as up-and-coming lords and emerging industries and geographical areas were willing to pay above-statutory wages for workers. [9]

Ultimately, the statute in England was repealed by the Statute Law Revision Act of 1863, the purpose of which was to "repeal[] certain enactments which have ceased to be in force of have become unnecessary."[10] Therefore, its long-term existence on the books does not necessarily reflect a long period of enforcement. Indeed, I have not encountered any evidence of enforcement beyond the 14th Century.

Additional Notes on Statute & Ordinance of Labourers:

• Was an attempt by the government and ruling class to return the laborers to servile conditions because after the plague, many workers saw the opportunity to become freedmen.[11]
• Additional laws passed to supplement enforcement included:[12]
  • If any man ran away from his place of employment and was recovered by his employer, he could be branded with an “F” (for “falsity”) on his forehead. (34 Edward III c. 10 (1360))
  • Decreed that children who were employed in agriculture before the age of 12 could not be put to any trade and that craftsmen may be compulsorily conscripted to help bring in the harvest. (12 Richard II c. 3 (1388))

Tudor Poor Laws (1485-1558)

• Under Henry VII, 1495 Vagabond and Beggars Act (11 Henry VII c. 2) was passed setting forth: “Vagabonds, idle and suspected persons shall be set in the stocks for three days and three nights and have none other sustenance but bread and water and then shall be put out of Town. Every beggar suitable to work shall resort to the Hundred where he last dwelled, is best known, or was born and there remain upon the pain aforesaid.”

• Historically, England relied upon churches and individual charity to provide poor relief. In many cases, the Church provided the charity, both as a result of individual obligations to provide Christian charity and the Church’s obligation to provide relief for the poor of their community.[13] Thus began the designation of the parish as the unit of obligation for poor laws, which lasted throughout the Old Poor Laws.[14] This began as early as Pope Gregory IX’s papal decree for the faithful to seek salvation “with works of great mercy.”[15]
• In the first half of the 16th Century, many Christian countries, both Catholic and Protestants began forming institutional poor relief, probably inspired by the humanist movements of Erasmus of Rotterdam and Juan Luis Vives which professed Christian charity and moral reform.[16]
• In 1538 and 1547, Protestant Reformation abolished monasteries and other religious institutions, as well as crippled gilds and fraternities, which had formerly provided poor relief.[17] Furthermore, the Reformation marked a national shifting of viewpoints through which philanthropy became increasingly secular, rather than meted out through the Church.[18]

• Under Henry VIII, harsh treatment of vagabonds was continued with the 1531 “Act how aged, poor and impotent Persons, compelled to live by Alms, shall be ordered; and how Vagabonds and Beggars shall be punished” (22 Henry VIII c. 12). Under this act, vagabonds could be whipped in addition to being placed in stocks, although impotent vagabonds could be granted a license to beg legally.[19] However, these licenses to beg were mostly limited to the sick, disabled, and elderly.
  • This act is recognized as the first English statute actually aimed at providing relief, rather than punishing vagrancy because it made the local Justices of the Peace responsible for licensing the poor within their district.[20]
• In 1536, more structure was provided to the 1531 act in the 1536 Act For Punishment of Sturdy Vagabonds and Beggars (27 Henry VIII c. 25). The 1536 act provided that “sturdy” vagabonds should be set to work after being punished.[21] It also provided that local mayors, bailiffs, constables, and other officers were responsible for ensuring that the poor in their parish were cared for such that they need not beg.[22] Although they could not use municipal funds not levy a compulsory tax on the parish to raise this money, they organized collections in a common box.[23] In addition, voluntary contributions to the poor other than through the common box were made illegal; the goal of this latter provision was to control discriminatory giving.[24]
  • Although this act lapsed later in 1536, its designation of the parish as the administrator of charitable giving lasted into future poor law reforms.[25]

• In London, there was a great massing of the poor, and the Reformation threatened to eliminate some of the infrastructure used to provide for the poor. As a result, King Henry VIII consented to re-endow St. Bartholomew’s Hospital in 1544 and St. Thomas’s Hospital in 1552 on the condition that the citizens of London pay for their maintenance.[26] However, the city was unable to raise enough revenue from voluntary contributions, so it instituted the first definite compulsory Poor Rate in 1547 which replaced Sunday collections in Church with a mandatory collection for the poor.[27]
  • In 1555, London became increasingly concerned with the number of poor who could work, but yet could not find work, so it established the first “House of Correction” was established in the King’s Palace at Bridewell where poor could receive shelter and work at cap-making, feather-bed making, and wire drawing.[28]

• From 1547 to 1555, additional laws were passed providing further regulation and infrastructure:[29]
  • 1547 Act For the Punishment of Vagabonds and Relief of the Poor and Impotent Persons (1 Edw. VI c. 3): Provided that vagabonds could be enslaved for two years and continued weekly parish collections for the poor.
  • 1550 Act Touching the Punishment of Vagabonds and Other Idle Persons (3 & 4 Edw. VI c. 16): Repealed the 1547 Act and reinstituted the 1531 Act requiring the licensing of impotent beggars.
  • 1552 Act For the Provision and Relief of the Poor (5 & 6 Edw. VI c. 2): Designated a specific position for “Collector of Alms” in each parish and created a register of licensed poor. Under the assumption that licensed poor would now be relieved by parish collections, begging was completely prohibited.
  • 1555 Act For the Relief of the Poor (2 & 3 Philip & Mary c. 5): Required licensed beggars to wear badges designating them as such.

Elizabethan Poor Laws (1558-1603)

• Even before her famous reforms in 1598 and 1601, Elizabeth passed more structured, but also more humanitarian, poor laws from 1563 to 1576.[30] The 1563 Act For the Relief of the Poor (5 Eliz. I c. 3) essentially required all parish residents to contribute to poor collections (provided they had ability to pay). Those who “of his or their forward willful mind shall obstinately refuse to give weekly to the relief of the poor according to his or their abilities” could be bound over to justices of the peace and fined £10.[31]
• The 1572 Act For the Punishment of Vagabonds and for Relief of the Poor and Impotent (14 Eliz. I c. 5) provided comprehensive reform to the treatment of the poor. Firstly, Justices of the Peace were to survey and register “aged, decayed and impotent poor” who had resided within the parish for at least 3 years and decide how much money was required for their relief, then assess parish residents weekly for the appropriate amount.[32] Those refusing to contribute could be imprisoned. Vagabonds could be whipped and burned through the ear and then set to work. It also provided that if there were too many poor to be relieved through weekly collections, beggars could be licensed.
• It further provided that any surplus funds could be used to “place and settle to work the rogues and vagabonds.”[33]
  • Building on the 1572 Act, the 1576 Act For Setting of the Poor on Work, and For the Avoiding of Idleness (18 Eliz. I c. 3) required towns to create “a competent stock of wool, hemp, flax, iron and other stuff” for the poor to work on and houses of correction for those who refused to work where recalcitrant or careless workers could be forced to work and punished accordingly.[34]

• The laws passed in 1598 and 1601 were meant to retain the effects of the 1576 Act while improving its administrability.[35] It is believed that they were passed in response to a large dearth of crops from 1594 to 1598 resulting from continuous cold and rain for many years.[36]
  • The 1598 Act for the Relief of the Poor (39 Eliz. 1 c. 3) and the 1598 Act For the Punishment of Rogues, Vagabonds and Sturdy Beggars (39 Eliz. I c. 4) (“The Vagrancy Act”) limited the role of the Justices of the Peace to make administration of the poor laws less procedurally burdensome.[37] Notably, they placed the burden of setting poor to work and assessing parish collections in the hands of churchwardens and collections overseers and allowed the churchwardens and overseers to garnish property from those refusing to contribute. However, justices of the peace could assess other parishes within the same hundred to aid parishes unable to gather sufficient collections (a “rate in aid”).[38] The Vagrancy Act also allowed parish officers, in addition to Justices of the Peace, to punish vagabonds, thus giving the Justices of the Peace a more supervisory role.[39] The 1601 Act For the Relief of the Poor (43 Eliz. I c. 2) reiterated these provisions.[40]

• Despite the passage of these laws, it is believed that by 1601, most large towns, but only few rural parishes actually implemented the assessment of rates on residents for poor relief.[41] However, a survey in 1696 revealed that nearly every parish assessed a tax for the poor.[42] Although the money was put to many purposes, most of it was given out as a cash dole to the poor, either as long-term pensions or short-term aid.[43]
  • In conjunction with these laws, the Privy Council took a more active role in ensuring that each parish had enough food, that stock was available for the poor to work on, and that all the poor were provided for, especially by increasing its own supervision over justices of the peace.[44]
  • Specifically, the Privy Council established itself into a Poor Law Commission and in 1631 released a Book of Orders outlining how justices of the peace were to supervise collections overseers, constables, and churchwardens within their parishes and hundreds.[45] Based on parish records, the pressure from above to provide relief for the poor had a great effect on increasing collections and relief.[46]

Reform After Elizabeth I (up to 1782)

• 1647 An Ordinance for the Relief and Payment of the Poor, and the Punishment of Vagrants and Other Disorderly Persons was an ordinance of Parliament creating a Corporation of the Poor in London.[47] It created work-houses for the poor, where both adults and children could either reside or visit daily for work.[48] However, under the Restoration of 1660, Charles II took back the properties from the Corporation.

• 1662 Act For the Better Relief of the Poor of this Kingdom (13 & 14 Car. II c. 12) (“Act of Settlement”) restored the Corporation of the Poor in London and created new corporations in other places, including Westminster, Middlesex, and Surrey.[49]
• The Act of Settlement also codified the concept of “settlement,” which essentially means that every person had a parish to which he “belonged” and could be returned to. Under the Act of Settlement, newcomers to a parish could be removed unless they rented a house for £10 or more per year.[50] The relation of this to the poor laws is that its motivation was to prevent an influx of poor into a parish, since it was the parish members who were responsible for providing poor relief.[51]
• Under the 1692 Act For Supplying the Defects of the Former Laws for the Settlement of the Poor (3 William & Mary c. 11), in addition to earning settlement in a parish by renting a house worth at least £10 per year, poorer migrants could earn settlement by paying local taxes for a year or by serving as an apprentice or servant for a year.[52]
  • The 1697 Act For Supplying Some Defects in the Laws for the Relief of the Poor (8 &9 William III c. 30) made it easier for those persons receiving a certificate in their former parish to obtain settlement in a new parish.
  • A flaw of the Act of Settlement was that it encouraged neighboring parishes to fight over who had responsibility for certain poor people, which created a large administrative burden and highlighted the need for a larger unit that the parish for poor relief.[53]
  • The 1697 Act also attempted to address the deficiency of work for the poor by requiring workmen to take on pauper apprentices. Recognizing that there was simply not enough money to supplement all of the poor, it also attempted shame parishes into giving more money by requiring those receiving pensions from the parish to wear outward badges.[54]

Rise of the Working Class and Corresponding Legal Changes

• • By the late 18th century, ~1 million people were receiving parish poor relief. [55]
  • During the same period, the standard of living of poor people in England declines. "“The thirty years leading up to the new Poor Law of 1834 saw continuous attempts to hold down the poor-rates, to chip away at outdoor relief, or to pioneer the new-type workhouse” [56]
  • Speaking of workhouses: “Our intention,’ said one Assistant Commissioner, ‘is to make the workhouses as like prisons as possible’; and another, ‘our object… is to establish therein a discipline so severe and repulsive as to make them a terror to the poor and prevent them from entering’.” [58]
  • Bread Riots common until 1840s. [57] Also of note is the Great Cheese Riot of 1764, where "whole cheeses were rolled down the streets." [59] These riots peaked during the famine of 1795. [60]
  • Usually these actions were actually fairly disciplined. At least some of the time, the mob would force the farmers/merchants to sell their harvest at what was regarded as a fairer price, and let the farmer keep the proceeds. Despite their popularity, the leaders of these actions were at least sometimes hanged if they were caught.[61]
  • Between 1760 and 1810, sixty-three new capital offenses are created, primarily for property crimes. [62] These included: stealing shipwrecked goods (1753, actually), breaking into a building to steal or destroy linen (1764), food rioting, destroying a mill (1769), and forging bank notes. [63].
  • Quite frequently though, death sentences were commuted to transportation. [64].
  • "The critics of the law argued that the gibbets and corpses paradoxically weakened enforcement of the law: rather than terrifying criminals, the death penalty terrified prosecutors and juries, who feared committing judicial murder on the capital statutes." [65].
  • Really, it looks like the legal system functioned as a reactionary, and not extraordinarily effective, tool, during a period of major social and economic change--both the poor law and the criminal law were routinely amended in unsuccessful attempts at controlling the poor.
  • Further consideration relationship between criminal law and "poor law."
  • specific details of 1834 Poor Law Amendment? -- FrancisWhite

*Update

-- AllysonMackavage - 25 Sep 2014

Additional Notes from History of the Law of Charity (Gareth Jones) as it relates to the poor laws:

• During the Protestant Reformation, laws were passed that increasingly transferred what had been religious property back to the Crown (e.g., I Edward VI c. 14 forfeiting the lands of “Colleges, Free Chapells and Chauntries . . . and of brotherhoods, guilds, and fraternities” to the Crown if they supported superstitious purposes). [i] “Piety and charity could no longer be to all Englishmen synonymous conceptions.” [ii]

The Statutes of Charitable Uses:

• Although the Elizabethan poor laws recognized that the local communities must publicly support their poor, there was a simultaneous recognition that private philanthropy could provide relief as well and that the existing system at the time of supervision over charities in the Chancery Court was not ensuring that charitable funds were properly spent and distributed. [iii] As a result, in 1597, 39 Eliz. I c. 6 (“An Acte to reforme Deceits and Breaches of Trust, touching Lands given to Charitable Uses”) was passed and re-enacted four years later (as The Charitable Uses Act, 1601, 43 Eliz. I c. 4). [iv]
  • Commissioners within each county were to investigate breaches of trust reported by local parishioners.
  • Commissioners had jurisdiction over a broad range of charities, including city and town corporations established after 1601. [v]

[i] Jones, at 13. [ii] Jones, at 15. [iii] Jones, at 22. [iv] Jones, at 23. [v] Jones, at 38.

-- AllysonMackavage - 10 Nov 2014

-- AllysonMackavage - 20 Nov 2014

I made the following revisions to https://en.wikipedia.org/wiki/English_Poor_Laws (username: "allydillo"):

• Under "Medieval Poor Laws," added reference to 34 Edw. III, c.10 (1360).
• Under "Tudor Poor Laws":
  • clarified limitation on licensing for "impotent" poor
  • added paragraph on poor relief / houses of correction in London during the 16th Century
  • added reference to 5&6 Edw. VI c.2 (1552)
  • added paragraph on laws passed under Elizabeth prior to her complete overhauls in 1597 and 1601.

-- AllysonMackavage - 20 Nov 2014

I made the following revisions to https://en.wikipedia.org/wiki/Tudor_Poor_Laws:

• added info on effect of reformation
• created reference / link to 1495 act
• created link to 1536 act
• added information on / linked to 1547, 1552, and 1555 acts
• added several paragraphs on poor laws passed by Elizabeth prior to "Elizabethan" reforms in 1598 & 1601.

Additionally, I created the following pages to provide further information on relevant poor laws:

• 1531 Vagabond Act (https://en.wikipedia.org/wiki/Vagabonds_Act_1530)
• 1536 Act for Punishment of Sturdy Vagabonds (https://en.wikipedia.org/wiki/1536_Act_for_Punishment_of_Sturdy_Vagabonds_and_Beggars)
• 1547 Vagabonds Act (https://en.wikipedia.org/wiki/1547_Vagabonds_Act)
• 1552 Poor act (https://en.wikipedia.org/wiki/Poor_Act_1552)
• 1555 Poor Act (https://en.wikipedia.org/wiki/1555_Poor_Act)
• 1563 Act for the Relief of the Poor (https://en.wikipedia.org/wiki/1563_Act_For_the_Relief_of_the_Poor)
• 1572 Vagabonds Act (https://en.wikipedia.org/wiki/1572_Vagabonds_Act)
• 1575 Poor Act (https://en.wikipedia.org/wiki/1575_Poor_Act)

-- AllysonMackavage - 03 Dec 2014

By Justin Maffett

The Black Death was a pivotal moment in English legal history, having ushered in a wave of economic and social changes that transformed unfreedom of both people and property into freedom. However, this was by contingency only. Though there had been a movement towards greater freedom prior to 1348, it was really the Black Death and its devastating economic effects that disrupted England’s feudal relations – which had been “a primary method of social organization” – that led to the social transformation of unfreedom to freedom (Palmer 1).

From Unfreedom to Freedom of People and Property

According to some measures, upwards of a third of England’s population died during the first outbreak of the plague (1348-50), which brought about a demographic crisis of catastrophic proportion. The immediate effects were economic to where the loss of labor led to a dramatic loss in productivity. Farmlands owned by barons and other noblemen lay idle, which led to an evaporation of income. Villeins took advantage of the economic opportunity by wielding their newfound market power in the competitive marketplace for labor by demonstrating their unwillingness to work and by demanding hire wages. Meanwhile, lords were reluctant to enforce their rights to compel service for fear of driving away labor.

This of course upset the status quo of social order. “The terrible mortality from this plague completely disorganized the manorial system, which had hitherto depended on a plentiful supply of labor born and bred within the manor,” Plunkett explains (32). As lords competed for free labor, servile inhabitants were tempted to leave their estates to become hired laborers. Lords were no longer able to find servile labor, which forced them to either lease their lands to free labor or “tacitly conced[e] to their peasants the benefits of ownership in their holdings” (Plunkett 33). As a consequence, the villein slowly developed “customary property rights in the land he worked” (Plunkett 33).

Re-Stabilizing the Status Quo of Unfreedom

What had started as an economic crisis quickly became a threat to the social order too. Those in bound service to their lords abandoned the manors and sought free labor elsewhere. Prior to the Black Death, the government generally did not involve itself in local matters like the relationship between lords and their laborers. Social organization was basically regional. Law itself was used in litigation to resolve claims in other matters, but it was not really used in a positive way as a means of social control. However, in the two decades following the first outbreak, “the government exerted itself to retain the old structure of society, primarily through enforcement of the Ordinance and Statute of laborers” (Palmer 5). Here, governance changed significantly such that the government was intent on using law and statutes to control society and preserve the status quo (Palmer 5).

The government promulgated the Ordinance of Laborers within a year for the initial outbreak. The key provisions of the statute called for coercion to work and to work at accustomed wages. “All able bodied people under sixty years old were required to labor. Testimony by two ben before various local officials was sufficient to jail those who refused to work or to work at the accustomed wages…” (Palmer 18). The Ordinance demonstrated the government’s willingness to regulate not just labor but manorial relationships that had traditionally fallen outside the purview of the law. Now the government would approach workers from an economic perspective.

The Villein’s Return(?) to Unfreedom

Though it can be said that the villein benefitted greatly from the Black Death, owing to the general transformation from unfreedom to “freedom” in both an economic and social sense, it would be misleading to call the villein or even the free man completely free. If anything, a more apt claim would be that they became less unfree. Some of the statutory shifts included changes to criminal rights, which benefitted the upper class more than any other group because they were the ones who knew how and when to invoke these rights. The government also adopted a number of punitive remedies and occupational liabilities that disproportionately affected those in the labor force. Moreover, though free men were typically enjoyed access to the common law, villeins however were still denied access, even after the plague. The villein still lacked any ordinary recourse at common law that would protect him from his lord. This is important because it was through the common law that the government sought to regulate “the lives and fortunes of all substantial and many insignificant Englishmen” (Palmer 3).

Conclusion

Admittedly, the importance of the villein’s status waned in the decades following the Black Death. But it is also true that there are other factors that could have contributed to this. First and foremost, the authority granted to the upper class through the Ordinance and Statute of Laborers was in many ways a substitute or possibly even a stronger mechanism of social control than status. The argument here is that the authority here could be wielded against both free and villein alike, while before the lord only enjoyed coercive control over the villein.

That said, the Black Death was nonetheless a pivotal moment in English legal history, having ignited what would become a “silent revolution” that allowed for the majority of serfs to gradually gain economic independence. The transition from unfreedom to freedom was on the horizon, for the move towards the emancipation of villeins had been in motion for some time prior to 1348. However, no one could have predicted either the outbreak of the Black Death or its devastating economic and social effects on England. It’s for this reason that we must acknowledge that this transformation of unfreedom of both people and property into freedom in the history of the English law was in fact by contingency only.

-- JustinMaffett - 26 Dec 2017

Introduction

During the Renaissance, Continental Europe underwent a pivotal intellectual transformation; cultural, social and political assumptions and structures, once thought fundamental, were questioned and changed. European legal systems were not immune to these changes. After a revival of Roman law in late medieval Italy, the phenomenon spread to France and Germany, among others. These countries were said to have “received” the Roman law. Some legal scholars have questioned why, during the Renaissance, the English common law remained relatively intact. After all, the classic historian opinion assumed that the common law was in serious difficulties at the beginning of the sixteenth century, and that ‘the continuity of English legal history was seriously threatened’ by current Romanizing trends. [Baker p. 4] By the time the Roman laws reached England, the country was far too politically stable and effective for a foreign legal code to usurp its national law.

Resurrection of Corpus Juris

In the late eleventh century, a complete manuscript of the Digest was found in Pisa, Italy. [Stein p. 43] The Digest was part of the Corpus Juris Civilis, the body of civil law issued under Justinian I. A professor at the University of Bologna, Irnerius, made the interpretation and explanation of the Digest, as well as of the other parts of Justinian’s legislative work, his enterprise. [Stein p. 46] He and his school, comprised of students from all the countries of Europe, attempted to recreate the science of Roman law. Since the Corpus Juris did not expound clear legal principles per se, these scholars, known as “Glossators,” would compare potentially conflicting texts and infer principles that would explain the apparent contradictions. [Stein p. 46] Their work would extend into the early thirteenth century. By then, they had laid the groundwork for a theoretical understanding of the Roman civil law, which would come to serve as the foundation for most of the legal systems in continental Europe.

The Reception in Continental Europe

After the Glossators were the Commentators, who took the next step of attempting to codify the previously extracted legal principles into a cogent system of laws. [Stein p. 75] They combined Roman law with the statutory law of Italian cities and with canon law; Roman law was adapted to address practical contemporary needs. [Stein p. 75-86] And so, lawyers began to be trained in Roman law, but this did not occur only in Italy. The new science of Roman law as inaugurated by the Glossators in Bologna spread out into other countries, including France and Germany. Through the action of university trained judges, lawyers, and draftsmen of legal documents, the Roman law began to spread across Europe. This was the Reception.

It is not possible to understand Roman Law as the law of the Roman Empire, but only as the Justinian Civil Code, which was the only major law book available to the European Kingdoms at the time. This great codification containing a universal system of written laws, non-contradictory fundamentals and amount of application, caught the attention of many kingdoms, specially the new absolutism monarchs. However, rather than enacting roman laws as laws of the kingdom, the new absolutist movements only took their centralised and universal written court system. Examples of such systems can be found in the Spain and Germany of Habsburgs and in the France of the Valois. Such systems were comprised of great codifications and a creation of centralised systems of courts and laws. These centralized processes of assured Monarchs that they would have further control over the legal system, replacing tradition, natural law, and local practices with their own personal version of a universal and centralized Civil Code.

The Non-Reception in England

In England, the story of the Reception is a bit more complicated. King Stephen (1092/6-1154) took suspicious notice of the spread of the study of civil law, however his opposition was ineffectual. [Re p. 466] Roman and canon law began to be taught at Oxford by Vacarius, an Italian scholar; Cambridge also issued degrees in the civil law. [Stein p. 467-8] “Every ambitious youth studied eagerly the Corpus Juris” [Re p. 467]

Around this time, intellectuals were attacking the language and content of English law as barbarous, and praising the Civil law as refined and humane. [Baker p. 4] Henry II (1154-1189) established a well-ordered system of royal courts, and Henry III (1216-1272) forbade the teaching of Roman law in the schools of London. The royal courts made possible the beginning of a unification and soon, comprehensive statements of the national law. One of the more effective counterweights to the Roman law education at Oxford were the professors at the Inns of Court, a historical analog to the present day bar association, who taught the Common Law. The lawyers who dominated the lower house of the legislature, much of the nation's bureaucracy, and nearly all the courts of law, were trained in advanced schools of municipal law and not in the university law faculties. By the time of Henry VII and Henry VIII, the new absolutism of the Tudors already had a centuries-old centralized courts system, which kept written records. This was only possible due to the Norman Conquest, which successfully created a centralized court at London, in order to oversee the whole country. In such manner, Henry VII and Henry VIII achieved what they wanted without recourse to alien jurisprudence. Under Henry VII, common-law trained ministers such as Empson, Dudley, and Lovell, carried the royal interests as far as any Civilian would have dared. Henry VIII advanced common lawyers for the first time to the offices of master of the rolls and master of requests, and, after Cardinal Wolsey, appointed first a bencher of Lincoln's Inn (Sir Thomas More) and then a serjeant at law (Sir Thomas Audley) as lord chancellor. [Baker p. 418]

Conclusion

Still, although there are few specific examples, there is evidence that the Roman law was recognized as a valid authority by the English courts for some time. [Re p. 468] In the long run, however, the Common Law obviously prevailed in England. What made a difference in England’s case, as opposed to France or Germany, was that its legal system was too entrenched for a new body of law to usurp it. As one author put it, “the legal fabric of the government and its institutions were not such as to permit the direct reception of Roman law by the King's courts!” [Re p. 468] The Reception tended to occur in places where there was no such robust legal system. The fact that England already had some of the best characteristics from the Civil Code, offered no incentives for change, as they did to the other Absolutist Monarchs. Thus, England didn’t have a particular need for a new body of law. In the words of Maitland, “there was no need in England for that reconstitution de l’unité nationale which fills a large space in schemes of French history, and in which, for good and ill, the Roman texts gave their powerful aid to the centripetal and monarchical forces.” By this time, there was a certain level of political and legal stability in England, unparalleled by any of the territories where the Roman law had its greatest effect.

References

F. W. Maitland, English Law and the Renaissance (1901).

Edward D. Re, The Roman Contribution to the Common Law, 29 Fordham L. Rev. 447, 466 (1961).

Peter Stein, Roman Law in European History (Cambridge, 1999).

The Oxford History of the Laws of England: Volume VI 1483–1558, John Baker, (Oxford 2003)

-- JulianAzran - 21 Nov 2014

The Renaissance in Europe, understood as the rebirth of classical culture, is a social construction, rather than an historical truth. Such term was first used in Italy to manifest an artistic break from the gothic art. Even though such movement took certain inspiration in classical roman art, especially in sculpture, the vast majority of authors agree that this was not in any way a rebirth of classical Roman art, but rather a new artistic and intellectual movement. In law, this process has been defined as the Reception, which is the resurgence and study of Roman law by the European Kingdoms. The Reception can also be conceived as a social construction, rather than a historical fact. The classic historian opinion made the assumption that the common law was in serious difficulties at the beginning of the sixteenth century, and that ‘the continuity of English legal history was seriously threatened’ by current Romanizing trends. Intellectuals were attacking the language and content of English law as barbarous, and praising the Civil law as refined and humane[1]. In fact, during the sixteenth century, there is an undoubted academic interest in the Justinian Civil Code. Moreover, it is not possible to understand Roman Law as the law of the Roman Empire, but only as the Justinian Civil Code, which was the only major law book available to the European Kingdoms at the time. This great codification containing a universal system of written laws, non-contradictory fundamentals and amount of application, caught the attention of many kingdoms, specially the new absolutism monarchs. However, rather than enacting roman laws as laws of the kingdom, the new absolutist movements only took their centralised and universal written court system. Thus, examples of such systems can be found in the Spain and Germany of Habsburgs and in the France of the Valois. Such systems comprise of great codifications and a creation of centralised systems of courts and laws. By such processes, the Monarchs assured that they could have further control over the Legal system, replacing tradition, natural law, and local practices with their own personal version of a universal and centralized Civil Code. In the case of England, on the other hand, the process of Reception was rather timid, compared to other European Kingdoms. The new absolutism of the Tudors already had a centuries-old centralised courts system, which kept written records. This was only possible due to the Norman Conquest, which successfully created a centralised court at London, in order to oversee the complete country. In such way Henry VII and Henry VIII achieved what they wanted without recourse to alien jurisprudence. A well-received lecture in the inns of court on the prerogative, or on Quo Warranto, or uses, was a better qualification for royal service than years spent lecturing on the pandects or decretals in the universities. Under Henry VII, common-law trained ministers such as Empson, Dudley, and Lovell, carried the royal interests carried the royal interests as far as any Civilian would have dared. Henry VIII advanced common lawyers for the first time to the offices of master of the rolls and master of requests, and, after Cardinal Wolsey, appointed first a bencher of Lincoln's Inn (Sir Thomas More) and then a serjeant at law (Sir Thomas Audley) as lord chancellor [2]. In addition, the English lawyers did not have a formal academic background in Roman Law (Civil Code), given that their “University” was the court’s inn, where they studied and commented on previous cases, as a way to arm themselves for their future trials. The lawyers who dominated the lower house of the legislature, much of the nation's bureaucracy, and nearly all the courts of law, were trained in advanced schools of municipal law and not in the university law faculties. Had the early Tudor authorities insisted upon an academical law degree before call to the Bar, that might indeed have revolutionised the history of English law and achieved what books alone could not. Henry VIII was quite capable of interfering with law schools when it suited him [3]. Therefore, it is possible to state that the Reception in Europe had a very limited effect, in particular in England, which already had a centralised court system, and a class of lawyers trained in Common Law. The fact that England already had some of the best characteristics from the Civil Code, offered no incentives for change, as they did to the other Absolutist Monarchs.

[1] The Oxford History of the Laws of England: Volume VI 1483–1558, John Baker, (Oxford 2003) [2] The Oxford History of the Laws of England: Volume VI 1483–1558, John Baker, (Oxford 2003) [3]The Oxford History of the Laws of England: Volume VI 1483–1558, John Baker, (Oxford 2003)

-- IgnacioMenchaca - 08 Dec 2014

Introduction

During the Renaissance, Continental Europe underwent a pivotal intellectual transformation; cultural, social and political assumptions and structures, once thought fundamental, were questioned and changed to reflect their deliberations. European legal systems were not immune to these changes. After a revival of Roman law in late medieval Italy, the phenomenon spread to France and Germany, among others. These countries were said to have “received” the Roman law. In view of this phenomenon, some legal scholars have questioned why, during the Renaissance, the English common law remained relatively intact. After all, the classic historian opinion assumed that the common law was in serious difficulties at the beginning of the sixteenth century, and that ‘the continuity of English legal history was seriously threatened’ by current Romanizing trends. [Baker p. 4] By the time the Roman laws reached England, the country was far too politically stable and effective for a foreign legal code to usurp its national law.

Resurrection of Corpus Juris

In the late eleventh century, a complete manuscript of the Digest was found in Pisa, Italy. [Stein p. 43] The Digest was part of the Corpus Juris Civilis, the body of civil law issued under Justinian I. A professor at the University of Bologna, Irnerius, made the interpretation and explanation of the Digest, as well as of the other parts of Justinian’s legislative work, his enterprise. [Stein p. 46] He and his school, comprised of students from all the countries of Europe, attempted to recreate the science of Roman law. Since the Corpus Juris did not expound clear legal principles per se, these scholars, known as “Glossators,” would compare potentially conflicting texts and infer principles that would explain the apparent contradictions. [Stein p. 46] Their work would extend into the early thirteenth century. By then, they had laid the groundwork for a theoretical understanding of the Roman civil law, which would come to serve as the foundation for most of the legal systems in continental Europe.

The Reception in Continental Europe

Later on, the Glossators became Commentators, who took the next step of attempting to codify the previously extracted legal principles into a cogent system of laws. [Stein p. 75] They combined Roman law with the statutory law of Italian cities and with canon law; Roman law was adapted to address practical contemporary needs. [Stein p. 75-86] And so, lawyers began to be trained in Roman law. However, these events were not isolated only in Italy. The new science of Roman law, as inaugurated by the Glossators in Bologna, spread out into other countries, including France and Germany. Through the action of university trained judges, lawyers, and draftsmen of legal documents, the Roman law began to spread across Europe. This was called the “Reception”.

It is not possible to understand Roman Law as the law of the Roman Empire, but only as the Justinian Civil Code, which was the only major law book available to the European Kingdoms at the time. This great codification containing a universal system of written laws, non-contradictory fundamentals and amount of application, caught the attention of many kingdoms, specially the new absolutism monarchs. However, rather than enacting roman laws as laws of the kingdom, the new absolutist movements only took their centralized and universal written court system. Examples of such systems can be found in the Spain and Germany of Habsburgs and in the France of the Valois. Such systems were comprised of great codifications and a creation of centralized systems of courts and laws. These centralized processes assured Monarchs that they would have further control over the legal system, replacing tradition, natural law, and local practices with their own personal version of a universal and centralized Civil Code.

The Non-Reception in England

In England, the story of the Reception is a bit more complicated. King Stephen (1092/6-1154) took suspicious notice of the spread of the study of civil law. His opposition, however, was ineffectual. [Re p. 466] Roman and canon law began to be taught at Oxford by Vacarius, an Italian scholar; Cambridge also issued degrees in the civil law. [Stein p. 467-8] “Every ambitious youth studied eagerly the Corpus Juris” [Re p. 467]

Around this time, intellectuals were attacking the language and content of English law as barbarous, and praising the Civil law as refined and humane. [Baker p. 4] Henry II (1154-1189) established a well-ordered system of royal courts, and Henry III (1216-1272) forbade the teaching of Roman law in the schools of London. The royal courts made possible the beginning of a unification and soon, comprehensive statements of the national law.

One of the more effective counterweights to the Roman law education at Oxford were the professors at the Inns of Court, a historical analog to the present day bar association, who taught the Common Law. The lawyers who dominated the lower house of the legislature, much of the nation's bureaucracy, and nearly all the courts of law, were trained in advanced schools of municipal law and not in the university law faculties. By the time of Henry VII and Henry VIII, the new absolutism of the Tudors already had a centuries-old centralized courts system, which kept written records. This was only possible due to the Norman Conquest, which successfully created a centralized court at London, in order to oversee the whole country. In such manner, Henry VII and Henry VIII achieved what they wanted without recourse to alien jurisprudence. Under Henry VII, common-law trained ministers such as Empson, Dudley, and Lovell, carried the royal interests as far as any Civilian would have dared. Henry VIII advanced common lawyers for the first time to the offices of master of the rolls and master of requests and, after Cardinal Wolsey, he first appointed a bencher of Lincoln's Inn (Sir Thomas More) and then a sergeant at law (Sir Thomas Audley), as lord chancellor. [Baker p. 418]

Conclusion

Nevertheless, although there are few specific examples, there is evidence that the Roman law was recognized as a valid authority by the English courts for some time. [Re p. 468] In the long run, however, the Common Law obviously prevailed in England. What made a difference in England’s case, as opposed to France or Germany, was that its legal system was too entrenched for a new body of law to usurp it. As one author put it, “the legal fabric of the government and its institutions were not such as to permit the direct reception of Roman law by the King's courts!” [Re p. 468] The Reception tended to occur in places where there was no such robust legal system. The fact that England already had some of the best characteristics from the Civil Code, offered no incentives for change, as they did to the other Absolutist Monarchs. Thus, England didn’t have a particular need for a new body of law. In the words of Maitland, “there was no need in England for that reconstitution de l’unité nationale which fills a large space in schemes of French history, and in which, for good and ill, the Roman texts gave their powerful aid to the centripetal and monarchical forces.” By this time, there was a certain level of political and legal stability in England, unparalleled by any of the territories where the Roman law had its greatest effect.

References

F. W. Maitland, English Law and the Renaissance (1901). Edward D. Re, The Roman Contribution to the Common Law, 29 Fordham L. Rev. 447, 466 (1961). Peter Stein, Roman Law in European History (Cambridge, 1999). The Oxford History of the Laws of England: Volume VI 1483–1558, John Baker, (Oxford 2003)

-- IgnacioMenchaca - 16 Dec 2014

Our essay has been uploaded to wikipedia: https://en.wikipedia.org/wiki/English_Renaissance#Reception_of_Roman_Laws

EDIT 2: https://en.wikipedia.org/wiki/Draft:Reception_of_Roman_law_in_the_Renaissance We will continue to make edits (adding footnotes etc.) so that it better conforms with the wikipedia format.

EDIT: Please note that someone has deleted the writing from the wikipedia page multiple times due to some sort of noncompliance with wikipedia's copyright policy. I am working towards resolving this in a timely manner. Thank you.

Official Explanation: Because the text is not in compliance with cc-by-sa. Look at the disclaimer at the bottom of the page [13] -- it would have to be marked as 'authored by Eben Moglen' in order to be licensed under cc-by-sa -- else it is 'All material on this collaboration platform is the property of the contributing authors' which does not comply with our copyright policy. The disclaimer on the bottom of the page needs to be updated if you want to copy-paste without the 'Eben Moglen' attribution. Thanks, Antandrus (talk) 16:17, 17 December 2014 (UTC)

I'm afraid I've had to revert the material you pasted from http://emoglen.law.columbia.edu/twiki/bin/view/EngLegalHist/TheNon-ReceptionInEngland. That site does not have a compatible license for uploading material here. It only grants a a cc-by-sa license to material marked as authored by Eben Moglen. None of that material is marked with his authorship

-- JulianAzran - 17 Dec 2014

[1] T.F.T. Plucknett, A Concise History of the Common Law (5th ed. 1956), page 43.

-- IgnacioMenchaca - 15 Oct 2014

Here is some research I have collected.

http://www.jstor.org/discover/10.2307/30042904?uid=3739832&uid=2&uid=4&uid=3739256&sid=21104910499943

http://www.jstor.org/discover/10.2307/30042904?uid=3739832&uid=2&uid=4&uid=3739256&sid=21104910499943

Here are some notes I have taken.

• Maitland
  • Suggested that the common law was directly threatened with a reception of Roman law during the second quarter of the sixteenth century.
    • Common law was saved by the legal education which took place at the inns of court.
  • 1519: the second birth of Roman law.
    • Sir Thomas More
      • Erasmus was a close friend of Thomas More
        • A Dutch Renaissance humanist
      • Humanism was renovating Roman law.
  • 1520: Luther burns the papal bull in Wittenberg
    • • Maitland cites this as an event in the history of jurisprudence.
  • Reginald Pole “was saying that a wise prince would banish this barbaric stuff(?) and receive in its stead the civil law of the Romans.” (7)
    • At this time, “Roman law was driving German law out of Germany or forcing it to conceal itself in humble forms and obscure corners.” (7-8)
    • The age of the Renaissance “was also the age of the ‘Reception’” (of Roman law).
    • So Pole is himself advocating a Reception of Roman law
  • Not long after Pole’s calls, King Henry (whose word was law supreme in church and state, prohibited the academic study of canon law, AND encouraged the study of another (by founding professorships at Oxbridge).
    • Professor Thomas Smith took a chair at Cambridge. He represented the three R’s, Renaissance, Reformation and Reception. (9)
      • He returned from some trip (9-10) extolling Alciatus and Zasius, who interpreted civil law by the history, languages and literature of antiquity, and to substitute original research for the interpretations of the glossators.
      • Zasi had once compared the work he was doing for the Corpus Juris with the work Luther was doing for the Bible.
    • Various figures of the reformation (Calvin, Melanchthon) admired Roman jurisprudence.
• Baker
  • In 1641, conciliar jurisdiction in the old sense was swept away forever after a decade where the Star Chamber became too closely involved in politics.
    • BUT conciliar justice was a regular feature of the English system for nearly 3 centuries.
  • Maitland was wrong
    • The business of CL courts did not decline in the way Maitland had claimed; a reception of classical Roman law studied by legal humanists on the Continent was impracticable.
    • The conciliar courts and chancery never attempted to apply the rules of the Civil or canon law. The only substantive law of which Chancery took notice was English law regarding land and commerce.
  • Even so, the Renaissance did have an effect on the development of English law.
    • There were/are a variety of tendencies in English legal thought that reflected the attitudes and ideals that are usually associated with humanism.
      • Examples– The historical approach to the law, a concern with the structure form and language of legal sources, a rational approach to law reform, a new confidence in legislation to advance the interests of the commonwealth; a search for equitable remedies in law, and “a new-found judicial positivism which laid emphasis on the reasoned decisions of courts as a primary source of law” (18).
        • Baker argues that these same tendencies can be detected in the legal history of Continental European countries at this time. This claim counters those which had developments in English law being immune to those taking place elsewhere on the Continent.

-- JulianAzran - 15 Oct 2014

Plucknet in Concise History of Common Law (1956) explains that the process of the Reception had a great influence in English Law, mainly over the judges and their sentences. There where many who supported the process since they recognized its simplicity and its compatibility with Christian history. By way of example he describes the creation by Henry VIII of professorships at Oxford and Cambridge dedicated to the subject.

But Plucknet's claims that the Reception could not influence the Common law Courts, as they were impermeable to foreign influence. The common law courts and the common law system was an assurance to the landowner class of the continuity of their wealth. They feared that the intricate process of inheritance could be damaged by any change in the “old law”.

The interest of the landowners and the others interest groups created by the Common Law Courts. Such as the close system of education in the Inn of Courts, meaning a class of educated lawyers, who defended their privileges and practices under common law. This allowed the survival of the Common Law against the Roman Law of the Digest, as opposed to France, Germany and the majority of the European Realms.

-- IgnacioMenchaca - 22 Oct 2014

Plucknet and Baker seem to have had similar theses: landowners worried about the inheritance of their land (and thus resisted change to a system that was favorable to them), and King Henry VIII. What we should investigate further is why King VIII endowed these professorships at Oxford and Cambridge, what was his interest in a legal system alternative to the Common Law?

-- JulianAzran - 23 Oct 2014

Why does Plucknet claim that the Common law courts were impermeable to foreign influence? What mechanism in the courts led him to this belief?

Regarding Henry VIII's motivations, Maitland claims on page 14 that the Byzantine Code provided better justification or authority "for a King who wished to be monarch in church as well as state ... than could be found in our ancient English law-books".

According to the Wikipedia page on Henry VIII, he separated the Church of England from the Pope and the Roman Catholic Church. Henry's first Act of Supremacy granted himself Royal Supremacy, which meant that he was the supreme head of the Church of England. It seems as though these acts were done for political rather than religious reasons, since "he remained a believer in core Catholic theological teachings, even after his excommunication from the Roman Catholic Church".

Perhaps Prof. Moglen was right. The Reception never happened. Whatever embrace of the Roman Law there was in England was merely a small part of Henry’s plan to rid the Catholic church of its influence in England so that he could become leader of both the church and state. This had nothing to do with the merits of a Roman or English legal system.

-- JulianAzran - 24 Oct 2014

In Social History of English Law (1966, repr. ed. 1973), by A. Harding, the author states that certain ideas attributed to Reception, such as the inquisitorial role or the judge (key characteristic of Civil Law), where already present in English Common Law before the Renascence. The carefully inspection of the witnesses by the judge was an aspect of the common law procedure, which was performed locally by the knights of the shire and presented in writing to the court.

Nevertheless, the author describe the direct use by English courts of Roman substantive and procedure law.

-- IgnacioMenchaca - 30 Oct 2014

http://en.wikipedia.org/wiki/English_Renaissance#Criticism_of_the_idea_of_the_English_Renaissance

This wiki article could be subject to review. I think it is possible to complement such idea with our investigation regarding Common and Civil Law.

-- IgnacioMenchaca - 30 Oct 2014

I agree, I think that this wiki article is something we could work with.

-- JulianAzran - 05 Nov 2014

Certain legal scholars have claimed that there exists evidence of the Renaissance’s influence on the English legal system. Maitland claimed that there was a “Reception” of Roman Law during the reign of King Henry VIII. Although certain changes to the English law did occur during the Renaissance period, there is scant evidence to attribute such changes to the any sort of “reception” of Roman law. After Henry VIII enacted the Acts of Supremacy, making his word law supreme in church and state, he prohibited the academic study of canon law, and encouraged the study of the civil law (by founding professorships at Oxbridge). “There was a pleasant reading in the Byzantine Code for a king who wished to be monarch in church as well as state: pleasanter reading than could be found in our ancient English law-books.” Whatever embrace of the Roman Law there was in England was merely a small part of Henry’s plan to rid the Catholic church of its influence in England so that he could become leader of both the church and state.

-- JulianAzran - 05 Nov 2014

The renaissance in Europe, understood as the rebirth of classical culture, is a social construction, rather than an historical truth. The concept was first used in Italy to manifest an artistic break from the previous gothic art style.

In law, this process has been defined as the Reception, which is the adoption of Roman law by the European Kingdoms.

The Reception can also be conceived as a social construction, rather than a historical fact. During the sixteenth century, there is an undoubted academic interest in the Justinian Civil Code,.

This great codification of written laws caught the attention of many kingdoms. However, rather than enacting roman laws as laws of the kingdom, the new absolutism movements took their centralized, written and rational characteristic.

For this reason in Spain and Germany, for example, we can find great codifications and creations of centralized systems of courts and laws.

In the case of England, the new absolutism of the Tudors already had a centuries-old centralized written courts system, which kept written records. Also, the English lawyers did not have a formal academic background, given that their “University” was the courts inn, where they studied common law, as opposed to Justinian Civil law, as was studied by lawyers in other European Kingdoms.

Therefore, it is possible to state that the reception in Europe had a very limited effect, in particular in England, which already had a centralized court system, and a class of lawyers trained in Common Law. Conversely, the Justinian civil law did not present the crown with many advantages. So, it limited influence.

-- IgnacioMenchaca - 07 Nov 2014

During the Renaissance, Continental Europe underwent a pivotal intellectual transformation; cultural, social and political assumptions and structures, once thought fundamental, were questioned and changed. European legal systems were not immune to these changes. After a revival of Roman law in late medieval Italy, the phenomenon spread to France and Germany, among others. These countries were said to have “received” the Roman law. Some legal scholars have questioned why, during the Renaissance, the English common law remained relatively intact. By the time the Roman laws reached England, the country was far too politically stable and effective for a foreign legal code to usurp its national law.

In the late eleventh century, a complete manuscript of the Digest was found in Pisa, Italy. The Digest was part of the Corpus Juris Civilis, the body of civil law issued under Justinian I. A professor at the University of Bologna, Irnerius, made the interpretation and explanation of the Digest, as well as of the other parts of Justinian’s legislative work, his enterprise. He and his school, comprised of students from all the countries of Europe, attempted to recreate the science of Roman law. Since the Corpus Juris did not expound clear legal principles per se, these scholars, known as “Glossators,” would compare potentially conflicting texts and infer principles that would explain the apparent contradictions. Their work would extend into the early thirteenth century. By then, they had laid the groundwork for a theoretical understanding of the Roman civil law, which would come to serve as the foundation for most of the legal systems in continental Europe.

After the Glossators were the Commentators, who took the next step of attempting to codify the previously extracted legal principles into a cogent system of laws. They combined Roman law with the statutory law of Italian cities and with canon law; Roman law was adapted to address practical contemporary needs. And so, lawyers began to be trained in Roman law, but this did not occur only in Italy. The new science of Roman law as inaugurated by the Glossators in Bologna spread out into other countries, including France and Germany. Through the action of university trained judges, lawyers, and draftsmen of legal documents, the Roman law began to spread across Europe. This was the Reception.

In England, the story of the Reception is a bit more complicated. King Stephen (1092/6-1154) took suspicious notice of the spread of the study of civil law, however his opposition was ineffectual. Roman and canon law began to be taught at Oxford by Vacarius, an Italian scholar; Cambridge also issued degrees in the civil law. “Every ambitious youth studied eagerly the Corpus Juris” This enthusiasm did not abate the resistance. Henry II (1154-1189) established a well-ordered system of royal courts, and Henry III (1216-1272) forbade the teaching of Roman law in the schools of London. The royal courts made possible the beginning of a unification and soon, comprehensive statements of the national law. One of the more effective counterweights to the Roman law education at Oxford were the professors at the Inns of Court, a historical analog to the present day bar association, who taught the Common Law.

Still, although there are few specific examples, there is evidence that the Roman law was recognized as a valid authority by the English courts for some time. In the long run, however, the Common Law obviously prevailed in England. What made a difference in England’s case, as opposed to France or Germany, was that its legal system was too entrenched for a new body of law to usurp it. As one author put it, “the legal fabric of the government and its institutions were not such as to permit the direct reception of Roman law by the King's courts!” The Reception tended to occur in places where there was no such robust legal system. Thus, England didn’t have a particular need for a new body of law. In the words of Maitland, “there was no need in England for that reconstitution de l’unité nationale which fills a large space in schemes of French history, and in which, for good and ill, the Roman texts gave their powerful aid to the centripetal and monarchical forces.” By this time, there was a certain level of political and legal stability in England, unparalleled by any of the territories where the Roman law had its greatest effect.

-- JulianAzran - 18 Nov 2014

The Renaissance in Europe, understood as the rebirth of classical culture, is a social construction, rather than an historical truth. Such term was first used in Italy to manifest an artistic break from the gothic art. Even though such movement took certain inspiration in classical roman art, especially in sculpture, the vast majority of authors agree that this was not in any way a rebirth of classical Roman art, but rather a new artistic and intellectual movement.

In law, this process has been defined as the Reception, which is the resurgence and study of Roman law by the European Kingdoms.

The Reception can also be conceived as a social construction, rather than a historical fact. Nevertheless, during the sixteenth century, there is an undoubted academic interest in the Justinian Civil Code. Moreover, it is not possible to understand Roman Law as the law of the Roman Empire, but only as the Justinian Civil Code, which was the only major law book available to the European Kingdoms at the time.

This great codification containing a universal system of written laws, non-contradictory fundamentals and amount of application, caught the attention of many kingdoms, specially the new absolutism monarchs. However, rather than enacting roman laws as laws of the kingdom, the new absolutist movements only took their centralized and universal written court system.

Thus, examples of such systems can be found in the Spain and Germany of Habsburgs and in the France of the Valois. Such systems comprise of great codifications and a creation of centralized systems of courts and laws. By such processes, the Monarchs assured that they could have further control over the Legal system, replacing tradition, natural law, and local practices with their own personal version of a universal and centralized Civil Code.

In the case of England, on the other hand, the process of Reception was rather timid, compared to other European Kingdoms. The new absolutism of the Tudors already had a centuries-old centralized courts system, which kept written records. This was only possible due to the Norman Conquest, which successfully created a centralized court at London, in order to oversee the complete country.

In addition, the English lawyers did not have a formal academic background in Roman Law (Civil Code), given that their “University” was the court’s inn, where they studied and commented on previous cases, as a way to arm themselves for their future trials. No “formal” or “academic” study of Law was conducted by the English lawyers. Therefore, there was no culture or desire from the English bar to receive external influences and the King could administer the current court system in a totalitarian fashion.

Therefore, it is possible to state that the Reception in Europe had a very limited effect, in particular in England, which already had a centralized court system, and a class of lawyers trained in Common Law. The fact that England already had some of the best characteristics from the Civil Code, offered no incentives for change, as they did to the other Absolutist Monarchs.

-- IgnacioMenchaca - 20 Nov 2014

1000s

Post-1066

1086

1135-1154

1166

1169

1200s

1215

Magna Carta

1220

1250s

1290

1600s

1670

1700s

1765

Wager of Law in Cases of Sales

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