Fischer actually puts this toward the end of his description of each culture, but I find it useful to start out with this. Describing what the overall community looked like helps give context to the descriptions of people’s more private lives.
Although most New Englanders were farmers, they mostly lived in towns, or, rather, hamlets. Indeed, special permission was required to build a house more than half a mile from the local church. This had two effects. One was to allow people to monitor each other and penalize deviant behaviorr. The other was to gather people into New England’s primary unit of self-government – the town meeting. It made everyone (well, every adult male property holder who was a church members in good standing) a participant in the community. Communities were very stable. Young men might leave their town of origin for an apprenticeship, or young women to join their husbands, but once New England Puritans became householders, they stayed put. People moved around a lot less in the 17th Century than they do today, of course, but even by 17th Century standards, Puritan communities were exceptionally stable. Once Puritans moved across the sea from England to Massachusetts, they stayed put.
Virginians, for the most part, avoided towns. Great planters had their own little communities on their plantations; others lived on their farms. Visiting took place regularly among neighbors. On church days and court days, people from all across the local countryside assembled, for gatherings that were as much social as religious. Migration and association was hierarchical in opposite ways. People lower down on the hierarchy were more mobile in the sense that they had less stable residences. Planters rarelyl moved; small farmers moved somewhat morre often; recent arrivals moved quite frequently, and many laborers were migrants with no fixed residence. But in another way, people of higher rank were more mobile. People tended to visit a lot, mostly with their own social peers. For ordinary people, this meant mostly in their own neighborhood. For the gentry, it meant travel to more distant plantations.
Quakers lived in clusters of farms. They lived on their farms, rather than in towns, but William Penn made a deliberate policy to encourage farmers to build their houses near to each other, instead of scattered. Pennsylvania was (is) mountainous, a series of valleys with ridges between them. Each valley would form its own tight-knit, highly conformist, community, some Quaker, some German, but none quite alike. Each community would form its church that would maintain community standard, but they did not have any formal local government (that took place at the county level). Another point was that Quakers in their general asceticism and distrust of anything “needless” extended this view to “needless” socializing. They therefore discouraged gatherings or visiting unless they served a useful purpose (such as raising a barn).
In the back country, people tended to live in isolated cabins. The comment that when you see the smoke from your neighbor's chimney it is time to move on was a back country attituded. And, indeed, people did often move on, with a minimum of fuss and bother. Besides the smoke from your neighbor's chimney, another popular back country saying was, "When I get ready to move, I just shut the door, call the dogs, and start." But many of these moves were no more than a few miles. A sense of neighborhood formed, and neighbors regularly visisted, stayed over, and helped each other out. These neighborhoods were tight-knit enough to be able to freeze out and squeeze out (in their own words, "hate out") people who did not follow accepted social conduct. Outsiders were viewed with deep suspiciion.
Speech and place names
Fischer has an interesting insight here. All four cultures tended to give American places the names of places from back home. This means we can tell, by looking American place names, what part of England the colonists settling that area came from. Unfortunately, following the details required more knowledge of English and American geography than I have.
The four cultures chose other place names as well. Puritans used virtue names like Salem (a variant on Shalom) or Concord. Despite the Algonquin names of Massachusetts and Connecticut, Indian names were not widely used until later. Cavaliers used royalist names. Virginia is named after Elizabeth (the Virgin Queen), North and South Carolina after Charles II, and Georgia after George II. Quakers used Indian names. And backcountrymen chose place names with a rough and ready familiarity I had always regarded as archetypally American, such as Gordon's Meeting House, Hangover Creek, Hardbargian Branch, Hell's Half Acre, and Devil's Tater Patch.
Fischer also traces various American patterns of speech to parts of England although that, too, could be hard to follow. Most interestingly, the Quakers adopted “plain speech” and addressed everyone as “thou” instead of you. In the 17th Century, this was a shocking familiarity when addressed to social superiors. Quakers continued this well into the 19th Century, long after thou had become a quaint archaism. But the book did clear up a strange quirk I was aware of from historical novels – Pennsylvania Quakers said “thee is” instead of a more standard “thou art.” The Quaker migration came primarily from Yorkshire. It turns out “thee is” was a well-established pattern of Yorkshire speech. London Quakers said “thou art.”
Next: Family, marriage, sex and children
Saturday, October 29, 2011
Wednesday, October 26, 2011
Albion's Seed
David Hackett Fischer's Albion’s Seed has been immensely influential in popular history and understanding of the origins of the United States and how we got to be what we are. Its thesis is that the 13 colonies were settled by three main migrations from England, the Puritans, Cavaliers, Quakers and back countrymen. These migrations took place at different historical times, from different part of England, different religions, and different social classes, and different sub-culturres. They built new societies that mirrored the societies they left behind. Fischer describes these four cultures in their origins; building styles, concepts of family; attitudes toward, marriage, sex, children, old age and death, religions, magic, food, clothing, recreation, attitudes toward time and work, “pattern of migration and settlement,” attitudes toward law and order, local government, and concepts of freedom. It is all written in a very accessible style, for the general public, not professional historians.
The book has its shortcomings. It is not strictly chronological, seeking to describe the four colonial cultures, but sometimes bringing in figures from later, like Andrew Jackson. It gives too much credit to England (ignoring, say, the Scandinavian origin of the log cabin or the strong Spanish influence on cowboy culture). The later parts attempt a brief tour of post-colonial history, and often become absurd, attempting to reduce absolutely everything to the influences of these four cultures. But it explains a lot. Many aspects of American culture suddenly make a lot more sense when viewed through the lens of the four migrations. (In particular, many things I thought were odd and contradictory about Southern culture make a lot more sense if you see it as actually the amalgam of two quite different cultures, cavalier and back country).
The first migration, from about 1629 to 1640 (the height of Charles I's power) were the Puritans. They came mostly from the eastern part of England, migrated to Massachusetts and other part of New England, and included a wide range of the middle class, from lesser gentry to more prosperous tenants and craftsmen, with plenty of merchants, yeoman farmers, and members of the learned professions. They had a powerful leader in John Winthrop, set out to build a Christian commonwealth, and actively sought to exclude people who were not like themselves. In religion they were strict Calvinists, believing that human nature is inherently evil, that most people are bound for hell and deserve it, and that God predestines everyone for heaven or hell and there is nothing we can do about it. Another important Puritan belief was the importance of the covenant. That meant not just society as a sacred covenant (as discussed in the last post), but in human relations – marriage, family, most voluntary associations – as a series of covenants. If a single word might be used to describe the Puritans, it would be tight-knit.
Once the Puritans won the civil war and established their own dictatorship in England, about 1642 to 1675, the Cavaliers (Royalists) began migrating instead, to Virginia. Jamestown colony already existed in Virginia, of course, but it was little more than an outpost. Not until after the Puritan colonies were established did Virginia start establishing anything like a normal, functioning society. Their leader was William Berkley, and the Cavalier set out to create a society something like the one they had before the Puritans seized power. They came mostly from southern and western England, were high church Anglicans (Episcopalians, semi-Catholics). The leadership came from English gentry, but many members of the lower classes also arrived, as deported convicts, debtors, or indentured servants. Slavery became widespread only later. (Incidentally, Fischer's work has a definite shortcoming here in that it focuses almost entirely on the aristocracy and ignore ordinary Virginians). They came to a land that was beautiful, but disease-ridden, rife with malaria, typhoid, dysentery and the like. If a single word might be used to describe the Cavalier culture, it would be hierarchical.
The Quaker migration took place around 1675-1695, in a calmer time, after the monarchy was restored under Charles II. Quakers came mostly from the northern parts of England, from remote and poor areas. They were mostly lower middle class, craftsmen and laborers. Many came over as indentured servants, but, unlike Virginians servants, they often advanced once they completed their terms. They were led by William Penn, a rare Quaker aristocrat, and moved to Pennsylvania. Like the Puritans, they sought to create a Christian commonwealth. The Quaker religion is hard to define because it has no creed, but it emphasizes the “inner light,” the voice of God within all of us. Quakers have no clergy and consider everyone’s inner light as their highest authority. Yet for all the individualism of their religion, Quakers were intensely conformist, submitting almost everything to the judgment of the meeting and expecting members to submit on penalty of excommunication. In their conformity and asceticism, they were often more puritan than the Puritans, except that their outlook was an optimistic one. Quakers also differed from Puritans in that their meetings had moral authority only and were not backed by the force of the state. Quakers granted freedom of religion to all monotheists and welcomed German pietists (such as Amish and Mennonites) who shared their values. I haven’t come up with a single word to describe the Quakers and welcome input.
The backcountrymen were the last migration. They came from the border area between England and Scotland, a land of constant war, as borders so often are. The backcountry migration took place around 1715-1775, when England in general had emerged from its turmoil and become calm. In the calm, the authorities began subduing the turbulent border, often with much resistance. Some borders were banished to America, where they settled in the Appalachian area. Others were banished to North Ireland and then to American, where they were referred to as the Scotch-Irish. The backcountrymen were generally Calvinists, but of a very different kind from the Puritans. They mostly came from the lower classes, though not so poor as to be unable to afford passage. They had no outstanding leader and no plan for the society they built. They also were generally banished to the “back” areas of the colonies by authorities who found them disruptive, and were excluded from political power. In turb, they distrusted the colonial authorities as much as they had distrusted the authorities in England. If a single word might be used to describe backcountry culture, it would be violent.
Over time, these four cultures changed. Puritans became Yankees. Royalists became Whigs. Whigs were the party that distrusted kings and royal prerogatives. The fiercest defenders of Charles I fully backed the overthrow of James II. The aristocracy (English and Virginian) discarded the divine rights of kings in favor of the theories of John Locke, the view that society is a contract between the people and themselves to submit to laws and a government in order to protect their natural rights. A universal “natural law” is higher than any manmade law. Any government that violates natural law and tramples on people’s natural rights has broken the term of the contract and forfeits its people’s obedience. If all this sounds familiar, it should. It is basically a secularized, do-it-yourself version of the Puritan’s theory of the sacred covenant. It is also the ideology Jefferson expressed (borrowed from Locke) in the Declaration of Independence.
Quakers also changed over time, slowly disengaging from the world and turning inward (and losing most of their influence as a result). Back settlers became frontiersmen. The distinction is subtle, but is the different between “retreating back” into the “back parts” of the colonies as opposed the pushing forward into new lands of promise. It is the difference, as Fischer puts it, in which direction the country was facing. Unfortunately, he does not describe any of these transformations. But he does describe the cultures they founded. More to follow.
The book has its shortcomings. It is not strictly chronological, seeking to describe the four colonial cultures, but sometimes bringing in figures from later, like Andrew Jackson. It gives too much credit to England (ignoring, say, the Scandinavian origin of the log cabin or the strong Spanish influence on cowboy culture). The later parts attempt a brief tour of post-colonial history, and often become absurd, attempting to reduce absolutely everything to the influences of these four cultures. But it explains a lot. Many aspects of American culture suddenly make a lot more sense when viewed through the lens of the four migrations. (In particular, many things I thought were odd and contradictory about Southern culture make a lot more sense if you see it as actually the amalgam of two quite different cultures, cavalier and back country).
The first migration, from about 1629 to 1640 (the height of Charles I's power) were the Puritans. They came mostly from the eastern part of England, migrated to Massachusetts and other part of New England, and included a wide range of the middle class, from lesser gentry to more prosperous tenants and craftsmen, with plenty of merchants, yeoman farmers, and members of the learned professions. They had a powerful leader in John Winthrop, set out to build a Christian commonwealth, and actively sought to exclude people who were not like themselves. In religion they were strict Calvinists, believing that human nature is inherently evil, that most people are bound for hell and deserve it, and that God predestines everyone for heaven or hell and there is nothing we can do about it. Another important Puritan belief was the importance of the covenant. That meant not just society as a sacred covenant (as discussed in the last post), but in human relations – marriage, family, most voluntary associations – as a series of covenants. If a single word might be used to describe the Puritans, it would be tight-knit.
Once the Puritans won the civil war and established their own dictatorship in England, about 1642 to 1675, the Cavaliers (Royalists) began migrating instead, to Virginia. Jamestown colony already existed in Virginia, of course, but it was little more than an outpost. Not until after the Puritan colonies were established did Virginia start establishing anything like a normal, functioning society. Their leader was William Berkley, and the Cavalier set out to create a society something like the one they had before the Puritans seized power. They came mostly from southern and western England, were high church Anglicans (Episcopalians, semi-Catholics). The leadership came from English gentry, but many members of the lower classes also arrived, as deported convicts, debtors, or indentured servants. Slavery became widespread only later. (Incidentally, Fischer's work has a definite shortcoming here in that it focuses almost entirely on the aristocracy and ignore ordinary Virginians). They came to a land that was beautiful, but disease-ridden, rife with malaria, typhoid, dysentery and the like. If a single word might be used to describe the Cavalier culture, it would be hierarchical.
The Quaker migration took place around 1675-1695, in a calmer time, after the monarchy was restored under Charles II. Quakers came mostly from the northern parts of England, from remote and poor areas. They were mostly lower middle class, craftsmen and laborers. Many came over as indentured servants, but, unlike Virginians servants, they often advanced once they completed their terms. They were led by William Penn, a rare Quaker aristocrat, and moved to Pennsylvania. Like the Puritans, they sought to create a Christian commonwealth. The Quaker religion is hard to define because it has no creed, but it emphasizes the “inner light,” the voice of God within all of us. Quakers have no clergy and consider everyone’s inner light as their highest authority. Yet for all the individualism of their religion, Quakers were intensely conformist, submitting almost everything to the judgment of the meeting and expecting members to submit on penalty of excommunication. In their conformity and asceticism, they were often more puritan than the Puritans, except that their outlook was an optimistic one. Quakers also differed from Puritans in that their meetings had moral authority only and were not backed by the force of the state. Quakers granted freedom of religion to all monotheists and welcomed German pietists (such as Amish and Mennonites) who shared their values. I haven’t come up with a single word to describe the Quakers and welcome input.
The backcountrymen were the last migration. They came from the border area between England and Scotland, a land of constant war, as borders so often are. The backcountry migration took place around 1715-1775, when England in general had emerged from its turmoil and become calm. In the calm, the authorities began subduing the turbulent border, often with much resistance. Some borders were banished to America, where they settled in the Appalachian area. Others were banished to North Ireland and then to American, where they were referred to as the Scotch-Irish. The backcountrymen were generally Calvinists, but of a very different kind from the Puritans. They mostly came from the lower classes, though not so poor as to be unable to afford passage. They had no outstanding leader and no plan for the society they built. They also were generally banished to the “back” areas of the colonies by authorities who found them disruptive, and were excluded from political power. In turb, they distrusted the colonial authorities as much as they had distrusted the authorities in England. If a single word might be used to describe backcountry culture, it would be violent.
Over time, these four cultures changed. Puritans became Yankees. Royalists became Whigs. Whigs were the party that distrusted kings and royal prerogatives. The fiercest defenders of Charles I fully backed the overthrow of James II. The aristocracy (English and Virginian) discarded the divine rights of kings in favor of the theories of John Locke, the view that society is a contract between the people and themselves to submit to laws and a government in order to protect their natural rights. A universal “natural law” is higher than any manmade law. Any government that violates natural law and tramples on people’s natural rights has broken the term of the contract and forfeits its people’s obedience. If all this sounds familiar, it should. It is basically a secularized, do-it-yourself version of the Puritan’s theory of the sacred covenant. It is also the ideology Jefferson expressed (borrowed from Locke) in the Declaration of Independence.
Quakers also changed over time, slowly disengaging from the world and turning inward (and losing most of their influence as a result). Back settlers became frontiersmen. The distinction is subtle, but is the different between “retreating back” into the “back parts” of the colonies as opposed the pushing forward into new lands of promise. It is the difference, as Fischer puts it, in which direction the country was facing. Unfortunately, he does not describe any of these transformations. But he does describe the cultures they founded. More to follow.
Saturday, October 22, 2011
17th Century England: Origin of the United States
The last post was a very brief and grossly oversimplified history of England in the Middle Ages (with an emphasis on law). English kings established both courts and Parliament in order to enhance their own power, but these bodies developed ther own institutional interests apart from the king, and their own concepts of law apart from the king's will. In addition, the nobility forced King John to sign the Magna Charta placing limits on the king's arbitrary power.
At this point someone in CHILP asked, did the king ever test the limits of his power. And the answer was, of course. During the later Middle Ages, there was an ongoing tug-of-war between the king and Parliament for power, with strong kings prevailing over Parliament, and Parliament prevailing over weak kings. Weak kings also tended to be overthrown and to die of unnatural causes. Invariably they were replaced by a royal cousin. Invariably, the overall balance between the king and Parliament continued to see-saw back and forth and never be resolved.
But it was in the 17th Century that the struggle truly came to head. Full-scale civil war broke out between the king and Parliament in the reign of Charles I (life 1600-1649, reign 1625-1649). Supporting him were the Cavaliers (Royalists); opposing him were the Roundheads (Puritans). Part of the war was secular (the king and Parliament fighting for supremacy) and part was religious. (Henry VIII had decisively broken with the Pope, but the Church of England seemed suspiciously semi-Catholic to the Puritans who were so-called because they wanted to “purify” of of Catholic influences). Besides, in the religious fervor that was common in the early 17th Century, both sides saw the secular side of the war in religious terms. Charles argued for the divine rights of kings – the king was chosen by God and answerable to God only. Disobedience to the king was disobedience to God. The Puritans saw the society as a sacred covenant between God and the nation (based on the covenants of the Old Testament). God gave the king power only on condition that he obey God’s law. When the ruler disobeyed God’s law, he brought God’s wrath on the entire nation.
Parliament and the Puritans won the war. In 1649, they deposed Charles, put him on trial for treason and cut his head off (almost 150 years before the French made such things popular). Oliver Cromwell, leader of the Puritan army, established a military dictatorship known as the “Protectorate.” Rule by Puritans soon proved unpopular, and the Protectorate failed soon after Cromwell died. Charles I’s son, Charles II returned to the throne, and the struggle continued, though in less violent form and (on the whole) with less religious fervor. Charles II kept his throne and his head, but his yo unger brother and successor, James II committed the unpardonable sin of being a Catholic and was bloodlessly overthrown in 1688. Parliament offered the throne to James’ daughter Mary and her husband, William of Orange, subject to the Bill of Rights.
Much of the British Bill of Rights should sound familiar to Americans. It forbids unilateal rule by the king without the consent of Parliament and guarantees the right of petition, the right to keep and bear arms, freedom of speech within Parliament, trial by jury for treason, a ban on excessive bail or fines or cruel and unusual punishment and free elections and frequent sessions of Parliament.
It was out of this turmoil and upheaval that the Thirteen Colonies were formed. The colonists were generally whoever was losing at any particular time during all this war and strife, Much of our distrust for governmet, and may of our concepts of freedom, set forth in our own Bill of Rights, spring not just from complaints about British colonial rule in the 18th Century, but struggles to curb the king's power in the 17th. Indeed, fear of a return to the 17th Century kingship haunted both our Revolution and the founding of the Constitution. These 17th Century struggles shaped the attitude of the colonists who formed the colonies that became the United States.
And so, before I get to the writing of the Constitution, I would like to give a review of Albions's Seed, the immensely popular and influential cultural history of the colonists who founded the 13 colonies and the culture and attitudes they brought over from England.
At this point someone in CHILP asked, did the king ever test the limits of his power. And the answer was, of course. During the later Middle Ages, there was an ongoing tug-of-war between the king and Parliament for power, with strong kings prevailing over Parliament, and Parliament prevailing over weak kings. Weak kings also tended to be overthrown and to die of unnatural causes. Invariably they were replaced by a royal cousin. Invariably, the overall balance between the king and Parliament continued to see-saw back and forth and never be resolved.
But it was in the 17th Century that the struggle truly came to head. Full-scale civil war broke out between the king and Parliament in the reign of Charles I (life 1600-1649, reign 1625-1649). Supporting him were the Cavaliers (Royalists); opposing him were the Roundheads (Puritans). Part of the war was secular (the king and Parliament fighting for supremacy) and part was religious. (Henry VIII had decisively broken with the Pope, but the Church of England seemed suspiciously semi-Catholic to the Puritans who were so-called because they wanted to “purify” of of Catholic influences). Besides, in the religious fervor that was common in the early 17th Century, both sides saw the secular side of the war in religious terms. Charles argued for the divine rights of kings – the king was chosen by God and answerable to God only. Disobedience to the king was disobedience to God. The Puritans saw the society as a sacred covenant between God and the nation (based on the covenants of the Old Testament). God gave the king power only on condition that he obey God’s law. When the ruler disobeyed God’s law, he brought God’s wrath on the entire nation.
Parliament and the Puritans won the war. In 1649, they deposed Charles, put him on trial for treason and cut his head off (almost 150 years before the French made such things popular). Oliver Cromwell, leader of the Puritan army, established a military dictatorship known as the “Protectorate.” Rule by Puritans soon proved unpopular, and the Protectorate failed soon after Cromwell died. Charles I’s son, Charles II returned to the throne, and the struggle continued, though in less violent form and (on the whole) with less religious fervor. Charles II kept his throne and his head, but his yo unger brother and successor, James II committed the unpardonable sin of being a Catholic and was bloodlessly overthrown in 1688. Parliament offered the throne to James’ daughter Mary and her husband, William of Orange, subject to the Bill of Rights.
Much of the British Bill of Rights should sound familiar to Americans. It forbids unilateal rule by the king without the consent of Parliament and guarantees the right of petition, the right to keep and bear arms, freedom of speech within Parliament, trial by jury for treason, a ban on excessive bail or fines or cruel and unusual punishment and free elections and frequent sessions of Parliament.
It was out of this turmoil and upheaval that the Thirteen Colonies were formed. The colonists were generally whoever was losing at any particular time during all this war and strife, Much of our distrust for governmet, and may of our concepts of freedom, set forth in our own Bill of Rights, spring not just from complaints about British colonial rule in the 18th Century, but struggles to curb the king's power in the 17th. Indeed, fear of a return to the 17th Century kingship haunted both our Revolution and the founding of the Constitution. These 17th Century struggles shaped the attitude of the colonists who formed the colonies that became the United States.
And so, before I get to the writing of the Constitution, I would like to give a review of Albions's Seed, the immensely popular and influential cultural history of the colonists who founded the 13 colonies and the culture and attitudes they brought over from England.
Monday, October 17, 2011
Introduction
A number of you (you know who you are) have suggested to me that I am making a mistake in letting my writing skills and my knowledge of history and law go to waste and that I should write something. My answer has always been that being published is hard and that, anyhow, anything I write is too obscure for the general public and too superficial for serious scholars. This blog, Obscure but Superficial is my compromise. It will be on US history, law and constitution. I intend to begin a decidedly selective stroll through our history with an emphasis on law, though other subjects will be allowed.
I will begin, though, by reviewing some of what Professor Fritz taught us in CHILP (Comparative Historical and Legal Perspectives). Americans are people of many ethnic origins, but our laws and institutions are mostly English in origin, so to understand the United States, we need some understanding of England. Fritz goes back to the Middle Ages when most decisions were made in manorial courts, under control of the local feudal lord with decidedly mixed standards of justice. The king began establishing royal courts. Royal justice proved superior to manorial justice, and more and more cases moved into royal courts. This was adventageous to the king in that trying more cases in royal courts enhanced his power at the expense of local lords. This was important to the king because maintaining domination over the nobility might decide whether the king held onto his throne -- and his life.
Royal courts made an important advance during the reign of Henry II, (life 1133-1189, reign 1154-1189). He introduced the practice of trial by jury and had judges follow precedents set by other judges to establish a common law throughout the realm. Henry II's son John was an example of a king who could not maintain his domination over the nobility. They revolted against him and forced him to sign the Magna Charta. Much of the Magna Charta deals with feudal relations, but some of the guarantees sound familiar to us.
This makes for several important points. One is that common law, i.e., judge made law, came first and statutes later. Another is that statutes have the power to override common law, but judges can only interpret statutes.* Another is that statutes have expanded and increasingly displaced common law, but that it was not always so. But perhaps most important is that, contrary to what most people believe, laws are NOT those things passed by the legislature. Those are statutes, which are a sub-category of law, but not the entirety of it. But don’t feel bad if you have difficulty with the distinction; many lawyers, judges and even Supreme Court justices use the terms law and statute interchangeably. Nonetheless, my attempt will be to use “law” broadly, to mean anything that is legally binding, “statute” to mean laws passed by the legislature, “common law” to mean judge-made law in the absence of any statute, and “case law” to mean judicial interpretation of statutes. If I slip up, correct me.
_______________________________________________
*Of course, the U.S. Supreme Court can also strike down statutes as contrary to the Constitution, but that is a later development.
I will begin, though, by reviewing some of what Professor Fritz taught us in CHILP (Comparative Historical and Legal Perspectives). Americans are people of many ethnic origins, but our laws and institutions are mostly English in origin, so to understand the United States, we need some understanding of England. Fritz goes back to the Middle Ages when most decisions were made in manorial courts, under control of the local feudal lord with decidedly mixed standards of justice. The king began establishing royal courts. Royal justice proved superior to manorial justice, and more and more cases moved into royal courts. This was adventageous to the king in that trying more cases in royal courts enhanced his power at the expense of local lords. This was important to the king because maintaining domination over the nobility might decide whether the king held onto his throne -- and his life.
Royal courts made an important advance during the reign of Henry II, (life 1133-1189, reign 1154-1189). He introduced the practice of trial by jury and had judges follow precedents set by other judges to establish a common law throughout the realm. Henry II's son John was an example of a king who could not maintain his domination over the nobility. They revolted against him and forced him to sign the Magna Charta. Much of the Magna Charta deals with feudal relations, but some of the guarantees sound familiar to us.
Other provisions stress the concept of a general law that is binding on all, even the king. It was in the time of John's grandson and Henry II's great-grandson Edward I that Parliament was established as an institution, with the power to pass its own kind of law called statutes.(38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except
by the lawful judgement of his equals or by the law of the land.
(40) To no one will we sell, to no one deny or delay right or justice.
This makes for several important points. One is that common law, i.e., judge made law, came first and statutes later. Another is that statutes have the power to override common law, but judges can only interpret statutes.* Another is that statutes have expanded and increasingly displaced common law, but that it was not always so. But perhaps most important is that, contrary to what most people believe, laws are NOT those things passed by the legislature. Those are statutes, which are a sub-category of law, but not the entirety of it. But don’t feel bad if you have difficulty with the distinction; many lawyers, judges and even Supreme Court justices use the terms law and statute interchangeably. Nonetheless, my attempt will be to use “law” broadly, to mean anything that is legally binding, “statute” to mean laws passed by the legislature, “common law” to mean judge-made law in the absence of any statute, and “case law” to mean judicial interpretation of statutes. If I slip up, correct me.
_______________________________________________
*Of course, the U.S. Supreme Court can also strike down statutes as contrary to the Constitution, but that is a later development.
Subscribe to:
Posts (Atom)