Magistrates and pioneers essays in the history of american law


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Epilogue: Diverse Viewpoints on Ancient Constitutionalism The devotion to liberty under law that is a hallmark of Anglo-American civilization and free government is nowhere symbolized with greater authority than in Magna Carta and the ancient constitution of which it is the noblest monument.


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The American constitutional tradition of which we so admiringly speak is grounded in the words and deeds brought together in this abiding centerpiece of our heritage as free men, the very liber homo announced by Magna Carta. As conference director, discussion leader, contributor, and editor of the book, I take satisfaction in seeing a new edition appear. Furthermore, the conference itself spurred participants to renewed examination of the complex subject matter we addressed.

The impetus of our discussions can be traced in numerous publications since we deliberated at Windsor in My own efforts in the meanwhile directly continue the analysis begun then in chapters six and seven of The Politics of Truth University of Missouri Press, , which deal with Sir John Fortescue and with American religion and higher law. This new edition is both valuable in itself and timely. With our millennial institutions of freedom and unique devotion to individual human worth and dignity under unremitting assault, we face an ideological and international conflict whose end and outcome lie nowhere Edition: current; Page: [ [xii] ] in sight, beyond a horizon bounded by the iron curtain of the future.

The Roots of Liberty can be one small help in guiding our passage through the perplexities of these treacherous times. Was there an ancient constitution? Professor J. Pocock agrees as much:.

Warren M. Billings

But a preliminary shy is easy enough: the Oxford English Dictionary can provide as strong a dose of skepticism for the modern historian as Ducange does for the medieval. This was still so in the sixteenth and seventeenth centuries as the newer prescriptive sense was added to the word. How it came about that the word constitution acquired this new prescriptive sense in the course of the seventeenth century and—a more interesting matter—how it was that Coke, Selden, and other lawyers and antiquaries of the early seventeenth century did not themselves resort to it, are questions I leave to others.

That seems simple. Yet it is not so, for the medieval material embodies a blend of law and legend, fact and fiction, statute, its interpretation and misinterpretation, similar to that which modern scholarship has exposed in the seventeenth century. The matter is important. Such an assessment has been based only too frequently on ignorance of much that happened before It was not an error of which Coke or Selden was guilty. Yet what they knew and absorbed from the past was of varying authenticity. In reexamining it, uncertainties, dilemmas, and questions, like those raised by the history of the word constitution sketched above, are ever present.

One last illustration may be added—the constitutions of Clarendon of This, too, is noted in the Oxford English Dictionary, but it was not a contemporary title. It seems to be derived from a marginal entry in the earliest known manuscript version written in When, seven years later, the marginal scribe referred to the customs declared in as constitutions, he was tarring them with the brush of authoritarian novelty.

The stain has faded partly because we have lost the verbal precision of his age and with it his intent. Henry II himself gave the consuetudines of an extra ring of authority after they had been promulgated. In the decrees they appear as statuta de Clarendune and statuta regni. Language matters. We have to puzzle out what it means and meant. More important, our materials are the work of men who were themselves puzzling it out, using it to fit context and circumstance, to convey intentions and impressions, to define, to stake out claims, to defeat and counter arguments.

Warren M. Billings, Ph.D. | Eastern District of Louisiana | United States District Court

Above all language was malleable. It demanded interpretation and reinterpretation. It allowed misinterpretation. It lasted. It is this world that we enter with Magna Carta. In Magna Carta, also, the language is deliberate and precise. The so-called Articles of the Barons, the armistice agreement as it were, comprised capitula which embodied conventiones; they were Heads of Proposals, to borrow a phrase from a later political crisis.

The intention in was to bring to an end a state of civil war. The capitula were therefore also articles of peace, articuli pacis.

Overview of the American Legal System and the Life of a Case

And they contained customs, consuetudines. In the Articles it is not customs but the keeping of the peace and liberties Edition: current; Page: [ [36] ] between the king and the realm which is guaranteed by the form of security.


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  • So also was it described by the officials of King John. At this point the word consuetudo demands further comment. In its prime sense it did not necessarily denote antiquity, still less unwritten, ancient law. It was used rather to describe the jurisdictional, legal, and financial relationships between lord and vassal. Customs, in this sense, could be either good or bad, ancient or novel, unwritten or newly promulgated. But they were, or were to be, habitual practice—the classical sense of the word tended always to drive them in that direction.

    The consuetudines of are associated with dignitates; 17 those of with libertates. Throughout, therefore, customs are subsidiary to liberties. Indeed they are being established and conveyed as liberties. They figure because the liberties concern practices which were commonly described as consuetudines.

    This was no linguistic aberration induced by political crisis. The same emphasis on liberties and the same subordination of customs to liberties is apparent in the reissues of Magna Carta in , , and , in the Charter of the Forest of and , and in the parva carta of , which brought the series to an end. These were official documents; the emphasis reflected curial attitudes as well as the minds of barons and bishops.

    No one could have argued in or even in that the charters were no more than a definition of ancient custom. Of course, precedent mattered. Existing procedures, long-established principles, or ancient liberties certainly underlay particular chapters. A distorted, idealized past was fabricated to set against alleged present ills; and to this we shall return, for ancient custom was part of the argument and well worth having on your side.

    But it cut both ways.

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    So, whatever the pretenses from whichever party in the dispute, no one could seriously maintain that the concessions of were validated by substantive coincidence with ancient custom. Validation came, not from substance, but from procedure and form: from the personal oath of the king that he would abide by the terms agreed, by similar oaths of those present at Runnymede and of men throughout the land, oaths to terms embodied in exemplars of the newly issued charter, each under the great seal.

    And the crucial attack on the agreement in the papal bull of annulment was that the oath had been exacted by compulsion and that the charter was therefore null and void. By design or accident, a conveyance of liberties was brought to the forefront of public life. It is worth dwelling for a moment on why the settlement took this form. It had to. It could not be embodied in a treaty because king and vassals were not on a par. It was only as warring parties that they could Edition: current; Page: [ [39] ] treat as equals; to do that would be to admit the compulsion which lay behind the settlement and lay it open to annulment.

    It could not take the form of a simple statement of consuetudines because other matters, the restoration of hostages and the reversal of unjust judgments, for example, were included. In any case how could the king be bound except by oath and solemn concession made in as near a standard form as the circumstances allowed? And how were liberties usually conveyed publicly and permanently unless by charter? Such considerations left any other solution unthinkable. A charter, whether confirming the earlier grant of Henry I or in some new form, was envisaged at the start of and throughout the crisis.

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    There was no alternative: a charter it had to be. But if men turned to the charter as the only vehicle available, it was not necessarily going to be the most convenient in the long run. It was bound to be restricted to well-worn tracks.

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    Charters provided validation, certainly, but they also brought complications and imposed conditions of their own. A charter was freely given. It could not be otherwise. It was a royal act. It followed that the liberties conceded derived from the crown. So the beneficiaries of were locked into a circular logic which was not broken by the humiliating circumstances which forced King John to the first great surrender and his successors from time to time to renewed acts of contrition. Royal authority may have seemed to be diminished by a confirmation of the charters, but it was also exercised.

    The ultimate validation of the Great Charter was the Great Seal, nothing else, and that bore the impression of the king in majesty. There was no escaping that.

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    Nevertheless men tried. The Charter specified that dispossessions had occurred without lawful judgment of peers, Edition: current; Page: [ [40] ] that fines had been agreed and penalties imposed unjustly and contrary to the law of the land. By itself it did not cut a lot of ice. However, it was linked to a more practical tactic of external compulsion. Both the king and his opponents used it in In the end the process gave the reissues of and the seal of papal approval but not a lot besides. From , to be sure, the charters were reinforced by sentences of excommunication against infringers.

    But the sentences were the work of archbishops and bishops themselves vulnerable as tenants-in-chief of the crown; the popes almost always backed the king. Episcopal insistence on the charters was far from disinterested. It was aimed at extending the privileges of the anglicana ecclesia confirmed in general in chapter 1; this provoked baronial as well as royal resistance. The king was careful to except royal rights and exclude new ecclesiastical pretensions from the traditional confirmations and the associated sentences of excommunication.


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    • In any case such sentences required the secular arm and ultimately royal approval to become effective. There were vociferous demands and demonstrations along the way. Reinforce the charters by the threat of excommunication; promulgate the penalty in the most solemn assemblies of king, bishops, and nobles, as in and ; reinforce the threat by papal confirmation, as in and , have both charters and sentence published in Latin, French, and English as in , or read twice a year in cathedral churches as in ; display the Charter of Liberties in church, renewing it annually at Easter, as Archbishop Pecham laid down in ; embrace the king himself within the sentence of excommunication, as Archbishop Boniface did by implication in To modern eyes it is all repetitive and futile.

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