Common Law, Revolution, and the Legacy of Constitutionalism-The Boundaries of Britishness.pdf (original) (raw)
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Continental Jurists and English Common Law
Glossae: European Journal of Legal History, 2016
We explore continental jurists’ knowledge of and attitude to English (Common) law from (roughly) the 13th to the middle of the 18th century. During this period, English lawyers were constantly aware of the existence of an alternative legal system, the civil law, on the continent. Continental lawyers were mostly oblivious to English law. Among the few instances, where continental jurists refer to English law, a passage by Jacques de Revigny concerning the rule of primogeniture is prominent. Jacques’s statement of English law is mostly, but not entirely accurate. Its inaccuracy apparently bothered neither Jacques, nor the many jurists who took over his example during the following centuries. In this and other cases, the continental lawyers’ interest in English law was limited. They used English law as a source of examples and illustrations. A similar carelessness is evident from Hotman’s derogatory assessment of Littleton’s treatise on tenure. Hotman’s remark, which caused great indig...
The Common Law of England in Virgina from 1776 to 1830
2006
The Virginia Court o f Appeals embraced, on the whole, the English legal heritage, despite the violent separation from Great Britai n i n 1776. This loyalty to English precedents was an illustration o f the conservative tenor o f the Revolution i n Virginia. The English common law continued to be revered because i t was perceived to be a bulwark o f English, and hence American, liberty. Adherence to English precedent also maintained stable rules o f law, whic h i n turn protected existing property rights. A t the same time, however, the Court o f Appeals was not slavishly devoted to the common law, and the court's departures from accepted precedent illustrate the nature o f Virginia's revolutionary settlement.
Law's Imagined Republic: Popular Politics and Criminal Justice in Revolutionary America
Journal of American History, 2011
Law's Imagined Republic Law's Imagined Republic shows how the American Revolution was marked by the rapid proliferation of law talk across the colonies. This legal language was both elite and popular, spanned different forms of expression from words to rituals, and included simultaneously real and imagined law. Because it was employed to mobilize resistance against England, the proliferation of revolutionary legal language became intimately intertwined with politics. Drawing on a wealth of material from criminal cases, Steven Wilf reconstructs the intertextual ways Americans from the 1760s through the 1790s read law: reading one case against another and often self-consciously comparing trans atlantic legal systems as they thought about how they might construct their own legal system in a new republic. What transformed extraordinary tales of crime into a political forum? How did different ways of reading or speaking about law shape our legal origins? And, ultimately, how might excavating innovative approaches to law in this formative period, which were forged in the street as well as in the courtroom, alter our usual understanding of contemporary American legal institutions? Law's Imagined Republic tells the story of the untidy beginnings of American law. Steven Wilf is Joel Barlow Professor of Law at the University of Connecticut. He is the author of The Law Before the Law (2008), which examines how legal systems address the problem of existing law prior to a law-giving moment, and numerous articles in law and history. Professor Wilf's research focuses on intellectual property law, historical jurisprudence, and legal history.
The rule of law and “the liberties of the English”. The interpretation by Albert Venn Dicey
P. Costa, D. Zolo (eds), The Rule of Law: History, Theory and Criticism, Springer, 2007
The rule of law and "the liberties of the English". The interpretation by Albert Venn Dicey 1. Law and the liberties of the English At the close of the seventeenth century, following the Glorious Revolution and the victory of the Parliamentarians, it was widely believed among the English that the 'rule of law' had been established and that individual liberty would therefore be assured. Jurists and political theorists began to maintain that judicial procedures, the public nature of trials, the rules relating to evidence together with the role of the jury, ensured solid legal guarantees to those accused of any crime, thereby protecting the fundamental rights of their countrymen. The rhetoric accompanying the battle fought in seventeenth-century England against monarchical absolutism did not put direct emphasis on subjective rights and freedom, but raised the banner of objective law. Sir Edward Coke' arguments best exemplify this attitude. In his works the cry for liberty is drowned by his exultation of the 'law' as the primary condition for freedom itself: "the law is the surest sanctuary, that a man can take, and the strongest fortress to protect the weakest of all" 1. The objective application of the laws and the action of the courts grant the individual protection, Coke's 2 "birth right", enabling everyone to keep safe his goods, lands, wife, heirs, body, life and honour. The law invoked by Coke was none other than 'common law'. Common law was considered to be the source of liberty: along with the legal process it was credited with limiting the power of the monarch and with protecting personal freedom. Whig 3 rhetoric owed its legitimacy to the fact that during the course of the seventeenth century common law had almost virtually eliminated the feudal differences of status, ensuring the near equality of the English subjects before the law with the notable exception of women. The relationship between feudal lords and tenants had by then come to be based on abstract rights as defined by the Royal Courts, and were beyond the landlord's jurisdiction and discretion 4. Certainly, as Douglas Hay 5 has pointed out, the conquests of the revolution proved to be essential for the protection of the gentry, the newly-enriched merchant class who, in the course of the seventeenth century, had begun to rival landowners for the control of English society, against the greed and tyranny of the monarch. One of the main victories of the revolutionaries was the establishment of a normative framework guaranteeing the protection of basic rights in fundamental areas such as the transfer of property, inheritance laws, contracts, wills and writs. The fact that these achievements were grafted onto the well-established tradition of common law lent them stability. Since its very early stages, common law had been characterised by a system of writs designed to safeguard agreements and arrangements between citizens dealing with each other on a par. A seventeenth-century Englishman might well have had the impression of conducting his life within the framework of horizontal legal relationships with his countrymen, in so far as citizens were formally recognised as equal before the law. The vertical dimension was based on the relationship between the citizen and his sovereign, who could not, by definition, damage or encroach upon the rights of his subjects. But it was this very definition that made it impossible for him to be called to judgement or to answer for his actions. In theory, then, citizens' rights were not guaranteed in the case of arbitrary action by the sovereign. But the sovereign's immunity was soon neutralised by the Courts, which elaborated the doctrine according to which, as
Parliamentary History, 2009
Despite the weight of work on parliament's political history, its early institutional development still feels sketchily mapped. Since A.F. Pollard's generation, institutional history may have fallen out of fashion; yet 16th-and 17th-century constitutional controversies revolved around the nature of parliament as an institution, when its processes, procedures, and privileges became intensely political. Earlier on, in the 15th and early 16th centuries, contemporaries seemingly made do with that curious early-14th-century treatise, the Modus Tenendi Parliamentum, to understand how parliaments should work. In 1510 the new clerk of parliament, John Taylor, prefaced his record of the Lords' proceedings with a version; new guides were written under Elizabeth, but it was not until the early Stuart period that a new clerk of parliament, Henry Elsynge, would devise a successor to the Modus. In institutional terms, the 15th century could thus be characterised as a 'dark age' in the evolution of parliament. But, as Hannes Kleineke shows here, sources among the voluminous legal records held at the National Archives can help bridge that gap. Dr Kleineke's remarkable knowledge of the governmental archive is amply demonstrated in this valuable and important work. The volume transcribes and translates a selection of legal cases brought in the common law and equity courts by peers and MPs between 1377 and 1512, many of which are identified here for the first time. These sources are records from the courts of king's bench, common pleas, the exchequer, and chancery; they comprise principally plea rolls, writs, and bills. The sources are grouped under three main headings: privilege, elections, and wages. In the first section the gradual definition of freedom of arrest for parliamentarians and their servants is addressed. New evidence reveals some reluctance among justices to concede as broad a privilege as parliamentarians sometimes claimed. In the second section, suits, primarily brought under the Lancastrian legislation governing the conduct of elections, are presented.The growing attraction of a seat in the Commons seems evident. In the third section, attempts by MPs to claim from their constituencies the wages to which they were entitled are shown. In some cases, communities appear to have been unable to raise the money required; in other cases, exemption from assessment was at issue. A fourth section gathers miscellaneous documents that relate, among other things, to the creation of peers, attendance in the Lords, petitioning in parliament, and legislative expenses. Appendices supply a chronological calendar of wage disputes, biographical entries on those named in the sources, and the dates of sessions of parliament, while an index covers the names and places mentioned in the text. The combination of
Strani pravni zivot, 2018
The paper discusses several characteristics of the US legal system that rest upon English legal heritage, brought from England to North America by the first colonists. The author starts from the premise that constant modifications of basic principles of English common law system and legal and judicial practice gave rise to a specific US legal system that has a dual nature, based on common law principles on the one hand and the letter of the written law on the other. 1 The paper also analyzes the legacy of the philosophical system of John Locke on natural rights, the status of property and the government on establishing American political and legal thought, embodied in the Declaration of Independence and the Bill of Rights.
The origins of modern American Constitutionalism
Coordinating Professor: Conf.univ.dr. Ioan STANOMIR Analyzing the concept of comparative constitutionalism, I should mention the key element -constitutions, which are often designed to provide the exercise and the balance of power, employing such devices as bicameralism, executive veto power, special majorities, and, nowadays, constitutional adjudication. 1 The purpose of my research paper is to examine the way in which the origins of modern American constitutionalism are reflected in the nowadays framework of constitutional process. Tocqueville was the first to notice that political controversy in America tends to become legal controversy. This is true not just of particular controversies but also of the largest issues of the character and sources of political authority in America. Debate over the foundations of American