American Legal History Outline

American Legal History Outline
Spring 2012
Professor Stith
 
I.                   Prologue: The English Heritage
A.    Introduction: The Development of Legal Institutions and Common Law to the Time of Sir Edward Coke
1.      England invaded by Romans 43 A.D.-300 A.D. Then Angles and Saxons from Germany invaded Britons.
2.      “Law” is derived from Danish. “Bocs” meant grants of land, origin of the word “book” because it contained the written record of land grants.
3.      Edward the Confessor: Englishman, first to unite the country under a single ruler. Died in 1066, Duke William II of Normandy crossed the channel and defeated Harold (Edward’s successor) at the Battle of Hastings. Lead to “Williams the Conqueror.”
4.      Anglo-Saxon Era: criminal law was formed, with the concept of a superior right of the king to impose his own brand of law on anyone violating his “peace,” which extended to his habitation and eventually to markets and roads. “Right” was an extension of the sphere of the King’s Peace. A right was understood as the space to which the King’s Peace extended, and this space, which might include a physical or geographic are, also could include persons.
5.      Shires: counties supervised by the shire-reeve, or sheriff. Local units of the shire were known as hundreds. Each ancient admin forms had local courts run by laymen, and continued to be useful. This system, inspired by the Normans, helped to carve out royal jurisdiction for felonies, certain civil disputes, and taxations. It also introduced “writs,” for complaints and criminal actions. Normans also introduces juries and “justiciars” or judges, to whom the king delegated his authority as his representative in the courts.
6.      “Court”: taken from the noun describing the royal household that included advisors and administrators. French was the language of the royal courts. Anglo-French gave us the words, “Plaintiff, Defendant, and brief.” Writs were also issued in Latin, i.e. habeas corpus, mandamus, and certiorari.
7.      Magna Carta (1215): created by the disgruntled Norman barons who believed their customary (ancient) rights were being abused by King John. Is was something of a housekeeping document, and sorted out rights that were presumed to exist and in need of affirmation. Was the first document to set forth a concept of a supreme law that no person was above, not even the King himself! à This is a contradiction, because the Kings were never absolute in the Middle Ages and it had existed for ages not the first time but the first time in writing. The Kings were care-takers if customary law, and if they violated this law, the nobles would overturn them. Chapter 39 of this document, led to the due process of law that we know today.
8.      Westminster Hall: included the Court of Common Pleas, Kings Bench, Exchequer (taxation, financing, and accounting involving the king). However circuit courts still existed in the countryside so that the central courts were more of an appellate level.
9.      After King Edward III, Parliament began to form the Lords and Commons. During the Tudor period and Henry the VIII, legislation took on the form of drafting of bills, parliamentary debate, and policy making.
10.  Medieval Law: entwined in “feudal” custom and practice. The king owned the land and granted rights to others, his “tenants” to its use. In return they made payment, rendered services, or may have owed other obligations. The lowest order was called “serfs.” The king was very limited by law and the power of the nobles. Serfs did have rights, though the author denotes that they did not.  The serfs were much worse off after serfdom was abolished then before, because the lord had a duty to protect the serfs.
11.  The Law and Customs of England: written by Bracton, was the first work to present early Norman law as a system, which contained basic rules discovered through logical analysis of precedent. This document was the first to use concepts and theories to explain an unwritten law. Precedent was different; precedent was just an example of customà and was not binding like it is today.
12.  Different languages for the word “right”: Recht: moral right, legal right, so it has a feeling or “rightness.” German “law” or right. Derecho: Spanish “right.” Diritto: Italian “rightness” Jus: latin “right” Pravo: Slavic “right.”
13.  Different meanings for “wrong:” Unrecht- German. People did not conceive that you could change right to wrong or vice versa. 100 years of wrong does not give you 1 hour of right. Custom does tend to prove rightness… However, with the comparison with slavery, this does not follow. “the old law is the good law, and therefore, the old law is the good law.” If the law was broken, like with slavery, the law was amended. Not changed!
14.  Unchanging rules: Religion is one of the places where what is right, is still right. The beliefs cannot be changed overnight… Ex. Martin Luther tacking thesis to church, he wanted to amend—not change. Law was a remembered sense of what is right and wrong in the Middle Ages. Compared to physics in class. We believe gravity is true, and unchangeable. Morality and Rules of Courtesy are also involved here. Of course, these have evolved somewhat.
15.  Bad for men to open doors for women? This shows that women are inferior…
16.  If he didn’t obey custom, you did not have to obey him… Customary law. The King could not change fundamental law. Bracton’s book: “the king must not be under man, but under God and the law. Because law makes the king.” Rex=king. Lex=law.
17.  How do you discover customary law? You look to the elders, and the people who have been around for a while. This is the origin of the jury… A group of well-regarded townspeople that knew the law. Therefore, the people in the jury would find the facts and what the law is.  
18.  Movement from adjudication to legislation: Course Substance!
19.  Background review (In-Class): Romans took over much of Europe from the Celtic people, when taking over England, they renamed it Britannia and converted the people to the Christian faith (around Christ’s time). But the English never became “Romanized.” However, the church law was somewhat “Romanized.” Barbarian invasion then took place, and common law began to develop in England. Angles and Saxons came into England and overcame the Romans. Scotland, Ireland, and Wales w