AMERICAN LEGAL HISTORY OUTLINE
Overarching Themes
18th century: Towards elite domination, or towatds democ?
Either capitalists had huge power – merchs instead of aristoc ctrl society
Or, what have is most socially mobile society ever existing on plaent
Turnover of welath went torards furthering democ
If spread wealth around (Harrington), can have republic – closer to democ
I. THE ENGLISH PROLOGUE
Whatever legal disputes we’re looking at, some things don’t change
Always about strategies of interp, polit aims, etc.
Thys of jurisprud
Rel
Where’s the line btw politics and law
Tension of opposing views is key character of Amer legal sys
A. Coke and James I
Does Coke shift positions?
1. Coke – Hero of the Common Law
Told James I that king is subj to CL
Quoted Brachton for application to the CL – i.e. king is subj to the CL
In Privy Council:
King does not have adeptness in artificial reason of the law – specialized study
Tells James he is correct that law is about reason, and he is very adept at reason
But James can’t tell him what the law is
In Fuller’s Case:
Coke said Ecclesiastical Court of High Commission is a ct of limited juris
Ecc Ct High Commn (EHC) job was to enf orthodoxy in church
Coke said EHC can’t imprison atty for contempt – juris is limited to rel issues
Disciplining an atty is a secular issue
At that time, juris generated fees for cts
[On another level, this is about what kind of law is gonna reign in Eng?
Which law will king either apply or be subj to?]
a. Brachton
Per Brachton, 13th cent treatise:
“Quod Rex non debet esse sub homine, sed sub Deo et lege”
“Although the king is not under any man, but the king is under God and the law”
Not at all clear whether Brachton differentiated btw God and law
God gives law to kings to give to humans
Brachton believed the only device to ctrl the king is king’s fear of damnation
2. James I
Stuart law of sovty – aka divine rt of kings
King does not create law
King does not have superiority over God’s law – nothing can conflict with God’s law
King is bounded, but by God, not CL
If man’s law is in conflict with God’s law, it must be reconciled
Is king’s job to reconcile man’s law with God’s law
King is also a servant of people but he knows what’s best for them – doesn’t have to consult them
Is from Scotland – civil law ctry, there king does have strong prerog
Most continental ctries followed this model
Claimed royal privilege
That could do things as part of king’s discretion
Prerogative cts – e.g. Ct of Chancery
a. Ellesmere
Chancellor of EHC – top guy of top prerog ct
In Fuller’s Case:
States that king could decide case himself
King’s job is the font of justice in the realm
Ult power to declare law in the realm rests with the king
“Rex est lex loquens” – king is the law speaking
Oxford is the center for thinking of this kind of prerog power
Was center for study of civil law which has roots in church teaching (canon law)
“Plato and Artistotle were men who knew not God”
Ellesmere partic disturbed by talk against the king – e.g. people citing Plato and Aristotle
Accuses them of being democrats and thinking king is just temopral servant of the ppl
Eng is christian cmty and have christian king – if want to understand kings, look to Bible
Before Jesus, everyone is wandering in darkness and shouldn’t take their phil
do job – to appoint positions, etc.
Also have privileges
When bishs refused to pay bail, were locked in Tower of London
a. Custodian of the Tower of London
Is a Cath, owes his job to James II’s Decla of Indulgence
Finds out his men are toasting the health of the king
Gave bishs luxuries they asked for, let them consort w/ other HoL members
When bishs posted bail, he billed them for their stay – common practice
They claim don’t have to pay – wrongful imprisonmt
b. The Trial
James II wants bishops to concede they wrote the petition
But refuses to order them to incriminate themselves
C. The Glorious Revolution and the UK Constitution
1688 replacement of James II w/ Wm and Mary – Prots
Orthodox story: GR was successful – get rid of arbit king and replace w/ ppl who will be more cog/willing to govern w/ Parl instead of against Parl
What’s really going on: Parl has dictated the replacement of a ruler
Exercise of Parl’s power probly most impo thing
After 1688, const pretty stable – composed of three elements:
Monarch, HoL, HoC
Also stats of Parl and CL
Slowly Parl becomes real policymaking body of the realm
Name of the institution is “High Court of Parl”
For long time, hard to disting whether it’s a legis or ct
By end 18th cent, pretty clear
1688 is probly clear already that Parl makes policy – can declare limits of king’s power
