I.
A. Biography
1.
2.
3.
4.
OLIVER WENDELL HOLMES (1841-1935)
Man of letters for a father
Fought in the Civil War—perhaps led to his dog-eat-dog mentality
Harvard Law School graduate
Wrote, lectured in BostonThe Common Law
a.
Tried to establish himself as a literary figure
b.
Book drew a cult following
--Was read by the educated
--Boring, but full of pithy statements upon which he didn’t elaborate
--Remembered for these catchy remarks
c.
Wrote little after he entered law as a profession
5. BWS recommends:
a.
“The Path of the Law”
b.
The Essential Holmes, by Richard Posner
6. Corresponded with Sir Frederick Pollack for years
B. Single principle of tort law: “The life of the law has not been logic…”
1. Langdell’s traditional method
a.
Law was working out of principles & deducing results
b.
Ex: “A man should not profit from his own wrong.”
2. Holmes established himself, in part, by trashing prominent figures
3. The law is conditioned on factors external to the law (a product of outside
influence)
a.
Ex: You don’t explain papal infallibility by discussing the financial
recession of the time
b.
Law is an historical subject
c.
To understand law, we must understand a mishmash of the past &
the present
C. Difference between form & function
1. Ex: Making contracts in Europe is different from making them in the U.S.
in form, but not in function
2. Only by an awareness of the historic evolution can you pry apart history &
actual purposeful law
a.
Lifts Mane’s idea of law being analogous to geology with fossils
of historical law imbedded in modern law
3. Only by recognizing history can you liberate yourself from the past
a.
The reasons are forgotten
b.
Modern people invent new reasons
c.
We become “slaves” in this way
d.
We must think: “If it were gone, would anyone miss it?”
D. General Theory: Law must sacrifice the weaker to the needs of society (objective
standard)
1. Many features of tort law are relics of a time when law was based on
legitimate expressions of vengeance
1
2. Do these rules now serve some legitimate purpose?
3. Once we understand the past, we can do what we’d like with it
(dragon/cave analogy)
I.
WHY DO WE STUDY ENGLISH LEGAL HISTORY?
A. Holmes’ idea of liberation from the past
1.
Ex: “The right to bear arms”—shadow of the past?
2.
Ex: Jury trial in complex litigation
a. Totally different in the 18th c. than it is today
b. Not even the same thing: emancipates us from the founding fathers’
wishes
B. The idea that the past legitimates the present (just because it was established then,
should it continue now?)
1.
Very characteristic legal thinking
2.
Not expected in other fields (medicine, etc.), although found in the arts
3.
Popularly, society generally thinks the present is better than the past
4.
Language paradox: Words are society-born, & yet they are in the
dictionary
C. Influences on legal history
1.
Iconoclasm regarding/in the law
a. Long tradition of cynicism regarding the law
b. Criminal law—protecting society/punishing criminals or haves v. havenots?
(Haye’s Albion’s Fateful Tree)
c. Feminist influence on legal history
--Attacks existing institution of legal society
--Sometimes motivated by desire to talk about the present by using the past
2.
Search for identity
a. Society they see themselves as belonging to
b. Ex: Nationalism
--Americans don’t care much: not much legal history
--Canada does: lots of legal history
3.
Idle curiosity: enjoyment, with not much interest in why
4.
Practical value
a. You’ll be confronted with historical arguments in court
b. Integral part of the legal system
D. Legal evolution
1.
At one time, people weren’t conscious of legal change—began developing
theories in the 17th c.
a. Mainly based on reading of texts
b. Travellers’ tales
c. Not empirical work
d. Related legal change to social change
--Ex: Adam Smith once divided law into ages, with the Age of Hunters, etc.
--Very literature-based
2
--Age of Hunter had family as unit of society, little government, & little
property theft or
law
e. Posner’s ideas are modern examples of this: Economic basis for law
f. Fine-tuning of the law isn’t of much societal/economical relation (painted
with a broad brush)
g. Modern law carries with it a great deal of the past
II.
HISTORY OF THE COMMON LAW
(Which applies to all of us, with the exception of some pockets of the deep
south, & is different from the Civil Law of modern France, Italy & Spain)
A. What is legal tradition?
1.
Intellectualized systems of law
a. But lawyers operate the legal system
b. Not just theorists, but specialists/experts
c. Law is a profession for an elite group
d. Intellectual tradition
e. Related to other class developments (like medicine)
2.
Differs from legal systems
3.
Definition: System of legal thought which is predominantly in the hands
of a group of people
a. Ex: When you come to law school, you learn jokes, attitudes, etc., of the
American legal tradition
b. Schemes of analysis, language, philosophy, systems of categorization (by
legal subject)
c. Britain & U.S. crossover is very easy because they share a legal tradition
d. France & U.S. crossover is very difficult
B. Differences (between common law & other types of law)
1.
Position of the judge
2.
Opinions (common-law rambles because judges were lawyers; in other
systems, it was more formal)
3.
Fixing problems by legal mechanisms reaches its height in the U.S.
4.
Civil law developed out of Rome
C. Roman Law
1.
Appropriate to Roman citizens
2.
Also called the “usecommune” (“common law”)
3.
(Brief) History of Rome
a. Founded: 753 B.C.
b. Became a powerful stateempire
c. Developed a system of resolution & structural rules of society
d. Between 451-450 B.C.: The 12 Tables
--Early attempt to codify customary rules of society
--Not sure why they did it
--Destroyed by the Gauls
e. MonarchyRepublicEmpire (27 B.C., St. Augustine)
f. Split into 2: East & West (East didn’t fall until 1453 A.D.)
3
g. Developed an elaborate legal system
h. Priests ran it (in the 300s B.C.) & then it became private/civil law (280
A.D.)
i. Dealt with relation of citizens to property, slavery, contracts, etc.
4.
Characteristics of Roman Law
a. Entirely secularized (no divine references at all)
b. Based on reason/rationality
--Self-evident truths
--Rome attached enormous importance to this
--Appeal to the power of rationalitystart with propositions that are self-evident
& go
from there
5.
1st c. BC—3rd c. AD: Great period in the development of Roman law
a. Roman states/lawyers developed divided procedural system with 2 facets:
--Fact (which anyone can figure out, even laborers)
--Law (which takes lawyers to figure out)
b. Adjudication
--Questions submitted for a decision by an expert
--Judge decided the question
Not a professional, but whomever you decided to appoint
Used common sense
--Juries gave the judge advice
6.
Who developed the body of law? (in England/America)
a. Judges (especially top judges)
b. Activity of advocates in the court (lawyers)
c. Academics who gave opinions, cases, etc.
d. Body of expert knowledge that never came from lay thinkers
e. Particular articles in law reviewsbodies of law
7.
Who developed Roman law?
a. Not advocates/lawyers (people disliked them) nor legal experts
b. Not judges (who weren’t experts at all)
c. Jurists
--Usually weren’t professors
--Weren’t judges or advocates
--Wealthy, upper-class Romans who wrote & expounded on private law (not
criminal, but
property, for example)
--Flourished from 100 BC—300 AD
8.
Why did they do it?
a. Prestige
b. Not money
c. Often engaged in public life generally, & only spent part of their time with
private law
d. Wrote books, held positions in the military, etc., to get public positions
e. Part of a whole feature of upper-class Romans, who lived without pay on
their own money
4
f. Jurists wrote various parts of books
--Ex: Olpeum, a military governor in England who spent part of each year
writing law
books
--Wrote responses (judge submitted questions to juries, who gave answers, &
some were
collected in books & commented on)
--Wrote legislative texts (texts, commentaries, & commentaries on
commentaries)
--Wrote institutes (the idea that you could write a complete elementary
account of the
whole body of civil law—ex: Blackstone’s Commentaries, & Kent’s
Commentaries)
9.
How do we know about this literature?
a. Most has been lost (only a tiny portion survives)
b. Usually what survives are copies of copies (done centuries after the
original)
c. Much not even written down (oral, like Homer’s Odyssey)
d. From about 150 AD, virtually a complete set of law survived
--The only complete work from the heyday of the jurists
--Written by Gaius
--Read like an elementary course book in law
e. Fragments are the only thing that survives
10.
Justinian (482-565)
a. Emperor of Constantinople
b. Married Theodora (prostitute?)
c. Wanted to establish himself as prestigious, & there were 3 ways he could
do it:
--Fight & win wars
--Build great buildings (like the Church of St. Sophia)
--Write an elaborate codification of Roman Law
d. He chose the write the law—got lawyers together to work on digests
--Done on a cut & paste system
--Collected old jurists’ texts (because they regarded the past as superior to the
present)
--Arranged a scheme & excerpted passages & strung them together, ver betum
(the
very words of the masters were prestigious)
--In order to retain authority, added authors & titles
--50 books/chapters (49 topical & 1 misc., including things like “Nobody
should profit
from his own wrong,” emerged)
--They preserved anything they thought was worth preserving
--800,000 words total (big—not huge)
--Most excerpts survived only this way
5
--Modified to iron out inconsistencies quickly—we don’t know what was
changed
e. Lost his popularity anyway when he couldn’t control chariot-racing mobs
f. But the Institutes stayed around
--4-volume compilation
--Used as nutshells by the law schools of the time
--Had legislative force
--Produced the body of Roman law
11.
The Ottoman Turks destroyed the Byzantine Empire in 1453
a. Until then, Byzantine law was the law
b. In some areas of Eastern Europe (like Greece), debated versions of it
survived until the last century
c. Southern France used regularized, popularized versions as customary law
in some small provinces & cities
d. Not races of Roman law survived in England, or other parts of Europe
west & north
D. First Law Schools
1.
In the 12th c., manuscripts of the Digests were rediscovered in Italy
a. People in Italy at the time could see the Roman Empire all around them
(buildings, etc.)
b. Looked back on ancient Rome as the good times of the past—“past
excellence”—with the best of everything, including law
c. Rediscovery of digests caused intellectual surge
d. Implemented law schools (of a strange kind)
--People who wanted to study these texts gathered in towns & paid professors
to lecture
--Produced student-run universities
--Bologna was the first
--10,000 students: an organization, not a building
--Students became judges, administrators, etc.
2.
Other law schools sprang up (copies) & spread all over Western Europe
a. Based on exposition of texts
b. Established Roman legal tradition
c. Paris developed a different kind of law school
--Teacher-controlled
--University of ParisOxfordCambridge
--Early subjects taught always included law
3.
Characteristics of law schools
a. Multifarious bodies of law throughout Western Europe
b. Law schools didn’t teach local law but Roman
--Seen as better (“learned law”)
--Self-evident, rational
--Common law (available to anyone in W. Europe)
--We do this today (teach “better” law, principles & philosophy—not
Michigan law—at
the U of M)
6
--Effect: Abstract filters to influence practical, but it takes a long time
--Lawyers carry with them academic ideas about law/”cutting-edge” ideas
--The whole thing takes a very long time
4.
The reception of Roman law
a. Made an effort to reduce customs to written form—“Redaction of
Customs”
--Ex: Books about American wedding customs
--Ex: Political anthropologists who interpret & categorize anthropological law
according
to Roman laws & standards (“eyeglasses tinted with English law”problem)
b. Roman law progressively permeated Western Europe
c. States became more unified/homogenousthought that they ought to have
a uniform body of law
--Ex: France’s Napoleonic Code (Roman system)
–Ex: American Restatements (sort of a code)
5.
Roman law in England
a. 2 universities: Oxford & Cambridge
--People teaching had no buildings (used churches, etc.)
--Professors could move, & migrated from France to Oxford
--Taught Roman (not English) law
--18th c.: Sir William Blackstone gave extra-curricular lectures on English law
(for the 1st
time)
b. Why did England’s customary law resist the pressures of Roman law
(even though the continent did not)?
--Good question
--England developed its own common law, downplayed Roman
--Probably had more influence than we realize (like 19th c. contract law—
came from the
Continent)
6.
Roman law has 2 histories: Adjudication & Revival of texts
a. In the ancient world (foundation of Rome until 600 or so):
--Living system built around dispute resolution
--Eminates from court procedures
b. Reappears in the 12th c.
--Based on exposition/analysis of text
--Filters down into courts
--Great legal thinkers in France are professors, not lawyers/judges
c. “Legal transplant” takes place (Roman law was exported to large numbers
of non-European countries)
--Legal cultures are almost always transplanted from one nation to another
--Roman law has been voluntarily chosen because of its rationality
--Common law has never imported the Roman law—by-product of settler
movement or
British sea power?
d. Influence of Roman law on western culture:
7
--Society regulated by bodies of abstract, secular law
--Modern law of contracts, easements, etc.
--Wasn’t much English law, so they lifted what they needed from the Romans
7.
Church Canon Law has its own elaborate history/body
a. Not much separation between church & state
b. Controlled a large part of life
c. Large number of people in holy orders
d. Same people who began the study of Roman law began the canon law
e. Ran a system of courts
--Clerics could only be litigated/tried in church courts
--Some things, like marriage, were handled by the church
--Made deals with the government, who didn’t always like it
f. Lots of bigshots in the church had doctorates in both Roman & Catholic
law
g. Some parts of it got absorbed into Roman law (like marriage laws)
III.
THE COMMON LAW
A. Definition of
1.
Complicated, because the Roman law was also called “common law”
2.
Basic sense: Law available to everybody
a. As distinguished from church, local or class-restricted laws
b. Permeated the Medieval world
3.
Definition #2: Developed out of dispute resolution
4.
Definition #3: Equity (as distinguished from chancery)
B. How does law develop?
1.
Acephilous societies with no governmental centers have nothing but
bloodfeuds to resolve their disputes
a. Ex: The Nuer people of Sudan
b. The beginnings of dispute resolution=the beginnings of governmental law
c. Management of adjudication must be taken over by some specialized
group in society (lawyers)
2.
Can be traced to as early as the 590s or 600s
a. Romans were gone (as was their law)
b. People were moving in from the north
c. England divided into kingdoms/tribes
--Ex: The Jutes in Kent had a king & we have his laws today (from 600 or
602): The
Laws of Ethelbert
--When Pope Gregory sent Augustine to Christianize England, he travelled to
Kent &
influenced laws there
--Jute law was the earliest English text to survive
--Did it make any difference? We don’t know
d. Most societies had laws, but not writing
--Written text was a Christian thing (missionaries took it to the Jutes, above)
8
--Law made use of writing & literate people in administration & dispute
resolution
--Illiterate people were good memorizers who recited the law orally
3.
Money came to replace bloodfeuds: Idea begins in Kent & spreads
a. In the tiny world of Kent, people knew what you paid for what; new group
of Christian priests needed clarification
b. Kents had vaguely heard of Roman law & wanted the most up-to-date
style of laws
c. Christianity tried to impart the idea that it wasn’t dishonorable or a sin to
use money instead of bloodfeuds (made it respectable, proper)
4.
Written texts came to regulate dispute resolutions
5.
King came to have some special responsibilities/powers over the law
6.
The Church developed the Penitentials, a literature for priests
a. Developed in monastic communities in Ireland in the 600s
b. Written down
c. Assigned specific penance to specific sins
d. Little doubt that Kent law is related to this
e. On top of the bloodfeud, another substitute
7.
The germ of criminal law
a. Instead of suffering retribution from the victim of a crime, a criminal
began paying fines to the king
b. Feuds concerned not only the families, but society generally (in the form
of the king)
c. Embryonic form of modern idea
8.
So…by the time of the Roman Conquest (1066)
a. The law involves:
--The monarchy
--Writing/Literacy
--Germ of summoning with written documents
--Local law that falls into groups
--Different codes of law
b. England is one kingdom/realm
c. Beginnings of land tenure (not yet the uniform theory)
d. No unifying idea of central courts & dispute resolution
9.
The Roman Conquest
a. Dispute over the English crown
b. William the Conqueror
--Armed horse-riding calvary
--Fought Battle of Hastings & won
--King Harold of the Saxons fell/died
c. Consequences
--Alien, French-speaking force took over England
--Imposed military-based hierarchy
--Very strong central government (necessary because of animosity)
--Inefficient administrators made use of literate clerks to run things
--Wrote Doomsday Book
9
Compiled a catalogue of what they’d won in the war/what was in the
country
Done with a view to taxation b/c military hierarchy is very expensive
d. Monks wrote The Anglo-Saxon Chronicles
--Horrified by the administrative tactics
--Fascinated by efficiency
10.
Period after the Conquest
a. 1118 AD: Someone tried to write a book about the law, The Laws of
Henry I
--Patchy
--“No law”—group of laws
b. A distinction formed between lay & religious matters
--Division in the court system
--God’s law was divine
--Man’s law was the king’s law
c. Notion of dependent landholding (in return for military service to the
king)
--Theory of universal tenurial landholding
--Peasants serve for use of the land
--Feudal courts provide justice for the tenants
d. We don’t know much of what happened between 1066 & 1154
11.
The reign of Henry II (1154-1189)
a. Reigned over England & large parts of France
b. Beginning of modern law
c. 2 books about administrative organization of bureaucrats
--The Dialogue
--Glanville (law used in the royal courts)
d. What is the court? The royal entourage
--King collect a great deal of money through taxes
--Needed people to deal with the funds & the running of his estate
--Needed dispute resolution for within the entourage
--As the staff of literate specialists grew, they became the germ of the royal
adjudicating
court
--Slowly split into different activities
e. Much of the court traveled with the king
--Followed the food
--Mechanism for imposing control (like colonel moving in the regiments)
--Necessary b/c no modes of modern communication
f. Specialists took over adjudication
--Began very formal written records
--Glanville, written by a member of the court
Systematic body of public law
That a book could even be written indicated cohesion
--Justicia, managed questions to do with justice
10
g. Legal systems not comparable to anything else in Europe (involved
professors, lawyers on behalf of the king, & the church)
h. The law covered grave crimes (violation of the royal peace) & property
disputes
--Completely replaced the bloodfeud (the idea that wrongs survive in the
relatives of the
victim)
--Extended throughout the realm
--Criminal trials opened with indictments (written accusations of the crime)
--Land-based economy with property as the most valuable of all assets
i. Implemented regular system of procedures involving writs (see p. 20)
j. Laws mainly about procedures that would culminate in a decision by God
--Early “adjudication” done “by God” in trial-by-battle (God would decide)
--Elaborate rules developed about battle
--Soldiers for Henry V all went to mass before battle, & sometimes it actually
seemed to
work!
--Oath-taking (involving God) was used
--Writs (standardized, deliverable documents) were developed
k. Criminal procedures
--No law about the concept of murder
--God decided by way of ordeals
Ex: Hot irons would produce wounds, which were inspected by priests
Ex: Ordeal pits were filled with water & innocent sank or floated
Evidence of manipulation
Involvement of God lent authenticity
l. The Grand Assize (“meeting”)
--Alternative to battle
--Introduced by the royal council (p. 21)
--Would recognize who had the claim
--Lay jury replaced “God” & made substantive law necessary
(some unease about allowing lay people to make decisions)
--Gave someone the power to adjudicate if someone should be kicked off his
land
(“Novell Disseisin,” p. 21)
--Jury swore to give true verdict (not very rational)
Precursor of modern jury, which still just gives verdict
--System that could operate throughout the country
m. System of general iere (“itinerant justices”—sending officials out with the law)
--Exchequer settled in London in 1100s (tired of dragging around with the $)
--Justices went to the same places every x number of years
--Didn’t work very well
n. By 1200 or so, there was a split in the justices:
--The Common Bench
Stayed permanently in London
People could come to get disputes resolved
11
Eventually came to sit in the Great Court of Westminster Hall
--The Court of the King’s Bench
In theory, handled whatever concerned the crown (criminal, some civil)
Eventually also ended up stationary in London
--By 1234, each court was distinct & kept its own records
o. The Assize System
--Implemented b/c the law was still not accessible to everyone
--Began sending judges around to hear cases locally
--Lasted from the 1200s to the 1970s
--Eventually there were 6 circuits
--2 times per year, 2 justices traveled to the circuits with authority based on
royal
“commissions”
--Criminals awaited trial by traveling judges who emptied the jails (innocent
or executed)
--Common law became local b/c judges took it to the people
--Jurors were locals who already knew what happened (didn’t need to be told)
--Trials were short (20 min.)
--Law was largely confined to procedure; if you wanted to argue anything,
you had to go
to London
--Kept intense cohesion b/c of central control
--Visits of the assize were major, awe-inspiring events
Instilled the importance of the law into society
Involved much ceremony & majesty
12.
Early court cases
a. 1st case on p. 1224 & 1212
--Court is keeping written record by this date
--Very formalized, regularized procedures
--Any error & they’re thrown out
b. 2nd case
--Trial by grand assize
--Must offer money to make use of the procedures (law was money-maker for
the gov’t)
--This guy offers 2 horses
c. Assize
--Juries are locals summoned from where the incident took place
--Know the answer before they get to trial
--Goal: Empty the jails quickly
d. Civil cases (the Court of Common Pleas)
--Took longer b/c more expensive
--WritLondon, & tried there unless the people from London came to the
country
before it came up in London
--After jury verdict, you still had to get a judgment entered in London
--Involved legal issues & questions
12
--Panel of judges sat en banc
--Agent attys. represented clients in London (client usually employed local &
London
attys.)
--Lawyers had different functions than they do now (didn’t get up & talk in
court)
C. Expansions in common law
1.
Travelling justices
2.
Development of substantive law
a. Originally, not much—God didn’t need people to tell him which crimes
were worse than others
b. Professional judges & lawyers began to realize—through practice—that
they needed guidance
--Juries weren’t God/could get things wrong
--Ex: Dudley (1884) was 1st case to make substantive law on necessity as a
criminal
question
--Ex: Hadley (1894) established necessity of judge instructing jury on breach
of contract
--Began to wonder if procedures were needed to separate questions of fact &
judgment
c. Common law expanded by taking cases away from other courts &
jurisdictions
--Ex: Torts, beating children (at school & home), domestic violence, etc.
--Still survived until relatively recent times bodies of law that were not in the
common law
Ex: In 18th c., church still had jurisdiction over lay persons
Ex: University courts, commodities markets & other trading industries (like
the
diamond industry) had their own courts
Tendency to shrink but not disappear
In theory, they only existed by leave of the common law (although this was
false, to
some degree)
d. Expanded overseas through British sea power
--Colonial empire spread the common law around the world
--Wherever Brits went, they always introduced property & criminal law
--Ex: Large parts of the world, including India, Canada, the U.S., & Australia,
have
common law today
e. Court of Common Pleas (House of Commons) & King’s Bench (House of
Lords) settled, oddly enough, together: In the Palace of Westmont at
Westminster Hall
--Remained there until the mid-19th c.
--Very lively building at one time
--Now mostly a tourist place
13
f. Characteristics of the Court of Common Pleas
--7 judges sat to adjudicate all big civil litigation cases in England
Partly b/c they made use of juries, and
When they rode around in circuits, they took practitioners along to
double their
numbers
--Standardized form of dress denoted professionalism
Academic robes still used (originally fur-lined)
Clerks wore different uniforms
--Clerks kept records in Latin
--Testament in center of the table: Still making use of God for oath-swearing
as a way to
find the truth
--Judges wore coifs (as did sergeants of law, who argued in front of court &
eventually
became judges
--Litigants were present
--Tipstaff kept the order
--Attys. took procedural steps
g. Characteristics of the Court of the King’s Bench
--Cases in which the monarch had special interest (eg criminal law)
--Jury was there to take oaths & swear a verdict
h. Characteristics of the Exchequer
--Judges were called “barons”
--Showed picture of tax court from the 1450s
--Tried monarchial tax evaders
D. Jurisdiction in the Common Law
1.
Court of Common Pleas
a. Citizen v. citizen
b. Largely land disputes
c. Where the money was
d. Huge caseloads
e. Known for state-of-the-art law
f. Kept greatest volume of records
g. Settled in Westminster Hall (Magna Carta said it shouldn’t travel)
2.
Court of the King’s Bench
a. Matters concerning the king
b. Civil & criminal jurisdiction
c. Some things we think of as purely civil (like trespass) were hybrid of 1 &
2
--Ex: Trespass
--Came literally or figuratively before the king
--Heard appeals from other courts
3.
Exchequer: Tax law
4.
Courts competed for jurisdictions: Why?
a. Economic interests
14
b. Trying to give litigants what they wanted
c. Each court had very different costs & procedures
5.
By about 1600, all 3 courts had virutally identical civil jurisdictions (with
the exception of criminal law, which was handled only by the King’s Bench)
6.
Doctored up stories to gain jurisdiction
a. Ways to rationalize that nobody really believed
b. Violated rules while showing them respect by pretending to believe them
7.
Judges went out on the circuits & tried cases in the order that came up,
regardless of jurisdiction
8.
Once you had someone in court, you could bring up anything you had to
bring (this is how the King’s Bench stole lots of civil cases)
9.
Problem: Courts differed on what the common law was (King’s Bench
was the official common law)
a. Mainly transmitted orally
b. Based essentially on traditional practices
c. Common law was developed in this way
E. Procedures in the common law
1.
Early practices were mainly about procedure
2.
Complaint to the King ends up with the principle official, the chancellor
(head of the secretaries)
3.
Chancery issues a writ (an original writ that starts the suit)
a. Ex: p. 20
b. Takes the form of a letter (“The king to the sheriff…”)
c. Returnable to/Authority in the court
d. Writs got wider & wider (developed more & more standard forms)
e. Each writ initiated its own procedures, remedies, etc.
f. More modern writs have more rational procedures
g. Form of action
h. Eventually, writs became flexible/adaptable (but early writs were not)
4.
The rise of the jury
a. Early history is deeply obscure
--Group of people swore an oath to accuse truthfully
--After the conquest, used as a way of discovering information (inquests)
--By Henry II, juries used to accuse people of crime (originally in the Grand
Jury, the “jury of presentment”)
--Idea of making neighbors responsible for keeping the peace (no police
officers)
b. Jury of Presentment
--Ends up a jury of 23 prominent people from the county
--Originally detected & accused
--Evolved into today’s system
--Criminals were not originally tried by the jury
c. In the 1200s, the Church withdrew its support of ordeals
--Threw courts into a total state of confusion as to how to try criminals
--Uncertain of legitimacy of trying with jurors (b/c all felons were put to
death—no small
15
thing)
–Originally, you had to confess (either on your own or through pressing with
rocks, which took place from the late 1300s until the 18th c.) to the jury
d. Petite (little) jury in place by 1215 (smaller than the grand jury)
e. By 1400, the jury was uniformly 12 people
f. Today, juries act as judges of evidence, but medieval juries were selfinforming
--Elaborate rules re: where jurors were to be summoned from (where the
crime took
place)
--Jury should know what’s happened before they come to court
--Only by slow degrees did it turn into a group that listened to evidence
--Not much room for instructions, evidence rules, etc.
--As late as the 18th c., capital trials by jury lasted only about 20 min.
g. Not much money in the running of criminal trials
--Professional lawyers slow to come in (18th c.)
--IndictmentVerdict
--Modern form is still an accusation & a plea of “guilty” or “not guilty”
--No elaboration on procedure, etc., b/c of the low pay
h. System of appeals (“accusations”)
--Ran parallel with early system of trying criminals
--Evolved out of bloodfeuds
--Victims/kin formally accused someone
--Accusations tried by battle in court
--Appeals of felony & treason survived to 19th c.
--Superceded, for the most part, by procedural remedies
--Forgot to abolish in Scotland until 1985!
--Obsolete (basically) by the 1300s
i. Juries in civil procedures
--Trial by the Grand Assize
--Alternative to battle in land cases
--1st civil jury trials in the Royal Court
--Could choose jury trial (preference)
j. Assize of Novel Desesin (of “recent dispossession”)
--Introduced by Henry II
--Neighborhood jury takes a look at the land
--Property is put in peace under sheriff
--If can’t, raises power of the county (posse)
--Procedure to make sure people weren’t dispossessed violently of their
property
--Juries assessed damages
If goods were violently seized & can’t be found
Jurors swore an oath as to the value of the chattels
Fundamental to modern laws—wrongs done that can’t be righted must be
compensated for
--Soon after, courts began hearing tort actions “violations of the royal peace”)
16
Took over the practice of assessing jury
By 1220s, juries were feature of the royal court
Jury trial rapidly became the typical civil method from the 1200s on
--Although litigants could still battle & have their deeds inspected
k. Who are the jury?
--Locals
--Laypersons
--Compulsory judges (had to come when summoned)
Run by the sheriff
Packed, etc.—scandal involved
--Viewed as knowing the facts, so could be punished for giving the wrong
verdict
With judge control, came immunity from punishment
By 1670, they’re immune
--Jury could nullify the law
--Important constitutional protection (18th c.)U.S. constitution
l. Lawyers came to control the jurors
--Elaborate systems of pleading
--In civil litigation, by a process of allegation & counter-allegation
--Separated issues of fact & issues of law
1.
The court
a. Lawyers started as storytellers—skill in pleading (allegations & counterallegations)
b. Pleaded orally
c. Recited in Norman French & clerks translated to Latin for records
d. Tentative pleading developed
--Ex: “What would happen if I pleaded x?”
--Eventually, judge would require them to get on with it
e. Early lawyer books developed out of these bizarre systems (very
mysterious as to what actually went on)
f. Began to exchange documents by 15th c.
NOTES MISSING HERE (2/7/00)
02/07/00
This system of procedure distinguished between issues of fact and issues of law. You
could admit the facts but say that they did not amount to anything at law (a demurrer).
The arguments between the judges are now private – that’s how the form of the judicial
opinion came about – it was an argument about the decision. The court would eventually
just enter judgment for one party or the other, without giving any reason as to why. The
practice of giving justificatory opinions after the judgment really only came in the 17th or
18th century. (Keeble v. Hickeringill – the case we have comes down from the notes in
Judge Holt’s notebook – these notes were for his argument, and since the judgment
accorded with his position, he must have prevailed.) Other systems of law do not give
justification, but common law systems tend to.
The early law reports are mainly discussions of pleadings and they are not considered to
17
be justifications for decisions
Pleading is primarily oral and done in French – when it’s for serious, the clerks record it
in Latin (p. 124 on the left – illustration of the tentative nature of the pleadings
There are all sorts of suggestions as to which plea he is going to try and then, after a
while, the judge tells the parties to plead what they really are going to plead
One of the few instances where you see the transition between tentative and real pleading
Court lawyers are experts in the pleading system at this time, to which is attached arguing
and pleading abstract points of law. Now, when they get to court, they become an
advocate – he exercises rhetoric to sway and persuade the jury. In Rome, advocates were
looked at as beneath contempt – it was honorable to be a jurist and answer abstract points
of law, not to harangue and persuade people.
You begin to get the development of substantive law and one way this happens is by jury
instructions – you have to have something to tell the jury, which is something in the way
of substantive law.

Thayer’s article in the supplement – some sort of process of giving evidence to the
jury has become, but it takes a funny form. The barrister just says that he has a guy
who will say such-and-such a thing. However, a couple of the characters are sworn
and they do give evidence.

Putting things in evidence for the jury amounts to showing the jury documents

The jury is only just beginning to be a body that examines evidence.

Juries can also find special verdicts – they are not really found by the jury

They are concocted by the jurists when they want to crystallize the law on some issue

If you can get more facts and evidence on the record, then, when you get to London,
you can argue that the facts don’t show a good cause of action or show an error.

This use of facts becomes more common in actions on the case – the writ was varied
to meet the facts of the case and so lots of facts got onto the record and could be
argued about and could be the basis for legal questions
Unless you have procedures which somehow separate questions of fact from
questions of law, you will have no development of substantive law
There are more and more attempts to circumscribe and confine the powers of the jury. In
the 17th century, if you had a jury trial out on the circuits, you could ask the judges to
18
order a new trial on the grounds that there was something fundamentally wrong with the
way the trial had gone. As the process of directing trials and juries became more and
more common, you could ask for a new trial on the grounds that the direction was wrong.
In order to sustain this procedure, judges began to keep notebooks, so that the Four
Courts in London could see what went on in the trials to decide whether they were right
or not.

These and other procedures allowed parties to raise abstract questions and theories of
law in front of the multi-judge court in London. The courts of London were not a
higher court, since the whole trial, theoretically, took place in the Court of Common
Pleas.

There was another procedure for raising abstract points of law – the judges on the
court in question would get hold of the other judges, to solemnly discuss the question
of law. These informal gatherings of judges were not a court. They correspond to
university practices, where difficult points of theology were discussed at faculty
gatherings.

Presentation of the law as reception and customary acceptance. This is one of the
earliest extended discussions where these experts take over the debate about what the
actual law is. Judges just say what the law is (Blackstone ties himself in knots over
this)
The court of Chancery:
There is a difference between law and equity. We still distinguish legal things from
equitable things. This is a reference to distinguishing between the common law and
things devloped in the Court of Chancery, which dealt with remedies. Equitable
remedies were discretionary, but it said that this discretion was governed by settled rules.
All this goes back to a very curious institutional system, where, as well as the common
law courts, there developed the Court of Chancery which developed a completely
separate legal doctrine which somehow modified the common law. The trust is the
product of the division between law and equity.
19

In its later day, the Court of Chancery is a horror (Bleak House parodies this – it
depicts a suit that has been going on so long that no one knew why it had been going
on anymore)
IV.
THE COURT OF CHANCERY
A. Huge, inflated bureaucracy developed
1. Parodied in Charles Dickens’ Bleak House
a. Portrait of complete chaos
b. Administrative shambles
c. Why did anyone even litigate?!
2. Chancellorstaff of clerks (12 principles)more clerks
(some with special names)etc.
3. Developed into elegant body of law we call equity
4. Maintained the Inns of Chancery (where lawyers lived & ate)
5. Issued original writs (clerks copied from texts): “Register of
Writs”
6. Issued documents (royal grants) in Latin (‘”The Latin Side”)
7. Documents came to be written in English : “The English
Side”
a. Written language was Latin
b. English was mostly a spoken language
c. Monarch delegated his functions to the common law
courts, but retained ill-defined residual powers (unwritten
authority)
d. People petitioned the monarch in writing (right of petition
passed right down into modern times)
e. Monarch passed them down to other officials
f. Late-14th c. legal petitions were passed on to the
chancellor, who began conducting hearings
g. Began to issue them on his own authority
h. By 15th c., petitions were submitted directly to chancellor
on a major scale, & chancellor was issuing decrees
i. We retain all kinds of these petitions (unsorted & almost
never containing decisions)
j. 1544: “Decree Books” were records clerks kept of
decrees
k. Problem: We know the law was being developed by the
petitions/decrees, but we don’t know the
doctrines/theories that were applied
l. Ex. of petition: p. 38
8. Difference between Common Law & Chancery
a. Main difference: Chancery provided remedies (CL
provided damages)
b. Chancery filled gaps & defects in the CL
20
c. CL dealt with law, but chancery dealt with conscience
(forced people to do the right thing—specific
performance)
9. What sorts of cases came to chancery?
a. Uncancelled bonds (people sued twice for the same debt
b/c they didn’t destroy the seal)
b. Remedies on informal agreements
c. Enforcing trusts (common law didn’t enforce them)
10. Who were chancellors?
a. Often doctors of both civil & canon law
b. Almost always Oxford people
B. Equity: “The Court of Conscience”
1. Making exceptions to the rules
a. Aristotle said where there is a rule there must be the
power of exception somewhere—equity filled that role in
theory
b. Since we can’t formulate a rule that will work in all
situations, we need a way to ask for mercy
c. Didn’t always operate this way
d. Explicitly appealed to the conscience
e. Conscience tremendously elaborated in the church
--Mortal sin cuts you off from God (you go to hell)
--How do we avoid sin? Our conscience (created in the
image
of God)
--Confession was a professionalized form of guidance for
the conscience
--Literature on penance developed
Catholic priests looked up tricky questions in
books
Some evidence that this was the function of the
court of
equity
Drew from Scripture & chancery law
Aim of protecting the ’s soul from hell
--Suma Angelica (“Angelican Encyclopedia”)
Produced by a Franciscan doctor of canon civil
law
15th c.
Often up-to-date versions of 13th & 14th c. versions
Big-selling item amongst printed books
Poor parish priests couldn’t afford them
--Conscience was a technical term
2. AWBS believes conscience was the basis of equity law in
the 15th c.
21
a. In the 16th c., the ecclesiastical concept of canon law
ceased to be effectivewent to equity law
--For awhile, dual systems existed
b. Problems with the theory
--Baker argues that if the court was relying on civil/canon
law, you’d expect their experts to have doctorates in it
--But, successful lawyers at the time were common law
experts
C. What happened to equity?
1. Did common law edge canon law out?
a. They did trade ideas, but chancery sometimes interfered
with common law (& vice versa)
b. Depending on how you look at it, they’re in conflict or in
harmony (we don’t know)
c. During the 15th c., they were in harmony
d. In the 16th c., Woolsley became chancellor
--Extremely arrogent man
--Hated common lawyers & made no secret of it
--Produced a lot of tension
--Began to get a lot of literature around this timeagainst
chancery
--Replaced by Sir Thomas More (1529), who pacified
everyone
e. Blew up again in the 17th c. with Coke’s (chief justice of
the common court) quarrels with the chancellor
--Gave inconsistent rulings, etc.
--Coke was very learned, colorful
--Manic about defending the rights of the common law
--Quarrel finally solved by the king
Statuatory rule
In conflict, the Court of Equity won
th
2. Late 17 c.: Beginning of publication of the Court of
Chancery’s reports
a. Equity began to rely on rules (much like common law)
--Lost its flexibility
--Became rule-bound
--Became precedent-bound
b. Still retains some of its old characteristics today
c. Various attempts to systemize the law produced “Maxims
of Equity”
--Pithy expressions
--We can deduce the court’s actions from these
--Ex: “He who comes to equity must come with clean
hands”
--Quite a literature developed on the subject & survives
(to some degree) today
22
--Never any agreement as to what the maxims were
--Attempt to systemize around basic proposition
--Eventually overtaken by case law
3. Why did the court become administratively chaotic?
a. It was a one-judge court that handled all of this type of
litigation
b. It operated a procedure involving written documents
--Paper produced was huge
--Court was permanently clogged
--Until procedures were reformed (19th c.), it was an
administrative nightmare
4. Cleaned up by Chancellor Eldon (until 1901)
a. Quality of his legal opinions
b. Chaotic shambles of the court (took up to 10 yrs. to get an
opinion)
c. This is described & parodied in Dickens
d. Characterized by lengthy, tedious litigation
5. What happened?
a. 1875: Series of information acts
b. “Both law & equity can be enforced in all courts”
c. Remained conceptually distinct
d. It still is (NJ has 2 separate courts)
D. Final words on equity…
1. Criminal laws never had separate law & equity courts
a. Discretionary sentencing played a part, but no separate
jurisdiction
b. Chancery never had anything to do with crime
2. Idea to make exceptions to rules is still powerful (can be
presented to any court)
3. No traces of the idea of conscience today (protecting the 
from himself)
V.
A.
THE COMMON LAW SYSTEM
Development
1. Developed uniform
2. Developed disciplinary mechanism
a. Ritualistic
b. Usually in the form of expulsion (“casting”)
3. Developed a “profession”
a. Ideas of the way profession was run=the law
4. Didn’t start from a text
5. Attempts to make sense of/rationalize practices
6. Made use of strange languages
a. Record written in Latin
b. Spoke in Normand French (reminiscent of the royal
court)
23
c. Slowly in the Middle Ages, the use of the vernacular
became widespread
d. By 1350, Normand French survived only in the court
--Statue of pleadings got rid of it
--Lawyers ignored it!
--Difficult to tell when it went out b/c law reports kept it
up until mid-17th c.
--As late as 18th c., real actions for land were pleaded in
French
--Normand French became more & more distant from
Parisian French & was used almost as a secret language
Power & mystique developed
Dependence on the lawyer
7. The body of law was essentially passed down orally or by
practice (often through education)
8. How was it kept cohesive?
a. The reporting of cases
b. The writing of books, treatises, etc.
c. Done by a very small body of people
--London lawyers
--Lived & worked together
--Split into small groups to ride the circuits
--Wrote & produced procedures, reports, text law,
statutes, etc.
--Memorization
--Listened to court proceedings in special boxes
--Case-centered
9. Center stage was occupied by judges
a. Not as much as today
b. Their power came from the crown
10. By about 1200, the practice of appointing non-clerics to the
bench began (literacy no longer meant clergy)
a. Clerks
b. Complete separation from the church by 13th c.
B.Members of the legal profession
1. Court became subdivided
a. People who talked in courts were “counters” or
“narrators”
b. People who acted as legal agents
--One in London & one in town
--Courts had an interest in maintaining their integrity, so
they kept a list of licensed attys. whom they had
admitted to the court
--Performed all sorts of other functions (loans, letters,
etc.) to make a living
24
--Power to mind clients was basic function
2. By 1230s or 1240s, judges were chosen from among attys.
a. Presided over attys.
b. Eventually became standard
c. Court of Common Please attys. became Chancellors at Law
3. By 1300, the people appearing in the Common Pleas Court were all the same 10 or 12
people
a. Closed system/bar
b. Much emphasis on seniority/hierarchy (caused this?)
4. By 1329, the admission of court lawyers took the form of a ritualized “call to become a
sergent”
a. Involved a great deal of ceremony
b. Quid pro quo: needed circuit judges (traded this duty for benefits from the queen)
c. Great feasts, etc., were imitative of medieval doctorate awards at universities
d. Tradition of giving gold rings engraved with a legal motto (“giving gold”) made
cost of becoming a sergeant very high (but the job paid well)
e. Lawyers had enormous wealth & status
f. Law became a specialized body of knowledge
5. By 1400s, judges are being appointed by Sergeants (guild/fraternity)
a. Live & argue together in London (“Sergeants’ Inns”)
b. Have country estates with families
c. Originally summer vacations were for harvesting
6. Apprentices/”Men at Law”
a. Had a right of audience in many courts in London
b. Acted as court lawyers without being sergeants at law
c. Developed residences in London called “Inns of Court”
--Hall, kitchen & chapel
--Became private inns, like pubs
--14th c. lawyers established themselves in this way
--Records begin in the 15th c.
--Hierarchy, rules, traditions, etc.
--Performed educational functions (little education available)
--“Grey’s Inn” still exists
Grey rented it to lawyers
Very like a fraternity house
--“Inner Temple”
Named for position in relation to London
--The Middle Hall
Virtually undamaged in the war
Shakespeare’s First Night was performed there, along with other
entertainment
Representative of 16th c.
--“Lincoln’s Inn”
Fragmentary records since 1422
Other archives go only to early 16th c.
Probably founded when a group moved from another place
25
--4 inns turned into the “Inns of Court” of today
--Quite wealthy
--Liked to think of themselves as Oxdford/Cambridge colleges
But colleges were endowed to perform specific functions (usually
religious)
Often had very little to do with educating the young
Inns of court had none of this
--Actually, just pooled their money to live together (primarily residential
institutions
MISSING 2/15 HERE
02/15/00
These inns were important because the sergeants were probably recruited from them.
The predominance of these inns was probably due to that. If you wanted to be a sergeant,
you had to go to one of these 4 inns. He’s the only barrister in this law school, because
he was called to the bar by Gray’s Inn. What about these other Inns? The various people
engaged in the legal profession also had to have some place to stay. Some of these other
Inns were called the Inns of Chancery and had all sorts of names (Clement’s Inn,
Clifford’s Inn, Staples’ Inn…) and there were quite a lot of them. They were connected
with the fact that the Chancellor was regarded as having the responsibility of maintaining
a household for all of the clarks of the Chancery. So, there were a lot of inns with
lawyers in them, but it was not entirely clear what all these lawyers did.

The Inns of Court contain a miscellaneous ragbag of lawyers – some of them would
go out on circuit, some were attorneys and probably contained all sorts of other odd
people too

The Inns of Chancery – people connected with the Chancery and they also contain to
contain very young people who were trying to get into the legal profession
Lincoln’s Inn appointed governors every year to run the place. Fortescue was a governor
and then becomes a sergeant and then he becomes CJ of the King’s Bench. He was both
a judge and a fighting man. He supported the Lancastrian side in the Wars of the Roses
(i.e. the losing side). He took part in the Battle of Toutan in Yorkshire, which was fought
in a snowstorm and the Lancastrians got absolutely slaughtered. 28,000 people were
killed there. He hightailed it out of town before he could get killed after the battle, and he
26
went into exile in France and since he was bored, he wrote a lot of books. (p. 39) So he
was actually in an Inn of Court and so he actually knows that’s going on.
The laws of England are not taught in the English Universities (they only taught Roman
law), but he says that the common law has its own university, which are the Inns of Court
and the Inns of Chancery. He says that the reason they don’t teach it because of a
problem of language, because the official language of the Universities was Latin and the
common law was all in Norman French. Not only that, but he says that you can’t operate
the Common Law in Latin, since a lot of the technical vocabulary would be lost. He says
that in this Academy of Inns, there are around 10 lesser Inns, which are called the Inns of
Chancery, which were for the young aspiring lawyers. What’s happened is that these
originally residential places were re-developed into places involving some sort of a
teaching place. Lectures used to be a way of disseminating texts in pre-writing society.
Inns of Chancery: There were also other educational exercises (some type of ritualistic
practice that is supposed to contribute to education – case classes, seminars…) of which
sometimes we only know the name – Reading a writ, Reporting (which Simpson thinks
might have been a version of the case class.) Most of the people who enter this system
don’t’ end up to be the big shots, but since England is a tremendously law-oriented
society, there is always a demand for practitioners of one sort or another. (It’s thought
that he exaggerates the numbers of the institution to try to impress the French, who are
never impressed.) It’s also thought that he somewhat exaggerates the cost of living in the
Inns of Court and exaggerates the aristocratic element. He also says that they are
absolutely super places – the people there have the education of gentlemen (singing,
dancing, etc.) It’s clear that there were other educational things going on, but they
weren’t organized by the Inns, which probably only organized legal activities. He also
says that nobody misbehaves, which is demonstrably untrue. So the whole thing is
overdone, but the picture is true.
Then he goes on to talk about the degrees that are given. He says that they don’t have
formal degrees, but the equivalent of being made a doctor is to have been made a
27
sergeant at law. He overdoes the cost of becoming a sergeant, but since we know that
since there were only 12 or so sergeants, they were incredibly wealthy. The process of
becoming a sergeant could well take 25 years, and he underestimates this. He then goes
on to talk about the justices, of whom he gives a very lovely picture of their lifestyle
(they only sit in court from 8am to11am and then they spend the afternoon in
contemplation)
There’s evidence that Moot Courts were going on. The education in the inns was Moot
Court or lectures. The education was provided by the senior practicing lawyers, so the
education took place in the vacations. By Fortescue’s time, the Inns appoint a Reader for
each vacation who gives a course of lectures. These people lecture on the early statutes –
they expound authoritative texts, which sounds very imitative of the universities. The
Reader is appointed, and there is a ceremony when he is appointed. The statutes are
taken in a sequence and the Reader is merely expected to lecture on the sequence as had
been done for years. The other way was Moot Courts and there was a whole hierarchy
associated with this Moot Court. First, you become an inner barrister, and then an outer
barrister (BA), and then a Reader (MA), and then if you’re lucky, you get to be a
Sergeant. (Like getting a doctorate.) Very few of the people who go to the Inns of court
don’t manage to grind their way all the way up the ladder – a lot of people drop by the
wayside. A lot of people treated this like a finishing school – go for a while and acquire
some polish. The people went to the Inns to get a little legal education or to have a good
time for a couple of years.
There was this extracurricular arrangement, but they were not organized by the Inns.
Other bits:
p. 51 – Baker’s legal writings – an account of what is going on in the Inns of Court
(immensely learned and awfully detailed. This intellectual system is part of the system
for preserving cohesion in the law and is probably the reason for why England never took
up much with Roman law, since they had their own law.
28
Lemmings – the whole system collapsed by the mid-17th century, since there were now
printed books
In the mid-18th century, extracurricular lectures are given on the common law
(Blackstone’s commentaries). From the mid-17th century to about the mid-19th century,
there is no organized legal education. Until recently, university legal education in
England was not regarded as anything special
B. The book : A mechanism for transferring legal information
1. History
a. Printing began in the mid-15th c.
--Highly-skilled operation done by hand
--Enormously reduced the price of books
--Usually ensured that texts were identical
b. Printing of law books began in 1480
--Before that, all books were handwritten
Laborious, expensive
Objects to be admired (like coffee table books)
d. Long after printing began, lawyers made extensive use of manuscripts
--Remained until late 18th c.
--Remain today (some casebooks were never printed)
2. Different sorts of uses of written texts by lawyers
a. Form books (from which you copied legal forms)
b. Registers of writs
--Specialized pleadings
--Used when pleading changed from oral to written
c. Deed transfers
d. From early medieval until today
e. Involved professional writers of documents
3. Customs & practices of the royal court
a. Like Ganville’s (in packet)
b. Bracton
--Attempts to state the whole of British law
--1220-1230 BC (common law not yet insular)
--Relies on Roman categories
--Came in the 15th c. to be a book about Roman—not English—law
--Have been modern editions of it
--Never became he foundation of English law
c. The next general statement didn’t come until mid-18th c., with Blackstone
4.Law reports became the typical literature of the common law
a. Started in or around the 1280s (surviving manuscripts)
b. Accounts of what went on in court (mostly pleadings & discussions of pleadings)
29
c. Numerous examples in packet
d. Not records of proceedings
--More like training videos
--Interested in procedures
e. Can in some ways recreate the legal ideas of the time
f. In Normand French
g. Don’t really know who produced them
h. “Yearbooks” arranged chronologically (not by subject)
i. Late 15th c., 16th c., began to be printed
j. Was there an organized system of reports?
--Unclear
--Some are simply lawyers’ notes for learning
--Maybe more? No evidence
--Possibly court reporters (like today)
--Associated with teaching at the Inns?
--Form of case (legal) instruction?
k. Used to a very limited extent as legal authority
l. Anonymous reports petered out eventually (suggesting that if there was a system,
it failed)
m. Printed law reports appeared around 1490
n. Began attaching names of parties in 16th c.
o. Common law books were a monopoly (16th & 17th c.)
--Granted by monarch (“king’s law”)
--Tottle printed law & poetry
p. Edmund Plowden was credited with the 1st signed law reports (very well-known)
--Included the text of the pleadings so everybody knew the issues
--Confined to cases actually decided on (isolated) points of law
--Full texts of legal arguments
--Catch: judges didn’t usually give explanation for judgment
He asked judges to explain & sometimes they did
Ahead of his time in this
q. Chief Justice Cook (1600-1686)
--Illustrated all he chief suppositions of the law
--Gave his own arguments when the judge gave no explanation
r. Most books were manuscripts of individual lawyers
--Scribbled court notescasebooks of today
--Many are incredibly unreliable
--Borrow was the first really reliable set of reports
s. Professional law reporters developed an organized system by the 19th c.
--Still not completely reliable
--Can get wildly varying reports on the same case
t. Chaotically disorganized b/c of arrangement system
--Attempts at subject-heading arrangements
--Summarizations & abridgements
--Begun in the late 15th c. by Statham
Printed in France & shipped to England
30
--Produced in one of the Inns of Chancery
Nothing to do with Chatham
Probably for education
u . Abridgements were much used in America
--Mechanisms for transmitting British traditions to America
--Parasitic on case reporting
v. Hornbooks about branches of the law (the treatise)
--Attempts to condense & state the law cognizantly
--At one time, ticket to the top in U.S. law schools
--Idea that you can divide the law into subject-areas (imposed on the law)
Been played with in U.S. law (“Restitution,” etc.)
Principles behind the meaning of the law
Spirit in which the treatise was written
5.Literary forms that systemize & simplify the law
a. Treatises
--Littleton’s (15th c.)
Allegedly written by Sir Thomas Littleton (1415-1481)
One of the 1st printed law books
Ran about 90 printed pages (80,000 words)
Became subject of major commentaries (Cook on Littleton, etc.)
Text itself became statuatory
Headings: “Estates,” “Tenures,” & “The Rest”
--Legal theory of Littleton
Cases barely mentioned
Legal ideas behind the cases (Posner!)
”The law may look a mess, but it’s actually based on principles”
Look for simplicity
”Grounds,” “maxims,” “fundamentals” of the law
Associated this theory with Roman law (pithy statements)
b. The abridgement of cases
--Arranged by headings
--Fundamental assumptions beneath any body of law
--Didn’t require/couldn’t have any deeper explanation (ex: “No one should profit
from his own wrong”—how can you explain that?)
--Self-evident: If you don’t see it, you may as well give up
--Traditional: Had always been accepted
--Intelligible to lay people (but application requires years of the study of law)
--This way at looking at the law still exists today
Flourished in 19th c. America
Maybe not today in law, but definitely in economics
--Generated a legal literature now extinct
c. Books of legal maxims (17th c.-1930s in England)
--Maxims on Equity, by Richard Francis (1727)
14 maxims, the basis of all equity
Now generally believed to be 12
31
--The Grounds of the Law of England, by Noy (17th c.)
--Massive works of pithy little statements
--Broom’s Legal Maxims (1830s-1930s)
--Completely extinct today
d. More treatises
--Supplanted legal maxims
--The idea that underneath the law is a body of rules exemplified/illustrated by
cases
--Shepard tried to write one in mid-17th c. & failed
--So difficult that almost nobody did it
--Littleton began as lecturer (?) & imposed order on knowledge
--William Blackstone
Next person to write one
Lured to lecture at Oxford
Produced a comprehensive institute of common law (to make it
interesting)
Set out to show the systematic nature of common law
--Blackstone’s Commentaries (1865-69)
Used Hale’s Analysis of the Laws of England as a scheme (invented by
Gaius & used by Justinian in his Institutes)
Extremely successful
Readable (great literary style)
Elegant, coffee table book (didn’t need legal training to read)
Tells a story: Britain is the home of liberty (history of Normands &
monks
imposing oppression on British purity & liberty)
Sold far more copies in America
Shaped the legal system & the U.S. constitution
Common law was seen as disorderly, unsystematic, inferior, useless
(everyone studied Roman law)
Showed that common law could be expounded on in an elegant, literary
way
--Writing on individual works of law became fashionable
Sir William Jones was an intellectual who wrote Jones on Bailment, the
1st book on the topic
There was a succession of such books in the late 18th c.
Charles Fern wrote Fern on Contingent Remainders in which he defined
them, claiming they were latent in the cases!
Powell wrote the 1st treatise on contract
King wrote the first treatise on corporations
Etc.
--Many are still in print in England
--Late 19th c. came to be associated with academic teaching of law (before that,
it was not)
--Way of getting work as a barrister (attracted attention)
32
--Many republished in U.S. (late 19th c.) with annotated comments
--1830s: Joseph Story got treatises going in the U.S.
Flourished in 19th c. America
Began to go the other way (copies went to England)
--“The Theory of Legal Science”
Law was a body of knowledge which could be organized around a
number of basic principles
Still believed, in some form or another, by a great # of lawyers
Americans championed the idea
--Grey’s
All cases can be determined by reference to this single theory of right
or wrong
In its perfect application, requires that you pay no attention to
sociological or other ramifications
--People footnoted vast numbers of cases & produced multi-volume treatises as a
route to the top in the U.S.
--Unity of the system began to break down
Too big
Prosser contributed, by stringing out the footnote
--Led to codification of law
French did it (Napoleonic Code)
American Law Institute tried to do it in the Restatements
Authority derived from academia & convenience of being able to look
something up in a single book
1st R. saying what law really was (2nd R. got haughtier: what it should be)
Started in British India with the code of contracts (still in force)
e. Casebooks
--Dominant money-making book for American academics
--Early 19th c.
--Samuel Warren, A Guide to Law Studies
--John Smith, Smith’s Leading Cases
Friend of Warren’s
Very limited # of cases
Included commentary
Sent a copy to Joseph Story (in U.S.), who thought it was great
--1847: American Leading Cases
Called cases “the lighthouse of the law”
Idea of needing guides to get through the wilderness of law
--Christopher Columbus Langdell
Harvard Law School dean
Turned job of dean into an important one
Married legal education to coursebooks
Got idea that all students should use the same books
Law=Principles (& only a few select cases illustrate them)
Students teased out fundamental principles of law together in the
33
classroom
Theory didn’t work in practice: Students didn’t get the principle right
Produced a nutshell (put at back of casebook)
--Modern class system married educational technique to casebook method
People (like Holmes) doubted the system
In this century, it’s become pretty weak because there’s so much
opposing case law
1920s modernist/realist movement downplayed majorly the theory of
legal science
Breakdown between practicing lawyers (who make extensive use of
Restatements, etc.) & academics (who supposedly need only casebooks)
Developments such as Lexus-Nexus bridge gaps between statuatory &
case law
f. Law reviews
--Came with cheap printing
--Bourgeoisie could buy them in the 19th c.
--Categories
Practical for practice (severely practical)
Intellectual/literary papers
--Lawyers liked to be thought of as intellectuals
Pressure to produce journals (1830s & ‘40s)
People didn’t previously think of lawyers that way
--End of 19th c.law schools contained academics
Langdell started this (& other schools copied Harvard)
New class/profession: academic lawyer
Began to develop journals to express their academic ideas
Eventually became entwined with tenure
Graduate students took over law reviews
Elsewhere in the world, professors dominate the review
--No example before the 19th c.
Too expensive
Too practical, in the beginning
--Today: Is law school too out of touch with the real world? Literature would
indicate that it is
C. Contract Law: Covenant
1. Why didn’t royal law deal with contracts?
a. Many things we do by contract, they did by tenure (land/property)
--Ex: Instead of buying eggs, you got them as rent from the peasant who lived
on your land)
b. Not much use for money—only subsistence
c. Markets/buying & selling went on only occasionally & in certain places
2. Other courts & systems dealt with buying & selling
a. Ex: The “dusty feet”—market courts
3. Over time, the common law engulfed contract law—present position achieved in 19th c
a. Began in the 1100s:
34
--Writs
Like the write of covenant, in 1200 BC
In the back of baker (pp. 1616-17)
Capable of covering any contract evidenced by seal
--Where we got the term covenants
b. Came to be good for damages and specific performance of the covenant (but
eventually passed out of use—only good for damages)
4.Why didn’t common law take unsealed contracts? Possible explanations:
a.Cluttery—seen s unimportant, jurisdictional rule to guard the court’s resources
b.Theory about covenants: introduced a special law at odds with CL
c. About developments in the law of proof
--If you’re going to do a deal, take someone with you
--Seal is replacing people with other action
5.Actions of covenant are still very limited in their use
a. Most contractual business was trivial, at the time
B. Debt (action of, pp.614-615)
1. Writ form worked for this—a fixed sum
2. Claim something of yours—not demand some promise be fulfilled
3. Eventually split: Recording $ & chattels
a. Very vague distinction in the medieval period
--Ex: Suing for wheat as payment was seen as $, etc.
b. Different writs
4. Distinguished between debt on record, bond/obligation, & contract
a. On a record: Proof by the record of the court
--Ex: Awarded punitive damages & not paid
--All roads in law pretty much end up here
--Developed way of providing very good evidence of debt
Get it on the record of the court
Won’t get lost
Can’t be refuted
--Debtees (x) would only lend debtors (y) if x sued y in court & won—got
“award”
“Pre-judgments” were widely used
b. Sealed instrument—obligations/bonds
--How medievals made contracts enforceable
--What were these transactions?
Not very developed
Thought more in terms o a list of transactions
--Loan, sale, rent due, the $ of hiring someone
--Flirted with the idea of generalized theory of disparate collection of
transactionsdebt
--If they didn’t fit, they were puzzled—began theoretical musings
5.Not limited to consensual obligation, but lay wherever $ was due
a. Eventually developed to $ pd. under mistake
b. Customs fees, etc.
c. Different than how we think of action debt
35
d. Some medieval contracts were compulsory
--Jailor had obligation to sell jailed debtors bread—could sue for the price
--Not limited to contract as we would understand it
6. How do you prove a contract in court?
a. Originally, you offered suitors (but became formality)
b.  could swear oaths in court
c.  offered to perform—“wager of law”
--Showed up with co-swearers
--Had a day to do it
d. Not that weird
--Loaded the dice in favor of s resisting debt claims not supported by good
evidence
--If you swore a false oath, you went to hell (so most people wouldn’t do it)
--So your 11 friends wouldn’t do it, either!
e. How does this compare with jury trial?
--Sheriff chose 12 men to swear the truth
--Oath-swearing:  had to find 11 people
--So, quite difficult to oath-swear
f. Big catch: Once you’ve sworn one false oath, you may as well keep going
--“Knights of the post”: professional perjurers
--System fell into poor repute
B. Supplementary Materials
1. P. 106
a.Lecture on the wager of law (r)
b.Argument about appropriateness of subject (l)
2. p.108: Daughter’s dowry (l) & conference (r)
3. Don’t know if the are summaries, ver betum, what
4. P.109: The Bond (AWBS’s article)
C. Bonds
1. The center of gravity in medieval contract law
a. What is a bond/”obligation”?
--Written promise recorded by “scribblers”
--Sealed by putting a mark in a gob of wax (could be a bite
b. What did it do?
--Unconditional/simple bonds were for paying $
--Bound parties to pay unless an underlying agreement was performed
”conditional obligations”
Ex: fines
c. You put your personal security in the hands of the creditor b/c the end of the
debt-road was jail
d. The bond was the obligation: If it was lost (or the seal came off), the
obligation was terminated
--No parol evidence allowed, etc.
--Unless the parties explicitly joined 2 writings, they weren’t considered
together
2. The typical way of attacking a bond was to deny that it belonged to you
36
3. The bond was treated as an action—not the paper
a. The thing isn’t a deed (defect ,no seal, etc.)
b. Illiterate people could show that the contents hadn’t been explained to
them
c. Bond-owners lacked contractual capacity (monks had it, for example)
d. Did the will go with the deed?
--Ex: Duress
--Even if the debtor payed the bond & the creditor stole it back, debtor had
to pay again
3. Conditions
a.  could plead that a bond had a condition on the back
--Court could inspect the bond to see
--Jury would decide if the condition had been performed
b. Lots of contract law developed as law about conditions
(read ABWS’s article)
4. Because of the laws against usury, people used bonds as a “concealed” way to
lend $
a. Ex: Debtor gave loaner a note for $200 in exchange for $80, with a
condition that $100 be paid in one year
b. Usury was illegal, but bonds were legal
5. Why did bonds pass out of use?
a. Interference by the Court of Chancery
--Bond system was very harsh
--Had to “forfeit the bond” if anything happened
--People petitioned chancery—either the common law was harsh or the
creditors were unconscionable
--Responded by issuing mandates against bonds
--Felt that by giving relief they weren’t reinforcing cruelty—“relief
against forfeiture” of mortgages, etc.
b. Common law followed equity
--New way of lokoing at the matter: Penalty bond is now a security of
performance
--The aim of the law should be realistically compensatory
c. Doctrine: Penalties (as such) are not enforceable
--Earlier philosophy of debt enforcement got softer
--Loaner no longer given power over debtor
6. How did the bond system work?
a. Enforced liability against debtors
--Goods seized
--Chattels & land profits seized
--Possession of land until debtors could get the $
--Debtor’s prison
b. Debtor’s prison
--14th c.
--Ultimate penalty (once you put someone in jail, you couldn’t get your
money in other ways)
37
--No duty to debtor (by creditor)
Ex: If creditor died—too bad
Also vice versa: If debtor died, no remedy
--Put pressure on debtors to pay debts
--Gave bondholders tremendous power over debtors’ lives (power to putin
prison)
--Main function: Weapon of civil law
c. Beginning of the notion of bankruptcy
7. Any contract could be bound by bonds with seals
8. The law was harsh & uncompromising, self-enforcing & uncomplicated
9. Common law was patch (not much there)
a. Loans: Actions on informal loans were non-existent, & formal loans were
backed by bonds
b. Sale of Goods: Subject to wager of law (if not advantageous, didn’t
litigate)
c. Sale of Land: Action to recover the $ of land, but none for verbal promise
to transfer land
d. Service Performance Contracts: Action of debt to recover payment, but
again—none for verbal agreements
e. Other oddities:
--No action on gratuitous verbal agreements
--No debt on 2 people: Debtor & guarantor
--No action on marriage dowry (usually contractual)
--No generalized law of informal transactions
Ex: mens rea
Took a long time for this to develop
--Wager Law
Came to be viewed by 16th c. as flawed
Standard method of trial
--No remedy to provide specific performance (just remedy)
--Where wager of law existed, you couldn’t sue executors
Debts done by informal contract died with the debtor
Especially odd, b/c the Church taught that executors paid all
debts to ensure quick assent to heaven
VI.
CANON LAW: THE COURTS OF THE CHURCH
A. Common law courts thought all other courts existed at its mercy
1. Maintained 1 common law
2. Church court never accepted this
a. Big conflict between church & state
b. Court of King’s Bench regularly issued restrictive edicts
c. Church courts completely ignored them!
B. Had jurisdiction over the soul
1. Life was very precarious in the Middle Ages—people were frightened of death
& damnation
2. Enforced penance/public penance, etc.
38
3. Role of pastor as mediator has survived
C. Quite good courts
VII. COURT OF CHANCERY
A. Jurisdiction over informal contracts
1. Filled defects in common law
2. To not perform contracts was sinful(contrary to good conscience)
3. By 1300
4. Don’t know much about contract theories
a. They probably applied the doctrines of canon law
B. If the common law hadn’t replied by developing the same thing, we would study
chancery law (equity)
C. But Chancery passed out of use
1. Common law began to develop remedy for informal contracts
2. Treated breaches of informal contracts as wrongs (torts)
a. Damages remedy for wrong 1st came in 1160s (with seisin action to
recover land)
--Goods on landGiving just land back not enough (typically the
cattle)
--Awarding damages assessed by the jury for damages
--Modern idea of torts
b. Trespass
--Wrongs alleged for which juries are used
--Early were usually violent
Breach of the royal peace
Ticket to the royal courts
--Legitimized intervention of royal courts
--Half civil & half criminal (s went to prison if they lost & had to pay
the king to buy their way out)
--Not our system
--Baker gives the standard form of writs (p. 614)
3. Stereotyped forms of writs—can’t really tell the seriousness of the offense
4. By 1210-20, quite a trickle of these actions
5. In 1215, the Church withdrew its support for ordeals in criminal trials, & jury
trial replaced it
a. Juries assessed money damages
b. Replaced Saxon law of “one foot,” etc.
VIII. TRESPASS ACTIONS
A. 1200s
1. “Actions [of trespass] on the Case”
a. Flexible, whatever form you wanted
c. 150 years until these actions appeared in other law
d. Gives plaintiff lawyers enormous possibilities
--Draft new claims & see if the court will buy them
--Large part of our modern-law tort developed this way
39
2. Standard: Violence & breach of the peace came first
a. Led to negligence & other non-violent trespasses
b. Ex: Smith wounds horse while shodding
3. People sued with fictitious writs of trespass
a. Ex: Claim the smith was malicious, semi-criminal, etc. (charge)
b. Truth systematically concealed by this system
c. Told the true story at court
d. Ex: Traffic accidents were all violent carriage attacks (when the truth
was simple negligence)
B. 1350s & ‘60s: Insistence on honest writs
1. Drew difference between trespass actions & trespass on the case
2. Could dress up contract/agreement cases & make them into tort
a. P.119, ex: Baxton
b. Breaches of formal agreementstorts
c. Allowed Common Law courts to develop jurisdiction over breaches
d. P. 120: Cases against a furrier (smith), with allegations that he treated
the horse wrongly & it died
3. Began to omit allegations for breach of the peace during this time
4.Why did they make such a fussy distinction?
a. Punishment for criminal acts was too harsh for mere negligence?
5. Tried to wriggle around the seal requirement for contract action by using
trespass
a. Courts were prepared for actions to be brought for misconduct over the
negligent misperformance of informal agreements
b. P.119: Miller
c. P.120: 1st common law case on medical negligence
--Contract or tort?
--Could be either: Presented as a trespass case
d. P.161: Rare case in which they discuss the legal meaning of
negligence
--Poachers kill deer & gamekeeper gets sued for not keeping them out
--Comes close to our definition of negligence today
IX.
ASSUMPSIT: 16th c.
A. Will assumpsit replace the action of debt?
1. Would allow only jury trial
2. Likely to be controversial
3. Two cases in the materials
a. P.129: Orwell
--Plaintiff has bought barley & lawyer says the  covenanted to deliver
then craftily tried tog et out of it by using the barley for his own good
--Still can’t sue for non-performance
--Must present as something wrongfully done—not omitted
--Chief Justice says the distinct wrong is “deceit”—so action lies &
case is not resolved
b. Pickering
40
--You can bring the action of assumpsit because there’s a distinct
wrong involved
5. The action on the case is a gap-filler: To rationalize its use, you must make a gap
for it to fill
a. Theorizing becomes fanciful, hairsplitting
b. Pleaders dressed these cases up
c. “Promise to pay”—breach of promise=assumpsit
d. Must be a distinct cause of damage
B. Adoption into other courts
1. Court of King’s Bench allowed from Pickering
a. Abolished wager of law (you owe me $)
c. Used assumpsit/jury trial (you promised to pay)
d. Court of King’s Bench was extending its jurisdiction
e. Trugys v. Becher (1596) (p.152)
--Assumpsit: Promise to pay
--Issue: Can he have this action in this court?
--Answer: No—judges can’t change the law (conservative view)
--Looked as if assumpsit would come to an end, but…
f. Chief Justice changedPopham
g. Scandal developed b/c King’s Bench allowed it & then the Exchequer
promptly reversed it
h. Slade’s Case (p.153)
--Deliberately set up to raise the issue?
--Does the  have the selection of remedies?
--Attempt for judges to get together, hash it out, & settle this once &
for all (common practice of the time)
--Argued & numerously reargued between 1597 & 1602
--Abolished higher wager of law & allowed assumpsit to cover duty to
pay in contracts
--Cooke’s report
Argument in favor of the action by Coke
Used b/c judges never did come to consensus
Coke gave his justification by default
Court of King’s Bench said ”what the hell” & allowed it
Judicial legislation that abolished
--#3: Don’t require formal words (other things can be interpreted as
promises)
--#4: Recovery in assumpsit bars recovery in debt & vice versa
--Also decided:
You could only bring assumpsit against debtors when wager of
law was acceptable
The Court of King’s Bench began to allow actions of assumpsit
against executors of wills from 1500s
Common pleas said no way, then allowed assumpsit for living
debtors
By 1611, assumpsit was enforcing debt & against executors
41
--Does this change load the dice in favor of s?
--Led to Statute of Frauds (against s who came to court w/o written
proof)
2. Court of Common Pleas
a. Didn’t allow this in early- to mid-16th c.
b. In dispute
3. Court of Exchequer Chambers (1575)
a. Would hear writs of error from the courts
b. Justices from common pleas & barons of the exchequer
c. Reversed King’s Bench verdicts on this point
th
C. 16 c. contract=assumpsit (which led to modern contract law)
X.
INTRODUCTION OF THE DOCTRINE OF CONSIDERATION
A. 16h c. Modern contracts: “The law should only enforce reciprocal exchanges”
1.Imperfect doctrine
a. Doesn’t really work very well b/c of reliance
b. Difference between contracts & gifts? Muddled
c. Difficult to produce examples of consideration
2. So why did it get into 16th c. law?
3. How did it get in?
a. By 1586, a sort of doctrinal structure for assumpsit developed:
consideration, promise, & breach of promise (had to show all 3)
b. In the 1540s & ‘50s, the doctrine was getting in
--1st written report: Jocelyn & Sheldon
--Re: Future marriage, promise of
c. Hunt v. Bate (1568)
--“Past consideration is no consideration”
d. Pretty soon you get doctrine around it
4. What did consideration mean?
a. “Consideration” found much earlier in statutory language
b. Preambles to acts past were called “considerations”
c. Meant motivating factors/things you considered
5. What’s behind the doctrine?
a. Theoretical idea that you should examine why someone made a
promise to determine if it’s the sort of promise you should enforce
b. Result: The best consideration gives rise to doing the thing you were
already bound to do
c. So weird cases where the best consideration is the most logical:
Someone suing for a dowry has 2 basis:
--He promised, &
--He should have promised
d. We still use promises to reinforce things (“you be good. Do you
promise to be good?”)
e. Firming up the existence of obligations: Pony for Christmas
example—
42
--It’s Christmas, &
--You promised
6.Where did the idea of looking at motivations to decide whether or not to enforce
come from? HIGHLY CONTROVERSIAL
a. Common law made it up?
--Probably not
--Cite precedents in cases: Must have come from somewhere
b. St. Germaine, “Doctor & Student”
--Speculative, critical literature is very uncommon at the time
--Made a big stir (many editions, oft-cited)
--“Doctor of theology” (& canon civil law) & student of the laws of
England (Inns of Court) (common law view)
--Discuss “what is a naked promise in England—can action lie?”
--St. Germaine took the doctor’s words from canon works of the time
(scrambled in with Roman law to make an amalgomy of ideas)
--“Nude promises”: Mere agreements weren’t bound unless they were
“clothed,” i.e. in writing (Roman idea), bound by reliance
(“vestment”), etc.
c. Promises could be binding if they had a good reason (canon-law idea
discussed in St. Germaine)
d. Common law didn’t take over St. Germaine’s ideas literally, but they
may have imported canon/civil law consideration doctrines
e. St. Germaine discusses charitable promises (p.132)
--They are binding with reliance although reward is heavenly
--Idea of reliance already kicking about
f. 2 competing theories:
--Consideration: There must be a good reason for promises to be
binding, v.
--Reliance: If someone relied, they must be binding
Similar to tort theories that are permanent, conflicting—just get
reshuffled, etc.
A version of the doctrine of consideration was also applied to
the law of uses
Developed in the court of chancery, where people were trained
in the court of common law
6. Courts seemed to randomly accept/reject things as consideration
a. The existence of a debt (“In consideration that x was in debt, he promised to
pay”—good reason for making a promise)
b. Dowry
c. Natural love & affection (in the law of uses) (“I held my property to your use
because you’re my child in consideration of natural love & affection”)
d. Get a ragbag list of things
7. Then, you get a typical common law idea of general principle after the system is
in place (& everyone claims that the principle came first!)
a. p. 136: Stone v. Withipole (first case to formulate this)
--1589
43
--Typical common law rationalization
--Executor is making a promise to pay a debt that is not dueCoke says
consideration must involve a benefit to the  or a detriment to the 
b. Pops the notion of injurious reliancethe principle of consideration
8. Analysis by reference to time
a. Consideration for past things: no good
b. Continuing consideration: Dowry for marriage
c. Future consideration: Must plead performance
d. Present consideration: Counterpromise
--Betting, mutual promises to marry, etc.
--Can’t enforce because can’t require proof of performance
e. From 1577 on, courts accept counterpromises as consideration (West v.
Stowell)
9. Courts won’t put a value on consideration—why not?
a. W3e don’t really know: Just pops up
b. J. Rastell, Expositiones Terminorum states the rule (1525)
c. Maybe because there was no strict control over juries—rely on lay common
sense to deal with hard bargains?
d. Given uncontrolled jury trial, all sorts of things we would like to have law
about are left without case law
10. To sum up…
a. Assumpsit lying against debtors
b. Wager of law gone
c. No need for words to make a promise
d. Few guidelines for consideration
e. Breach of contract
B. 17th c. contract law
1. 2 important things regarding action of assumpsit against debtors
a.
General indebitatus counts developed-- promised to pay a debt
due for a speific reason (a small # of standardized pleadings)
--Assumpsit covered restitutionary claims
An agreement but no set price
Jury specified what  deserved
Law of quasi-contract: extended contract law where
justice required $ to be paid (today’s law of restitution)
--Mistake
No genuine agreement
Took a long time
Eventually governed by a separate, non-contract area
(separate books, theories, etc.)
b.
Jury trials were relatively unhindered by anything
-- could easily sue people for breach of promise
--Too easy to make false claims
--Very litigious age
2. Reaction: Statute of Frauds (1677)
a. Contract law
44
b. Wills
c. Listed things that had to be in writing
d. Putting back the formality that was once required (reactionary, in some
senses)
e. Now required only writing (instead of seal)
f. Reaction to Slade’s Case & also the whole development of assumpsit
g. Some people think it’s on French models (ABWS: “It’s not”)
h. Comes to be treated as embodying the principles of common law
C. The 18th c.
1. Blackstone’s Commentaries sum it up
a. Simple, unelaborated
b. Very weak in core principles
c. Discussion of implied contracts (for reasonable value, obligations,
etc.—quasi- contracts)
2. Lord Mansfield: Dominating figure on the Court of the King’s Bench
a. Developed a lot of mercantile law based on custom
b. “Marine insurance”
c. Regarded as the father of mercantile law
d. Had views about the action of assumpsit
e. Pillians v. Van Mierop
--Why does a written document between merchants require
consideration?
--Mansfield says its irrelevant: In commercial cases between
merchants, the want of consideration is not an objection
--Rejected by modern law, although the court of king’s bench went
with him here, and the doctrine survived for years
--Says statute of frauds is the same way
3. Appeals handled in the House of Lords
a. “Lay peers” who sat knew nothing about the law—called for judges to
give their opinions
b. Judges got together and, if they agreed, the House of Lords went with
them
4. Rann v. Hughes
a. Overturns Mansfield’s case
b. Says Statute of Frauds applies
c. Reaction against the innovation of Mansfield, whom they thought was
playing fast & loose with the law
d. Those who really believe in the rule of the law apply it no matter how
dumb it is!
e. Put consideration back in the law
Missing notes here?
D. 19th c.
1. Most modern doctrines or 19th c. or can be based on 19th c. cases
45
a. Nobody really doubts a very considerable elaboration of contract
doctrine in this century
b. Ex: Sayers (1790) tried to write a book on tort & contract damages—
about the size of a small pocket dictionary (couldn’t find the cases)
2. Went hand-in-hand with:
a. The Industrial Revolution
b. Beginnings of factory production of goods
(1771: 5 cotton mills, 1818: 164)
c. Inventions (like canals, reailways, steam-powered factory machinery
& steamships)
d. Vast increase in domestic & international trade (by 1830: “The
Workshop of the World”)
e. Capitalism, futures trading on a large scale, modern banking
3. Center of the law is in contracts
a. 18th c: Property
b. Doctrine of offer & acceptance
--When an offer was made
--1818: Addams v. Lindsell (the postal offer rule)
c. Must have an intent to create legal relations to have an enforceable
contract (1893common law)
d. Frustration doctrine (1863—Taylor v. Caldwell)
e. Assessing damages in contracts
--Virtually no law before 1854 (Hadley v. Baxendale)
--“Judge must direct jury” on damages
f. “The Doctrine of Anticipatory Breach of Contract” (You can sue now
if it’s clear they’re not going to perform)
g. Implied Terms (Parties would have agreed on…)
h. You can’t specifically enforce a contract involving personal service
--Lindley v. Wagner (opera singer who can’t be forced to sing)
--But you can get an injunction
i. Elaboration of high theory peg on which to hang arguments
--Raffles v. Wicklehouse
--About actual & apparent meeting of the minds
--From 1870s, became focal point on the high theory of contract
--No practical relevance—just something to argue about
j. Theory of Freedom of Contract
--Function of courts is to enforce parties’ desires
--Unconscionability, etc.
--Libertarian dream!
--Freely negotiated contract seen as the instrument of continuing
progress
--Used to justify terrible things: The Irish Famine
Most dramatic example
British government wouldn’t deliver food to starving people
Any interference with free markets “likely to make it worse”
Adam Smith thought he was doing the right things
46
--Spreads into tort law (assumption of risk)
--VERY POWERFUL DOCTRINE
4. The elaboration of contract doctrine
a. Grant Gilmore: The Death of Contract
--Very able modern lawyer
--Gave lectures with no contract knowledge at all
--Very funny, bright
--Noticed 2 things:
--(1) We now study the “general law of contracts” (for buying cookies
& 747s; this is a 19th c. development)
--(2) Its development reduced the power of juries; power passed to the
judiciary. Why? We don’t know
Commercial world likes predictability of outcome—knows when
to settle out of court
Gilmore said it was invented by Langdell because he wanted to
have something to teach in his 1st year course at Harvard
(presented as a serious thesis!)
--Why “The Death of Contract?”
Joke based on “The Death of God”
Reference to the idea that general contract laws are pretty
much practically dead (academic exercise—not practical)
b. AWBS: Innovation in 19th c. Contract Law
--Related to rise of treatise
--The idea that ideas lead to cases
--Treatises triggered off of Blackstone’s Commentary
--William Jones soon after wrote on bailment & it went on & on
--Howell wrote on mortgages in 1785 & several others through 1790
--Treatises poured out in the 19th c.
--Brits lifted the idea from the French
Robert Poitier wrote celebrated treatise on the law of obligations;
Romanized French law of contracts & torts (based on the
Napoleonic Code)
1805-06: Published in English in GB & US
Ideas got embodied in our common law
Got in in a mangled delineated way
c. Explanation problem: Why did they want more contract law?
--Chicken & egg idea: Demand? Supply?
--Why attracted to some doctrines specifically?
d. One hypothesis: It doesn’t really matter what doctrine as long as you
have some doctrine
--Ex: mailbox rule or frustration—does it matter?
--Roman or common law system of contract doesn’t seem to affect
GNP, etc.
e. Probably the ideology of England drove the rule of law
--Jury seen as irresponsible
--Legitimates judicial activities
47
--Brits as civilizers of society with law & religion, western society
5. The Journal of Legal Studies article by Danzig (American)
a. Took the case of Hadley v. Baxendale & tried to find out everything about it
b. Pioneered this technique
c. Found out:
--Rule is from the French Civil Code & influenced by an American law
--Tried to make sense of why they wanted a rule about assessing damages
Jurisdiction theory says since 2 courts of England had jurisdictions
defined by award amounts, they had to address contract damages
AWBS: Shaky theory
d. Since then, various people have used his investigation techniques
6. Raffles v. Wicklehaus (The 2 ships peerless)
a. One of the most widely-studied cases in contracts
b. Peg on which to hang contract law speculation
c. Background of the case:
--Took place during cotton trade industry nervous time
--Southern US didn’t sell cotton overseas
--GB got it from India
--This case involves BombayLiverpool cotton ships
--Speculation contracts placed great importance on which ship the
cargo was on
Precursor to futures trading
Here, it was literal cotton marked bales on a specific ship
d. AWBS attempts to explain how it came about that this weird little case
that has no judicial opinion became so famous
--Caused no stir at the time
--Picked up by Judah Benjamin (American in GB) who needed work
so wrote a book to attract attention/work
--Book was on the Contract of Sale
--Discusses “How to form a contract”—true apparent intention?
--Needs a case—Finds Raffles
--1876, Pollack (1st British intellectual contract writer) picked up
Raffles in his writing
--Wanted a case to import German ideas into English law (consent
idea)—no choice but Raffles
Since it had no opinion, could say the reasoning came from
Germany
The funny thing is, the parties were still alive—could have just
told them what happened
But the facts were a nuisance
--Anson picked it up
--Holland used it again
--Holmes wanted attention so attacked the past ideas of true consent—
claimed external correspondence of offer & acceptance (that Raffles
was completely misinterpreted)
Persuaded Pollack to recant
48
e. Now this case is at the center of a major debate (Langdell started in at
Harvard, etc., etc.)
f. Illustrates the high theory of contract comes from academics outside the
courts; associated with legal education
g. Same phenomenon with other cases that become pegs upon which to hang
legal ideas
7. Rule of Law (Leading Cases of the Common Law, AWBS)
a. One of the cases, The Queen v. Kyne, illustrates this obsession with the rule of
law
--Capt. Kayne had boat accident that killed 39 people—put on trial for
manslaughter
--Jurisdiction over German captain in navigatable waters who never meant
to be in England in the 1st place?
--Convicted & appealed: Judah Benjamin got the conviction quashed
--Why did it cause such a stir?
Brits were very upset about ships being sunk by other ships off
Britain
Politically hot topic
Particularly tense relationship with Germany
Kyne was the public’s scapegoat
--Judges did adequate research & gave proper holding
--Great triumph for pure law: Not bowing into the mob (even listened to
an American lawyer!)
8. Subsidization Thesis: Martin Horowitz, The Transformation of American Law
(1780-1860)
a. Macro explanation of the 19th century
--Broad sweep of evolution of contracts & torts
--Thesis: 19th c. sees the changes of the industrial revolution—if
society is transformed shouldn’t contracts be? (radical changes—“the
transformation of the law”)
--Law moves from benevolent to less benevolent/protective of the
consumer
--Torts
Before 19th c., law was benevolent & sympathetic to victims with
strict liability
19th c. favors entrepreneurial class by changing to a negligence
standard (damages are less—subsidizes entrepreneurship)
--Contract
The law is transformed broadly
Pre-19th c., benevolent (based on fair exchange—market NOT the
test of fairness)
19th c.: Market-run system (liability is explained by coluntary
undertaking of responsibility)
Contracts not for fairness but to encourage speculation
b. Arguments of particular legal doctrines as illustration
49
--In 18th c., inadequacy of consideration=no specific performance (19th
c. goes out of the law)
--The Substantive Doctrine of Consideration
18th c., the doctrine existed
Juries were entitled to reduce damages payable if
damages were inappropriate (i.e. no consideration)
--Benevolent consumer protection doctrine
A sound price entailed a warranty for quality
Implied
Gone in the 19th c.
--Expectation damages (necessary for speculation) not recognized until
19th c.
--No real recognition of enforceability of executive contracts before
the 19th c.
Fair exchange in 18th c.
Now not securing promises in the future
--Benevolent regulationmechanism for screwing the weak
--“A sound price entitles you to a sound product”
--You can join counts in contract & quasi-contract
--Notion of “transformation”
From benevolent lawevil, exploited law
Pre-industrialpost-industrial
Law as given body of doctrineinstrumental (manipulability for
social ends)
Screwing the poor!
c. Other basic ideas
--Vision of happy England before dark capitalists (romance of preindustry)
Widely shared, even today
British countryside; benevolent view
Not shared by most historians
i. That’s why they moved to the city!
ii. People lived life of near-slavery
iii. 18th c. famines were incredibly common
Based largely on ignorance—history actually suggests the
opposite (19th c. was better)
--Treats US & Great Britain as the same—very curious
America was backward & GB was a world power, at the time
Makes them totally different societies
--Benevolent idea of working class—strange misconception
Ex: Contracts for buying horses??? Poor didn’t buy horses—they
walked!
Caselaw is utterly irrelevant for the poor: They don’t litigate
Poor get criminal law, etc.
Ex: Warranty of quality doctrine
50
i. Refers to 1793 case illustrating this
ii. Case on the sale of a family’s slaves!
iv. Moral: Be very careful taking cases out of their context
d. What can be said about it all?
--Some major difference between facts (evidence) & what he wrote
Overuse of research assistants?
Treats cases as introducing doctrines when the cases themselves
don’t even discuss them
--Equitable doctrines re: specific performance—he’s right about
Courts police doctrines for unfairness (instead of classical tough
luck)
But: Dealt only with
i. Contract with expected heirs (loans to guys who would
inhereit money in the future—very high rates of interest,
etc.—Refused specific performance sometimes b/c men
would regret the exorbitant interest they bargained for
ii. Seamen’s law (seen as crude & helpless onland—easy
prey)—Naval sailors often entitled to prize money paid
years in the future—would assign their rights for money at
the present time (wouldn’t expect them to litigate b/c they
were so poor, but they did)
So there was a benevolent body of law for seamen (who were
both revolting & revered/needed)
Out of that comes the beginnings of unconscionability
9. So what happens to contracts in the 19th c.?
a. Theory: Contractual theory is self-imposed, applies to the parties
b. Developments
--Doctrine of mistake
--Rationalizes the unenforceability of gift promises
--Accepts the market (handmaiden of economist’s market—contracts)
The idea that the market decides becomes more extreme with time
Adam Smith
--Opposed to policing markets for just/fair transactions (which is what Horowitz
claims the law used to do)
c. So these ideas were around pre-19th c. in seaman cases, etc. (Not in the name
of protecting the poor)
--Procedural unconscionability (the way the contract was made)
Fraud, duress, misrepresentation, undue influence
--Substantive unconscionability
Nobody did anything wrong, but someone’s just made a dumb contract
We will police these sometimes (unequal bargaining power)
--Change of circumstances/Frustration
Fair contract, but not fair to enforce it
d. So what are we getting?
--Elaboration
--Just like in tort law, ideas battle & neither ever really lives
51
--There’s something in Horowitz’s ideas, but AWBS thinks he’s got it mostly
wrong)
Notes are missing here (3/29-4/17???)
March 28, 2000
At that time you had some small claims court system “count courts”. The jurisdiction between them and the
high court was the amount of the claim.
He was the first legal historian to learn about the law by using newspapers. Since then a lot of other people
have had a go at using that as a technique.
Raffles v. Wichelhaus and BuschThe Lancashire Cotton Famine
At this time the cargo took four months to get but news could come from India in a much shorter time. So
therefore there was speculation on cotton.
You could never tell when the sailing vessels would arrive nor when they would arrive. Knowing the ship
that the cotton is on is important to the speculation of cotton.
Gilbert was not even correct as to the type of ship that the cotton traveled on. He was completely wrong in
terms of what was important to the industry.
The context does reveal something about the case, it does not tell use all we want to know.
Ships did have commercial numbers but ships were known by the name of the captain. It is therefore
understandable that there were two ships called peerless.
You find out more about things thorough mini investigations and Simpson explains this in the article. He
tries to explain how this case which caused very little ripples at the time became a leading case.
The case was picked up by an American confederate, Benjamin, who became a very popular lawyer in
England. He decided to write a book to draw attention to himself as an expert to get consultant work. He
discusses in the book about how you form a question is it on actual intention or true intention. The only one
he could find was Raffles v. Wichelhaus brought the case to the lime light.
In 1876 Pollock wrote a book called The Principles of Contract Law. He tries to incorporate German
idealogy into contract law. He to puts Raffles and Wichelhaus to show true consent in contract.
It was agreed upon by William Anson and Holland who wrote elements of jurisprudence.
Then came along Holmes who decided to attack the experts. He says that they all got Raffles v, Wichelhaus
completely wrong. It is about offers and correspodence. The offer missed the acceptance because the guys
were talking about two different ships.
The langdell talks about it in the Harvard Law School.
This illustrates that the high theory of contract is not a theory of the court but by leading academics.
Therefore every law student in the U.S. has to learn this case.
Cabin boy case was to stimulate intellectual conversion, that is all. The guys on the ship couldn’t care less.
52
When all these guys were arguing the people who were involved in the case were still alive. The tradition
was quite speculative. Sometimes facts get in the way of theory.
The Rule of LawSimpson wrote a book on it. There is a case that Simpson suggested to read the Queen against Keyne. It is
about a boat accident where some people drowned. Captian Keyne was arrested in Dover and charged with
manslaughter. The issue was whether Keyne who was German and had no intention of stopping in England
can be tried in England. The trial was adjudicated by Mr. Benjamin. Every considerable experts of the law
of high seas was delivered. It was a case that was supposed to be very intellectual.
The Brits at the time were very pissed by foreigners sinking their ships and disappearing in the night. There
was also a beef with Germany. There had been a shipwreck off England and the English robbed the ship.
Hopkins wrote a poem about it. The Germans were mad and wrote about it in the newspaper. The English
in turn got upset and the next German to get in trouble in England was Keyne. That is why they decided not
to bow to the pressure of the mob.
Good illustration of the enormous importance the upper class placed on the law. Not only that but the law
was presented by an American to boot.
The Macro Explanation of Legal changes in the 19th CenturyAuthor of the book, Horowitz, talks about the evolution of the law of contract and tort. His basic thinking is
the industrial revolution caused the transformation of society and rightfully so, so should the law. The law
must go through radical changes.
His tort theory is before the 19th century the law was benelovant and sympathetic because it followed strict
liability. In the industrial revolution the law favored entrepreneurs, it shifted to a negligence standard and it
changed to have entrepreneurs pay out less in damages.
Transformed into a body of law that facilities a less protective attitude towards the consumer.
He argued that inadequate consideration excused non-performance. It changes the notion that if you didn’t
get adequate consideration it is your fault.
A second doctrine he claims exists is what he calls a substantive doctrine of consideration. It meant a
doctrine that the juries could reduce the payable damages if the consideration is inadequate.
A third doctrine he says existed is another benevolent consumer doctrine. If you pay a fair price the court
will provide for adequate consideration.
He also argues that damages for expectation is a phenomenon that changes contract law. He argues that
there was no real recognition of enforceability of executive contract.
He has a general broad sweep which favors the speculation of the market, the screwing of the poor, etc….
53
March 29, 2000
One view of future traders by farmers was they were parasites.
The transformation was from benevolent law to evil law. He also has another transformation that he works
into the book. Viewing the law as a body of law that is not given but can be manipulated to achieve a
certain end, screwing the poor. As opposed to tort law that helped the poor.
He has a vision of merry England before the dark industrial age. He thinks that pre-industrial life was quite
nice. A vision of the benevolent 18th century country life was terrible. The life of the small farmer was evil
slave type labor. Children worked from about five years old. There was famine in the 18 th century. The
picture of the 19th century being worst than the 19th century is we know more about it. Child labour was
documented as opposed to the 18th century. There is a romantic vision of pre-industrial world.
He lumped America and Britain together as if they were the same. Britain was on the top and America was
on the way up. London was a major commercial center at the time. The whole thesis was written like there
was a benevolent law that protected the poor. The poor did not buy horses they walked.
Private law was for affluent people, the poor got criminal law and the poor law that kept them working or
in prison.
Relating legal doctrine to benign law is a tricky thing. Simpson thinks there is some good and bad points in
the book. There is a problem of a relation of the thesis to evidence. Simpson thinks that this arises from
over use of research assistants. There is quite a lot of that. He treats cases as cases that introduce the
doctrine when you look at the case they are actually discussing details of the doctrine.
One area that it is his favor is equitably doctrines about specific performance. In the court of chancery there
is disposition to police contracts from unfairness of price. As opposed to the courts of common law that
says if you make your bargain you have to put up with it.
You had contracts with expected heirs. The guys that lent the money says that you favor may die in twenty
years but in real life daddy died in two years and now he had to give up 20% of his land. The court did step
in to protect the land that Lord Tweet gava away to support their money habits.
There was also law for seamen. The spoke strange languages, and had unique calls to one another. When
they reached the land they drank, whored and caught STD’s. If they were naval seamen they would get
prize money that would come latter. They of sold these rights to get quick cash. Therefore there was a lot of
law for seaman who gave away there prize money.
You had ambivalence towards seamen. On one hand they were the backbone of the English Naval and the
other hand they got taken advantage when to come on shore. As a result there was a body of law to protect
them.
Out of this you get the glimmerings of Unconscionability.
54
In the 19th century we began to see the will theory of contracts. The intent theory was backed up as well.
The well theory became important doctrine. It links contracts theories to the market.
This involves into f
Procedurally Unconscionability, - something wrong with the formation contarct.
Substantive Unconscionability – no one has told nay lies,
Just like tort law different ideas battle for dominance. Just enforcing the bargain becomes the dominant
idea.
Contract law is there to uphold good law.
04/03/00
Where did negligence liability come in? A little bit of 19 th century nuisance law – this law never really
changes. This raises the sort of Cosean arguments about how you should deal with the problem of social
costs. A distinction developed between actions on the case and actions of trespass. (Scott v. Shepard,
described on p. 165.) In this case, the Court split hairs about these two forms of action. They try to work
out a sort of distinction between them – trespass lay for direct injuries and case lay for indirect injury and
then they disagree as to which this one was. Reynolds v. Clark contains a distinction between an action of
trespass and an action on the case. By the time you get to the 18 th century, there is this idea that tort law is
divided into these two types of action, but there is disagreement as to what the difference actually is.
The word trespass doesn’t really have any technical meaning. In the early common law, actions for
trespass were actions for damages. They are actions for wrongs which can’t be put right but can only be
compensated for. You get these actions in the 1200’s. Many of them have to be framed so as to legitimate
the royal courts getting jurisdiction over them. You get the development of stereotyped writ forms for these
cases. Then, in the 1300’s, actions on the case developed – the particular circumstances of the case were
set out in a cum clause, showing why the case should go and the action was wrongful. Because actions on
the case have no set forms, they are really flexible and can be used to bring many different cases. As you
get these two forms of action, it comes to be settled that in trespass you must allege force and arms and that
in case you mustn’t do so. For a long time, there is virtually no hairsplitting case law on this distinction.
The theory behind the distinction is never really made clear. Originally the distinction is one between cases
that involve the King and in which the crown has an interest and cases which are purely private concerns.
Another idea is some sort of distinction between wrongs in which you only have to describe what happened
and it’s obvious that it’s a wrong and cases in which you have to set out special circumstances to show that
what’s concerned is wrong. This gets muddled up with another theory that says that directly caused
injuries are immediately obvious and indirectly caused injuries aren’t. Also a distinction between
55
deliberate actions that cause wrong are wrongful but careless actions that cause wrongs are not necessarily
wrongful. All of these distinctions underlie the distinction between trespass & case.
Because of the flexibility of the action on the case, it can be used to bring a wide variety of cases. Out of
the action on the case developed a number of different categories under which you could bring actions.
Jurisdiction over defamation was treated as a matter for the ecclesiastical courts. But then some clever
lawyers decided that they wanted a common law remedy because that way, you could get some money
damages and that some kinds of defamation could affect not just only this person’s spiritual state, but also
their secular rights – their civil right. So if you could allege some secular wrong, you could sue. The
action on the case continues to be able to be used to remedy wrongs that could not be remedied before. As
long as the genius lawyers could persuade the courts to accept them, then actions on the case could be used
to expand the law. Vaughan v. Menlove – expanded the idea that you had personal liability for your
personal fire, and then the idea that you have responsibility for any agricultural fires you might start, but
this was a new case – a new form of liability for a spontaneous fire.
The trespass actions originally had a sort of semi-criminal aspect. It’s not clear that the damages are
entirely in the way of compensation – the defendant is also put at the mercy of the crown and has to buy
himself out. A lot of what is now dealt with by the criminal law was then dealt with by the action of
trespass. The second thing is that tort liability for accidental harm doesn’t appear to be a very big industry.
Major levels of actions for this are a modern invention. There’s a more fatalistic attitude toward accidents
and injuries at that time than there is now. To some extent, accidents were just an Act of God. It’s hard to
figure out what people thought about accidents.
If you take tort law today, there are two principles of liability. Strict Liability means that someone has been
injured and they’re innocent and someone should pay for it, and the person who should pay is the person
who started it. The other principle is that you should be liable for negligence (also called fault). We know
that in modern negligence law, you’re only liable for fault in a sort of beefed-up strict way. It’s not a
defense that you were doing your incompetent best – you have to show that you came up to an objective
standard (the reasonable surgeon, etc.) These two principles seem to be rather at odds with each other.
They can be modified and softened in certain ways. It does seem funny that there are two competing
principles in the same body of tort law. The first person who drew attention to it was Holmes, in The
Common Law. He managed to convince himself that there was a single principle – he tried to marry the
two things together – you were liable for fault but only if you didn’t come up to some objective standard.
There is a huge literature now on when each of these doctrines should apply. A modern example is Richard
Epstein – he’s fascinated with the standard of liability.
What some of these writers have not paid enough attention to is that there are hardly any cases dealing with
this issue – there’s very little law on the subject before the 19th century. The explanation is probably that
56
standards of liability were treated primarily as jury questions. That doesn’t mean that the ideas aren’t out
there, it just means that there wasn’t that much law.
April 4, 2000
By the 16th century people are giving evidence to the jury. This evidence might show that they the
defendant wasn’t guilty. But the law tells us nothing about it.
Every so often a guy in a trespass actions give a special plea that yes I entered the land but it was not my
fault. Which allowed the court to determine if the special pleading justified the trespass. However, it was
unusual for that to happen.
Not until the American case Brown v. Kendall you get a special plea. This case was the one where the
gentlemen breaks up a fight and inadvertently hits the gentleman behind him. (look on pg 30).
The doctrine of the recapture of chattels. There was a body of law that talks about when your property goes
onto someone else property if you can go and retrieve it.
The court thinks these things to be exciting because they can discuss principles of liability. They discuss
whether that standard of liability in trespass is strict or not.
The present case with the thorns falling on your neighbors property deals with whether there was intent or
not. They say in trespass what we are really talking about is compensation. You should compensation
because the person suffers loss. What you get
out of the thorn case is disagreement.
Two views1) If someone suffers you he is supposed to be compensated.
2) You are not responsible for things that are not your fault.
We have cases in the hand out (Weaver v. Ward pg 162) Weaver brings an action of assault against ward.
There were having a military exercise in which they were ruining around with muskets with gun powder.
The defendant in inadvertently shot the plaintiff.
It is not felony if someone is killed against your will similarly with lunacy. Not the same in trespass. In
trespass if a lunatic hurts a man he is responsible.
Liability in trespass is based on causing harm. If you can show that you didn’t cause it then it is a defense.
Gibons v. Pepper 1695. An action were P alleges a violent trespass when it is actually an accident case. The
D ran over the P on his horse. In this case the D has admitted a battery and justified it. In this case the
assertion did not stick because the proper answer was supposed to be not guilty.
You should say that it wasn’t me who was guilty of trespass.
57
There are two ideas that have a following.
The jury can listen to the entire argument and decide.
Actions of the case – Negligence (surgeon case)
We get a crop of assumpit cases. The party have met and dealt with each other. (pg. 160)
Householder is liable for the people in his house. Hard to hold a householder responsible for a fire.
Parkers case – suing for his salary.
No very clear conception of what negligence means, The first case is Vaughen v. Menlove.
So how do we develop a tort of negligence?
Inn keepers usually were in league with the local business. They helped arrange theft.
If I can show that if I have suffered form damages than you have failed to exercise due care
There is a tricky of cases where the P uses by case of the case. We get a trickle of action on the case (197)
Plaintiff is inured.
Wild horses are being treaded on the premises.
In the 18th century a terrible pleading problems arises In you can sue in case and assume by pleading you decided whether you brought trespass or case.
Collision will always be tried in action on the case.
(pg 168) – Look
The guy who wrote it says that accidents that happen in negligence or folly are actionable in case. He is
beginning to generalize about cases. These cases develop into what we call tort.
April 5, 2000
Vaughan v. Menlove – the damage to the defendant from the fire was considerable and the plaintiff rather
minimal. The argument was put that the defendant had used the care that he thought was appropriate for the
care of his own property.
When are moving into the 19th century we have negligence but we don’t know what the standard of liability
is for trespass.
There are branches of tort law that have nothing to do with accident. We have tort actions for civil liberties,
like false imprisonment. Accident law was rather small. Today we have occupancy of premises to
entrants.Nuisance was also a growing branch of law in that day.
Priestly v. Fowler – First known employee suing employer for an accident at work. The case did accept
the fact that sometimes an employer can have liability. Although in this case the employee lost. The next
58
case was not until 1820. A woman who was working a cotton machine was scalped and lost an arm. The
action was brought and sponsored by a philanthropist. The cost involved in the litigation was up to 600
pounds. Actions against employers are very unusual in the 19 th century. The cost of litigation was beyond
the reach of average working class people. Poverty and what goes along with poverty was a problem. They
could not take off time from work. There were social and practical constraints. In a small town you need
work you don’t want to ruin your chance of employment. There were also restrictive legal doctrines. The
19th century is scyzphrenic in suing for negligence. You had give with one hand and take back with the
other. You had the doctrine of contributory negligence. Once you contribute you can’t sue. Than they
developed small print about contributory negligence. You had the development of the last clear chance
doctrine. As if the court can make their mind up as to who they are protecting.
You also had the doctrine of assumption of risk. Then you get the fellow servant rule. – You can’t sue an
employer for the negligence of a fellow worker. The fellow servant doctrine had the affect of making it
extremely hard to sue an employer.
The railroad at that time ways a booming industry. People were forever being hurt by the railroad. The
railroad spent a great deal of money in lawsuits with the public. By 1867 and 70’s there was a great deal of
railroad litigation.
Priestly v. Fowler – A butcher is sending a cart load of dead sheep in a cart. The cart was on its way and
they though that something was wrong with the cart. On the way the cart broke. The whole thing collapsed
on priestly. He was pretty badly injured. He was taken to an in and he had to have a bone setting. It was
extremely expensive. He sued his employer though his father because he was too young. The notion that he
should get money for injury when he was lucky to be employed in the first place.
What did happen to accident victims before the 19th century? Something did happen to them before Priestly
and Fowler but it was not tort law.
1) You had extensive charity dedicated to helping victims of disasters.
2) Family and friends also bailed people out.
3) At the time you had the contract in husbandary. A very large number of people were employed by
a term. If an employer was injuries during the term the employer could not fire the employees the
farmer had an obligation to look after the term.
Until 1846 you couldn’t see in an injury causing death. Who picked up the pieces? The welfare system.
The system was each parish was responsible for the care of it’s own paupers. The duty for each parish to
maintain paupers. The responsibility was legally binding. It was quite common for parish to banned
together. The administration was done by landed property owners. Children had no legally enforceable
rights against their parents.
Accidents presented a welfare problem.
59
The widows had the opportunity to marry again to maintain their subsistence.
Very elaborate body of law for parishes to take care of the poor. You had to have a law as to which people
belonged to which parish. There was always argument that a pauper did not belong to them but to another
parish. You had all sort of nasty tricks were developed over settlement.
At the time of Priestly and Fowler the working population consisted of farmers that lived and ate on the
farmers land. This was replaced by workers that moved to town and did not live with the employer and did
not have yearly employment. They did not get the benefits of benefits of the employer. There was great
controversy that the poor law had to be reformed. Chadwick was one of the leaders of the reform. The
property owners liked the idea of reform so they had to pay less taxes. One idea was that the parishes
should be lumped together into a union and build a proper work house. The administration of the unions
should be monitored in London. People who wanted benefits should come to the workhouse or you don’t
get poor law. This was an attack on the system where workers were subsidized to live at home. This place
should give one a life more miserable living outside in the worse conditions. The same approach was
attempted in order facts of the poor law.
At this time the older method for taking care of the poor was changing. It is nice to think that the case was
brought in tort in an effort to get around the problems of the poor law. The case eventually gets
reinterpreted to allow the fellow servant rule.
Rhymes v. Fletcher
April 17, 2000
Concept of Justice is based on the notion of just retribution. Of course there are other theories like
rehabilitation. There is also some sort of notion that the function of punishment is elimination. Like people
in prison being taken out of society. They still commit crime but they do it in a funny part of the society
that we don’t care about. Like Britain sending their convicts to Australia.
Another mechanism is tort law. We she it evolving in Henry II time, which action on the case. The tort law
and criminal law where not that different from each other. Trespass was seen as the violation of the peace,
which was the core to the criminal cases. Nor was it seen as that tort compensated much in those days.
One reaction to bad things is self-help. In Texas you shoot housebreakers. Prudent housebreakers make
sure they make sure the house is empty first. Self-help is by no way extinct in modern day.
In the early form of society there was no police officers, officials, or organization run by the state. So who
reacted to bad things? The most obvious reaction was the person our kin. The family of the dead person
retaliates against the killer. Which we see in some countries. We see this in the blood feud. Which turns
60
into a regular part of society. The blood feud turns into a legal regulated part of law called appeal of felony.
In the absence of state action reaction has to come from the kin.
A second reaction is community reaction. The group in which you live. It too gets regularized. Another
reaction depends on hierarchy. Which spurs the Kings court.
Like today that people get vex about fighting in their home. That idea becomes the notion of the royal
peace. An idea that we take for granted that Uncle Sam is concerned with the beef in the community.
From the material, they are stolen with permission. They are good collection because they draw attention to
important information.
Part 2 – Handout
The Hue and Cry – started by yelling the right words. The pursuit of the wrong doer ends up with him
being caught. If the person is caught red handed than he is killed no need for a trial. Early law when there
was no need for trial. We are not in a world of DNA, forensic science etc… The only people who come up
before them are obviously guilty. This proceeds up until the 19th century.
When you are dealing with the local village community you can see why the community will respond the
way it did. For what is going to be stolen, sheep, vegetables, and other vital objects.
Members of the community just don’t have a right they have a duty to respond to crime. They just can but
they should. They have an obligation to deal with crime. Like today when people say that parents should
police their own kids.
The Frank Pledge System – elaboration that communities have the responsibility to deal with their own
criminals. This comes with the military aristocracy of the Normand’s. They were hated by the Saxons,
spoke a different language so they had to work hard to control the masses. This notion of communal
responsibility was developed by the Frank Pledge System. All male inhabitants are ordered in group of ten,
tidings. They are responsible for the misconduct for their group. They either have to stop the misconduct or
catch them and bring them to trial. Especially in that time when many Saxons would kill the Normand’s. So
they also introduced the collective find. If someone was found dead their was a responsibility to find out
who did it unless they were British.
The system began to decay in the 1200’s and passed out of use. But the ideology behind it developed in
other forms of the criminal law.
The Appeal of Felony – A formal accusation of crime. It was a legalized practice that developed out of the
blood feud. It is made by either the victim or the victim’s kin.
The victim has to raise the human crime to catch the person.
Officers are appointed named coroner. If the person is caught they are brought in front of the moralization
of the blood feud. Originally if was not a legalized society. If the battle is lost the parol that was lost kills
the other person.
61
By time we get to the 1200’s one case where the case is brought to bear. By the time we get to the 1200’s
the courts are superintended the rules of appeal which get increasing more moral. So the connection with
the blood feud and how it originated slowly goes away.
Typical feature of the blood feud if you appeal something it is like started a blood feud so you must be
prepared to die. If you lose you have to buy your self out for a whole lot of loot. They as you can imagine
became more and more ineffective. Appeal survived in England until 1819.
Even before judicial superintendence they developed elaborate rules. They developed a set of rules that
were closed by season or nobody would go harvest.
The jury of Accusation –
Introduce use to local law under Henry II, where a group of people where called together to accuse people
which id the predecessor to the grand jury.
It has become a quasi judicial body. They should be made responsible for their actions.
Where they get the idea of using the just come from?
h
This system is going to run into problems with massive industrialization. This is a system that is perfect for
a small reliable group. It also is a world where people believe in hell.
In this world, to be accused is virtually to be convicted – this is not a world which there are going to be
many singles.
However, for serious crime there was one penalty, death.
Despite when one is caught red handed they is some nervousness about how human beings can
conclusively determine guilt or innocence.
One of the function of Priest is that they act as medium. The priest is the intermediate between human
beings God, and that idea is in all sorts of religion.
It is very difficult to figure out how this ideals worked
April 19, 2000
Institution of sanctuary. Felon’s could hide in the church for a certain amount of time and then go back on
the road.
This process supports the theme that the aim of criminal law was to get rid of criminals. Elimination is a
persistent theme throughout criminal law. The penalty for felony was death. It is a mechanism for softening
the criminal law. Sanctuaries went on to the late 18th century.
Trial by Jury –
62
It comes in two ways. One is the appeals process. Jury trials progressively were allowed to supercede trial
by battle. (pp. 58 & 59) It comes in classically that the plea is being entirely maliciously. So the whole
point was to avoid battle so it went to jury. The result of this was, by the mid 1200’s jury trial was the
normal mechanism of trial of appeals. The old appeal system got colonized by trial of indictment.
If you were maimed in certain parts you didn’t not have to fight. For example if you lost your teeth or
testicles etc….
The battle actually slowly came out of practice. It eventually stopped in 1819. The Scottish still do it to
prove a point.
The royal justices in the 1200’s traveled in the general air, which is replaced by circuits. The church
withdrew its support of the ordeal.
At the church council, the council of the church had very high level of authority. Therefore saying that no
clergy be associated with the ordeals. So you had a problem of what to do. There were two ways for the law
to proceed. The rest of Europe adopted the Romanized version of proof and procedure. This gave rise to the
characteristic of procedure. Thus came doctrines about proof and certainty. The problem is that human
being could get it wrong while God could not. In continental procedure the replaced God with the concept
of certainty as to guilt. (pp. 14) You could only convict with certainty when there were two eyewitnesses or
when you have confessions.
This proceeded to invalidate cases with circumstantial evidence. Even if you see someone running down
the street with the bloody knife and the money in hand. So they decided to develop the idea that something
than less certainty entitled you to torture the person to get a confession out of them. When he gave a
confession it had to give facts that the assailant would know. You could torture just as long as you had
proof.
An abolition of the ordeal caused an appalling circumstance that man would presiding over guilt not God.
He said that the Roman procedure made it difficult to convict without torture. Her in America you have the
same problem with plea bargaining. So the system always produces a distorted response. Continental
Europe went one way on this.
The common law had a similar problem (16 on) onwards. In serious crimes keep them locked up. Medium
crimes you make them leave. Lessor crimes you release them at your discretion. In the 1200 they began to
use the jury men who traveled about the case. In some cases they would get the Grand jury that accused to
try. Sometimes they would combine the Grand jury with the local jury. Until eventually it settled down to
the 12 person system. So how they answer the problem is to use the community to adjudicate the problem.
You have to agree to be tried by a jury. You have to agree it is voluntary. They began to coerce the people
to be tried by jury. The Common Law operates by judgment of the community.
63
If you say that you don’t want trial by jury, the passed a law in 1275 saying that along as you were of evil
reputation shall be put in unpleasant prisons until they agree to trial by jury. (Peine Forte et Dure) The
prison is pressed to death. Pressuring the defendant to except jury trial. If you were mute to malice you
were pressed to death. So why would anybody do this. If you don’t die a convicted felony then your
property was not forfeited. So therefore your family could still get their property. There was not a great
deal of difference between pressing to death and being hung.
The practice went on an then in the 1800 century it became a plea of not guilty.
We have various passages here about jury.
The jury becomes inscrutable. It simple gives a verdict. The jurymen just speak the truth. It replaces the
judgment of God. The idea of inquiring why the jury came up with the verdict passes out of the use. The
service of the juryman is compulsory although in theory it was voluntary. You do have a property
qualification. It is compulsory in another funny way. They were required to make a decision. An elaborate
way of making them come to a verdict is not allowing them to eat. They were looked in squaled conditions
were they csn’t use the bathroom. If they don’t reach decision they can cart the jury to the next town. Then
they had a system of grabbing anybody who is standing about.
The jury is known as reporting the truth as known by the countryside. They come to court and they are
summoned by elaborate rules as coming for the place in to which the crime took place. They are called the
self-informing jury. They come to church knowing the answer. The could have almost never have been
personally associated with the crime. In a sense since they come to speak the truth they are more like
witnesses. They don’t adjudicate on evidence. Eventually they started getting evidence. They came to court
to say what the countryside has to say about the guilt of the person as opposed to the countryside. The trial
was a very short incident. The guy says I didn’t do it, and the jury says yes you did. It was typical for a trial
to go for 20 minutes till 2 hours.
The trouble about the jury is that it is a lawless institution. The jury maybe packed, the sheriff maybe paid
off. It can also be lawless and not be on the side of law enforcement. You could trial the jury with a bigger
jury if you thought that they had been reached. Today the immunity of the jury is one of its best properties.
The common law allowed the system to be run by a very small body of persons.
It produced a system that involved the community. It therefore fostered the idea that it was developed to
ensure liberty.
Elaborate body of laws developed to control the actions of lay persons’ the jury who where adjudicating.
Which produces the law of evidence. You can trust the lay person to adjudicate on the evidence unless it
has been properly formatted before hand. Then you also get the notion of giving instruction to the jury. You
also get the beginning of finding ways to overturn jury decisions.
64
Why did English criminal procedure follow this route and not be taken over by Roman law?
PP. 26 – The timing thesis –
A strong centralized monarchy developed in England before other countries and its law was taught in the
law school so that body of law was taught early enough to resist the influence of Roman Law. It was simply
a matter of timing.
The Instruction of the Criminal Trial
To get a verbatim account of what on the first one we get is 1554. The case was Throckmorton’s case. This
was a big time case of treason. It was a major trial and was not typical for most trial because it lasted a day.
Nevertheless it gives an account of trials at the time. It is probably at the time is a good account.
XI.
CRIMINAL LAW
A. Idea that the state is concerned with crime & takes proceedings against the criminals
1. We (& all other civil societies) have officials for arresting, trying, & convicting
criminals
a. Punishment: The doing of something unpleasant in return for/deserved
b/c of what they did
b. Inescapable core of criminal law
2. Rehabilitative theories in the 19th c.
3. Elimination function of punishment (get them out)
a. Imprisonment
b. Execution (most extreme)
c. They commit crimes somewhere else
d. Britain’s idea in sending convicts abroad
2. Alternatives to dealing with criminals
a. Tort law
--Not very clearly differentiated from criminal law (trespass=violation
of the royal peace)
--Really about money compensation? Maybe damages were for
punishment
b. Self-help
--Narrow in modern law (defenses to criminal charges)
--Began long ago with much more force (ex: If someone breaks in, you
can shoot them)
3. The state was hardly invented: Who reacts? (Anglo-Saxon England)
a. Victim or their kind
--Bloodfeud (found in many early societies)
--Survives in Kosovo
--Turned into regularized form of procedure
Legality regulated: “The Appeal in Felony”
Modern Albania: Customs in running bloodfeud
Sometimes quite effective at maintaining peace
c. Community reaction
65
--Gets regularized, as well
d. Hierarchy in society
--Lords with king at the top
--King is concerned with crime (breaches of royal peace)
--Still exists
People get very angry if you fight in their house
Elaborate form=Royal peace
--We take this idea for granted: State Law
4. Materials
a. John Langbein
--Draw attention to salient developments in criminal justice system
--Trial by jury
Feature (distinctive in common law world)
--XXXXXXXX & Macklin
Account of the reactions to crime in 12th & 13th c.
The local community is expected to react
--Hue & Cry
Local community must do something
Practices develop from instinctual reactionsritualized practices
No need for a trial; guilty? Kill him
System still exists in parts of Africa, etc.
The world of hot pursuit where guilt is obvious (no DNA samples!)
Rudimentary systems of trials
Persists into 19th c.
Wasn’t much detection: You were caught in the act
Local village communities were vulnerable to criminals: You can see
why they reacted to the theft of vital property
b. 1928: Cardozo’s stuff on worker’s compensation for allowing cops to use car
for chase (obligation?)
--Not wholly obsolete notion today
--Ex: Family has responsibility for policing its own teenagers
c. Frankenpledge system
--Elaboration on community’s obligation for dealing with criminals
--Military aristocracy with foreign culture & language moved in to run
country
--System in which all the male inhabitants were to be ordered in groups
(“tithings”) who were responsible for members’ misconduct
Must stop misconduct or catch & bring them to jury trial
Murder fine imposed if Normans were found dead
--Collective fine used to control citizens (by foreign powers ruling indigenous
people)
Instated when natives won’t cooperate
Much like Britain’s occupation of Greece (technique used in modern
times)
Shooting of hostages: Same idea
66
--Began to decay in 1200s, and passed largely out of use
d. The Appeals of Felony
--We are used to indictments: This is another form of procedure
--Evolved out of the bloodfeud
--Appeal: A formal accusation of crime
--Accusation of serious crime made by victim or victim’s heir
--Victim must raise the hue & cry & attempt to arrest
--By 1200s, formalized/systematized by the crown & run by coroners (who
looked after the crown)
--Had to report crimes to the coroner
--Bloodfeuds regularized & brought under control of the king
--Retains some features of the bloodfeud
In principle,  may choose battle
If lost, the  kills the other (by hanging)
Still has private features
Battle phased out
--When a number of co-criminals were charged together
Some could confess & accuse others
Approvers were hanged if they were wrong
--By 1200s, rules were complex & artificial, formalized, with technical
defects
--Go on to early 19th c. mechanism as starting toward settlement
--Battle becomes less & less common
--P.33: Example of appeal
Brought adjudicated without battle, by testimony of countrypeople
Formalistic rules caused appeals to fail: Accusations were defective
Over-technicalized, ineffective
Must run the risk of dying yourself, if you lose an appeal (You can buy
yourself back from the king)
Became dangerous to people & eventually ceased
Missing 4/18?
B. Introduction to the jury, continued
1. Sanctuary: Arrangements under which felons could flee to a church & be out of
trouble for awhile
a. Idea that church & state should be separate
b. Murder in a cathedral was thought to be horrific
c. Illustrates the aim of criminal procedure: Get rid of criminals
(elimination as persistent theme in history of criminal procedure)
d. The penalty for all felony was death—Brutality softened through
various mechanisms, and this was one of them
e. Attempts at abolishing in 16th c., but still practiced in 19th (not legal,
but cops let it happen because of superstition, etc.)
2. Trial by jury
a. Progressively superceded battle in appeals of felony
67
--1200s: Guilt/innocence by battle & incidentals by jury; typical form
of trespass action
Especially comes in when appeal was brought maliciously
Point? To protect a person from the risk of battle
--Incidentals determined the outcome—often didn’t go to trial
--By mid-1200s, jury trial was normal, & battle was by choice only
--You didn’t have to fight a battle if you were maimed (p.59)
Ex: Loss of teeth was a maim (couldn’t bite), as was loss of
testicles
Side issues raiseTrial
--Battle formally abolished in 1819 (Still on the books in Scotland!)
b. Jury in trial by indictment
--Accusations by jury led to trial before circuit judges
--Church withdrew its support for the ordeal
Lost confidence
1215: Council of church made official announcement
So they no longer worked
c. What to do? 2 ways
--Romanized proof & trial doctrine
Reacted by letting the judge conduct the inquisition into guilt
Concepts & doctrines about proof & guiltcertainty of guilt
Produces body of law requiring 2 eyewitnesses of the
crown or confession of the accused
No circumstantial evidence: Even if running away from the body
with a bloody knife, how can we be sure???
Half-proof entitled you to torture
Elaborate rules surrounding torture
Much emphasis placed on making sure confessions were real
Continental European systems
No society will tolerate a system without conviction, so had to
find a way around it—torture was it
Related to American plea-bargaining, which has similar rules to
torture!
--Common Law
1219, English responded immediately with letter to judges on
circuit
i. “Those accused of greater crimes should be locked away;
medium should get out of the country, & lesser can be
released at your direction”
ii. This was the extent of the royal response
Began using jury to try cases
Grand jury or/and local jury tried
Slowly, the petit-jury developed & settled in the late 1200s
Why? Can’t think of anything else to do, & jurymen are easy to
come by
68
Involve the community instead of formalized torture litigation
Seen as “2nd-rate” form of trial
How can anyone be forced to have men—not God—decide his
fate?
Voluntary (because of this)
But not all that voluntary!
What happens if people don’t agree? Coerced acceptance (much
like continentals coerce with torture)
d. So your choices were judgment by community on one hand or torture
on the other
--In theory, voluntary; but what happened if you said no?
--Criminal guilt was determined by reputation—if you were perceived
to have done it, you were locked up until you elected a jury
--Lead to “pressing”
Heavy irons in jail led to pressing with weights
You either requested a jury or died
--Why would someone rather die?
If you died a felon, our property was confiscated
If not, your issue could inherit
--Pressing survived until the late 18th c., when it turned into a plea of
“not guilty”
e. The theory of juries
--Became inscrutable
Replaces the judgments of God & just as mysterious
Nobody asks why
Jury returns only verdict
--Became compulsory (although in theory voluntary)
--Jury duty is compulsory (community is responsible for crime
control)
--Jurymen are required to reach a decision
Mechanisms developed to force this
”Can’t eat until verdict”
Locked up
Carted (locked up & dragged to next town) if judges traveled on
--No jurors? Grab some locals (summoning anyone who’s standing
about!)
f. What is the nature of the body?
--Representing the country
--Come from the place where the crime took place
--“Self-informing” jury
Come to court knowing the answer
Reached verdict on knowledge & heresay
More like witnesses than adjudicators
--Slowly system develops into evidence presented, but historically
jurors came to court to tell
69
--Trial is very short-- says “I didn’t do it” & jury says “yes, you did”
19th c.—1st trial over a day in length
20 minute to 2 hours
Changes come slowly
g. Potluck & Macon
--The jury can easily behave illegally
Packed
Bought
Lawless (not on the side of the law)
--Mechanisms existed for punishing jury
Tried them by bigger jury
Crown superceded this eventually by trying them
--Today, the immunity of the jury is taken for granted
h. Produced a number of side effects
--Small body of people could run the justice system
--Involved communityRight of trying by the people today
--By 17th c., witnesses are regularly produced
--Elaborate body of law developed to control court proceedings
produces juries (& sort of random CL practices)
The law of evidence
Judges began instructing the jury
Ways to overturn the jury verdict
i. formative moment
j. Why didn’t England follow Roman/canon law of medieval Europe?
--Van Kinegan: “The Timing Thesis”—because of timing
--Strong monarchy earlier than others
--Est. early enough to resist Roman law
--Ex: If France had the same history, they would have the same law
C. The Criminal Trial
1. Something like verbatim account in 1554 (Morton, for treason)
a. Big political case, full-dress treatment
b. Attempt to overthrow the king
c. Not typical
--Almost 1 day (as opposed to 5-10 min.)
--Still gives an impression
d. Not tape recordersspeedwriting, good memories, etc.
2. Differences from today’s criminal trials
a. Trial is primarily devoted to securing the conviction of the accused
-Fairly surprisingly high rate of acquittal, though
--Not a lot of time spent on 
b.Prime changes in 16th c.:
--Court report is judges & accused dialoguing
--Virtually no law of evidence as we understand it
Excludes material from jurors
Part of protecting the accused
70
--Directions to the jury are perfunctory
--No lawyers much involved
Accused has no lawyer
Neither do some of the s
Judges perform  lawyer role
--Not adversarial (in a modern way)
Competition/Game over which judge presides—modern
Judge very active, questioning & making points
More like Continental European procedure
--Nature of jury is changing
1200s: Body summoned from community, self-informed
Becoming passive jury, adjudicating on evidence presented
Not yet regarded as immune from liability for giving the wrong
verdict modern characteristicConstitutional role
--Community responsible for ridding itself of
crimemorphing/becoming notion of public prosecutor (mid-16th c.)
Prepared cases for presentation to jury
Beginning in this period
Justices of the peace are doing it (goes back to medieval
local gentry, who were not paid)
Local citizens appointed by commissions
Done out of vanity & pomposity
Another way of running the system cheaply
c. Throckmorton’s Case (1554)
--Charged for treason (rebellion against the queen)
--Gruesome decapitation & torture for punishment
--Tried not by regular court but by commissioned court by the crown
(hand-picked, “packed”)
--Asks for trial by jury (sworn on the bottom of p.2)
--Various written confessions of co-conspirators from p.3 on
Used to convict 
Some confessors don’t show up in court (already dead)
Some do show up
Would not be acceptable today
--Disorderly air (Fitzwilliams wanders in &  calls him to testify!)
Court protests  witness
Fitzwilliams leaves, &  witnesses ended!
No due process
--Fitzwilliams locked up for 58 days—no time to prepare
Not allowed a lawyer for treason
Requests law books & denied! (End of case-citing attempt!)
--Court gets bored & insists they hurry it up
--Directions to the jury omit  arguments completely
--Jurors declare “not guilty”
Pandemonium breaks out
71
Quiz the jurors, who stick to their guns
--Jurors imprisoned & fined!!!
No more acquittals for treason
Prisoner punished
d. James F. Stephen, p. 17
--State is very weak
Treason/rebellion is very threatening, unstable
Part of the procedure is a by-product of this
--Procedure of examination of witnesses may not be bad
e. J.H. Baker (p.20)
--Circuits survived until 1971
--P. 22, lower gentry & lawyers: “sessions of the peace”
Tried criminals before juries
”Quarter-sessions”
Many justices of the peace had legal training
Didn’t try serious crimes (circuits did)
Survived until recent times (AWBS served)
f. Williams (p.25)
--Insofar as there is policing, it’s operated parochially
Constables
Mostly pretty ineffectual
--No paid police force—community dealt with crime
g. Cockburn (p.27): “The Commission of Gaol Delivery”
--Emptying of prisons
--Prisons were temporary (like hotels), pending trial
--“Indictment for Burglary”
h. The Jury, p/28
--Who?
Male
Property owners (No property? No stake in society)
--Systems under which you can challenge jurors
--But nothing like jury-challenging today (because no  attys.)
i. Langbein (p.29)
--Who serves?
--Cites to the Old Bailey (paper publishing trials—very long-running)
--P.31: One jury sat on lots of cases
Gave verdicts after hearing many trials
Late 19th c.
Jurors developed a relationship with the judge
More like a committee (not a jury)
--Calls attention to some strange juries
j. P.33: The origin of the notion of public prosecutors
k. P.36: The committal statute
l. P.37: The Marian Statutes (these are all efforts to control corruption)
--Formalized system of pre-trial behavior
72
m.
n.
o.
p.
q.
--Researching & preparing cases
--Evidence & depositions
--Some justices began to take an active part in getting the criminals
(investigatory police & DA’s office)
--Increase in preparation
Lasted until 19th c.
Progressively replaced by modern cops
P.42: Document which gave them the authority
P.46: Account of prosecutorian system of early-modern case
--Not just evidence, but evidenceConvictions
P.47: Smith’s account of a trial (mid-16th c.)
--Pretty reliable
--Great source of entertainment
Party atmosphere
Sexy women sat with judges
Ceremonious presentations of prisoners
--Prisoners pled before the bar
If not, pressed to death
Explains how to press to death
Normally pled not guilty—judges encouraged this
--Account of empanelling the jury
--Victim was there, brought before the court by judge, who asked questions
--No lawyers
--Judges at the center of proceedings
--Very brief charge to the jury
--Jurors took notes (unusual reference)
Locked up, carefully guarded
Gave the verdict
--P.49: Depositions, witnesses, etc.: Public & oral
Now Britain holds some trials in secret
Never occurs to anyone that it would be public—even big important
people, like Queen Anne Bolyn
Punishment is also opened (convicts hanged publicly)
i. Bodies later given for dissection
ii. Dissections to place publicly!
iii. Community involvement
Public participated in the trial, not just through the jury (cheered, etc.)
The bit in the 16th c. behind walls involved torture (no one was tortured
publicly)
i. “Confessions” were extracted
ii. Largely disappeared in the late-17th c.
iii. Forms of this persist—police brutality, cases involving national
security
Very surprising rates of acquittal
Langbein (p.52): Lawyers were not involved in 16th c, through early 18th c.
73
--Very shocking at the time
--Argues that lawyers invade & can’t get rid of them
--Alter character of the trial; makes it adversarial
3. The growth of defensive safeguards
a. Early 19th c.—Introduction of the council
--Goes hand-in-hand with introduction of prosecution
--Radical effect on the character of trials
Cross-examination
Objections
 lawyer’s presence shuts the  up (excludes him)
--Accused has witnesses on oath
--The accused is silenced by mid- or late-18th c.
Rationalized by the fact that the accused is bound to tell ies, so why
would we let him?
Throckmorton talked a lot, but no evidence on oath
Chatterings of accused silenced by lawyers
--Exclusionary rules of evidence
Beginnings of the law of evidence
Excludes unreliable, misleading evidence
Lawyers raised objections (not fearful, like the s were)
--Judges were uncertain as to the reliability of certain forms of evidence
Guilt beyond a reasonable doubt (fair balance)
Want to know “what happened?”
b. 1798: 1st statement of the reasonable doubt rule
c. 18th c: Constitutional doctrine of the privelege against self-incrimination/the
right to silence
--In Throckmorton’s day, silence was suicide
4. All Inter-related?
a. Defense counsel: Langbein (p.26)
--Rise of the right to counsel comes in when questions of law are raised (PW
p.30)
--How did this get in?
Lawyers, in 1730s, normal feature by end of the period
Not clearly understood
More wealth about?
Sanctions severe? (But CP declining in 17th c.)
--What’s clear is that it did get in
Law of evidence
Silence of 
--Beattie, p.58
b. The right to testify: Get witnesses on your behalf
--Started in the law of treason (PW, p.30)
--Spread to felony cases
--Why? Don’t know
74
Class-based? Treason most likely threatens upper-classe s, & they want
security of counsel
--Once it’s in, use oaths
--Downgrades the significance of what the accused (who says things not under
oath) says
--By 19th c., the exclusion of  is attacked & abolished slowly (1898 England)
Trial lawyers prefer the  to remain silent
Classic example: The trial of Oscar Wilde
5. General thesis of Langbein: Brits thought police forces were abominable, and
gave the state too much power
a. The defective mechanisms they had instead led judges to intro. restrictive
rules of evidence to repair the defective detective mechanisms that went on
outside the trial
b. The Crown Witness System
--Arose when everyone knew a group did it but couldn’t prove it
--Had to trade a group member’s testimony for absolute (personal)
--Sometimes members of the gang competed to cook up the best evidence to
“win” the absolution
--Resulted in suspect “confessions”
Suspect in 16th c., too (torture)
But philosophy of criminal trial was different
18th c. state is more secure (not so threatened)
More equality between  & 
--Judges began to adopt rules against accepting evidence of corroborators, etc.
Way of repairing defects
c. Beneath the thesis: Had the Brits had a police system, the crown wouldn’t
have had to rely on evidence, & rule wouldn’t have been made
--Rewards offered
People made aliving as thief-catchers
Great incentive to cheat (frame people)
Bribed people so they wouldn’t be framed
Gave rise to serious scandals re: the reliability of crown evidence
Encouraged courts to repair faults in pre-trial processes
--Law of Evidence: By-product of bad processes highlighted by urbanization
Does away with community responsibility for crime
d. Other ways to get rid of these problems
--Get rid of the jury & have judge try cases
Only exists in CL anyway
Prof. Judges do bench trials
Exclusionary rules of evidence only for jury trials (effort to control
ineffectiveness)
--Why didn’t the CL go down that route?
--Modern agenda is to get rid of juries
--Plea bargaining=coercive bargaining
--Why this attachment to the jury?
75
6.
7.
8.
9.
--Alternative to the jury: Bench trial for smaller offenses
98% of criminals in Britain charged this way today
Clerk advises unpaid judges who sit by threes
Virtually everybody foregoes right to jury
Reaction to increased complexity of lawyers’ trial
19th c.
e. Where does the right to a jury come forth?
--Protection of liberty from the government in 17th & 18th c., as a result of
constitutional quarrels at that time
--Fundamental liberty by late 17th c.
--Trumpeted in Blackstone’s commentary
f. Bushel’s Case: Ruled that jury was wholly immune for rendering a false
verdict
--Jury is associated with political liberty
--Can waive your trial by pleading guilty
--Can’t waive jury trial
g. Remaining puzzles
--How did it begin?
How did lawyers get in?
Criminals are poor: How do they pay?
--What happened on the assizes?
Details are puzzling
--Why didn’t the state establish a police force?
1829: British police began
Associated with perceptions of liberty, etc.
Contrasted England with France
19th c.: Adversarial trials (as we know them today)
a. The main, dramatic changes happened from the 17th to the early 19th c.
b. Not much discussion in the materials
Ferocity of the criminal sanction is diminished
a. 16th c.: Peak century for hangings
b. 18th c.: Progressive reduction in the number executed
c. Changes in attitude?
--Humanitarian ideals
--Enlightenment
Vast mass of criminal cases were people caught in the act—not big-time criminals
a. Not based on elaborate detection theories
b. 1839: Metro policePreventative (not detective)
--Their presence reduced crime
--Part of the fascination of the Holmes stories was the phenomenon of
detecting (new thing)
c. Trials are nothing to write home about!
d. Very ineffective by today’s standards (“the watch”)
e. Even today, British police aren’t very good detectives
Punishments/Sanctions
a. what are they for?
76
--Elimination
Death
Transportation
--Terror (Deterrence)
Public
--Education
Teach others a lesson
Reichman tried in Israel as historical lesson
Boys school students were taken to watch executions
--Utility
Making use of the criminal
Providing some service
--Rehabilitation/Reformation
Not much in early history (or today)
19th c. idea
b. Death penalty/Blood sanctions
--Differed from place to place in Europe
--Basic ventral theme of common law
--Folk festival atmosphere in London
--Strangled slowly (usual form in England)
--Public rituals surrounded—extraordinary hold on the public imagination
Long procession through city
Magical beliefs/folklore surrounding touching hanged man to cure illness
--Earl Ferrers & Dr. Dodd mentioned (upper-class executed)
--Church/chaplain involved
Enormous efforts at confession
Special chaplain gave accounts
--Public until 1828Eventually became private
--Women burnt to death
Paid extra to be strangled
Petty treason
Heresy for men & women
Paid to have a keg of gunpowder in the fire
--Treason: Even more revolting
Aristocrats given alternative of being beheaded
Hanged, cut down alive, disemboweled, etc.
--Violent society (accustomed to blood)
Children, wives, servants beaten
Bloodthirsty sports popular
--Purposely humiliating—hanging was degrading
Additional penalty of dissection (1752)
Cadaver shortage at medical schools
Using criminal for visual aid
”Hanging in chains”—body on public display in cage
Hung until decayed
77
c. Evolution of Punishments
--Replaced by other forms of penal sanctions: “Secondary punishments”
--Imprisonment for serious crimes did not exist in Medieval era
Petty crime (very trivial offenses)
Holding place for trial
Now come to be the typical serious sanctions for serious crime (around
the world)
Late development
--Galleys (galley slaves)
Foreshadows idea of utilizing/exploiting criminals
Runs through modern times (chain gangs, medical exploitation/testing,
Nazi regime tests)
Especially Mediterranean countries
Late medieval/early modern period
No reformation/humanitarian ideas
Regarded as worse than death
They forfeited all rights
Didn’t develop in N. Europe (used sailing ships—not galleys)
--Work (16th c.)
Rehabilitation idea (rationalization)
Ancestor of the modern prison
The workhouse
Invented both in Europe & in Britain
Amsterdam had model
England used for 2 problems
i. Vagabonds/beggars
ii. Subject of great alarm to society
iii. Young people who should get a break, should be taught good
work habits
v. Through to 19th & 20th c. as repositories of the poor—
welfare system
vi. Not an alternative to blood sanctions
vii. Mid-19th c.Modern idea
--Death penalty steadily declined
800 or 900/yr. In Elizabethan times (population was smaller)
12.yr. in AWBS’ time
Burning gone in late-18th c.
Disemboweling for treason by 1820
Flogging & other forms of physical punishment
Something else is being done…
--Transporation
17th c. onward
Biggest method
Sent out of country
1st place was American (N.)
78
Practice of pardoning on condition of transportation (18th c.)
Regular system
Combines 2 ideas:
i. No longer a bother
ii. Useful work in new land
Takes over from ealier ways of doing the same thing (pp.9-25)
Early sanctuary (40 days & get out)
Problems
i.American Revolution
ii. Receiving end began to resist
--What do we do now? Long-term imprisonment
Out-of-use naval vessels used
Era of the Hulks (Dickens)
i. Usually temporary (sometimes long)
ii. Chain gangs
iii. Not because of theory, but necessity
ship to W. Africa? Malaria, so no good
--Australia (export trade)
”1st fleet” in 1784
Conditions caused death until captains given money incentives
Went on until 1868
Australia didn’t want it
Bound in history of Australia (shame, but now they’re proud of it)
Generated further problems
i. Secondary punishments
ii. Most horrendous penal colonies in Australia
--19th c.: Couldn’t go back to capital punishment, so what to do? Penitentiary
Rationalized with theories
Have to, because of alternatives
Theory (19th c.): Imprison in tidy, orderly highly-regulated
conditions in which they could be rehabilitated
i. Ordered, regularized
ii. Elaborate
Public kept out
18th c. prison: Disgusting, leg irons, open to the public (zoo)
i. Prostitutes going in & out
ii. Just wanted delivery to trial
--What are the prisons for?
Repentance (encouragement of)
Reformation (paid debt to society)
”Penitance”Christian idea, root of penitentiary
--Bizarre regimes developed
Priests, BiblesTeaching
”Separate system”
i. Discourage community
79
ii. Not allowed to meet other prisoners
iii. Work alone in cell
iv. Led to masking
v. Isolation, uncommunication
Chapel, preaching (with wood guards so they could see the priest but
not eachother)
The “Silent System”—no talking
--Work in prisons based on 2 ideas: Self-supporting (useful work) & Mechanism
for repentance
Best: Entirely useless
Produced the screw (work for the sake of work—“work redeems the
soul” & the treadmill (weak from undernourishment, frustrating, dangers)
18th c.: Punishments of the body
19th c.: Punishments of the soul (worked on the soul)
--Jeremy Bentham
Developed the ultimate physical design of the penitentiary
Combined architecture, economy, separation, penitence
Head guy could see the prisoners, but they could only seen him
--Penal servitude: Slavery by way of punishment
Silence passed out
Work redeemed & reformed prisoners
7. Alternatives to blood sanctions
a. Imprisonment
--Rehabilitation or repentance
(Really? Not sure but that was the intention)
b. Fewer people executed
--1701-25: Old Bailey: 471 death sentences (67% not executed)
--1831-35: All of Britian: 4984 sentences (96% not executed)
--Very high proportion not executedTransportation/prison
--Until about 1840, death sentence for large range of offenses
Murder, rape, sodomy, arson, burglary, robbery
Coining, forgery of financial instruments
Not confined to what we would associate it with
c. Protest movement against capital offenses (without execution)
--major argument for parliamentary reform
--184-0s: Treason, murder, piracy with violence, dockyard arson
--1860s: 12-14 executed annually
--The rest pardoned (often conditionally—29 yrs. in prison)
8. Mechanisms within the trial process
a. Developed around benefit of clergy
--Henry II’s time (originated)no execution of clergy
--Used literary test
--Handed cleric over to the church
--Became fictionalized
--Released & branded (thumb-letter F)
80
1 free chance
No record-keeping
Sometimes whipped
b. Reaction
--Parliament made various offenses “non-clergiable”
--Process is described by Langbein
--Meant that no 1st offense freebie for serious offenses
c. Went on until early 18th c.
d. Lots of people subject to the threat of the death penalty
9. How did people escape execution?
a. Jury could (fictionally) knock the crime down into lesser offenses
(“Partial verdicts”)
--30 pounds warrants execution? Only 29 pounds
--Jury played a part in selecting execution
--Why did juries get to do this?
Way for community to decide
Judges didn’t mind
b. By 18th c., judge recommended pardon, transportation, or some other
way out of execution
--Went up to the monarch
--Privy counsel never rejected recommendations
--So judge made final call for execution
--Others were reprieved pending official ok
--Guys reserved for execution can still petition the king for pardon
Lobbying by friends
Sometimes arrived very late (cut down off rope!)
10. Queen Victoria thought too young & female to be involved in execution
a. Monarch’s involvement became purely symbolic (home office took over)
b. Sort of a feminist: Thought men got off too easy for killing their wives
c. Became regularized: System of precedent
--Poisoners never got off, for example
--Very young or insane always reprieved
11. Literature behind the action: Albion’s Tree
a. Essays about 18th c. criminal law
b. Thesis: Sanctions & pardons were a mechanism whereby the governing class
exercised control over society (by terror)
c. Encouraged servile/deferential attitude (“If you plead, you’ll get off”) by
mercy, with rewards
d. Attempt to make sense of this confusing systemHuge number of threats &
few actual executions
e. Occasionally hung an aristocrat to communicate that “this is a system of
impartial justice”
f. Jury: People with property got to take part (contributed to legitimacy)
g. Ritualistic regard for rules of procedure (one misspelling & even a killer could
get off)
h. Control needed when there were no police, etc.
81
i. Criticism: Presents 18th c. society as “aristocracy & the rest”
--Many people persecuted not by aristocrats, but by people who are a little
above 
--Aristocracy very rarely featured in criminal procedures
j. Cult book at one time (in Britain)
k. Attempt to explain this weird system
l. Rituals associated with judges’ arrival, convictions, assizes, executions, etc.
--Culmination
--Showing the power of the state
--Mechanization of the criminal law
--By late-19th c., upper classes held a ball for the assizes!
82